Case No. C IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT. THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner,

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1 Case No. C 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) REAL PARTIES IN INTEREST CITY OF SOUTH LAKE TAHOE AND CHIEF OF POLICE BRIAN UHLER PRELIMINARY OPPOSITION TO PETITION FOR WRIT OF MANDATE BRUCE D. PRAET (SBN ) FERGUSON, PRAET & SHERMAN A Professional Corporation th 1631 E. 18 Street, Santa Ana, CA Tel: (714) Fax: (714) Attorneys for Real Parties in Interest, CITY OF SOUTH LAKE TAHOE and CHIEF OF POLICE BRIAN UHLER 1

2 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court 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. Dated: April 4, 2016 FERGUSON, PRAET & SHERMAN A Professional Corporation /s/ Bruce D. Praet Bruce D. Praet, Attorneys for Real Parties in Interest, City of South Lake Tahoe and Brian Uhler 2

3 1. PREFATORY STATEMENT. To his credit, Petitioner, the El Dorado County District Attorney (hereafter District Attorney ) has never attempted to disguise the inescapable fact that his challenge of the newly enacted Penal Code 917(b) is based on a broad political agenda which has little, if anything, to do with whether the El Dorado County Grand Jury should actually consider the officer-involved shooting (OIS) death of Kris Jackson on June 15, Unfortunately, when the Superior Court appropriately quashed the District Attorneys (illegal) Grand Jury subpoenas and discharged the (improper) Grand Jury proceedings in this case on February 19, 2016, the District Attorney now continues to try to hold Real Parties in Interest, the entire South Lake Tahoe Police Department (SLTPD), Police Chief Brian Uhler and those individuals concurrentlyrepresented by the SLTPOA as political hostages by filing an improper writ petition with this Court. 1 As noted in the Preliminary Opposition filed by SLTPOA, the investigation of this OIS was completed by early Fall of 2015 when Penal Code 917 did not yet prohibit the consideration of OIS s by the Grand Jury. However, the District Attorney made it clear on December 10, 2015, that he was intentionally delaying any presentation of this case to a Grand Jury until after January 1, 2016, so as to allow him to challenge the constitutionality of the recent amendment of Penal Code 917(b) enacted by SB227. 3

4 As further evidence that the District Attorney s actions in the lower court and this Court are unrelated to the justified OIS of Kris Jackson, all Real Parties in Interest have provided the District Attorney with the entire OIS investigation file and consistently urged the District Attorney to simply file criminal charges against the involved Officer Klinge if the District Attorney truly believes that this OIS was somehow criminal conduct on the 2 part of the officer. However, as a tacit acknowledgment that the underlying OIS was reasonable and justified, the District Attorney has refused to take a public position on the merits of the actual shooting. He has instead elected to simply state that he intends to present the matter to a Grand Jury entirely because he believes that the recent addition of Penal Code 917(b) is somehow unconstitutional. 3 2 Contrary to the efforts of the uninvolved CDAA to spin this into some racial issue with national consequences, Kris Jackson was an albino gang member who Officer Klinge knew had recently been arrested for dealing drugs with another armed individual. There is nothing racial about this case and the material facts of this shooting are not in dispute. 3 In order to timely file this preliminary opposition, Chief Uhler cannot address all of the issues raised by the CDAA Letter of Support. However, contrary to the CDAA s assertion that Penal Code 917(b) somehow strips DA s of the ability to investigate officer-involved shootings, the statute simply requires DA s to consider such cases in public. Quite frankly, the vast majority of DA s throughout the state routinely investigate OIS s without the use of a Grand Jury and section 917(b) will likely have minimal impact on these cases. 4

5 Although it may not have any direct bearing on this Court s consideration of the pending writ petition, the District Attorney has also been informed that the merits of the underlying shooting death of Kris Jackson are currently being litigated in the United States District Court in the civil matter of Ainley v. City of South Lake Tahoe, et al, USDC Case No. 2:16-CV-0049 TLN. Regrettably, the District Attorney s refusal to accept the Legislature s enactment of Penal Code 917(b) continues to potentially have an adverse impact on the pending federal matter in that the ongoing uncertainty of a resolution of any criminal matters may impede the ability of the parties to undertake critical discovery in that matter (e.g. Officer Klinge may invoke his Fifth Amendment rights if he continues to face uncertain criminal exposure). 2. STATUS OF REAL PARTIES IN INTEREST. Real Party in Interest, Brian Uhler, is the Police Chief for the City of South Lake Tahoe Police Department. Although Chief Uhler has consistently provided the District Attorney with the entire investigation of this OIS and continuously urged the District Attorney to simply evaluate any criminal aspects of the shooting in public, the District Attorney s response was to issue Grand Jury subpoenas to Chief Uhler and several members of his department to appear before a Grand Jury in March,

6 Because the issuance of these subpoenas placed Chief Uhler in the untenable position of either ignoring (illegal) Grand Jury subpoenas or allowing himself and his subpoenaed officers to appear before an (illegal) Grand Jury proceeding, Chief Uhler joined the SLTPOA in petitioning the Superior Court to quash the subpoenas and discharge the Grand Jury. The District Attorney s most recent filing of this writ petition with this Court also has a direct impact on the ability of Chief Uhler and the City of South Lake Tahoe to proceed with a meaningful defense of the aforementioned federal lawsuit. 3. THE CALIFORNIA SUPREME COURT HAS RECENTLY MADE IT CLEAR THAT THE LEGISLATURE S ENACTMENT OF PENAL CODE 917(b) IS CONSTITUTIONAL. The fact that only five paragraphs of the District Attorney s almost fifty page writ petition even mention the underlying case which the District Attorney purportedly wishes to present to a secret Grand Jury reinforces the fact that the OIS of Kris Jackson on June 15, 2015, is nothing more than a vehicle on which the District Attorney can mount his challenge to the recently enacted Penal Code 917(b). The remainder of the District // 6

7 Attorney s petition is a massive, albeit flawed, treatise on the history of the Grand Jury, the California Constitution and inapposite Legislative actions. Because this is a preliminary opposition to the writ petition, Chief Uhler will provide the Court with an abbreviated, but compelling, argument 4 as to why the District Attorney s writ petition must be denied on its face. The essence of the District Attorney s argument is that the Legislature somehow exceeded its powers in SB227 by adding Penal Code 917(b) to prohibit the Grand Jury from considering officer involved shootings except as provided by Penal Code 918. While the District Attorney suggests that this somehow restricts the constitutional powers of the Grand Jury, section 918 continues to permit any member of the Grand Jury to initiate an investigation into any public offense. In other words, the only real impact of 917(b) is to now simply eliminate the procedural ability of the District Attorney to bring such matters before a secret Grand Jury. 5 4 In the unlikely event that this Court is inclined to take any action other than summarily denying the writ petition, Chief Uhler will file a more comprehensive opposition. However, Chief Uhler concurs with the facial defects noted by SLTPOA to the extent that the District Attorney failed to provide the record on appeal, Calif. Rules of Court, Rules and To the extent that the Legislative intent of SB227 becomes a factor in this proceeding, it is clear that the Legislature s intent was to prohibit local District Attorneys from secretly presenting officer involved shootings to a Grand Jury without public scrutiny. 7

8 While the District Attorney relies heavily on cases dating back more than 100 years, the California Supreme Court has very recently provided revealing insight as to how it would rule with respect to the Legislature s ability to statutorily regulate the Grand Jury process. In People v. Arroyo (2016) 62 Cal.4th 589, the Supreme Court had occasion to address Proposition 21's expansion of the Grand Jury s ability to consider public offenses committed by minors. Affirming the propriety of statutory regulation of the Grand Jury, the Supreme Court noted: Had the electorate not intended to permit the initiation of prosecutions against minors in adult court to be by Grand Jury indictment, one would expect it to have made such an intention plain by explicitly limiting the Grand Jury s statutory authority. Id., p. 597 (emphasis added). In other words, the Supreme Court not only affirmed the Legislature s authority to expand the statutory authority of the Grand Jury, but the Court has expressly acknowledged that the Legislature also has the power to limit the Grand Jury s statutory authority. Thus, contrary to the convoluted arguments raised by the District Attorney, it is rather clear that the Supreme Court would uphold the constitutionality of Penal Code 917(b). 8

9 This is further supported by the California Supreme Court s holding in 1973 Grand Jury (1975) 13 Cal.3d 430, wherein the Court held: Although the Grand Jury s powers are broad, they are carefully defined and limited by statute, and the Grand Jury has no inherent investigatory powers beyond those granted by the Legislature. Id., p Reinforcing the propriety of the Superior Court s ruling in this matter, the Supreme Court noted that it is the duty of the superior court to enforce the statutory limits placed on the Grand Jury. Ibid., p. 430; McClatchy Newspapers v. Superior Court (1988) 44 Cal 3d 1162, Although the District Attorney has made it clear that he personally disagrees with the Legislature s enactment of Penal Code 917(b) eliminating his ability to convene a secret Grand Jury to consider this or any other officer involved shooting, the Supreme Court has made it clear that it would be anomalous for a court of law to participate in the law s violation Grand Jury, supra., 13 Cal. 3d at 442. By quashing the (illegal) subpoenas issued in this case and discharging the (improper) Grand Jury, the Superior Court followed not only the Legislative mandate, but the consistent holdings of the Supreme Court. /// 9

10 4. CONCLUSION. Notwithstanding the procedural defects of the District Attorney s writ petition, Real Party in Interest, Chief Brian Uhler, respectfully requests that this Court summarily deny the petition for a complete lack of merit or legal authority. Thereafter, the District Attorney will retain the ability to consider the underlying officer involved shooting in public and the Real Parties in Interest will be free to proceed with all other aspects of this case without the continuing burdens imposed by the District Attorney s refusal to accept the Legislature s enactment of Penal Code 917(b). In the unlikely event that this Court is inclined to consider the District Attorney s writ petition on the merits, Chief Uhler respectfully reserves the right to provide further briefing on the issues. Dated: April 4, 2016 FERGUSON, PRAET & SHERMAN A Professional Corporation By: /s/ Bruce D. Praet Bruce D. Praet, Attorneys for Real Parties in Interest, City of South Lake Tahoe and Brian Uhler 10

11 CERTIFICATE OF WORD COUNT Pursuant to Rule 8.204(c)(1) of the California Rules of Court, I certify that this brief consists of 2,220 words, as counted by the computer program used to generate the document. DATED: April 4, 2016 FERGUSON, PRAET & SHERMAN A Professional Corporation By: /s/ Bruce D. Praet Bruce D. Praet, Attorneys for Real Parties in Interest, City of South Lake Tahoe and Brian Uhler 11

12 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I, Cathy Sherman, am employed in the aforesaid County, State of California; I am over the age of 18 years and not a party to the within action. My business address is 1631 East 18th Street, Santa Ana, California On April 4, 2016, I served the foregoing REAL PARTIES IN INTEREST CITY OF SOUTH LAKE TAHOE AND CHIEF OF POLICE BRIAN UHLER PRELIMINARY OPPOSITION TO PETITION FOR WRIT OF MANDATE on the interested parties in this action by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows: Attorneys for People of the State of California William Clark Vern Pierson El Dorado Co. District Attorney 515 Main Street Placerville, CA Attorneys for California District Attorneys Association Mark Zahner th St. Ste. 300 Sacramento, CA Thomas T. Watson City of South Lake Tahoe 1901 Airport Road, Ste. 300 South Lake Tahoe, CA Judith A. Odbert Joshua A. Olander Tashayla D. Billington Mastagni Holstedt A Professional Corporation 1912 I Street Sacramento, CA XXX (By e-filing) The above noted individuals are registered with the Court to receive notice of electronically filed documents. Per ECF rules, hard copies must be served only on parties who are not set up for electronic notification. And; 12

13 Superior Court of El Dorado Honorable James R. Wagoner 495 Main St., Dept. 1 Placerville, CA XXX (By Mail) I placed such envelope for deposit in accordance with office practice, sealed, with postage thereon fully paid and the correspondence to be deposited in the United States mail at Santa Ana, California on the same day. Executed on April 4, 2016, at Santa Ana, California. /s/cathy Sherman Cathy Sherman 13