Case No. C081603 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

v.

SUPERIOR COURT OF EL DORADO COUNTY; HONORABLE JAMES R. WAGONER,

Respondents,

SOUTH LAKE TAHOE POLICE OFFICERS’ ASSOCIATION; SOUTH LAKE TAHOE POLICE SUPRVISORS’ ASSOCIATION,

Real Party in Interest.

CITY OF SOUTH LAKE TAHOE; CHIEF OF POLICE BRIAN UHLER Real Party in Interest.

El Dorado County Superior Court, Case No. P16CRF0064,

The Honorable James R. Wagoner, Department 1, (530) 621-6426

REAL PARTIES IN INTEREST SOUTH LAKE TAHOE POLICE OFFICERS’ ASSOCIATION AND SOUTH LAKE TAHOE POLICE SUPRVISORS’ ASSOCIATION’S PRELIMINARY OPPOSITION

TO PETITION FOR WRIT OF MANDATE

JUDITH A. ODBERT (SBN 131261) JOSHUA A. OLANDER (SBN 249292)

TASHAYLA D. BILLINGTON (SBN 307050) MASTAGNI HOLSTEDT, A Professional Corporation

1912 I Street, Sacramento, California 95811 Tel: (916) 446-4692 Fax: (916) 447-4614

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Attorneys for Real Parties in Interest, SOUTH LAKE TAHOE POLICE OFFICERS’ ASSOCIATION and SOUTH LAKE TAHOE POLICE SUPERVISORS’ ASSOCIATION

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court 8.208

The following entities or persons have either (1) an ownership interest

of 10 percent or more in the party or parties filing this certificate or (2) a

financial or other interest in the outcome of the proceeding that the justices

should consider in determining whether to disqualify themselves:

None known at this time.

April 1, 2016

MASTAGNI HOLSTEDT, APC

J!IDITH A. ODBERT JOSHUA A. OLANDER 'I'ASHAYLA D. BILLINGTON Attorneys for Real Parties in Interest, SOUTH LAKE TAHOE POLICE OFFICERS' ASSOCIATION and SOUTH LAKE TAHOE POLICE SUPERVISORS' ASSOCIATION

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TABLE OF CONTENTS

I. INTRODUCTION.................................................................................... 8 II. PROCEDURAL HISTORY .................................................................. 11

A. AN OFFICER INVOLVED SHOOTING OCCURRED ON JUNE 15, 2015. ................................................................................................... 12 B. PETITIONER INFORMED SLTPOA AND SLTPSA ATTORNEYS THAT HE WOULD INTENTIONALLY DELAY IN CONVENING A GRAND JURY IN ORDER TO CHALLENGE THE CONSTITUTIONALITY OF SB 227. .................................................... 12 C. MOTIONS TO DISCHARGE THE GRAND JURY AND QUASH SUBPOENAS FOR SLTPOA AND SLTPSA MEMBERS WERE GRANTED. .............................................................................................. 13 D. PETITIONER FILED A DEFECTIVE PETITION FOR WRIT OF MANDATE. ............................................................................................. 14

III. PRELIMINARY OPPOSITION .......................................................... 14 IV. STANDARD OF REVIEW ................................................................. 16 V. ARGUMENT ......................................................................................... 16

A. THE WRIT PETITION SHOULD BE DENIED BECAUSE IT ASKS THE COURT TO VACATE THE SUPERIOR COURT’S ORDER AND CONVENE A GRAND JURY IN VIOLATION OF THE LAW. ........................................................................................................ 16

1. Penal Code Section 917(b) Prohibits the District Attorney from Convening a Grand Jury To Investigate A Peace Officer’s Use of Force Resulting in Death. ............................................................................... 16 2. Senate Bill 227 is Presumptively Constitutional and the Legislature May Regulate Matters of Statewide Concern. ...................................... 17 a. SB 227 is Presumptively Constitutional......................................... 17 b. The Legislature May Regulate Matters of Statewide Concern ....... 19 3. Petitioner is Improperly Seeking Mandamus Relief. ..................... 21 a. Plain, Speedy, and Adequate Alternative Remedies Exist. ............ 22 b. Petitioner has Failed to Allege the Superior Court Had a

Ministerial Duty or that Petitioner Had Beneficial Right to the

Performance of the Duty. ...................................................................... 23 B. THE WRIT PETITION SHOULD BE DENIED FOR PROCEDURAL DEFECTS ..................................................................... 24

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1. The Writ Petition Improperly Fails to Include the Supporting Documents. ........................................................................................... 24 2. Petitioner Failed to Request Judicial Notice Pursuant to Rule 8.252 and Raises a New Arguments for the First Time on Appeal. ............... 24

VI. CONCLUSION…………...………………………………………….26

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TABLE OF AUTHORITIES

STATUTES Government Code section 1299.3(e) ..................................................... 11, 12 Government Code section 3300 .................................................................. 10 Government Code section 3500 .................................................................. 10 Penal Code section 830.1 ............................................................................ 16 Penal Code section 917(b) ................................................................ in passim

STATE CASES Babb v. Superior Court (1971) 3 Cal.3d 841 ............................................................................................. 16 Crawford v. Marion County Election Bd. (2008) 128 S.Ct. 1610 .......................................................................................... 18 Fitts v. Superior Court (1936) 6 Cal.2d 230 ............................................................................................. 19 Foundation for Taxpayer and Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1354 .............................................................................. 17 Friedland v. Superior Court in and for Sacramento County (1945) 67 Cal.App.2d 619 ................................................................................... 21 Gonzales v. County of Los Angeles (2004) 122 Cal.App.4th 1124 .............................................................................. 22 Maral v. City of Live Oak (2013) 221 Cal.App.4th 975 ................................................................................ 26 Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685 ............................................................................................. 19 Newton v. Clemons (2003) 110 Cal.App.4th 1 .................................................................................... 25 O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568 ................................................................................ 16 People v. Picklesimer (2010) 48 Cal.4th 330 .......................................................................................... 23 People v. Rodriguez (1998) 66 Cal.App.4th 157 .................................................................................. 18 People v. Superior Court (2013) 215 Cal.App.4th 1279 .............................................................................. 21 Robbins v. Superior Court (1985) 38 Cal.3d 199 ........................................................................................... 16 Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660 ................................................................................ 18 State Farm etc. Ins. Co v. Superior Court (1956) 47 Cal.2d 428 ........................................................................................... 16

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Taliaferro v. Locke (1960) 182 Cal.App.2d 752 ................................................................................. 23 Thomas v. Superior Court (1935) 4 Cal.App.2d 356 ..................................................................................... 21 Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765 ............................................................................................ 17

RULES California Rules of Court, rule 8.120 .......................................................... 24 California Rules of Court, rule 8.122 .......................................................... 24 California Rules of Court, rule 8.252 .................................................... 24, 25

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I.

INTRODUCTION

The Petition for Writ of Mandate by Petitioner (hereinafter, “Writ

Petition”), The People of the State of California (hereinafter, “People”),

should be denied because it asks this Court to order the Superior Court of El

Dorado County (hereinafter, “Superior Court”) to violate the law. Penal Code

section 917(b) (hereinafter, “917(b)”), amended by Senate Bill 227

(hereinafter, “SB 227”), prohibits district attorneys from convening a grand

jury to inquire into an offense that involves a shooting or use of force by a

peace officer resulting in death. The People violated a presumptively

constitutional statute, asserting that the statute is unconstitutional. Having

failed to obtain declaratory relief in the Superior Court, Petitioner now turns

to this Court for relief by writ procedure.

The Writ Petition is defective as Petitioner has failed to allege the

Superior Court had a ministerial duty to act, and failed to do so, or did so in

direct contravention of the law. The Superior Court did not err or abuse its

discretion in discharging the Grand Jury and quashing unlawful subpoenas

associated with the District Attorney’s convening of the Grand Jury in

violation of 917(b). Petitioner incorrectly suggests the Superior Court should

have allowed Petitioner to continue his actions despite the fact that they were

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in direct opposition to the law. Furthermore, Petitioner failed to provide the

complete Superior Court record for this Court’s consideration.

Petitioner argues that the enactment of SB 227 was unconstitutional,

claiming the Legislature cannot substantively alter the grand jury, but can

only legislate as to procedure. While Real Parties in Interest South Lake

Tahoe Police Officers’ Association (hereinafter, “SLTPOA”) and South

Lake Tahoe Police Supervisors’ Association (hereinafter, “SLTPSA”) do not

agree with Petitioner that the Legislature lacks authority to substantively alter

the grand jury, SB 227’s amendments are procedural and designed to address

an issue of statewide concern. The Legislature is empowered with the

authority to regulate issues of statewide concern, and Petitioner agrees the

Legislature is authorized to enact laws governing procedure. The

amendments do not diminish any of the grand jury functions and, therefore,

are procedural. Petitioner’s hope that 917(b) be declared unconstitutional

ignores the more circumspect and proper alternative of severing improper

language from otherwise constitutional statutes. Petitioner, however, has not

requested declaratory relief.

A statute is presumptively constitutional and Petitioner did not allege

the Superior Court abused its discretion in finding 917(b) constitutional.

917(b) does not violate the California Constitution, Article 1 Section 8.

917(b) merely limits a district attorney’s ability to convene a grand jury and

place before it an officer involved use of force that resulted in death, without

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limiting the authority of grand jury members themselves from initiating such

investigations. The procedural amendment to 917(b) does not make a

substantive change to the jurisdiction of the grand jury. Rather, the statute

preserves the jurisdiction of the grand jury by allowing a member to inquire

into such events and investigate the actions of law enforcement. The

amendment is arguably procedural in nature as it merely limits the ability of

a district attorney to utilize the grand jury for such purposes. Even assuming,

for the sake of argument, that the amendment is in fact a substantive change

to grand jury jurisdiction, absent limitation by the California Constitution the

Legislature is still vested with the authority to limit the power of a grand jury.

Petitioner’s Writ Petition requests this Court set aside the Superior

Court’s order granting a Motion to Discharge the Grand Jury convened to

investigate the officer involved shooting of June 15, 2015, and granting the

Motions to Quash subpoenas issued to Joshua Klinge, John King, Eli Clark,

Jason Cheney, Jeffrey Roberson and Brian Williams. Petitioner challenges

the Superior Court’s finding that 917(b) is constitutional, which caused the

grand jury to be discharged and the subpoenas quashed related to its unlawful

convention.

SLTPOA and SLTPSA urge the Court to deny the Writ Petition for

the following reasons: (1) Petitioner failed to allege or demonstrate the

Superior Court erred and abused its discretion by discharging the Grand Jury;

(2) Petitioner failed to allege or demonstrate that the Superior Court erred

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and abused its discretion by quashing the subpoenas; (3) Penal Code section

917(b) is facially constitutional; and (4) the Writ Petition suffers from

fundamental procedural defects. Real Parties in Interest hereby respectfully

request this Court deny Petitioner’s Writ Petition based on its substantive and

procedural defects.

II.

PROCEDURAL HISTORY

Real Party in Interest SLTPOA is the exclusive representative of City

of South Lake Tahoe employees within the job classifications of “Law

Enforcement Non-Supervisory”. Real Party in Interest SLTPSA is the

exclusive representative of the City of South Lake Tahoe employees within

the job classification of “Law Enforcement Supervisory”. SLTPOA and

SLTPSA are authorized to represent their members regarding wages, hours

and other terms and conditions of employment pursuant to the Meyers-

Milias-Brown Act (Gov. Code §§ 3500, et seq.)1 SLTPOA and SLTPSA’s

members are peace officers within the meaning of Government Code section

1299.3(e) and are entitled to all the rights and protections afforded under the

1 Government Code section 1299.3(e) provides: ‘Law Enforcement Officer' means any person who is a peace officer, as defined in section 830.1 of, subdivision (b) and (d) of section 830.31 of, subdivision (a), (b), and (c) of section 830.32 of, subdivisions (a), (b), and (d) of section 830.33 of, subdivisions (a) and (b) of section 830.35 of, subdivision (a) of section 830.5 of, and subdivision (a) of section 830.55 of, the Penal Code, without respect to the rank, job title, or job assignment of that person.

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Public Safety Officers Procedural Bill of Rights Act (Gov. Code §§ 3300, et

seq.)

Petitioner, The People of State of California, is the District Attorney

of El Dorado County.

A. AN OFFICER INVOLVED SHOOTING OCCURRED ON JUNE 15, 2015.

On June 15, 2015 an officer involved shooting occurred in South Lake

Tahoe involving members of SLTPOA. (Motion to Discharge Grand Jury, at

p. 2, Exh. 1 hereto.) At the time of the incident, 917(b) allowed the District

Attorney to convene a grand jury for the purpose of investigating officer

involved shootings resulting in death. The suspect who was shot expired.

The District Attorney, Vern Pierson, arrived at the scene and participated in

the investigation. The investigation concluded in 2015.

B. PETITIONER INFORMED SLTPOA AND SLTPSA ATTORNEYS THAT HE WOULD INTENTIONALLY DELAY IN CONVENING A GRAND JURY IN ORDER TO CHALLENGE THE CONSTITUTIONALITY OF SB 227.

Months after the shooting investigation, Assistant District Attorney

William Clark came to the law offices of Mastagni Holstedt on December

10, 2015 to inform counsel for SLTPOA and SLTPSA that Petitioner

intended to challenge the constitutionality of SB 227 by convening a grand

jury after January 1, 2016 when the amendments took effect. He indicated

that he already had the dates scheduled for the grand jury, beginning on

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January 28, 2016, and he would email the subpoenas the next day. The

subpoena’s for SLTPOA members were provided on December 11, 2015.

C. MOTIONS TO DISCHARGE THE GRAND JURY AND QUASH SUBPOENAS FOR SLTPOA AND SLTPSA MEMBERS WERE GRANTED.

On February 1, 2016, Petitioner issued a second group of grand jury

subpoenas. These subpoenas included members of SLTPOA and SLTPSA.

On February 4, 2016, SLTPOA and SLTPSA filed motions to discharge the

grand jury and to quash the subpoenas issued by the Petitioner. (Motion to

Quash Subpoena for Joshua Klinge, Exh. 2 hereto.)2 On February 12, 2016,

Chief Uhler filed a motion to quash the subpoena that was served upon him

for presentment at the grand jury. (Notice of Joinder by Brian Uhler, Exh. 3

hereto.) The People filed an untimely opposition on February 16, 2016, not

February 12, 2016 as asserted in their Petition. (People’s Opposition to

Motions to Quash Subpoenas and Motion to Discharge Grand Jury, Exh. 4

hereto.) February 12 and 15, 2016 were in fact court holidays. SLTPOA and

SLTPSA filed a response on February 18, 2016. (Reply to People’s

Opposition, Exh. 5 hereto.) On February 19, 2016, the Honorable Judge

James R. Wagoner ruled in favor of Real Parties in Interest, granting the

motions to discharge the Grand Jury and to quash the subpoenas.

2 Separate Motions to Quash were filed for each of the six officers subpoenaed. The Motion to Quash attached here is for SLTPOA member Joshua Klinge. It is nearly identical to the Motions to Quash filed on behalf of the other officers.

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D. PETITIONER FILED A DEFECTIVE PETITION FOR WRIT OF MANDATE.

On March 22, 2015, Petitioner filed what appears to be a Verified

Petition for Writ of Mandate. (Writ Petition, pp. 41-46.) The Writ Petition,

however, is devoid of the necessary information dictating the authority under

the Code of Civil Procedure. Additionally, the Petitioner failed to include the

complete record of the Superior Court proceedings.

SLTPOA and SLTPSA respectfully submit this Preliminary

Opposition to the People’s Writ Petition pursuant California Rules of Court,

rule 8.487(a).

III.

PRELIMINARY OPPOSITION

At issue is whether the Superior Court of El Dorado County abused

its discretion by discharging the Grand Jury and quashing the related

subpoenas based on the Superior Court’s finding that the Grand Jury

investigation was in violation of 917(b). Petitioner purposefully convened

the El Dorado Grand Jury after SB 227 became effective on January 1, 2016.

Penal Code section 917, subdivision (b) provides:

Except as provided in Section 918, the grand jury shall not inquire into an offense that involves a shooting or use of excessive force by a peace officers described in Section 830.1, subdivision (a) of Section 830.2 or Section 830.39, that led to the death of a person being detained or

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arrested by the peace officer pursuant to Section 836.

After Petitioner convened the grand jury in violation of 917(b),

motions were filed to discharge the grand jury and quash subpoenas issued

by Petitioner. (Exhs. 1 and 2.) On February 19, 2016, The Superior Court for

the County of El Dorado, Honorable James R. Wagoner, granted the motions

of Real Parties in Interest SLTPOA and SLTPSA to discharge the grand jury

and quash subpoenas issued. (Minute Order, p. 2, Exh. 6 hereto.)

Based on the Parties’ motions, the Superior Court found the

Legislature had the power to enact SB 227 and that the grand jury had been

convened in violation of the law. (Reporter’s Transcript (“RT”), Exh. 3 to

Writ Petition, 4:10-12; 15-17.) The Superior Court ruled that under SB 227

and amended 917(b), the Grand Jury did not have the jurisdiction to hear the

case presented by the district attorney. (RT 10:25-11:5.) The Superior Court

found it was necessary to quash the subpoenas for the same reasons. (RT 4:

15-17.) As the Honorable James R. Wagoner stated, he is “charged by ... [his]

oath to enforce the laws of the state of California until they are proven to be

otherwise” and that while he recognized his “authority to declare [SB 227]

unconstitutional,” that was something he “would be loathe to do when it has

gone through this vetting process” through the Legislature. (RT 6:28-7:5.)

Petitioner now files this Writ Petition seeking to vacate the Superior

Court’s order quashing the grand jury subpoenas and terminating the grand

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jury investigation.

IV.

STANDARD OF REVIEW

In an original mandamus proceeding, this Court reviews the trial

court’s ruling for abuse of discretion. (State Farm etc. Ins. Co v. Superior

Court (1956) 47 Cal.2d 428, 432.) According to the Supreme Court,

“[a]lthough mandamus does not generally lie to control the exercise of

judicial discretion, the writ will issue [only] ‘where, under the facts, that

discretion can be exercised in only one way.’” (Robbins v. Superior Court

(1985) 38 Cal.3d 199, 205 quoting Babb v. Superior Court (1971) 3 Cal.3d

841, 851.) Where there is no abuse of discretion, the reviewing court must

dismiss the writ petition. (See O.W.L. Foundation v. City of Rohnert Park

(2008) 168 Cal.App.4th 568, 587.)

V.

ARGUMENT

A. THE WRIT PETITION SHOULD BE DENIED BECAUSE IT ASKS THE COURT TO VACATE THE SUPERIOR COURT’S ORDER AND CONVENE A GRAND JURY IN VIOLATION OF THE LAW.

1. Penal Code Section 917(b) Prohibits the District Attorney from Convening a Grand Jury to Investigate a Peace Officer’s Use of Force Resulting in Death.

Effective January 1, 2016, the grand jury no longer has jurisdiction to

investigate a peace officer use of force that results in death. Nevertheless,

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Assistant District Attorney William Clark caused a grand jury to be convened

for the purpose of investigating a shooting by a peace officer, as described in

Penal Code section 830.1, that led to a death. Thus, convening the Grand Jury

was in direct violation of the law.

On February 19, 2016, the Superior Court ordered the Grand Jury be

discharged and the subpoenas relating to the proceeding be quashed. Now,

Petitioner requests this Court vacate that order and cause the El Dorado

County Grand Jury to inquire into an offense the Legislature has expressly

prohibited.

Mandamus should not issue because the Superior Court did not abuse

its discretion by upholding the law.

2. Senate Bill 227 is Presumptively Constitutional and the Legislature May Regulate Matters of Statewide Concern.

a. SB 227 is Presumptively Constitutional.

When weighing a challenge to duly enacted legislation, courts must

“presume the constitutionality of the legislative act, resolving all doubts in

favor of the act, and must uphold the act unless a conflict with a provision of

the state or federal Constitution is clear and unquestionable.” (Foundation

for Taxpayer and Consumer Rights v. Garamendi (2005) 132 Cal.App.4th

1354, 1356.) In examining and scrutinizing state enacted legislation, “[a]ll

presumptions and intendments favor the validity of the statute ... Statutes

must be upheld unless their unconstitutionality clearly, positively, and

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unmistakably appears.” (Voters for Responsible Retirement v. Board of

Supervisors (1994) 8 Cal.4th 765, 780.) “As a general rule, a statute is

‘facially unconstitutional’ if it conflicts so directly with a constitutional

provision that the statute is completely invalid and unenforceable in all

circumstances.” (People v. Rodriguez (1998) 66 Cal.App.4th 157, 166.)

Facial invalidation is justified only where the statute could be validly applied

under no circumstances.” (Sanchez v. City of Modesto (2006) 145

Cal.App.4th 660, 689.) Lastly, “[a] facial challenge must fail where the

statute has ‘plainly legitimate sweep.’” (Crawford v. Marion County Election

Bd. (2008) 128 S.Ct. 1610, 1623 [citations omitted].)

The Superior Court did not abuse its discretion in finding 917(b)

constitutional. The Superior Court’s analysis succinctly establishes that

917(b) does not substantively interfere with the grand jury powers, and the

Legislature can limit and direct procedurally what can be done through the

grand jury process. (RT 4:9-12; 7:6-9.)

Even if, as Petitioner claims, the Legislature cannot substantively

change the grand jury’s functions, SB 227 ensured the constitutionality of

the change by leaving Penal Code section 918 intact. Penal Code section 918

allows a grand jury to inquire into an offense “[i]f a member of the grand

jury knows, or has reason to believe, that a public offense, triable within the

county, has been committed ....” Thus, SB 227 did not remove an entire class

of crimes from the grand jury’s purview.

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b. The Legislature May Regulate Matters of Statewide Concern

The Legislature is empowered with broad authority to enact statutes.

(See Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691 [“If

there is any doubt as to the Legislature’s power to act in any given case, the

doubt should be resolved in favor of the Legislature’s action. Such

restrictions and limitations [imposed by the Constitution] are to be construed

strictly, and are not to be extended to include matters not covered by the

language used.”].) “[Courts] do not look to the Constitution to determine

whether the Legislature is authorized to do an act, but only to see if it is

prohibited.” (Fitts v. Superior Court (1936) 6 Cal.2d 230, 234.)

The California Constitution does not limit the Legislature’s ability to

enact statutes proscribing the manner in which certain classes of crimes can

be brought into the judicial system.

The primary purpose behind the enactment of SB 227 is to promote

the harmonious relations between the public and the government. The statute

promotes transparency in investigations into officer involved use of force

cases resulting in death. To achieve this goal, the Legislature responded to

public concern by taking away the purported “veil of secrecy”, thus allowing

public scrutiny as to the actions of law enforcement and the investigation of

these cases.

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The statute promotes better relations between the public and

government as the public is made aware of the findings and reasons therefore.

A preliminary hearing, which is unavailable in the indictment process, is

open to the public and provides the media and citizens full access to the case

as presented by the district attorney. Prior to the enactment of 917(b), a

district attorney was able to produce the investigation in secrecy and

potentially influence the grand jury by the manner and the type of evidence

produced in secrecy. Promoting harmonious relations between the public and

government is a matter of statewide concern. The consequences of a

breakdown in such relations are evident from the protests seen across the

state and nation. Public trust of the government and law enforcement will

increase and assist in making communities within the state safer for citizens

and law enforcement employees.

Even assuming, for the sake of argument, that Petitioner is correct that

the Legislature cannot substantively change the grand jury, SB 227 did not

result in a substantive change to the grand jury. SB 227 was a procedural

change made by the Legislature in an effort to resolve issues of statewide

concern. The amended version of 917(b) declares the process required to

bring law enforcement use of force cases resulting in death into the justice

system.

The Writ Petition should be denied because the Superior Court did not

err or abuse its discretion when it found 917(b) constitutional and discharged

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the grand jury that was convened to hear the officer involved shooting of

June 15, 2015.

3. Petitioner is Improperly Seeking Mandamus Relief.

Mandamus may not be employed to compel a court to decide in any

particular way, and only when it refuses to accept jurisdiction or when it has

wrongfully divested itself of jurisdiction is mandate a correct remedy, and

then only to compel the further duty to act, and not to coerce as to manner or

result of action. (Friedland v. Superior Court in and for Sacramento County

(1945) 67 Cal.App.2d 619, 624 citing Thomas v. Superior Court (1935) 4

Cal.App.2d 356.) Petitioner’s Writ Petition seeks exactly what they are

prohibited from seeking to compel – a different result. Petitioner seeks to

have this Court overturn the Superior Court’s decision and force it to decide

in Petitioner’s favor.

To compel public agencies to perform acts required by law with a writ

of mandate, a petitioner must demonstrate (1) no plain, speedy, and adequate

alternative remedy exists, (2) a clear, present, ministerial duty on the part of

the respondent, and (3) a correlative clear, present, and beneficial right in the

petitioner to the performance of the duty. (People v. Superior Court (2013)

215 Cal.App.4th 1279, 1295.) Petitioner has failed to meet the required

criteria.

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a. Plain, Speedy, and Adequate Alternative Remedies Exist.

Petitioner has multiple adequate alternative remedies at their disposal

to accomplish their objective. On June 15, 2015, Petitioner began their

investigation into the shooting that occurred on the same date. The

investigation concluded in 2015. If the District Attorney believed probable

cause existed to file charges related to the shooting, they had every

opportunity to do so. Even now, if Petitioner believes probable cause for an

arrest exists, the Petitioner may file a complaint in superior court. Petitioner

is not precluded from doing so.

Rather than filing a complaint, on December 10, 2015, ADA Clark

informed SLTPOA and SLTPSA attorneys that he was purposefully

convening the grand jury so that he could challenge the constitutionality of

917(b). Petitioner made a calculated, intentional decision to convene the

grand jury with full knowledge that he would be prohibited from bringing

officer involved shootings resulting in death in front of a grand jury after

January 1, 2016. Petitioner had more than adequate time to convene a grand

jury prior to January 1, 2016. Instead, Petitioner chose to use a human being

as a puppet in his own show, for his own personal and selfish reasons.

Petitioner created his own issues to bring before this Court and his

manipulation of the system should not be rewarded.

Further, if Petitioner wishes to challenge the constitutionality of the

statute at issue, they may do so through a suit for declaratory relief or seek

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an injunction. Petitioner has failed to seek the adequate alternative remedies

available, and has failed to allege other adequate remedies do not exist.

b. Petitioner has Failed to Allege the Superior Court Had a

Ministerial Duty or that Petitioner Had Beneficial Right to

the Performance of the Duty.

In addition, Petitioner failed to demonstrate Respondent has a clear,

present, ministerial duty. Only where a court has refused to perform a clear

duty, unmixed with discretionary power or the exercise of judgment, will

mandamus issue against the Court. (Taliaferro v. Locke (1960) 182

Cal.App.2d 752, 755.) A ministerial duty is an obligation to perform a

specific act in a manner prescribed by law whenever a given state of facts

exists, without regard to any personal judgment as to the propriety of the act.

[Citation].” (People v. Picklesimer (2010) 48 Cal.4th 330, 338-39.) Here, the

Superior Court exercised its discretion and authority in deciding SB 227 was

constitutional and within the Legislature’s power to enact. Petitioner has not

alleged otherwise.

Finally, Petitioner has not demonstrated it has a beneficial right to

have the superior court convene a grand jury on its behalf. Because Petitioner

has failed to show mandate is an appropriate remedy, Petitioner’s Writ

Petition should be denied.

///

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B. THE WRIT PETITION SHOULD BE DENIED FOR PROCEDURAL DEFECTS

1. The Writ Petition Improperly Fails to Include the Supporting Documents.

Petitioner violated California Rules of Court, rules 8.120 and 8.122

by inappropriately excluding the record of the case in Superior Court.

Petitioner seeks to mislead the Court by refusing to acknowledge that his

opposition in the Superior Court was untimely, and that SLTPOA and

SLTPSA nevertheless filed a response. According to Petitioner’s Writ

Petition, the responsive filing does not exist. The Rules of Court require that

Petitioner serve and file the record of the trial court proceedings, including

any documents filed or lodged in the case in Superior Court. (Cal. Rules of

Court, rule 8.122(b)(3).) Petitioner has failed to produce the documents filed

in the Superior Court.

By omitting all Superior Court filings, Petitioner has submitted an

incomplete trial court record, thus rendering the Writ Petition procedurally

defective. As Petitioner’s Writ Petition is procedurally defective, it should be

denied.

2. Petitioner Failed to Request Judicial Notice Pursuant to Rule 8.252 and Raises a New Arguments for the First Time on Appeal.

Petitioner has submitted five items outside of the Superior Court

record, including SB 227 Senate Committee on Public Safety – April 20,

2015 (Writ Petition, Exh. 4); SB 227 Senate Floor Analyses – May 4, 2015

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(Writ Petition, Exh. 5); Senate Floor Analyses – May 6, 2015 (Writ Petition,

Exh. 6); SB 227 Assembly Floor Analysis – June 15 2015 (Writ Petition,

Exh. 7); SB 227 Assembly Floor Analysis – June 17, 2015 (Writ Petition,

Exh. 8). However, Petitioner failed to submit these documents in accordance

with the California Rules of Court.

Rule 8.252 of the California Rules of Court requires a party requesting

judicial notice to serve and file a separate motion with a proposed order. The

motion must state whether the matter to be noticed was presented to the trial

court and, if so, whether judicial notice was taken by that court. In violation

of rule 8.252, Petitioner has failed to submit documents outside the Superior

Court record in a separate motion as required.

Petitioner argues for the first time on appeal that “section 917

unconstitutionally abrogates the Executive’s Constitutional Prerogative in

Investigating and charging felonies through Grand Jury indictment.” (Writ

Petition, pp. 41-46.) A basic tenant of appellate procedure is that arguments

and facts not raised in the lower court are deemed waived on appeal. “‘[I]t is

fundamental that a reviewing court will ordinarily not consider claims made

for the first time on appeal which could have been but were not presented to

the trial court.’ ‘[W]e ignore arguments, authority, and facts not presented

and litigated in the trial court. Generally, issues raised for the first time on

appeal which were not litigated in the trial court are waived....’ ” (Gonzales

v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131 citing Newton

v. Clemons (2003) 110 Ca1.App.4th 1, 11, 1 Cal.Rptr.3d 90, fn. omitted.)

Likewise Petitioner fails to explain why the legislative history is necessary

to this Court's decision. (See Moral v. City of Live Oak (2013) 221

Cal.App.4th 975, 984 fn. 2 [refusing to take judicial notice of information

that was not necessary to resolve the issues on appeal].) As Petitioner failed

to raise this issue in the Superior Court, it should be deemed waived and not

be considered on appeal.

IV.

CONCLUSION

Petitioner has failed to show the Superior Court abused its discretion

in discharging the grand jury and quashing the related subpoenas. Petitioner

has also failed to allege it has no adequate remedy at law and the Writ Petition

is otherwise procedurally defective. As such, Real Parties in Interest request

that this Court summarily deny the People's Writ Petition.

Respectfully submitted,

April 1, 2016

MASTAGNI HOLSTEDT, APC

V( UD TH A. ODB

AOSHUA A. OLANDER il-ASHAYLA D. BILLINGTON Real Parties in Interest, SOUTH LAKE TAHOE POLICE OFFICERS' ASSOCIATION and SOUTH LAKE TAHOE POLICE SUPERVISORS' ASSOCIATION

26

CERTIFICATE OF WORD COUNT

Pursuant to Rule 8.204(c)(1) of the California Rules of Court, I

certify that this brief consists of 5,472 words, as counted by the computer

program used to generate the document.

MASTAGNI HOLSTEDT, APC

I)

.TiipITH A. ODBERT

.t9SHUA A. OLANDER TASHAYLA D. BILLINGTON Real Parties in Interest, SOUTH LAKE TAHOE POLICE OFFICERS' ASSOCIATION and SOUTH LAKE TAHOE POLICE SUPERVISORS' ASSOCIATION

27

Dates: April 1, 2016

PROOF OF SERVICE

I am a citizen of the United States and a resident of the County of

Sacramento. I am over the age of eighteen years and not a party to the within

above-entitled action; my business address is 1912 I Street, Sacramento,

California 95811.

On April 1, 2016 I served the within:

REAL PARTIES IN INTEREST SOUTH LAKE TAHOE POLICE OFFICERS' ASSOCIATION AND SOUTH LAKE TAHOE POLICE SUPRVISORS' ASSOCIATION'S PRELIMINARY OPPOSITION TO PETITION FOR WRIT OF MANDATE

Attorneys for People of the State of Attorneys for City of South Lake California Tahoe William Clark Thomas T. Watson Vern Pierson City of South Lake Tahoe El Dorado County District 1901 Airport Road, Suite 300 Attorney South Lake Tahoe, CA 96150 515 Main Street Placerville, CA 95667

Attorneys for California District Attorneys for Chief of Police Brian Attorneys Association Uhler Mark Zahner Bruce D. Praet 921 11th St Ste 300 Ferguson, Praet & Sherman Sacramento, CA 95814 1631 East 18th Street

Santa Ana, CA 92701

BY ELECTRONIC SERVICE: I certify that all participants in the case are registered TRUEFILING users and that service will be provided by TRUEFILING to parties' attorneys of record, pursuant to Local Rule 5 and on the Supreme Court pursuant to rule 8.212(c)(2).

And;

28

R. BARBIERI P

Superior Court of El Dorado Honorable James R. Wagoner 495 Main Street, Dept. 1 Placerville, CA 95667

BY U.S. MAIL: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, and placing each for collection and mailing following ordinary business practices. I am "readily familiar" with the firm's practice of collection and processing of correspondence for mailing. Under that practice, it would be deposited with the United States Mail today, with postage thereon fully prepaid at Sacramento, California in the ordinary course of business.

I certify (or declare) under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

Executed on April 1, 20 cramento, California.

Paralegal

29

Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

Exhibit 5

Exhibit 6

Certificate of Interested PartiesTable of ContentsTable of AuthoritiesI. INTRODUCTIONII. PROCEDURAL HISTORYA. AN OFFICER INVOLVED SHOOTING OCCURRED ON JUNE 15, 2015.B. PETITIONER INFORMED SLTPOA AND SLTPSA ATTORNEYS THAT HE WOULD INTENTIONALLY DELAY IN CONVENING A GRAND JURY IN ORDER TO CHALLENGE THE CONSTITUTIONALITY OF SB 227.C. MOTIONS TO DISCHARGE THE GRAND JURY AND QUASH SUBPOENAS FOR SLTPOA AND SLTPSA MEMBERS WERE GRANTED.D. PETITIONER FILED A DEFECTIVE PETITION FOR WRIT OF MANDATE.

III. PRELIMINARY OPPOSITIONIV. STANDARD OF REVIEWV. ARGUMENTA. THE WRIT PETITION SHOULD BE DENIED BECAUSE IT ASKS THE COURT TO VACATE THE SUPERIOR COURT’S ORDER AND CONVENE A GRAND JURY IN VIOLATION OF THE LAW.1. Penal Code Section 917(b) Prohibits the District Attorney from Convening a Grand Jury to Investigate a Peace Officer’s Use of Force Resulting in Death.2. Senate Bill 227 is Presumptively Constitutional and the Legislature May Regulate Matters of Statewide Concern.a. SB 227 is Presumptively Constitutional.b. The Legislature May Regulate Matters of Statewide

3. Petitioner is Improperly Seeking Mandamus Relief.a. Plain, Speedy, and Adequate Alternative Remedies Exist.b. Petitioner has Failed to Allege the Superior Court Had a Ministerial Duty or that Petitioner Had Beneficial Right to the Performance of the Duty.

B. THE WRIT PETITION SHOULD BE DENIED FOR PROCEDURAL DEFECTS.1. The Writ Petition Improperly Fails to Include the Supporting Documents.2. Petitioner Failed to Request Judicial Notice Pursuant to Rule 8.252 and Raises a New Arguments for the First Time on Appeal.

VI. CONCLUSIONCERTIFICATE OF WORD COUNTPROOF OF SERVICEEXHIBIT 1EXHIBIT 2Exhibit AExhibit BExhibit CExhibit DExhibit EExhibit FExhibit GExhibit HExhibit I

EXHIBIT 3EXHIBIT 4EXHIBIT 5EXHIBIT 6