THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO APPELLATE DIVISION. Case No.:

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1 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO APPELLATE DIVISION SANDRA SUSAN MERRITT, Petitioner, vs. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO, Respondent; PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. Case No.: IMMEDIATE STAY REQUESTED Arraignment, Oct., 01 Superior Court of the State of California, County of San Francisco Case No.: 01 Dept.: Judge: Christopher C. Hite Tel. No.: (1) 1-00 REQUEST FOR STAY OF PROCEEDINGS; VERIFIED PETITION FOR WRIT OF MANDATE, PROHIBITION, OR OTHER APPROPRIATE RELIEF; From the Orders of the Superior Court of the State of California County of San Francisco Case No. 01 The Honorable Christopher C. Hite Presiding Tel.: (1) 1-00 *Nicolaie Cocis (CA Bar # 00) Law Office of Nic Cocis & Associates Sky Canyon Drive, Suite Murrieta, CA Tel: (1) -0 Fax: (1) - nic@cocislaw.com Horatio G. Mihet (FL Bar # 1) Liberty Counsel P.O. Box 0 Orlando, Florida Tel: (0) -1 Fax: (0) -00 hmihet@lc.org Admitted Pro Hac Vice Attorneys for Petitioner/Defendant Sandra Susan Merritt

2 TABLE OF CONTENTS Page No. Table of Authorities... iii-iv REQUEST FOR STAY... 1 Petition for Writ of Mandate, Prohibition, or Other Appropriate Relief... Section I, Petitioner & Real Party in Interest... Section II, Respondent... Section III, Venue is Proper... Section IV, No Prior Petitions... Section V, Statement of Grounds for Relief... A. Statement of Procedural Facts... - B. Statement of Legal Issues... Section VI, Petitioner Has Exhausted Her Remedies... Section VII, Petitioner Diligently Filed This Petition... Section VIII, Petitioner Has No Adequate Remedy... 1 Section IX, Petitioner s Irreparable Harm Absent Writ Relief... 1 Prayer... 1 Verification... 1 MEMORANDUM... 1 I. Petitioner Has Demonstrated All Necessary Requirements to Obtain Extraordinary Relief... 1 A. Petitioner Diligently Filed This Petition... 1 B. Has No Adequate Remedy at Law, and Therefore a Writ Must Issue... 1 i

3 C. A Writ of Mandate Should Issue to Correct Respondent s Error in Failing to Carry Out Its Statutorily Mandated Duty under Sections 0 and II. The Attorney General s Failure to Timely File An Amended Complaint Against Petitioner Is Fatal, And Requires Dismissal Of Counts One Through Fourteen... A. The -Day Deadline Imposed by Section 0 is Mandatory and Cannot Be Altered Absent an Intentional Waiver by Defendant... B. B. Section 0 s Dismissal Provision, in Conjunction with Section 0, is Jurisdictional, and Therefore Petitioner s Constitutional and Statutory Protections Should Not be Subverted by the Attorney General s Negligence... C. The Rules Permitting Courts to Correct Their Own Clerical Errors Do Not Permit Correction of Litigant Errors... Conclusion... - Certificate of Compliance... Certificate of Service APPENDIX to Verified Petition for Writ of Mandate, Prohibition, or Other Appropriate Relief & Memorandum is attached hereto and incorporated by reference herein... ii

4 TABLE OF AUTHORITIES Page No. Cases Babb v. Superior Court, Cal. d 1, 1 (1)... 1 Cowan v. Superior Court of Kern County, 1 Cal. th ()... Edwards v. Steele, Cal. d 0, 0, ()... 1 Good v. Superior Court, 1 Cal. App. th, n Gray v. Superior Court of Napa County, 1 Cal. App. th, n. (Ct. App. 00)... 1 Harris v. Superior Court of Alameda, Cal. d ()... 1 Hilmer v. Superior Court, 0 Cal. 1, ()... 1 Hogya v. Superior Court, Cal. App. d 1, 1- (Ct. App. )... 1, 1 Hurtado v. Superior Court, Cal. d, ()... 1 Mannheim v. Superior Court, Cal. d, (0)... 1 Osman v. Appellate Div. of the Superior Court of Los Angeles County, 1 Cal. App. th, 1 (00)... 1, People v. Bailey, Cal. App. d Supp. 0, (Cal. App. Dep t. Super. Ct. )... People v. Mitchell, Cal. th, 1 (001)... People v. Pompa-Ortiz, Cal. d, (0)... 1 iii

5 People v. Superior Court (Aquino), 01 Cal. App. d 1 ()... 1 People v. Trotter, Cal. App. th ()... People v. Williams, Cal. App. th,, 1- ()... 0,, People v. Wilson, 0 Cal. d ()... 1, - Shuford v. Superior Court, Cal. d 0 ()... 1 Williams v. Superior Court, 1 Cal. App. th Supp. 1 (Cal. App. Div. Super. Ct. 00)... 0, Statutes California Code of Civil Procedure, Section... 1 California Evidence Code Section... 0 California Penal Code, Section b... California Penal Code, Section 0... Passim California Penal Code, Section 0... Passim California Penal Code, Section 1... California Penal Code, Section 1..., Court Rules California Rules of Court, Rule.(a)... Local Rules of Court for the San Francisco Superior Court, Rule1.1(B)... iv

6 REQUEST FOR STAY By reason of the August, 01 Order described in Allegations contained in Section V (including all subparagraphs) of the within Petition for Writ of Mandate, the San Francisco Superior Court requires Petitioner to proceed to Arraignment and to enter a plea to Counts One through Fourteen of the Amended Criminal Complaint, unless restrained by order of this Court. Those Counts should have been dismissed pursuant to Penal Code Sections 0 1 and Section 0 provides, in pertinent part: Upon considering the demurrer, the court must make an order either overruling or sustaining it.... If the demurrer to a complaint is sustained, the court must, if the defect can be remedied, permit the filing of an amended complaint within such time not exceeding days as it may fix. The orders made under this section shall be entered in the docket or minutes of the court. Id. (emphasis added). Section 0 provides, in pertinent part: If the demurrer is sustained,... in case an amendment is permitted, no amendment is made or amended pleading is filed within the time fixed therefor, the action shall be dismissed, and,... the court must order,... if [the defendant] has been admitted to bail, that his bail be exonerated.... Id. (emphasis added). 1

7 PETITION TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO, APPELLATE DIVISION: Petitioner, SANDRA SUSAN MERRITT, petitions this Court for a Writ of Mandate, Prohibition, or other appropriate relief, and for a stay of proceedings, directed to respondent Court, and by this verified petition represents that: I Petitioner & Real Party in Interest Petitioner, SANDRA SUSAN MERRITT, is the Defendant in a felony action now pending in Respondent Court entitled The People of the State of California v. David Robert Daleiden and Sandra Susan Merritt, No. 01. The People of the State of California are named in this petition as the Real Party in Interest. II Respondent Respondent, the Superior Court of California, County of San Francisco, is now, and at all times mentioned in this petition has been exercising judicial functions in connection with the proceeding described in Section I. III Venue is Proper All the proceedings about which this petition is concerned have occurred within the territorial jurisdiction of Respondent and of the Court of Appeal of the State of California, First Appellate District.

8 Whereas no Indictment or Information has been filed, pursuant to the Local Rules of the San Francisco Superior Court ( LRSF ), LRSF 1.1(B), Petitioner files her petition in this Court. IV No Prior Petitions No other petition for Writ of Mandate or Prohibition has been made by or on behalf of this Petitioner relating to this matter. V Statement of Grounds for Relief Respondent, in its oral August, 01 Order, denied Petitioner s motion to dismiss Counts One through Fourteen of the Criminal Complaint in Superior Court Case No. 01, filed on May, 01. (See Appendix containing the Record below, which is attached hereto and incorporated by reference herein (hereinafter, App. )); (App., Tab A, at 1 (--1 Transcript ( --1 Tr. ), at 1:).) In so doing, Respondent failed to carry out its duty under California Penal Code Section 0, which, by its explicit terms, mandates dismissal under the precise circumstances as occurred in Petitioner s case. Section 0 imposes jurisdictional constraints on criminal courts. Therefore, for failing to carry out the statutorily imposed duty to dismiss the aforementioned Counts, Respondent both exceeded its fundamental jurisdiction and abused its discretion where it had only one choice to dismiss Counts One through Fourteen of the Criminal Complaint. Unless otherwise noted, all statutory references are to sections of the Penal Code.

9 A. Statement of Procedural Facts. 1. On May, 01, Attorney General Xavier Becerra (for the Real Party in Interest, hereinafter referred to as Attorney General ) filed two identical felony Complaints: one against Petitioner and the other against her Co-Defendant, David R. Daleiden (hereinafter Co-Defendant Daleiden ). Each Complaint alleged 1 felony counts. Separate case numbers were issued for each of the defendants: Petitioner s case number is 01 (see App., Tab B, at 1-(Criminal Complaint)), and Mr. Daleiden s case number is 00.. At Petitioner s bail hearing on May, 01, the Attorney General argued that the sheer number of charges against her, and the potential penalty of eleven years of incarceration, warranted a high bail, despite Petitioner s strong and longstanding ties to the community, and despite the undisputed fact that she poses no flight risk. Petitioner then posted the requested bail: $,000.. Co-Defendant Daleiden filed his Demurrer on May, 01. Approximately three weeks later, on May, 01, Petitioner filed her own Demurrer under her separate case number.. Petitioner did not merely adopt Mr. Daleiden s demurrer. Rather, Petitioner made arguments of law and fact as to the sufficiency of the Complaint that were unique to her Demurrer.. A hearing occurred on June 1, 01, (see App., Tab F-Exhibit A, at -0 (Transcript of Proceedings (hereinafter, -1-1 Tr. )), wherein Respondent sustained Petitioner s Demurrer, and accordingly, dismissed Counts One through Fourteen of the 1-count Complaint.

10 However, Respondent gave the Attorney General the opportunity to file an amended complaint within ten () days as mandated by Section 0. (see App., Tab F-Exhibit A, at -0 (-1-1 Tr., at :-, 0:1-).). Accordingly, an amended complaint, if any, was due to be filed no later than July, 01, in each separate case of Petitioner and Co- Defendant Daleiden.. On June, 01, the Attorney General s Office sent Petitioner s Counsel, via chain , a copy of an Amended Complaint which reflected only Mr. Daleiden s case number. (See App., Tab C, at -, - ( with attachment)).. The next day, the Attorney General filed that Amended Complaint only in Mr. Daleiden s case.. On July, 01, one of Petitioner s attorneys, Mr. Nic Cocis, replied to all of the Attorney General s employees in the chain and requested a conformed copy of the Amended Complaint that had been purportedly filed. (See App., Tab C, at.) Counsel for Petitioner did not receive any response.. Thereafter, at the July 1, 01 hearing, Respondent inquired into the Attorney General s failure to file an amended complaint in Petitioner s case. The Attorney General had no explanation. (See App. Tab D-Exhibit B, at -, 1 (July 1, 01 Transcript of Proceedings (hereinafter, -1-1 Tr. ), at : to :1-, :1-1, :1-, :-.) The tenth day fell on a Saturday, July 1, 01, and therefore, an amended complaint would have been due on July, 01.

11 During that same hearing, the Attorney General s Office requested time to look into why a separate complaint had not been filed in the Petitioner s case. (App. Tab D-Exhibit B, at - (-1-1 Tr. at :- to :1-)). 1. Petitioner informed the Court that she was prepared to proceed to Arraignment on the sole remaining count that was still active, Count 1. (App. Tab D-Exhibit B, at (-1-1 Tr. at :1-1).) 1. At the end of Petitioner s counsel s argument, Petitioner orally moved to dismiss (referring to the first fourteen counts) pursuant to Sections 0 and 0. (App. Tab D-Exhibit B, at 0 (-1-1 Tr. at :-).) 1. Respondent requested that Petitioner file a written motion to dismiss, so that the issues could be fully briefed in advance of the next hearing on August, 01. (App. Tab D-Exhibit B, at (-1-1 Tr. at 1:-).) Petitioner subsequently filed her motion to dismiss, arguing that the Attorney General s failure to file an amended complaint within the statutorily mandated ten-day time limit required dismissal pursuant to Section 0. (See App. Tab D-Exhibit B, at -].) 1. In Petitioner s Reply in Support of Her Motion to Dismiss (hereinafter, Pet. Reply MTD ), (App. Tab F, at -0), Petitioner clearly demonstrated that the Attorney General failed to file his amended complaint by the tenth day of the deadline (July, 01). (See, id. at - (Pet. Reply Before Petitioner s motion to dismiss was due to be filed, the Attorney General filed his Response in Opposition to Defendant Merritt s Oral Motion to Dismiss; Points & Authorities, on August, 01, which is included in the Appendix, App. Tab E, at 0-. Petitioner s Reply, thereto, is included in the Appendix, App. Tab F, at -0.

12 MTD, at -.) In so doing, Petitioner noted that the Attorney General s specific oral representation at the July 1 hearing directly conflicted with his written representation in his Response in Opposition to Defendant Merritt s Oral Motion to Dismiss served on August, 01 (hereinafter, AG Opp. MTD). (See, id. at (Pet. Reply MTD, at :-1).) Petitioner pointed out in her Reply that, at the July 1 hearing, the Attorney General s office represented that his office understood that by filing the complaint on June 0 th with both names, that it was statutorily sufficient. (See, id. at (Pet. Reply MTD, at :-1); Tab D-Exhibit B, at (-1-1 Tr. at :1-1) (emphasis added).) However, in the AG s Opp. MTD, his office explicitly misrepresented that two separate Amended Complaints were filed under only one (Daleiden s) court docket number. (App., Tab E, at 0-1 (AG Opp. MTD, at 1-).) 1. By the August, 01 hearing, the Attorney General still had not filed any amended complaint in the Petitioner s case. 1. In the August, 01 hearing, Respondent agreed with Petitioner that she need not show prejudice, (App., Tab A, at (--1 Tr. at :-).) 1. In the August, 01 hearing, Respondent found that, [o]n June 0 [sic], 01, the Attorney General s Office filed an amended complaint. The amended complaint named both defendants in the caption but only had one case number attributed to Defendant Daleiden in case number 00. As such the amended complaint was not placed in Defendant Merritt s docket under case number 01. (Id. at (--1 Tr. at :1-).)

13 . Thereafter, Respondent further found, but notably without receiving any evidence whatsoever to support its finding, that, based on administerial error by the Attorney General s Office and a clerical oversight by the court, by the clerk of court, the amended complaint was not placed in Defendant Merritt s docket by the clerk of court. (Id. at (--1 Tr. at :-1).) Even so, Respondent acknowledged that Petitioner s counsel had previously inquired with the Attorney General s Office about receiving a conformed copy of the Amended Complaint, but that the Attorney General s office ignored Petitioner s inquiry. (Id. at (- -1 Tr. at :1-).) 0. Based upon Respondent s clear error of interjecting facts not in evidence (mentioned above in ), Respondent refused to properly apply Section 0 by its express, mandatory terms. 1. Over Petitioner s vehement objection, (Id. at (--1 Tr., at :1-)), Respondent granted the Attorney General leave to file the Amended Complaint by the end of business on that day, August, 01 (Id. at 1 (--1 Tr., at 1:-)), yet simultaneously found a factual impossibility that the Attorney General filed a timely amended complaint against Defendant Merritt in compliance with this Court s order on June 1 st, 01, and in accordance with Penal Code Section 0 and 0. (Id. at (--1 Tr., at :-).). Respondent further erred in its August, 01 Order by relying on the inapplicable rule, that the Court has the inherent power to correct any minor clerical errors in its records so as to make its records reflect the true acts and circumstances of the parties. (Id. at 1 (--1 Tr., at :-

14 ).) As set forth above in, there was no evidence presented to Respondent showing that the Clerk of Court committed any minor clerical error. To the contrary, a declaration presented by Petitioner s counsel regarding his discussion with Criminal Division Supervisor for the Superior Court, Ms. Sherife Huseny, stated that, as of August 1, 01: a. Only one Amended Complaint (containing Co-Defendant s Daleiden s case number) was filed on June 0, 01; b. There is no copy of any Amended Complaint filed in the file of Petitioner; and c. There were no notes of a Court Clerk in the electronic docket for either Petitioner or Co-Defendant Daleiden indicating two amended complaints were filed or received; d. There were no notes of a Court Clerk in the electronic docket for either Petitioner or Co-Defendant Daleiden that would indicate a second amended complaint was presented to the Clerk, but rejected; e. If the Attorney General had filed two amended complaints under Co-Defendant Daleiden s case number, the Attorney General would be able to provide two stamped copies; and f. Two identical complaints with identical case numbers would not be permitted without the Court s approval. (App., Tab F-Exhibit B, at (Declaration of Nic Cocis, at, -).). Moreover, Respondent erred when it relied on Osman v. Superior Court, 1 Cal. App. th, 1 (Ct. App. 00), for the rule that a

15 dismissal sanction is disfavored, especially... when the defendant is out of custody, has waived time, and has requested continuances prior to the arraignment. (App., Tab A, at 1 (--1 Tr., at :-1).) There was no factual finding by Respondent at the August, 01 hearing that Petitioner had waived any time or requested continuances, and neither could there have been. Petitioner has not waived any time, and she has not requested any continuance.. After the August, 01 hearing, the Attorney General then filed an Amended Complaint in Petitioner s case. (See App., Tab G, at -.) B. Statement of Legal Issues. 1. This Court should grant this Petition to consider whether Respondent may impliedly grant an extension of time to the Real Party in Interest to file an amended complaint fifty-two () days late, over Petitioner s objection, well after the statutorily mandated ten-day deadline of Section 0. In addition, whether the statutorily mandated dismissal remedy of Section 0 may be breezed over by Respondent with the aid of facts not in evidence to assist the Attorney General in fixing his failure to comply with that statutory obligation and with Respondent s June 1, 01 Order.. Petitioner argues in the attached Memorandum in Support of Writ Petition that the above questions should be answered in the negative to protect the Petitioner s statutory and constitutional rights.

16 VI Petitioner Has Exhausted Her Remedies Petitioner objected at the August, 01 hearing to any extension of time being given to the Attorney General to file an amended complaint. In support of Petitioner s written motion to dismiss, Petitioner extensively argued that Sections 0 and 0 are jurisdictional, and that the Attorney General, through negligence, should not be permitted to subvert Petitioner s statutory and constitutional protections. (See App., Tab D, at - (Pet. MTD, at -.) Respondent denied Petitioner s motion as stated in Section V, above. VII Petitioner Diligently Filed This Petition The order at issue in this proceeding, issued on August, 01, is not appealable at this time, because it is not a final judgment of conviction and does not otherwise qualify as an appealable final judgment under Section 1 ( Appeal by defendant ). There is no statutory deadline for seeking writ relief in this instance, and Petitioner has been diligent to file this Petition because it is within the sixty-day appeal deadline as stated in California Rules of Court, Rule.(a). This Petition is also filed within a reasonable time because Petitioner s counsel, Mr. Mihet and his office staff were affected by Hurricane Irma and related power outages, which caused some delay. Additionally, prior to the challenged order on August, 01, Mr. Mihet

17 planned to be, and was, out of the country from September through, 01. Further, the Real Party in Interest, the People, have not been prejudiced because Petitioner has not yet been arraigned on the Amended Complaint. There is also no prejudice to the People because the Attorney General s Office has not even reviewed all of the evidence yet; there are five terabytes of video evidence still in dispute as to privilege. (App., Tab A, at 1-1 (--1 Tr., at 0:-, 1:1-0).) VIII. Petitioner Has No Adequate Remedy Petitioner has no plain, speedy, or adequate remedy at law other than the relief sought in this Petition. The right of appeal from Respondent s August, 01 Order is wholly inadequate for the following reasons: 1) A trial on the disputed counts would require Petitioner to defend against fourteen alleged felony counts, which would dramatically extend the length of the trial, and waste public time and funds. ) The increase in potential penalty for the 1 counts in dispute would impose a substantial emotional toll on Petitioner. ) Petitioner s counsel would otherwise be required to defend against 1 felony counts that would impose a substantial amount of time and costs for litigation expenses, including but not limited to motions, expert fees, witness interviews and travel, and counsel s interstate travel and lodging. ) If Petitioner is required to wait to challenge the order on appeal after final judgment, Petitioner will be required to show prejudice, but she is not 1

18 required to do so in her motion to dismiss, as acknowledged by Respondent (see 1, above). IX Petitioner s Irreparable Harm Absent Writ Relief Petitioner will be irreparably injured for the reasons stated above, in Section VIII, if Respondent is not compelled to perform its legal duty to dismiss Counts One through Fourteen of the Criminal Complaint, in compliance with to Penal Code sections 0 and 0. The Court should consider this case because of the significant legal impact that the proper application of Sections 0 and 0 will have for the bench and Bar, so that these Sections will not be watered down in future cases. In addition, the correction of Respondent s error will serve the proper administration of justice rather than thwarting the Legislature s mandatory intent. PRAYER WHEREFORE, Petitioner prays that: This Court immediately stay all proceedings in case number 01 until further order of this Court; and that This Court issue an alternative writ of mandate directing and requiring Respondent Court to dismiss Counts One through Fourteen of the Criminal Complaint against Petitioner in her Case No. 01, or to show cause before this Court, at a specified time and place, why it has not done so and why a peremptory writ should not issue; and that On the return of the alternative writ and hearing on the order to show cause, the Court issue a peremptory writ of mandate compelling respondent 1

19 Court to dismiss Counts One through Fourteen of the Complaint against Petitioner in her Case No. 01; and that This Court grant Petitioner such other and further relief as may be appropriate and just DATED: October, 01 Horatio G. Mihet* (FL Bar # 1) Liberty Counsel P.O. Box 0 Orlando, FL Tel: (0) -1 Fax: (0) -00 hmihet@lc.org * Admitted Pro Hac Vice /s/ Nicolaie Cocis (CA Bar # 00) Law Office of Nic Cocis & Associates Sky Canyon Dr., Suite Murrieta, CA Tel: (1) -0 Fax: (1) - nic@cocislaw.com Attorneys for Defendant Sandra Susan Merritt 1

20 VERIFICATION I am the Petitioner in this action. All facts alleged in the above document, not otherwise supported by citation to the record, exhibits, or other documents are true of my own personal knowledge. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on October, 01, at /s/ SANDRA SUSAN MERRITT, California

21 MEMORANDUM IN SUPPORT OF WRIT PETITION I. Petitioner Has Demonstrated All Necessary Requirements to Obtain Extraordinary Relief. A. Petitioner Diligently Filed This Petition. Petitioner incorporates her allegations in Section VII of her Verified Petition, and further states as follows: As the court in Good v. Superior Court, 1 Cal. App. th, n. (00), noted, There is no statutory time limit for most writ petitions. A filing period of 0 days will not be denied unless the respondent can show prejudice. Petitioner s filing date (October, 01), is well-within that 0- day appeal period. B. Petitioner Has No Adequate Remedy at Law, and Therefore a Writ Must Issue. Petitioner incorporates her allegations in Section VIII of her Verified Petition, and further states as follows: California Code of Civil Procedure, Section, provides in relevant part, [t]he writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. 0 1 Where an order is not appealable, but is reviewable only upon appeal from a later judgment, various factors must be considered in evaluating the adequacy of the appellate remedy.... Such factors include, without being limited to, the expense of proceeding with trial..., prejudice resulting from delay..., inordinate pretrial expenses..., the possibility the asserted error might not infect the trial..., and the possibility the asserted error might be corrected in a lower tribunal before or during trial.... A remedy is not inadequate merely because more time would be consumed by pursuing it through the ordinary course of law than would be required in the use of an extraordinary writ.... 1

22 1 Hogya v. Superior Court, Cal. App.d 1, 1 (Ct. App. ) (citations omitted); see also, Shuford v. Superior Court, Cal. d 0 () ( pretrial writ is appropriate... [where] going to trial and appealing... would entail personal hardships... and waste public time and funds). Petitioner is not required to show prejudice at this pre-trial juncture of the proceedings. Petitioner would otherwise be required to demonstrate she had been prejudiced if she were to wait until after a final judgment of conviction to appeal Respondent s error. See People v. Pompa-Ortiz, Cal. d, (0) (citing People v. Wilson, 0 Cal. d ()) (show of prejudice not required when challenging pretrial irregularities via application for extraordinary writ, but non-jurisdictional irregularities in pretrial procedures are reviewed for prejudicial error on appeal) C. A Writ of Mandate Should Issue to Correct Respondent s Error in Failing to Carry Out Its Statutorily Mandated Duty under Sections 0 and 0. Where procedural due process rights are at issue, a writ should issue when a trial court exceeds its jurisdiction. See Gray v. Superior Court of Napa County, 1 Cal. App. th, n. (Ct. App. 00) (habeas corpus petition treated as one for mandate instead where trial court allegedly exceeded its jurisdiction on pure legal issue), id. at 1 (writ of mandate issued where bail condition, set without prior notice or evidentiary hearing, violated defendant s due process rights); see also, People v. Superior Court (Aquino), 01 Cal. App. d 1 () (where law requires the People to be named in all criminal proceedings and attend the courts, magistrate exceeded its subject matter jurisdiction when denying party status to district attorney that had investigatory role in pre-complaint proceedings). 1

23 Additionally, a writ of mandate may issue for a trial court s abuse of discretion. In Harris v. Superior Court of Alameda, Cal. d (), the Supreme Court of California reviewed a petition for writ of prohibition and/or mandate after the trial court denied the petitioners request for appointed counsel of their choice. Id. at. Although the standard for appointing counsel rests wholly within the sound discretion of the trial court, id. at, the Court noted that that a writ of mandate could issue where a court s decision falls outside the limits of sound judicial discretion, id. at : Although it is well established that mandamus cannot be issued to control a court s discretion, in unusual circumstances the writ will lie where, under the facts, that discretion can be exercised in only one way. (Babb v. Superior Court (1) Cal.d 1, 1... ; see also Hurtado v. Superior Court () Cal.d,... ; Mannheim v. Superior Court (0) Cal.d,... ; Hilmer v. Superior Court () 0 Cal. 1,.) Harris v. Superior Court, Cal.d at n. (internal parallel citations omitted). In the instant case, Respondent exceeded its jurisdiction and abused its discretion when it refused to dismiss Counts One through Fourteen of the criminal complaint against Petitioner after the Attorney General failed to file an amended complaint in Petitioner s case within ten days of Respondent s June 1, 01 Order. This is a blatant violation of Section 0. The Attorney General s Office filed its Amended Complaint in Petitioner s case fifty-two () days late. Further, Respondent denied Petitioner s motion to dismiss based upon facts not in evidence. That denial constitutes a clear abuse of 1

24 discretion in the face of one choice to dismiss Counts One through Fourteen, as argued herein below. II. THE ATTORNEY GENERAL S FAILURE TO TIMELY FILE AN AMENDED COMPLAINT AGAINST PETITIONER IS FATAL, AND REQUIRES DISMISSAL OF COUNTS ONE THROUGH FOURTEEN. The Attorney General failed to timely file an amended complaint against Petitioner in her case, as required by Sections 0 and 0, after Respondent sustained Petitioner s demurrer. Well-settled California law does not allow mandatory time limits to be altered, absent a defendant s intentional waiver or a forfeiture. The rationale behind the well-settled rules is supported by the fundamental, constitutional rights afforded to criminal defendants. Because the -day limit for filing an amended complaint imposed by Sections 0 and 0 is mandatory, and because Petitioner did not waive, but timely objected to the Attorney General s failure to file an Amended Complaint within that limit, the first fourteen counts must be dismissed. Further, under Section 0, Petitioner s bail should be exonerated. A. The -Day Deadline Imposed by Section 0 is Mandatory and Cannot Be Altered Absent an Intentional Waiver by Defendant. California law requires strict compliance with the provisions of Sections 0 and 0, which are mandatory, particularly when a defendant timely objects to the People s failure to adhere to the statutory requirements (as Petitioner did), or when a defendant does not otherwise intentionally and Respondent took Petitioner s request to exonerate bail (under Section 0) off the calendar after denying her motion to dismiss. (App., Tab A, at 1 (- -1 Tr., at 1:-1.)

25 expressly waive her rights. The rationale for such strict compliance lies with preserving the fundamental constitutional rights of proper notice of charges and expedient due process. In Williams v. Superior Court, 1 Cal. App. th Supp. 1 (Cal. App. Div. Super. Ct. 00), the Appellate Division of the Superior Court of San Mateo County examined the nature of Section 0 s requirement to dismiss a complaint. Id. at. The Appellate Division found that the trial court abused its discretion in allowing the People 0 days within which to file an amended complaint after the petitioner s second demurrer was sustained. Id. at (emphasis added). As held by that court, Sections 0 and 0 constitute mandates. Evidence Code section declares that in a statute the word shall means mandatory and may connotes permissive. [T]he lack of penalty or consequence for noncompliance with a statutory procedure is indicative of a directory requirement. Id. at (internal citations omitted) (second alteration in original) (emphasis added) (citing People v. Williams, Cal. App. th,, 1 ()). Under those principles, the court easily found that the -day time limit at issue here is mandatory: Section 0 uses shall in stating a case is to be dismissed because of failure to file an amended complaint within the requisite time limit. The penalty of dismissal is explicit. A demurrer s purpose under section 0 is dismissal of a pleading which lacks adequate notice of the public offense charged. The section 0 time limit promotes a speedy resolution of such issues. The accusatory pleading is an indispensable part of the case. If the People cannot file one that complies with due process and other statutory notice elements, then prosecution should end by dismissal of the action so as to protect the accused from improper Evidence Code Section provides that, Shall is mandatory and may is permissive. Cal. Evid. Code. 0

26 prosecution. (Cf. Edwards v. Steele () Cal.d 0, 0, 1 Cal. Rptr., P.d 1.) We, therefore, conclude section 0 is mandatory. Id. (emphasis added). Thus, the trial court was powerless to enlarge the deadline absent an intentional waiver or agreement by defendant. Id. Accordingly, the trial court s enlargement of that deadline not only constituted abuse of discretion, but was serious enough to warrant mandamus intervention and corrective writ by the higher court. Id. at. In Osman v. Appellate Div. of the Superior Court of Los Angeles County, 1 Cal. App. th, 1 (00), the Second District Court of Appeal agreed that Section 0 s imposition of a definite -day deadline, its use of the mandatory shall language, and Section 0 s imposition of the sanction of dismissal, were all indications that the deadline was mandatory and could not be extended in cases where defendants object to such extensions. 1 Cal. App. th at 1 ( we recognize that because section 0 involves a time limit, the sanction of dismissal that it sets forth weighs in favor of concluding the limit is mandatory rather than directory ) (emphasis added). However, because the Osman court deemed the dismissal remedy to be a disfavored right, it disagreed with Williams v. Superior Court s conclusion that the right could never be waived. Id. The Osman court thus found that a defendant s failure to timely object to the trial court s granting of days for the filing of an amended complaint constituted a knowing waiver of the dismissal remedy. Id. at 1-. Waiver is not an issue here, and therefore, Respondent erred in relying on Osman regarding waiver it is simply not applicable here. Unlike in Osman, when the Attorney General failed to meet his deadline, Petitioner 1

27 timely objected. Nothing in Osman or any other authority suggests that Respondent has the power to enlarge the -day deadline over and above the objection of the defendant. Thus, irrespective of whether a waiver or forfeiture can occur, where (as here) no waiver or forfeiture has occurred, dismissal is required. a complaint: On the other hand, the People certainly can waive their right to amend [If] it were proper to sustain [a demurrer] without leave to amend, the proper order would be one dismissing the action as well as discharging the defendant, if he were in custody.... As we have seen, however, the defect in the complaint was in form, and while not merely technical, was one that could be remedied by an amendment.... No doubt the People could waive such amendment.... People v. Bailey, Cal. App. d Supp. 0, (Cal. App. Dep t Super. Ct. ) (citation omitted) (emphasis added). Here, Petitioner did not waive her statutory right to dismissal, but the Attorney General did waive (or forfeit) his right to file an Amended Complaint by failing to exercise that right within the strict -day period allotted by Section 0 and Respondent s Order. To carry her burden on this Motion to Dismiss, Petitioner need only show that the Attorney General failed to comply with the statutory requirements of Sections 0 and 0, and that she timely objected. See 0 1 Other authorities confirm that dismissal is mandatory here. See People v. Williams, Cal. App. th, 1- (Ct. App., th Dist. ) (no statutory consequence for violation in, and good cause and waiver provisions of, Section (a) indicate deadlines are directory). Sections 0 and 0, unlike Section (a), do not contain good cause or other waiver exceptions, and do indeed impose an explicitly remedy for noncompliance dismissal. The California Legislature is presumed to know how to draft a law to provide courts the ability to extend deadlines for good cause or other reasons. The Legislature s exclusion of such discretion from Sections 0 and 0 can only mean that it does not exist.

28 People v. Wilson, 0 Cal. d, - () (defendant would not have had to show prejudice on his motion to dismiss under Section 1 (speedy trial deadline) had he properly filed a petition for writ of mandate in the Supreme Court, before trial, but on appeal after trial, required to show prejudice). Because the Attorney General indisputably failed to file any amended complaint in Petitioner s case by the deadline, considering the mandatory nature of Sections 0 and 0, he waived or forfeited that amendment, and dismissal of Counts One through Fourteen is required B. Section 0 s Dismissal Provision, in Conjunction with Section 0, is Jurisdictional, and Therefore Petitioner s Constitutional and Statutory Protections Should Not be Subverted by the Attorney General s Negligence. Sections 0 and 0 are jurisdictional, as are statutes of limitation. The California Supreme Court s treatment of statutes of limitations is both analogous and instructive. In Cowan v. Superior Court of Kern County, 1 Cal. th (), the Court considered whether a defendant could intentionally waive a statute of limitations defense on a lesser-included offense when such waiver worked to his benefit. Id. at 0. A statute of limitations defense is a jurisdictional right that cannot be waived by a defendant s failure to raise it. Id. at 1-. The Court concluded that a defendant, in fact, could waive the most crucial of rights, so long as it is, among other things, knowing, intelligent and voluntary. Id. at -. The constraints imposed by the Legislature in Sections 0 and 0 operate more like a statute of limitation because the Legislature has

29 intentionally chosen not to include any explicit good cause or intentional waiver exception. Such statutes are designed to supplement and stand as a construction of constitutional protections for defendants. As with a statute of limitation, that a defendant may waive her right to dismiss under Sections 0 and 0 does not negate the right s importance or demote its status to a non-favored right. As noted above, even the most crucial of rights may be waived. Instead, where the Legislature has intentionally excluded good cause or intentional waiver exceptions in a penal code section designed to protect criminal defendants, such intentional exclusion indicates the Legislature s intent to require strict compliance with the protection, absent a defendant s intentional waiver for a defendant s own benefit. See also Cal. Penal Code 1(a)(1), (a)()(a), (a)()(b) ( good cause exceptions to deadlines); Cal. Penal Code b ( good cause exceptions to - and 0-day deadlines). Such statutory protections should be strictly enforced by the courts against governmental officials, and particularly against those officials who neglect their duties at the expense of criminal defendants. Criminal defendants, such as Petitioner, are still considered innocent until proven guilty, and Petitioner s fundamental rights, whether constitutional or statutory, should not be subverted by the Attorney General, who neglected to file an amended complaint. As noted by the court in Osman, there are no such explicit waiver or good cause requirements in Sections 0 or 0. 1 Cal. App. th at 1. As the court in People v. Williams explained, the difference in these [Penal Code Sections] indicates...that when the Legislature intends to prescribe a... deadline..., it does so expressly and not by implication. See People v. Williams, Cal. App. th at (citation omitted) (emphasis added).

30 Accordingly, no authority exists for extending the deadline for filing an amended complaint following the sustaining of a demurrer C. The Rules Permitting Courts to Correct Their Own Clerical Errors Do Not Permit Correction of Litigant Errors. Respondent abused its discretion and exceeded its jurisdiction when it bootstrapped the Attorney General s novel argument, where he conflated Respondent s ability to correct its own clerical errors with its inability to correct the Attorney General s error for him. Respondent s reliance on non-existent evidence (of a clerk s supposed error) demonstrates the abuse of discretion to achieve a clearly improper outcome. Respondent has no unbounded discretion to correct the Attorney General s failure to file an amended complaint. (See App., Tab E, - (AG Opp. MTD, at -.) The Attorney General s argument and cited authority is inapt. The quote taken by the Attorney General from People v. Mitchell, Cal. th, 1 (001) expressly refers to a trial court s correction of an error in an abstract of judgment. Id. (See App., Tab E, at - (AG Opp. MTD, at -).) Likewise, People v. Trotter, Cal. App. th (), does not stand for the proposition that a court, presiding over a criminal case, may step in to correct a party s (least of all a prosecutor s) failure to meet a critical deadline. Trotter merely allowed a court to correct a verdict form error, without modifying the jury verdict. Id. at -0. Ultimately, the Attorney General s repeated assertion that the issue here concerns only a minor, technical, clerical error, or a scrivener s error (App., Tab E, at (AG Opp. MTD, at )), is wrong both factually and legally. That no amended complaint was filed against Petitioner is

31 emphatically not Respondent s error. Nor is it the error of the Clerk of Court. There was no scrivener s error. There was no second Amended Complaint submitted for filing in Petitioner s case, on which a clerk, with notice to the Attorney General, could have interlineated the correct case number. The Respondent s compliance with the Attorney General s request to correct his error is an act in excess of jurisdiction and an abuse of discretion. CONCLUSION The command of Section 0 expressly required the Attorney General to file an amended complaint within such time not exceeding days as [the court] may fix. Cal. Penal Code 0. Section 0 expressly requires a complaint to be dismissed after a demurrer is sustained, where no... amendment is made or amended pleading is filed within the time fixed therefore.... Cal. Penal Code 0. There is no allowance for what the Attorney General intended (but failed) to do, as Respondent found. (See App., Tab A, at -1 (--1 Tr., at :-, :1-.) To hold otherwise would render the separate Amended Complaint filed against Ms. Merritt superfluous. Moreover, if such receipt of that unfiled complaint in Co- Defendant Daleiden s case was sufficient, the Attorney General should not have been required to physically file another identical Amended Complaint. Not only is there no good cause exception in Section 0, but neither is there an administerial error exception. (Id. at [p.#] (--1 Tr., at :). Respondent exceeded its jurisdiction and abused its discretion by covering the Attorney General s negligence with its inherent power to correct minor clerical errors in its records. (App., Tab A, at 1 (--1 Tr.,

32 at :-).) The Attorney General s error is not Respondent s error to fix by judicial fiat. For all the foregoing reasons, Petitioner respectfully requests that this Court grant the Petition. DATED: October, 01 Respectfully submitted DEFENDANT SANDRA SUSAN MERRITT, By Counsel Horatio G. Mihet* (FL Bar # 1) Liberty Counsel P.O. Box 0 Orlando, FL Tel: (0) -1 Fax: (0) -00 hmihet@lc.org * Admitted Pro Hac Vice /s/ Nicolaie Cocis (CA Bar # 00) Law Office of Nic Cocis & Associates Sky Canyon Drive, Suite Murrieta, CA Tel: (1) -0 Fax: (1) - nic@cocislaw.com Attorneys for Defendant Sandra Susan Merritt

33 CERTIFICATION OF COMPLIANCE Pursuant to California Rules of Court, Rule.(b)(l), this brief is, words, including footnotes. The total number of words was calculated through the use of the word count feature of the computer program used to prepare the brief. /s/ Nicolaie Cocis

34 CERTIFICATE OF SERVICE Pursuant to Cal. Code Civ. P. 1(a), I hereby certify that, on October, 01, I served the forgoing Request for Stay; Verified Petition for Writ Of Mandate, Prohibition, Or Other Appropriate Relief; Memorandum; And Appendix; on the following parties/entities via the following methods: Johnette Jauron Deputy Attorney General California Department of Justice Golden Gate Avenue, Suite 000 San Francisco, CA Johnette.Jauron@doj.ca.gov Attorney for the State of California Hand Delivery San Francisco Superior Court Department, First Floor 00 McAllister Street San Franciso, CA -1 Hand Delivery Steve Cooley Brentford J. Ferreira Steve Cooley & Associates 1 E. nd Street, # Long Beach, CA 00 Steve.Cooley@stevecooley.com Bjferreira@hotmail.com Attorneys for Defendant David Daleiden Hand Delivery I further certify that I am over the age of 1 and not a party to this action. Dated: October, 01 /s/ Nicolaie Cocis (CA Bar # 00) Law Office of Nic Cocis & Associates Sky Canyon Drive, Suite Murrieta, CA Tel: (1) -0 Fax: (1) - nic@cocislaw.com Attorney for Defendant