WHAT IS THE DISTRICT ATTORNEY REQUIRED TO DO REGARDING THE INSTITUTION OF A VEHICLE CODE INFRACTION CASE?
RULES THAT APPLY TO THE DISTRICT ATTORNEY
ARE FOUND IN THESE COURT CASES...
• Ahlers. v. Smiley (1909) 11 C.A.343, 104 P. 997.
• Barragan v. Superior Court of Yolo County (2007) C054719, COURT OF APPEAL OF THE STATE OF CALIFORNIA, THIRD APPELLATE DISTRICT
• Bayle-Lacoste & Co. v. Superior Court (1941) 46 Cal. App. 2d 636
• Birch Securities Co. v. People of State of California, 69 S.Ct. 745, 336 U.S. 936, 93 L.Ed. 1095.
• Bernstein v. Piller (1950) 98 C.A.2d 441
• Brown v. Sweet (1928) 95 C.A. 117, 272 P. 614.
• Burks v. United States (1961) 287 F.2d 117, 9th Cir.
• City of San Diego v. Municipal Court (1980) 102 Cal. App. 3d. 775
• Feldesman v. McGovern (1941) 44 C.A.2d 566.
• Frace v. Long Beach City High School Dist. (1943) 137 P.2d 60, 58 C.A.2d 566
• Gates v. Lane (1872),98 C. 499
• Going v. Dinwiddie (1890),86 C. 633
• Goland v. Peter Nolan & Co. (1934), 33 P.2d 688, subsequent opinion 38 P.2d 783, 2 C.2d 96.
• Gray v. White (1935) 5 C.A.2d 463 43 P.2d 318.
• Green v. Palmer (1860) 15 C. 411, 76 Am.Sec. 492
• Harrington v. Superior Court (1924) 194 Cal 185
• Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228
• Hihn v. Peck (1866) 30 C. 280
• In re Red Light Photo Enforcement Cases (2008) Cal.App.4th
• Jerome v. Stebbins (1859) 14 C. 457
• Johnson v. Santa Clara County (1865),28 C. 545
• Los Angeles City Ethics Com. v. Superior Court (Fuentes) (1992) 8 Cal.App.4th 1287
• Metzenbaum v. Metzenbaum (1948) 86 C.A.2d 750
• Miller v. Van Tassel (1864) 24 C. 459.
• People v. Brower (1949) 92 C.A. 2d 562.
• People v. Bright (1996) 12 Cal.4th 652
• People v. Domagalski (1989) 214 Cal.App.3d 1380
• People v. Holguin (1956) 145 Cal.App.2d. 520
• People v Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193
• People v. Smith (1975) 53 Cal.App.3d 655
• People v. Superior Court (On Tai Ho) (1975), 11 Cal.3d 59
• People v. Wallace (2003) 109 Cal.App.4th 1699
• People v. Williams (1999) 20 Cal. 4th 119
• Pierce v. Wagner, 134 F.2d 958
• Reid v. Kerr (1923) 64 C.A. 117
• Roberts v. Roberts, 81 C.A.2d 871, 185 P.2d 381
• Rogers v. Shannon (1877) 52 C. 99
• Rupley v. Johnson (1953) 120 Cal.App.2d 548, 552
• San Diego County v. Utt (1916) 173 C. 554, 160 P. 657.
• Snow v. Halstead (1851) 1 C. 359
• Silvers v. Grossman (1920), 183 C. 693
• Stefani v. Southern Pacific Co. (1932) 119 C.A. 69, 5 P.2d 946.
• Vilardo v. Sacramento County (1942), 54 C.A.2d 413
• Whitwell v. Thomas (1858),9 C. 499.
• Whittemore v. Davis (1931) 112 C.A. 702, 297 P. 640.
• Wirin v. Parker (1957) 48 Cal.2d 890
THIS IS AN INVALUABLE RESOURCE!
IT'S FREE AND ONE CAN ACCESS CALIFORNIA COURT DECISIONS DATING TO 1850!
READ THE LAW FOR YOURSELF!
CALIFORNIA PENAL CODE §949
~~~~~~~~~~
CALIFORNIA GOVERNMENT CODE
14. “Shall” is mandatory...
"Shall" is mandatory (Gov. Code, § 14), and certainly "must" is also.
Board of Supervisors v. Simpson (1951) 36 Cal.2d 671
CALIFORNIA GOVERNMENT CODE
26500. "The
district attorney is the public prosecutor. He shall attend
the courts, and conduct on behalf of the people all prosecutions for
public offenses."
(Also see Gov. Code, § 26501.)
The charging decision is the heart of the prosecution function.
People v. Smith (1975) 53 Cal.App.3d 655
"The filing of a complaint is essential to invoke the jurisdiction of the court."
City of San Diego v. Municipal Court (1980) 102 Cal. App. 3d. 775
Rupley v. Johnson (1953) 120 Cal.App.2d 548, 552
Penal Code §949
..only the People may file an accusatory pleading.
Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228
People v. Smith (1975) 53 Cal.App.3d 655
People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193
...a crime must be charged in an accusatory pleading...
People v. Wallace (2003) 109 Cal.App.4th 1699
“...infractions are not crimes... ...the Legislature did not intend infractions to be crimes.”
People v. Sava (1987) 190 Cal.App.3d 935
The prosecution must establish that a crime has been committed.
People v. Brower (1949) 92 C.A.2d 562
The charges thus must contain in substance a statement that the accused has committed some
public offense,...
People v. Bright (1996) 12 Cal.4th 652
Section 950 states in pertinent
part that the "accusatory pleading must contain" a "statement of the
public offense or offenses charged therein." Section 952 states in
part: "In charging an offense, each count shall contain, and shall be
sufficient if it contains in substance, a statement that the accused
has committed some public offense therein specified."
Barragan v. Superior Court of Yolo County (2007) C054719, COURT OF APPEAL OF THE STATE OF CALIFORNIA, THIRD APPELLATE DISTRICT
A "public offense" is synonymous with "a crime" and a crime includes both felonies and misdemeanors.
Burks v. United States (1961) 287 F.2d 117, 9th Cir.
...the word “offense” is understood by layman an lawyer alike to mean simply a crime.
People v. Brannon (1924) 70 Cal.App. 225
CALIFORNIA GOVERNMENT CODE
13951(b)(1). "Crime" means a crime or public offense, wherever it may take place, that would constitute a misdemeanor or a felony...
The prosecution retains the burden of proving that the warrantless search or seizure was
reasonable under the circumstances.
People v. Williams (1999) 20 Cal. 4th 119
The investigation and prosecution
of public offenses is, of course, the responsibility and prerogative of
the Attorney General and the several district attorneys (Cal. Const.,
art. V, § 13; Gov. Code, § 26500), and no one may intrude upon these
activities without the concurrence, approval, or authorization of such
officers. (Dix v. Superior Court (1991) 53 Cal.3d 442, 451 [279
Cal.Rptr. 834, 807 P.2d 1063]; People ex rel. Kottmeier v. Municipal
Court (1990) 220 Cal.App.3d 602, 609 [269 Cal.Rptr. 542]; People v.
Shults (1978) 87 Cal.App.3d 101, 106 [150 Cal.Rptr. 747]; Hicks v.
Board of Supervisors (1977) 69 Cal.App.3d 228, 240-241 [138 Cal.Rptr.
101].)
Los Angeles City Ethics Com. v. Superior Court (Fuentes) (1992), 8 Cal.App.4th 1287
Failure to file a complaint in time
for a noticed arraignment, or, in the alternative, to notice the court
and defendant of the need for a continuance, undermines the integrity
of the judicial process.
People v. Domagalski (1989) 214 Cal.App.3d 1380
"A pleading cannot be aided by reason of facts not averred."
San Diego County v. Utt (1916) 173 C. 554
[2c] If the judicial officer finds that probable cause has not been established, the defendant must be discharged from custody.
In re Walters, 15 Cal.3d 738
[Crim. No. 18488. Supreme Court of California. December 18, 1975.]
It is elementary that public officials must themselves obey the law.
Wirin v. Parker (1957) 48 Cal.2d 890
In re Red Light Photo Enforcement Cases (2008) Cal.App.4th
A complaint must be filed in the proper court to confer subject matter jurisdiction on the Court.
Harrington v. Superior Court (1924) 194 Cal 185
Bayle-Lacoste & Co. v. Superior Court (1941) 46 Cal. App. 2d 636
“The filing of a complaint is essential to invoke the jurisdiction of the court."
City of San Diego v. Municipal Court (1980) 102 Cal. App. 3d. 775
Rupley v. Johnson (1953) 120 Cal.App.2d 548, 552
Penal Code §949
The charging decision is the heart of the prosecution function.
People v. Smith (1975) 53 Cal.App.3d 655
...a crime must be charged in an accusatory pleading...
People v. Wallace (2003) 109 Cal.App.4th 1699
...only the People may file an accusatory pleading.
Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228
People v Smith (1975) 53 Cal.App.3d 655
People v Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193
The investigation and prosecution
of public offenses is, of course, the responsibility and prerogative of
the Attorney General and the several district attorneys (Cal. Const.,
art. V, § 13; Gov. Code, § 26500), and no one may intrude upon these
activities without the concurrence, approval, or authorization of such
officers. (Dix v. Superior Court (1991) 53 Cal.3d 442, 451 [279
Cal.Rptr. 834, 807 P.2d 1063]; People ex rel. Kottmeier v. Municipal
Court (1990) 220 Cal.App.3d 602, 609 [269 Cal.Rptr. 542]; People v.
Shults (1978) 87 Cal.App.3d 101, 106 [150 Cal.Rptr. 747]; Hicks v.
Board of Supervisors (197The charging decision is the heart of the prosecution function.
People v. Smith (1975) 53 Cal.App.3d 6557) 69 Cal.App.3d 228, 240-241 [138 Cal.Rptr. 101].)
Los Angeles City Ethics Com. v. Superior Court (Fuentes) (1992), 8 Cal.App.4th 1287
The principle summarized in the
quoted language from Tenorio is that when the jurisdiction of a court
has been properly invoked by the filing of a criminal charge,...
People v. Superior Court (On Tai Ho) (1975), 11 Cal.3d 59
The prosecution must establish that a crime has been committed.
People v. Brower (1949) 92 C.A. 2d 562.
The charges thus must contain in substance a statement that the accused has committed some public offense,...
People v. Bright (1996) 12 Cal.4th 652
A "public offense" is synonymous with "a crime" and a crime includes both felonies and misdemeanors.
Burks v. United States (1961) 287 F.2d 117, 9th Cir.
Jurisdiction over the subject matter is obtained by the filing of a valid complaint.
Failure to file a complaint in time
for a noticed arraignment, or, in the alternative, to notice the court
and defendant of the need for a continuance, undermines the integrity
of the judicial process.
People v. Domagalski (1989) 214 Cal.App.3d 1380
Section 950 states in pertinent
part that the "accusatory pleading must contain" a "statement of the
public offense or offenses charged therein." Section 952 states
in part: "In charging an offense, each count shall contain, and
shall be sufficient if it contains in substance, a statement that the
accused has committed some public offense therein specified."
Barragan v. Superior Court of Yolo County (2007) C054719, COURT OF APPEAL OF THE STATE OF CALIFORNIA, THIRD APPELLATE DISTRICT
Defendant makes a prima facie case
of unlawful arrest when he establishes that arrest was made without a
warrant, and burden rests on prosecution to show proper justification.
People v. Holguin (1956) 145 Cal.App.2d. 520
Defendant notes that the
prosecution has the burden of proving, if it can, some justification
for a warrantless search or seizure, and therefore a warrantless search
is presumptively unreasonable.
...once defendant had properly raised the issue, the prosecution had the burden of proof.
The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances.
People v. Williams (1999) 20 Cal. 4th 119
"Every fact which, if controverted, plaintiff must prove to maintain his action must be stated in the complaint"
Jerome v. Stebbins (1859) 14 C. 457:
Green v. Palmer (1860) 15 C. 411, 76 Am.Sec. 492;
Johnson v. Santa Clara County (1865) 28 C. 545
"The complaint, on its face, must show that the plaintiff has the better right."
Rogers v. Shannon (1877) 52 C. 99
"Complaint, to be sufficient, must
contain a statement of facts of which, without the aid of other facts
no stated shows a complete cause of action."
Going v. Dinwiddie (1890) 86 C. 633
"Pleadings should set forth facts, and not merely opinions of the parties".
Snow v. Halstead (1851) 1 C. 359
"A complaint must contain a
statement of facts showing the jurisdiction of the court, ownership of
a right by plaintiff, violation of that right by the defendant, injury
resulting to plaintiff by such violation, justification for equitable
relief where that is sought, and a demand for relief."
Pierce v. Wagner, 134 F.2d 958
"Essential facts on which legal
points in controversy depend, should be pleaded clearly and precisely,
so that nothing is left for the court to surmise."
Gates v. Lane (1872) 98 C. 499
"In pleading, the essential facts
on which a determination of the controversy depends should be stated
with clearness and precision so that nothing is left to surmise."
Bernstein v. Piller (1950) 98 C.A.2d 441
"The ‘facts' which the court is to
find and the ‘facts' which a pleader is to state lie in the same plane
- that is, in both connections, ‘facts' are top be stated according to
their legal effect."
Hihn v. Peck (1866) 30 C. 280
"A plaintiff must set forth in his
complaint the essential facts of his case with reasonable precision and
with sufficient clarity and particularity that defendant may be
apprized of nature, source and extent of his cause of action."
Metzenbaum v. Metzenbaum (1948) 86 C.A.2d 750
"In general, matters of substance must be alleged in direct terms, and not by way of recital or reference."
Silvers v. Grossman (1920) 183 C. 693;
Reid v. Kerr (1923) 64 C.A. 117
"A fact which constitutes an essential element of a cause of action cannot be left to inference."
Roberts v. Roberts, 81 C.A.2d 871
"The test of the materiality of an
averment in a pleading is this: Could the averment be stricken from the
pleading without leaving it insufficient?"
Whitwell v. Thomas (1858) 9 C. 499.
"Material facts must be alleged directly and not by way of recital."
Vilardo v. Sacramento County (1942) 54 C.A.2d 413, 129 P.2d 165.
"Material allegations must be distinctly stated in complaint."
Goland v. Peter Nolan & Co. (1934) 33 P.2d 688, subsequent opinion 38 P.2d 783, 2 C.2d 96.
"Matters of substance must be presented by direct averment and not by way of recital."
Stefani v. Southern Pacific Co. (1932) 119 C.A. 69, 5 P.2d 946.
"A pleading which leaves essential facts to inference or argument is bad."
Ahlers. v. Smiley (1909) 11 C.A.343, 104 P. 997.
"The forms alone of the several
actions have been abolished by the statute. The substantial
allegations of the complaint in a given case must be the same under our
practice act as at common law."
Miller v. Van Tassel (1864) 24 C. 459.
"A pleading cannot be aided by reason of facts not averred."
San Diego County v. Utt (1916) 173 C. 554, 160 P. 657.
"[2] While the complaint should be
liberally construed, with a view to substantial justice between the
parties (Code Civ. Proc., sec. 452), that rule "does not, however,
permit the insertion, by construction, of averments which are neither
directly made nor within the fair import of those which are set forth.
On the contrary, facts necessary to a cause of action but not alleged
must be taken as having no existence." (21 Cal.Jur. 54; Feldesman v.
McGovern, (1941) 44 Cal.App.2d 566, 571 [112 P.2d 645]; Estrin v.
Superior Court, (1939) 14 Cal.2d 670, 677 [96 P.2d 340].) ."
Frace v. Long Beach City High School Dist. (1943) 137 P.2d 60, 58 C.A.2d 566
"A fact necessary to pleader's cause of action, if not pleaded, must be taken as having no existence."
Feldesman v. McGovern (1941) 44 C.A.2d 566.
"When pleading is silent as to
material dates, or does not clearly state facts relied on, it must be
presumed that statement thereof would weaken pleader's case."
Whittemore v. Davis (1931) 112 C.A. 702, 297 P. 640.
"Material matters in pleadings must be distinctly stated in ordinary and concise language."
Brown v. Sweet (1928) 95 C.A. 117, 272 P. 614.
"Facts contained in public records
should be alleged in pleading when they constitute necessary elements
of good cause of action."
Gray v. White (1935) 5 C.A.2d 463, 43 P.2d 318.
THAT IS FATALLY DEFECTIVE PAPER
IT DOES NOT COMPLY WITH WHAT THE COURTS HAVE HELD REGARDING COMPLAINT REQUIREMENTS
The
District Attorney NEVER shows up at an infraction trial.
The District Attorney NEVER files a criminal complaint in an infraction
case.
~~~~~~~~~~~~~~
The following decision has been DEPUBLISHED by the California Supreme
Court. They obviously DO NOT want people to consider what
the California Court of Appeals determined. The decision,
although depublished, WAS NOT overturned!
The decision focuses on how the
NOTICE TO APPEAR is filed with the court. Who does it?
And recall:
The charging decision is the heart of the prosecution function.
People v. Smith (1975) 53 Cal.App.3d 655
...no one may intrude upon
these activities without the concurrence, approval, or authorization of
such officers.
Los Angeles City Ethics Com. v. Superior Court (Fuentes) (1992), 8 Cal.App.4th 1287
The presumption is that the cop
who issued the NOTICE TO APPEAR is responsible for informing the DA
that a crime has been committed and the DA makes the determination
whether to prefer and file a charge or charges:
...only the People may file an accusatory pleading.
Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228
People v Smith (1975) 53 Cal.App.3d 655
People v Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193
The cop who issued the NOTICE TO APPEAR is not "the People". "The
People" are represented by the District or City Attorney.
The cop is not an attorney.
People v. Stapf
Court of Appeal of California, Fourth Appellate District, Division Three
October 10, 1994, Decided
No. G016221.
28 Cal. App. 4th 1756
THE PEOPLE, Plaintiff and Respondent, v. KURT ALBERT STAPF, Defendant and Appellant. *Link to the text of the note
Notice:
NOT CITABLE - ORDERED NOT PUBLISHED
Subsequent History:
Review Denied January 25, 1995, Reported at: 1995 Cal. LEXIS 416.
Prior History:
Appeal from a judgment of the Municipal Court of Orange County. Super.
Ct. Nos. AP-8764, AP-8765, AP-8766, AP-8767, AP-8768. Hon. Mark J.
Sheedy, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Counsel: Mark D. Sutherland and John R. Farris, Jr., for Defendant and Appellant.
Michael P. Judge, Public Defender (Los Angeles), and John Hamilton
Scott, Deputy Public Defender, as Amici Curiae on behalf of Defendant
and Appellant.
Michael R. Capizzi, District Attorney, Maurice L. Evans, Chief
Assistant District Attorney, Wallace J. Wade, Assistant District
Attorney, David L. Himelson and Gregory J. Robischon, Deputy District
Attorneys, for Plaintiff and Respondent.
Terry C. Andrus, County Counsel (Orange), Laurence M. Watson, Assistant
County Counsel, Thomas C. Agin, Karyn J. Driessen, James Persinger,
Deputy County Counsel, James K. Hahn, City Attorney (Los Angeles),
Debbie Lew, Katharine H. MacKenzie, Deputy City Attorneys, Susan
Minasian, County Counsel (Butte), and Gregory P. Einhorn, Chief Deputy
County Counsel, as Amici Curiae on behalf of Plaintiff and Respondent.
Judges: Opinion by Crosby, J., with Sills, P. J., and Wallin, J., concurring.
Opinion by: CROSBY, J.
Opinion
As has frequently been said, the
answer is often a product of how a question is posed. Here, the
appellate department of the superior court asked, "May a court,
pursuant to the authorization of Penal Code [section] 959.1[,
subdivision] (c)(1) institute a criminal action for the violation of
Vehicle Code [section] 40508[, subdivision] (a) against an individual
who signs a written promise to appear after being stopped for a traffic
offense and subsequently fails to appear for arraignment?" (Fn.
omitted.) The appellate department concluded such an action
by the court would violate the separation-of-powers doctrine. (Cal.
Const., art. III, § 3.) Maybe so, but the question should
have been this1: Does a court clerk's causing the filing of a
criminal complaint for failure to appear violate article III, section 3
of the California Constitution?2 The answer to that
question is, no.3
I
Kurt Stapf failed to appear on
five different traffic tickets filed against him in the municipal
court. The court clerk caused an additional count to be
added for that violation in each case (Veh. Code, § 40508, subd.
(a)). The cases were tried to the court, with a certified
law clerk representing the district attorney on all of them; and
defendant was convicted on the five failures to appear, among other
things.
Stapf appealed each
failure-to-appear conviction on the basis that "[t]he trial court was
without jurisdiction since no complaint was filed by the [d]istrict
[a]ttorney as to the [Vehicle Code section 40508, subdivision (a)]
charge." Astonishingly, although the district attorney
elected to prosecute every one of the cases, he conceded defendant's
argument in the appellate department and continues to support his
position in this court.4
II
We begin with a reading of the
pertinent portion of Penal Code section 959.1, italicizing the key
provision added in 1990: "(a) Notwithstanding Sections 740, 806,
949, and 959 or any other provision of the law to the contrary, a
criminal prosecution may be commenced by filing an accusatory pleading
in electronic form with the magistrate or in a court having authority
to receive it. [P] (b) As used in this section, accusatory
pleadings include, but are not limited to, the complaint, the
information, the indictment, and any citation or notice to appear
issued on a form approved by the Judicial Council. [P] (c)
A magistrate or court is authorized to receive and file an accusatory
pleading in electronic form if all of the following conditions are
met: [P] (1) The accusatory pleading is issued in the name of,
and transmitted by, a public prosecutor or law enforcement agency . . .
or by a clerk of the court with respect to complaints issued for the
offenses of failure to appear, pay a fine, or comply with an order of
the court." 5Link to the text of the note
Thus, the clerk, not the court,
is authorized to file an accusatory pleading for failures to appear or
pay fines and for violations of court orders. 6Link to the text of the
note Does this somehow violate the separation of powers
doctrine? For several reasons we think not.
People v. Municipal Court
(Bishop) (1972) 27 Cal.App.3d 193 [103 Cal.Rptr. 645], a case much
discussed in the torrent of briefs we have received, does hold, "Due
process of law requires that criminal prosecutions be instituted
through the regular processes of law. These regular
processes include the requirement that the institution of any criminal
proceeding be authorized and approved by the district attorney." 7Link
to the text of the note ( Id. at p. 206.)
But the phrase "authorized and
approved" is subject to interpretation. When and how must
the public prosecutor authorize and approve the complaint? 8Link to the
text of the note We will conclude in the context of the
offenses listed in Penal Code section 959.1, subdivision (c)(1), a
failure to advise the court sometime before trial that a particular
electronically filed charge is "unauthorized" is sufficient
authorization. In that way subdivision (c)(1) can be
reconciled with Government Code section 100 (set forth in fn. 7, ante)
to promote the efficient operation of the courts and maintain all the
prerogatives of the public prosecutor. In other words,
rather than interpret subdivision (c)(1) as an exception to Government
Code section 100, we read them together. Although it
matters little to the outcome (affecting only the question of whether
the public prosecutor retains the right to refuse to "authorize" a
clerk-generated complaint), that interpretation gives each statute the
fullest possible effect.
In Bishop the municipal court
allowed a private citizen, Florence Pellegrino, to file a criminal
complaint against Douglas Bishop, and when the district attorney
refused to proceed with it, appointed a special prosecutor.
The district attorney earlier approved the filing of a complaint based
on the same incident against Pellegrino that was signed by Bishop, also
a private citizen.
The Court of Appeal found the
district attorney's rejection of the Pellegrino complaint dispositive
and the appointment of the special prosecutor unauthorized by
law. Presumably, however, had the district attorney agreed
to prosecute her complaint, the result would have been different
because the Court of Appeal had no problem with the complaint signed by
citizen Bishop. And that is this case: The district
attorney did in fact successfully prosecute all five of defendant's
failures to appear. He will not be heard now to complain
the prosecutions were unauthorized after pursuing them to a successful
conclusion at trial. Prosecution will always be authorization.
Moreover, court clerks do not
exercise judicial functions; they act in a purely ministerial capacity.
( Copley Press v. Superior Court (1992) 6 Cal.App.4th 106, 115 [7
Cal.Rptr.2d 841]; Riley v. Superior Court (1952) 111 Cal.App.2d 365,
367 [244 P.2d 474].) And the Supreme Court has refused to apply the
separation of powers doctrine in a rigid manner, particularly where
merely ministerial or clerical acts are involved: "As this court
explained nearly half a century ago: 'The courts have long
recognized that [the] primary purpose [of the separation-of-powers
doctrine] is to prevent the combination in the hands of a single person
or group of the basic or fundamental powers of government.
[Citations.] The doctrine has not been interpreted as
requiring the rigid classification of all the incidental activities of
government, with the result that once a technique or method of
procedure is associated with a particular branch of the government, it
can never be used thereafter by another.' " (Davis v. Municipal Court
(1988) 46 Cal.3d 64, 76 [249 Cal.Rptr. 300, 757 P.2d 11][italics added
by the Supreme Court].) The court also observed, "Indeed,
as a leading commentator on the separation-of-powers doctrine has
noted: 'From the beginning, each branch has exercised all three kinds
of powers.' (1 Davis, Administrative Law Treatise (2d ed. 1978) § 2:2,
p. 63.)" (Ibid.)
So far as possible within the
confines of the Legislature's goals, our obligation is to construe
statutes to avoid constitutional difficulty. (Metromedia, Inc. v. City
of San Diego (1982) 32 Cal.3d 180, 186 [185 Cal.Rptr. 260, 649 P.2d
902]; Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1722-1723 [19
Cal.Rptr.2d 625].) That is not a problem here.
Clerks witness the crimes described in Penal Code section 959.1,
subdivision (c)(1), frequently in arraignment courts unmanned by a
prosecutor or in the office of the clerk when defendants fail to pay
fines or appear to set misdemeanors or infractions for trial by posting
bail. Akin to a private person making a citizen's arrest,
clerks then initiate these routine proceedings. But if, for
some reason, the public prosecutor does not wish to pursue a particular
charge added by a clerk, the court need merely be informed it is
"unauthorized"; and the matter must be dismissed, as in Pellegrino's
case. 9Link to the text of the note (People v. Municipal Court
[Bishop], supra, 27 Cal.App.3d at p. 206.)
Thus, as we interpret it, the
current system preserves the prosecutor's prerogatives and promotes
efficiency in the courts, to the detriment of exactly no one with a
legally cognizable objection. Stapf, for example, had all
the process he was due when the district attorney assigned a law clerk
to prosecute him, a trial was provided, and he was convicted for each
failure to appear. To require the thousands of these
automatic violations to be referred to the district attorney or a city
attorney to exercise "discretion" to prosecute would exalt dry
formalism over an exhausted fisc. As the Legislature
implicitly recognized in 1990 when it added subdivision (c)(1) to Penal
Code section 959.1, the system cannot afford such niceties. 10Link to
the text of the note
Moreover, the Supreme Court has
long permitted streamlined procedures in relatively minor criminal
matters in the municipal court. (See fn. 10, ante.) For
example, the court noted in the case of In re Dennis B. (1976) 18
Cal.3d 687, 695 [135 Cal.Rptr. 82, 557 P.2d 51], "Unconstrained by the
more stringent procedural requirements of a major criminal trial,
municipal courts and prosecutors are free to develop innovative
procedures to expedite traffic cases. . .. This type of
flexibility benefits all parties: defendants gain a swift and
inexpensive disposition of their cases without risk of major penalties;
and the prosecution, the court system, and ultimately the public
benefit because judicial and law enforcement resources are freed to
concentrate on serious criminal behavior." Surely the
Governor and a unanimous Legislature are entitled to similar leeway to
promote efficiency and reduce costs. Or, put another way,
de minimis non curat lex.
The judgments of the municipal court are affirmed.
Sills, P. J., and Wallin, J., concurred.
Footnotes
*Link to the location of the note in the document
Pursuant to California Constitution, article VI, section 21.
1Link to the location of the note in the document
The settled statement was apparently the source of
the confusion. As pertinent, it reads as follows:
"The only issue presented on appeal involves the court's
computer-generated filing of a Vehicle Code section 40508[,
subdivision] (a) charge. Defendant failed to appear for arraignment in
violation of his signed promise to do so. In response to defendant's
failure to appear, a computer-generated failure to appear charge was
added to the underlying offense(s) by the court. The
Vehicle Code section 40508 [, subdivision] (a) charge was
electronically added to the charge(s) listed on the citation by the
clerk of court after notification that defendant had failed to appear."
(Italics added.) "Court's" and "By the court" are obviously
synonym phrases for "by the clerk of the court" because in local
practice where there is a failure to appear for arraignment on a
traffic infraction, the file never leaves the clerk's
office. No judge, consequently, participated in the filing
of the added failure to appear charges.
2Link to the location of the note in the document
Article III, section 3 provides, "The powers of
state government are legislative, executive and judicial.
Persons charged with the exercise of one power may not exercise either
of the others except as permitted by this Constitution."
3Link to the location of the note in the document
Indeed, dated case law suggests even the question
asked by the appellate department should have been answered in the
negative. (See, e.g., People v. Superior Court [Copeland] (1968) 262
Cal.App.2d 283 [68 Cal.Rptr. 629].) We express no opinion
on that issue, but note in passing that each delict described in Penal
Code section 959.1, subdivision (c)(1) is in the nature of an indirect
contempt of court. Courts have historically initiated and
pursued contempts on their own, of course. (See also fn. 8,
post.) The public prosecutor has a parallel power to
prosecute contempts. ( Pen. Code, § 166, 657; Ex Parte Morris (1924)
194 Cal. 63 [227 P. 914].)
4Link to the location of the note in the document
The concession reads, "Appellant's position
appearing to be meritorious, the People do not contest the appellant's
claims of error on appeal." We have taken judicial notice
of other pleadings where the district attorney has taken the opposite
position, vigorously defending the filing of added charges by court
clerks.
5Link to the location of the note in the document
The amendment passed both houses of the Legislature
unanimously and was signed by the Governor, although some misgivings
were expressed concerning a possible violation of the
separation-of-powers doctrine as the amendment wended its way through
the legislative process.
6Link to the location of the note in the document
Subdivision (a) of Penal Code section 959.1, when
read in context, does not authorize the court to initiate prosecutions.
It merely allows the court to receive electronic filings of
accusatory pleadings.
7Link to the location of the note in the document
As the Orange County Counsel points out, Bishop is a
somewhat flawed opinion because it purported to rely on former article
VI, section 20 of the California Constitution. It read,
"The style of all process shall be, 'The people of the State of
California,' and all prosecutions shall be conducted in their name and
by their authority." The difficulty is that article VI,
section 20 was repealed November 8, 1966, almost six years before
Bishop appeared, and replaced by Government Code section
100. That section provides, "(a) The sovereignty of the
state resides in the people thereof, and all writs and processes shall
issue in their name. [P] (b) The style of all process shall
be 'The People of the State of California,' and all prosecutions shall
be conducted in their name and by their authority."
8Link to the location of the note in the document
The district attorney suggests he could give the
court clerk a blanket authorization to file the offenses listed in
Penal Code section 959.1, subdivision (c)(1). But would
that not also violate the separation-of-powers doctrine if, as he
argues, the clerk is considered part of the judicial
branch? It would seem so.
Next, the district attorney falls back on the
"exclusive powers" vested in public prosecutors; but, as we have seen,
those powers now flow from the Government Code, not the
Constitution. The Legislature is free to make exceptions to
Government Code section 100, and the more recent and more specific
Penal Code section 959.1, subdivision (c)(1) could be viewed as an
exception to the general rule. (Article V, section 13 of our
Constitution makes the Attorney General the chief law enforcement
officer in the state, but does not purport to restrict the scope of
those who may file criminal charges.)
Contrary to the district attorney's argument, there
are instances where the Legislature has created exceptions to the
allegedly exclusive power of public prosecutors to initiate
prosecutions. For example, a police officer does that when
issuing a traffic citation; and nothing prevents a grand jury from
bringing an indictment on its own. The California
Constitution provides, "One or more grand juries shall be drawn and
summoned at least once a year in each county." (Cal. Const., art. I, §
23.) But the grand jury is given the power to initiate
prosecutions by statute. Penal Code section 917 provides, "The grand
jury may inquire into all public offenses committed or triable within
the county and present them to the court by indictment." Although the
reality may be different, the grand jury is not, as commonly supposed,
a creature of the public prosecutor. It is "a judicial
tribunal" (Greenberg v. Superior Court (1942) 19 Cal.2d 319, 323 [121
P.2d 713]) impaneled and charged by the superior court. (Pen. Code, §
914.)
9Link to the location of the note in the document
Ordinarily, once a complaint is filed, only the
court has the power to dismiss. ( Pen. Code, § 1385.) If the
prosecution is deemed "unauthorized," however, the public prosecutor
retains the power to derail it without the court's consent. ( People v.
Municipal Court [Bishop], supra, 27 Cal.App.3d at p. 206.)
10Link to the location of the note in the document
Much more disturbing to us is the practice of trying
traffic cases in the total absence of a prosecutor, as apparently
occurs with some frequency locally and in other parts of the state.
That presents a far more serious separation-of-powers problem than the
gnat in this punch bowl, but the practice has been approved by the
Supreme Court. ( People v. Carlucci (1979) 23 Cal.3d 249 [152 Cal.Rptr.
439, 590 P.2d 15].)
~~~~~~~~~~~~
Failure to file a
complaint in time for a noticed arraignment, or, in the alternative, to
notice the court and defendant of the need for a continuance,
undermines the integrity of the judicial process.
People v. Domagalski (1989) 214 Cal.App.3d 1380
If one decides to have their day in court because they believe the
arresting officer make a mistake, their first get together in the
process will be arraignment. Arraignment precedes a
trial.
Arraignment is an essential aspect of a criminal proceeding or
action. It's where the defendant will be informed of
the charge or charges. They'll be invited to enter a plea
and presumptively the plea will be not guilty so a trail date will be
scheduled.
Cal.App. 1951. When a
person is illegally incarcerated he must take proper steps in trial
court, before trial to correct the situation and if he proceeds to
trial without objection, any invalidity in proceedings prior to
commitment is waived.
People v. Wilson (1951) 106 C.A.2d 716
Cal.App. 1960. If
objection to illegal arrest may be raised at all after accused has
subjected himself to the jurisdiction of the court, the issue must at
least be raised before a plea is entered at arraignment.
Ringer v. Municipal Court of Modesto Judicial Dist., Stanislaus County (1960) 175 C.A.2d 786
It would be a good idea to ask the judicial officer at arraignment if
the DA filed a complaint.
The case will be called and the
defendant will approach and stand at the table and the judicial officer
will read the charge or charges to the defendant and then ask how they
care to plea.
At this time the defendant can
ask: Your honor, has the DA filed a complaint?
That's a simple YES or NO question. And given the judicial
officer has the file in front of them they must know. IF
the DA hasn't filed a complaint then there's nothing for the court to
do other to DISMISS in the interest of justice given no trialable issue
is before the court.
