STEEN v. APPELLATE DIVISION

Respondent’s Supplemental Brief

Cal.March 14, 2014

ReedSmith aed Smith 101 Second Street Suite 1800 San Francisco, CA 94105-3659 Paul D. Fogel , Direct Phone: +1415 659 5929 +1 415 543 8700 Fax +1 415 391 8269Email: pfogel@reedsmith.com reedsmithcom SUPREME COURT March 14, 2014 FILED Hon.Tani Cantil-Sakauye, ChiefJustice MAR 1 4 2014 Hon. Associate Justices Frank A. McGuire Clerk Supreme Court of California . ran Cee ure Met 350 McAllister Street Deputy San Francisco, CA 94102 RECEIVED Re: Steen vy. Appellate Division, Superior Court of MAR 142014 Los Angeles County, No. 8174773 Dear Chief Justice Cantil-Sakauye and Associate Justices: CLERK SUPREME COURT This original writ matter is fully briefed and awaiting oral argument. On March6, 2014, petitioner Jewerelene Steen filed a letter brief concerning People v. Simpson, 223 Cal.App.4th Supp. 6 (2014), a recent decision of the Appellate Division of the Superior Court of Los Angeles County (copy attachedto this letter brief). In her letter, Steen claimsthat Simpson supports her argument that Penal Code section 959.1(c) (“section 959.1(c)’”) violates the separation ofpowers doctrine. Respondent Appellate Division, Superior Court of Los Angeles County submits this response and asksthat the Court considerit with petitioner’s letter brief. Asexplained below, Simpson does not undermine the Appellate Division’s arguments that section 959.1(c) does not violate the separation of powers doctrine. The Issue Before The Court In Steen Penal Codesection 959.1(c)(1) permits a court clerk, “(njotwithstanding [Penal Code] Sections 740, 806, 949, and 959 or any other law to the contrary,” to issue an “accusatory pleading” for the “offenses of failure to appear, pay a fine, or comply with an orderof the court.” The issue presented in this case is whetherthis statute violates the NEW YORK ¢ LONDON ¢ HONG KONG ¢ CHICAGO « WASHINGTON,0.C. ¢ BEIJING ¢ PARIS ¢ LOS ANGELES « SAN FRANCISCO ¢ PHILADELPHIA ¢ SHANGHAI ¢ PITTSBURGH ¢ HOUSTON SINGAPORE ¢ MUNICH « ABU DHABI « PRINCETON ¢ NORTHERN VIRGINIA ¢ WILMINGTON ¢ SILICON VALLEY ¢ DUBAI ¢ CENTURY CITY ¢ RICHMOND ¢ GREECE ¢ KAZAKHSTAN Hon. Tani Cantil-Sakauye, ChiefJustice Hon.Associate Justices ReedSmith Re: Steen v. Appellate Division, Superior Court ofLos Angeles County, No. $174773 March 14, 2014 Page 2 separation of powers doctrine and/or federal and state due process guarantees. That issue was not presented in Simpson. Background This case arises from petitioner’s failure-to-appear misdemeanor conviction. After being cited for driving with an expired registration and failing to provide evidence offinancial responsibility, Steen signed a written promise to appear before the Los Angeles County Superior Court clerk, but then broke her promise andfailed to appear. A court clerk issued a complaint charging Steen with failure to appear. Five years later, Steen appeared and demurred to the complaint on the groundsthat section 959.1(c) violates the California Constitution’s separation ofpowers doctrine and the federal and state Constitutions’ due process clauses. Thetrial court overruled the demurrer, accepted Steen’s no contest plea, denied her probation, and sentenced her to county jail with credit for the time she had served. She appealed the conviction to the Appellate Division, which issued an unpublished opinion in June 2009, upholding both the order overruling her demurrer and her failure-to-appear conviction and rejecting her constitutional challenge. The panel consisted of Judges Debre K. Weintraub, Patti Jo McKay, and Fumiko H. Wasserman. After Steen unsuccessfully petitioned the Court of Appeal for a transfer of the matter, she filed an original writ petition in this Court, which retained the matter and issued an OSCdirecting the People and the Appellate Division to file returns addressing the separation of powersissue. Approximately three years after they did so, this Court issued another OSC, directing the Appellate Division and the People to file returns addressing the due processissue and statute of limitations issue that is unique to ' Steen’s case. Those returns werefiled in late 2012. Hon. Tani Cantil-Sakauye, Chief Justice Hon. Associate Justices ReedSmith Re: Steen v. Appellate Division, Superior Court ofLos Angeles County, No. $174773 March 14, 2014 Page 3 People v. Simpson AndPetitioner’s Letter Brief In her March6 letter brief, petitioner claims that since the Appellate Division filed its second return, given Simpson—which wasdecided by a differently-constituted panel of the Appellate Division (Judges Alex Ricciardulli, Sanjay Kumar, and Gregory Keosian)—“the Appellate Division has changed its collective mind.” (Ltr. at 2) To understand why that claim is an unfounded exaggeration, we explore Simpson in some detail and compareit to the argumentsin this case. Simpson began when Ms. Simpson wascited by a Los Angeles Police Departmentofficer for unlawfully crossing a double yellow line to enter a high-occupancy vehicle (HOV)lane, a Vehicle Code violation, on a Los Angeles freeway. She invokedherright to a trial at which the officer testified that he observed her vehicle change lanes in front ofhim and cross over double yellow lines into the HOV lane, causing the officer to brake suddenly to avoid a collision. Simpson, 223 Cal.App.4th Supp.at 8. Thetrial court then informed Simpsonthat it would find her guilty, and askedthe officer whether Simpson’s lane change was unsafe. The officer responded, “Yes.” The court then added the charge of making an unsafe lane change and found Simpson guilty of both crossing double yellow lines into an HOV lane and making an unsafe lane change. The court fined Simpson, who then appealed. Jd. at 9. The Appellate Division ruled thatthe trial court’s sua sponte amendmentofthe unsafe lane change charge waserror becausethetrial court “did not have authority on its own motion to amend the complaint to add the charge.” Jd. at 8. The Appellate Division rested its holding on statutory grounds—an important detail Steen neglects to mention in her letter. Hon. Tani Cantil-Sakauye, Chief Justice Hon. Associate Justices ReedSmith Re: Steen v. Appellate Division, Superior Court | ofLos Angeles County, No. 8174773 March 14, 2014 Page 4 Simpson noted that Penal Code section 1009 “only allows a court to ‘order or permit .... the filing of an amended complaint,’ meaning that only a prosecutor may amend a complaint. In the presentcase, the court did not grant a motion to amendbythe prosecution, but rather itself amended the complaint by adding to the notice to appear the unsafe lane change violation. As such, it exceeded the statutory authority given to it by Penal Code section 1009.” Simpson, 223 Cal.App.4th Supp.at 9 (ital. added). Although Simpson rested its holding on statutory grounds, it went on to make comments aboutthe separation ofpower doctrine—commentsthat, because the decision is based on statutory grounds, amount to pure dictum. It is that dictum on whichSteenrelies in herletter. Simpsonnoted that “permitting a court itse/fto amend a notice to appear or a complaint would be unconstitutional based on a violation of separation of powers.” /d. (orig. ital.) The totality of the Appellate Division’s analysis on that point consists of the following: Article III, section 3 of the California Constitution provides: The powers of state governmentare legislative, executive, and judicial. Persons charged with the exercise of one power may notexercise either of the others except as permitted by this Constitution. It is well settled that the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what chargesto bring. [Citations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from the complex considerations necessary for the effective and efficient administration of law enforcement. [Citation.] The prosecution’s authority in this regard is founded, among otherthings, on the principle of separation ofpowers, and generally is not subject to Hon.Tani Cantil-Sakauye, Chief Justice Hon. Associate Justices ReedSmith Re: Steen v. Appellate Division, Superior Court ofLos Angeles County, No. 8174773 March 14, 2014 Page 5 supervision by the judicial branch. [Citations.] (People v. Birks (1998) 19 Cal.4th 108, 134.) A court cannot authorize the institution of a criminal prosecution without the approval of the prosecutor. (People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 204.) Thus,the trial court usurped the prosecutor’s discretionary powerto controlthe institution of criminal proceedings and violated the separation ofpowers by sua sponte adding a charge to the complaint. Simpson, 223 Cal.App.4th Supp.at 9 (internal quotation marks omitted). The Dictum In Simpson Does Not Undermine The Appellate Division’s Arguments In This Case The Appellate Division’s dictum stating that the separation of powersdoctrine prohibits a court from sua sponte “add[ing] a charge”to a criminal complaint must be understood in context. As noted, Simpson did not involve section 959.1(c), which authorizes a court clerk to issue a complaint for failure to appear, pay a fine, or comply; nor wasthere any other statutory authority for the amendment. Thus, Simpson’s statement that “[a] court cannot authorize the institution of a criminal prosecution without the approval of the prosecutor” must be understood as confined to a situation in which no statutory authority exists for the court to institute a criminal prosecution. In addition, contrary to what petitioner implies, Simpson did not purport to undermine the Appellate Division’s decision in this case, in which the Appellate Division held that neither the separation ofpowers doctrine nor due processplaces in jeopardy, muchless invalidates, the authority that section 959.1(c) gives a court clerk to initiate a complaint for the three offenses the statute specifies. It is also questionable whether Pellegrino, which Simpsoncited, supports Simpson’s broad statementthat “[a] court cannot authorize the institution of a criminal prosecution without the approval of the Hon. Tani Cantil-Sakauye, ChiefJustice Hon. Associate Justices ReedSmith Re: Steen v. Appellate Division, Superior Court . ofLos Angeles County, No. $174773 March 14, 2014 Page 6 prosecutor.” As we explained in our return, Pellegrino involved a situation very different from both Simpson and the caseat bar. Pellegrino involved a criminal action commencedbya private individual (Pellegrino), without the District Attorney’s authorization or approval, after the trial court had disqualified the District Attorney and appointed Pellegrino as “Special Prosecutor.” See Pellegrino, 27 Cal.App.3d at 195-97. The Court of Appeal upheld an order granting the writ petition of the District Attorney and Attorney General to vacateits orders disqualifying the District Attorney and appointing Pellegrino as Special Prosecutor and dismissing the prosecution. Jd. at 198-206. The Court of Appeal held that the filing of criminal complaints by an individual “must be approved, authorized or concurredin by the district attorney before they are effective in instituting criminal proceedings against an individual.” Jd. at 206. Wealso noted that what concerned the Pellegrino court wasthat private individuals could misuse the prosecutorial powerin an effort to redress a personal grievance against an adversary and thereby undermine the fairness and efficiency of the criminal justice system. See Pellegrino, 27 Cal.App.3d at 201. To guard against such “misuse,” we noted, Pellegrino held that a private individual could file a complaint and commence criminal prosecution against another individual but that the complaint would not become “effective in instituting criminal proceedings’ unless a prosecutor “approved, authorized or concurred in”it. Jd. at 206. > Wealso noted the obvious: that Pellegrino did not involve section 959.1(c) or court clerk-initiated complaints; indeed, that statute was not enacted until 18 years after Pellegrino was decided. And we noted that nothing in Pellegrino suggests that a court clerk violates due processor the separation ofpowers doctrine in issuing complaints for the offenses permitted by that statute. Nor does Pellegrino, we noted, hold that due Hon.Tani Cantil-Sakauye, Chief Justice Hon. Associate Justices ReedSmith Re: Steen v. Appellate Division, Superior Court ofLos Angeles County, No. 8174773 March 14, 2014 Page 7 process makes such a complaint “effective” only after a prosecutor approves, authorizes or concursinit. Finally, we noted that even ifunder Pellegrino, the court clerk’s filing of the complaint against Steen under section 959.1(c) had to be “approved, authorized or concurred in” by the City Attorney beforeit became “effective in instituting criminal proceedings against”her, Pellegrino does not require that such complaints “must be approved, authorized or concurred in” by a prosecutor before they arefiled. Rather, Pellegrino states that a prosecutor must approve, authorize, or concurin their filing “before they are effective in instituting criminal proceedings against an individual.” 27 Cal.App.3d at 206(italics added). In our case, at the hearing on Steen’s demurrer, the City Attorney did “approve, authorize, or concur”in the filing of the court clerk’s complaint. (Pet. Ex. B at 7 (“[W]e explicitly approve and concurin”the filing of the complaint.). Asnoted, Simpson did not involve section 959.1(c). It involved a judge who,acting without statutory authority, took it upon herself to amend a complaint to add a charge after the evidence at trial—which came exclusively from the testimony of a police officer—trevealed support for the charge. Unlikein this case, that unilateral action was unaccompanied by the Pellegrino-mandated “approval, authorization, or concurrence”in the amendmentbya prosecutor. Thus, to uphold such an amendment would have undermined the Legislature’s delegation of exclusive power to prosecutors to amend complaints and would have permitted judges, without statutory authority, to exercise that power. In addition, there wasthe elementof surprise that was no doubt offensive to the Appellate Division. Had Simpson had advance warningofthe additional charge, she could have determined whether she wishedto proceedto trial on what would be two charges rather than one. Hon.Tani Cantil-Sakauye, Chief Justice Hon. Associate Justices ReedSmith Re: Steen v. Appellate Division, Superior Court ofLos Angeles County, No. $174773 March 14, 2014 Page 8 There is another aspect of Simpsonthatis different from the situation in Steen: In Simpson, the evidence on whichthe court-ordered amendment was based came from events that occurred outside the court system—there, “on the 405 Freewaynorth of the Avalon exit” [Simpson, 223 Cal.App.4th Supp. at 8]—and supported by the testimony of an executive branch witness unconnected to the court system—anofficer of the Los Angeles Police Department. As we emphasizedin ourreturn, unlike all other criminal offenses, the three offenses in section 959.1(c) whose prosecution a court clerk may initiate are limited in kind—authorized only for failure to appear, pay a fine, or comply with a court order; traditional in character—similar to the prosecutions that courts have commencedfor indirect contempt since California wasadmitted to the Union in 1850;' and supported by probable cause—i.e., evidence that court clerks have actual or constructive knowledge of in the form of data in county computer systems. In that limited circumstance,the initiation of a complaint by a court clerk does not violate the separation of powers doctrine becauseit does not “necessarily result[ ] in a material impairment” of another branch’s “inherent power[.]” Obrien v. Jones, 23 Cal.4th 40, 50 (2000). Simpson, of course, had no reason to consider these points because the unsafe lane offense at issue is vot among the three court-related offenses that the Legislature has permitted court clerksto initiate under Aswenotedin our return, courts possess the authority to commence criminal contempt prosecutions independently of prosecutors. See, e.g., In re Michael G., 44 Cal.3d 283, 295-96 & n.10 (1988) (describing the “inherent contempt powerofthe courts”); In re Buckley, 10 Cal.3d 237, 247-48 (1973) (same); see also In re Shortridge, 99 Cal. 526, 532 (1893) (court have the “inherent right ... to punish as a contempt an act, whether committed in or out of its presence, which tends to impede, embarrass, or obstruct the court in the discharge ofits duties...”). Hon. Tani Cantil-Sakauye, Chief Justice Hon. Associate Justices ReedSmith Re: Steen v. Appellate Division, Superior Court ofLos Angeles County, No. 8174773 March 14, 2014 Page 9 section 959.1(c). The dictum in Simpson can thus be read as standing for a very limited proposition: that a judge’s sua sponte, in-court, and mid-trial amendmentofa charge that is not among the offenses specified in that statute and that is based on evidence from a non-court-related witness testifying about an event that occurred outside the court system “necessarily” “materially impairs” the prosecutor’s “inherent power” because the Legislature has delegated the power to amend with such charges exclusively to prosecutors and withheld it from judges. *g os Conclusion Simpson does not constitute the “game-changer” that Steen claimsit is. It thus furnishes no basis for this Court to do what Steen urges—to “rule[ ], in conformance with People v. Simpson,that the initiation of the misdemeanorproceeding against her by a court clerk was constitutionally invalid.” (Ltr. at 3) Respectfully submitted, vyuhey— ) Paul D. Fogel Attorneys for Respondent Appellate Division, Superior Court of Los Angeles County PDF:pf cc: See attached service list WORD COUNT CERTIFICATE Pursuant to California Rule of Court 8.520(d)(2), this Letter Brief contains 2,437 words (including footnotes, but excludingthe salutation, the signature block andthis certificate). In so stating, I have relied on the word Hon. Tani Cantil-Sakauye, Chief Justice Hon. Associate Justices ReedSmith Re: Steen v. Appellate Division, Superior Court ofLos Angeles County, No. 8174773 March 14, 2014 Page 10 count of Microsoft Office Word 2010, the computer program used to prepare the return. Executed on March 14, 2014 pe Francisco, California. aut)A / Paul D.Fogél Westlaw. Page 1 223 Cal.App.4th Supp. 6, 167 Cal.Rptr.3d 396, 14 Cal. Daily Op. Serv. 920 (Cite as: 223 Cal.App.4th Supp. 6, 167 Cal.Rptr.3d 396) Cc Appellate Division, Superior Court, Los Angeles County. PEOPLEofthe State of California, Plaintiff and Re- spondent, V. Erica SIMPSON,Defendant and Appellant. No. BR 050810. Jan. 24, 2014. Certified For Partial Publication.” FN* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part IT1.B. Background: Defendant was convicted in the Supe- rior Court, Los Angeles County, Metropolitan Trial Court, No. B717240,Deborah Christian,J., of crossing double yellow lines into a high-occupancy vehicle (HOV)lane, and making an unsafe lane change. De- fendant appealed. Holding: The Superior Court, Appellate Division, Ricciardulli, J., held that court usurped prosecutor's authority and violated separation of powers when it amended complaintitself. Reversed. West Headnotes [1] Criminal Law 110 <28 110 Criminal Law 1101 Nature and Elements of Crime 110k28 k. Degrees of offenses. Most Cited Cases Criminal Law 110 ©1714 110 Criminal Law 110XXXI Counsel 110XXX1(B) Right of Defendant to Counsel 110XXXI(B)1 In General 110k1711 Offenses, Tribunals, and Proceedings Involving Right to Counsel 110k1714 k. Nature or degree of offense. Most Cited Cases Jury 230 <=22(.5) 230 Jury 230II Right to Trial by Jury 230k20 Criminal Prosecutions 230k22 Misdemeanors and MinorOffenses 230k22(.5) k. In general. Most Cited Cases Aninfraction is a criminal matter subject gener- ally to the provisions applicable to misdemeanors, except for the right to a jury trial, the possibility of confinement as a punishment, and the right to court-appointed counsel if indigent. U.S.C.A. Const.Amend. 6; West's Ann.Cal.Penal Code §§ 16, 19.6, [2] Indictment and Information 210 <"162 210 Indictment and Information 210X1 Amendment 210k162 k. Complaint or affidavit. Most Cited Cases A complaint may be amendedat any stage of the © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 223 Cal.App.4th Supp.6, 167 Cal.Rptr.3d 396, 14 Cal. Daily Op. Serv. 920 (Cite as: 223 Cal.App.4th Supp. 6, 167 Cal.Rptr.3d 396) proceedings, so long as the amendment does not prejudice the substantial rights of the defendant; an amendment may be made even at the close oftrial where no prejudice is shown, [3] Constitutional Law 92 €-2545(2) 92 Constitutional Law 92XX Separation of Powers 92XX(C) Judicial Powers and Functions 92XX(C)3 Encroachment on Executive 92k2542 Particular Issues and Applica- tions 92k2545 Criminal Law 92k2545(2) k. Prosecutors. Most Cited Cases District and Prosecuting Attorneys 131 €=8(6) 131 District and Prosecuting Attorneys 131k8 Powers and Proceedings in General 131k8(6) k. Charging discretion. Most Cited Cases Indictment and Information 210 <*"162 210 Indictment and Information 210XI Amendment 210k162 k. Complaint oraffidavit. Most Cited Cases Court usurped the prosecutor's discretionary power to control the institution of criminal proceed- ings and violated the separation of powers when court itself amended complaint to add charge of making an unsafe lane change. West's Ann.Cal. Const. Art. 3, § 3; West's Ann.Cal.Penal Code § 1009; West's Ann.Cal.Vehicle Code § 21658. [4] Constitutional Law 92 <2620 92 Constitutional Law 92XX Separation of Powers 92XX(D) Executive Powers and Functions 92k2620 k. Nature and scope in general. Most Cited Cases District and Prosecuting Attorneys 131 8(6) 131 District and Prosecuting Attorneys 131k8 Powers and Proceedings in General 131k8(6) k. Charging discretion. Most Cited Cases Prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to de- termine whom to charge with public offenses and what charges to bring; this prosecutorial discretion to choose, for each particular case, the actual charges from amongthose potentially available arises from the complex considerations necessary for the effective and efficient administration of law enforcement. West's Ann.Cal. Const. Art. 3, § 3. [5] Constitutional Law 92 €=2545(2) 92 Constitutional Law 92XX Separation of Powers 92XX(C)Judicial Powers and Functions 92%X(C)3 Encroachmenton Executive 92k2542 Particular Issues and Applica- tions 92k2545 Criminal Law 92k2545(2) k. Prosecutors. Most Cited Cases The prosecution's authority to determine whom to charge and what charges to bring is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch. West's Ann.Cal. Const. Art. 3, § 3. [6] Constitutional Law 92 €=°2545(2) © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 223 Cal-App.4th Supp. 6, 167 Cal.Rptr.3d 396, 14 Cal. Daily Op. Serv. 920 (Cite as: 223 Cal.App.4th Supp. 6, 167 Cal.Rptr.3d 396) 92 Constitutional Law 92XX Separation of Powers 92XX(C) Judicial Powers and Functions 92XX(C)3 Encroachment on Executive 92k2542 Particular Issues and Applica- tions 92k2545 Criminal Law 92k2545(2) k. Prosecutors. Most Cited Cases A court cannot authorize the institution of a criminal prosecution without the approval of the prosecutor. West's Ann.Cal. Const. Art. 3, § 3. [7] Criminal Law 110 <=1032(1) 110 Criminal Law 110XXITV Review 110XXIV(E) Presentation and Reservation in LowerCourt of Grounds of Review !10XXIV(E)I In General 110k1032 Indictment or Information 110k1032(1) k. In general. Most Cited Cases Defendant's failure to objectto trial court's act in amending complaint to add charge of making an un- safe lane change did not preclude appellate review; defendant did not have the opportunity to object, as court ordered the amendment and immediately there- after found defendant guilty, and, in any event, issue raised involved only questions of law based on un- disputed facts. West's Ann.Cal.Penal Code § 1009. See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 242. **397 Erica Simpson, in pro. per., for Defendant and Appellant. Michael N. Feuer, City Attorney, Debbie Lew, As- sistant City Attorney, John R. Winandy, Deputy City Attorney, for Plaintiff and Respondent. OPINION RICCIARDULLI, J. *8 I. INTRODUCTION Appellant and defendant Erica Simpson appeals the judgment of conviction following**398 a court trial for crossing double yellow lines into a high-occupancy vehicle (HOV) lane, and for making an unsafe lane change. (Veh.Code, §§ 21655.8, subd. (a), 21658, subd. (a), respectively.) Pursuant to Gov- ernment Code section 68081, the parties were pro- vided with an opportunity to submit supplemental briefs addressing the issue of whether the trial court violated the separation of powers doctrineorits stat- utory authority by amending the complaint sua sponte to add the charge of making an unsafe lane change during thetrial. As discussed below in the published portion of this opinion, we reverse the judgment of conviction for making an unsafe lane change. The court did not have authority on its own motion to amend the com- plaint to add the charge. In the unpublished portions of this opinion, we reject defendant's arguments that the judgment should be reversed with respect to her con- viction for crossing double yellow lines into an HOV lane. I], FACTUAL AND PROCEDURAL BACKGROUND On April 9, 2012, defendant was issued citation for crossing double yellow lines into an HOV lanein violation of section 21655.8, subdivision (a). De- fendant signed a promise to appear in court on or before June 14, 2012. Defendant requested and was provideda trial by written declaration. The ticketing officer submitted a declaration concerning the infrac- tion. After being found guilty, defendant requested a trial de novo, At the trial de novo on March 11, 2013, Los Angeles Police Department Officer Schooptestified that he observed defendant's vehicle traveling south- © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 223 Cal.App.4th Supp. 6, 167 Cal.Rptr.3d 396, 14 Cal. Daily Op. Serv. 920 (Cite as: 223 Cal.App.4th Supp.6, 167 Cal.Rptr.3d 396) bound on the 405 Freeway north of the Avalon exit. Defendant changedlanesin front ofthe officer into the HOVlane, crossing over a set of clearly visible double yellow lines which were in good repair. Defendant caused Schoop to brake suddenly in order to avoid a traffic collision. *9 Schooptestified that he originally wrote on the citation that the incident occurred “South of Avalon,” but prior to defendant signing her promise to appear, he made a correctionto the citation indicating that the violation occurred “North of Avalon.” Defendant asked Schoop at trial why he wrote “south” in his declaration, and he responded that he “made a mis- take.” Defendant requested that the case be dismissed because her citation stated that the violation occurred south of Avalon, and she prepared her defense relying on the location specified in her citation. The court denied her request, pointing out that the court's copy of the citation provided that the location of the viola- tion was north of Avalon. The court further stated that the correction on the original citation regarding the location must not have gone through the carbon paper onto defendant's copy ofthe citation. The court told defendant that it was going to find her guilty, and asked Schoop whether defendant's lane change was unsafe. The officer responded,“Yes.” The court then added the charge of making an unsafe lane change under Vehicle Code section 21658, subdivi- sion (a), and found defendant guilty both of crossing double yellow lines into an HOV lane, and of making an unsafe lane change. The court imposed a fine, and defendant filed a timely notice of appeal. IH. DISCUSSION A, The Court's Amendment to Add a Charge {1][2] An infraction is a criminal mattersubject generally tothe provisions applicable to misdemean- ors, except for the right **399 to a jury trial, the pos- sibility of confinement as a punishment, and the right to court-appointed counsel if indigent. (Pen.Code, §§ 16, 19.6.) A written notice to appearfiled with thetrial court constitutes a complaint charging a person with an infraction. (Veh.Code, § 40513, subds. (a), (b).) A complaint may be amended at any stage of the pro- ceedings, so long as “the amendment does not preju- dice the substantial rights of the defendant[citations].” (People v. Valles (1961) 197 Cal.App.2d 362, 371, 17 Cal.Rptr. 204.) “An amendment may be made even at the close of trial where no prejudice is shown. [Cita- tions.]” (People v. Witt (1975) 53 Cal.App.3d 154, 165, 125 Cal.Rptr. 653.) [3] Penal Code section 1009 only allows a court to “order or permit ... the filing of an amended com- plaint,” meaning that only a prosecutor may *10 amend a complaint. In the present case, the court did not grant a motion to amend by the prosecution, but rather itself amended the complaint by adding to the notice to appear the unsafe lane change violation. As such, it exceeded the statutory authority givento it by Penal Code section 1009. Moreover, as explained below, permitting a court itse/fto amend a notice to appear or a complaint would be unconstitutional based on a violation of separation of powers. [4][5][6] Article Ill, section 3 of the California Constitution provides: “The powers of state govern- ment are legislative, executive, and judicial. Persons charged with the exercise of one power may not ex- ercise either of the others except as permitted by this Constitution.” “It is well settled that the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what chargesto bring. [Ci- tations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from ‘ “the complex considerations necessary for the effective and efficient administration of law enforcement.” ” [Citation.] The prosecution's authority in this regard is founded, amongother things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch. [Citations.]” (People v. Birks (1998) 19 Cal 4th 108, 134, 77 Cal.Rptr.2d 848, 960 © 2014 Thomson Reuters, No Claim to Orig. US Gov. Works. Page 5 223 Cal.App.4th Supp. 6, 167 Cal.Rptr.3d 396, 14 Cal. Daily Op. Serv. 920 (Cite as: 223 Cal.App.4th Supp. 6, 167 Cal.Rptr.3d 396) P.2d 1073.) A court cannot authorize the institution of a criminal prosecution without the approval of the prosecutor. (People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 204, 103 Cal.Rptr. 645.) Thus, the trial court usurped the prosecutor's discre- tionary power to control the institution of criminal proceedings and violated the separation of powers by sua sponte adding a charge to the complaint. [7] We reject the People's argumentin their sup- plemental brief that defendant failed to preserve the issue by not objecting on this ground in thetrial court. Basedon the court's action of ordering the amendment and immediately thereafter finding defendant guilty, we find defendant did not have the opportunity to object, and, in any event, because the issue raised “involve [s] only questions of law based on undis- puted facts” (People v. Rosas (2010) 191 Cal.App.4th 107, 115, 119 Cal.Rptr.3d 74), we conclude that the issue is properly before us. B. Contentions Regarding Crossing Double Yellow . oe EN** Lines Conviction ‘S FN** See footnote *, ante. *11 IV. DISPOSITION The judgment of conviction for making an unsafe lane changeis reversed. The judgmentofconvictionis affirmed regarding**400 the conviction for crossing double yellow lines into an HOV lane. We concur. KUMAR, ACTING P.J., and KEOSIAN, J. Cal.Super.A.D.,2014. People v. Simpson 223 Cal.App.4th Supp. 6, 167 Cal.Rptr.3d 396, 14 Cal. Daily Op. Serv. 920 END OF DOCUMENT © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. PROOF OF SERVICE Jewerelene Steen vs. Los Angeles Superior Court, Appellate Division (People of the State ofCalifornia, Real Party in Interest), Supreme Court No. $174773, Los Angeles Appellate Division No. BR046020, Los Angeles Superior Court No. 6200307 Iam a resident of the State of California, over the age of eighteen years, and not a party to the within action. Mybusiness address is REED SMITH LLP,101 Second Street, Suite 1800, San Francisco, CA 94105-3659. On March 14, 2014,I served the following document(s) by the method indicated below: LETTER BRIEF M by placing the document(s) listed abovein a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California addressed as set forth below. I am readily familiar with the firm’s practice of collection and processing of correspondence for mailing. Underthat practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumedinvalid if the postal cancellation date or postage meter date is more than one dayafter the date of deposit for mailing in this Declaration. O_ by placing the document(s) listed above in a sealed envelope(s) and consigning it to an express mail service for guaranteed delivery on the next business day following the date of consignmentto the address(es) set forth below. A copy of the consignmentslip is attached to this proof of service. John Hamilton Scott, Esq. Attorneys for Petitioner Jewerelene Albert J. Menaster, Esq. Steen Office of the Public Defender 320 W. Temple Street, Room 590 Los Angeles, CA 90012 Charles W. McCoy,Esq. Attorneys for Respondent Los Angeles County Superior Court Los Angeles County Superior 111 North Hill Street, Room 546 Court, Appellate Division Los Angeles, CA 90012 US_ACTIVE-111220595.1 Carmen A. Trutanich, Esq. Katharine Helen S. MacKenzie, Esq. Eris Shannon,Esq. Los Angeles County Superior Court 200 N. Main Street, 500 City Hall East Los Angeles, CA 90012 Attorneys for Real Party in Interest The People of the State of California Attorney General Los Angeles Office Office of the Attorney General 300 South Spring Street, 5" Floor Los Angeles, CA 90013 Attorneys for Real Party in Interest The People ofthe State of California Phyllis Chiemi AsayamaDeputy District AttorneyLos Angeles County District Attorney Office320 W. Temple Street, Suite 540Los Angeles, CA 90012 Attorneys for Amicus CuriaeLos Angeles County DistrictAttorney I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed o California. _2- Aarch 14, 2014, at San Francisco, VMowtne Eileen Kroll * Proof of Service