No. BR (Trial Court Case No. 6SC00043) RESPONDENT S BRIEF. JACKIE LACEY District Attorney of Los Angeles County

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1 JACKIE LACEY, District Attorney of Los Angeles County PHYLLIS ASAYAMA, State Bar No CASSANDRA THORP, State Bar No Deputy District Attorneys 320 West Temple Street, Suite 540 Los Angeles, California Telephone: (213) (office) (213) (direct) Attorneys for Plaintiff and Respondent APPELLATE DIVISION OF THE SUPERIOR COURT STATE OF CALIFORNIA, COUNTY OF LOS ANGELES PEOPLE OF THE STATE OF CALIFORNIA, ) Plaintiff and Respondent. ) v. ) SOUTHERN CALIFORNIA GAS CO., ) Defendant and Respondent.) ) DEMETRIUS CRUMP, et al., ) Appellants. ) ) RESPONDENT S BRIEF JACKIE LACEY District Attorney of Los Angeles County No. BR PHYLLIS ASAYAMA Deputy District Attorney State Bar No (Trial Court Case No. 6SC00043) CASSANDRA THORP Deputy District Attorney State Bar No Appellate Division 320 West Temple Street, Suite 540 Los Angeles, California Main Telephone: (213) Direct Telephone: (213) Attorneys for Real Party in Interest

2 TOPICAL INDEX RESPONDENT S BRIEF 10 INTRODUCTION 10 STATEMENT OF THE CASE AND OF THE FACTS 12 ARGUMENT 22 I THE VICTIMS LACK STANDING TO INTERVENE IN THIS CRIMINAL MATTER AND APPEAL THE TRIAL COURT S SUBSTANTIVE RULINGS, AND THE MATTER SHOULD THEREFORE BE DISMISSED 22 A. A Criminal Appeal is Purely Statutory and No Criminal Statute Exists Which Permits Crime Victims to Appeal 22 B. Section 902 of the Code of Civil Procedure Does Not Authorize Crime Victims Who Are Not Parties to a Case to Initiate an Appeal 22 C. Pursuant to Dix, Crime Victims May Not Replace the People, In Whose Sovereign Name Criminal Actions are Prosecuted, and Intervene into The Conduct or Outcome of a Criminal Case; Recognition of Such a Right Would Contravene the Separation of Powers Doctrine 23 II NO PROVISION OF THE CONSTITUTION SUPERCEDES DIX, AND SPECIFICALLY PERMITS CRIME VICTIMS TO STAND IN THE ROLE OF THE PROSECUTOR AND INITIATE A CRIMINAL APPEAL 26 A. No Provision of Marsy s Law or Any Other Law Has Created and Exception to the Dix General Rule Prohibiting Citizen Prosecutions 26 2

3 B. Dix Specifically Considered and Rejected the Argument that the Enactment of the Victims Bill of Rights Created a Personal Right for Crime Victims to Intervene in a Criminal Proceeding 30 C. Important Policy Reasons Dictate Against The Recognition of Citizen Standing to Intervene into a Criminal Prosecution and Initiate an Appeal 31 III IV V NO OTHER JURISDICTION WITH A VICTIM RIGHTS ACT HAS DETERMINED THAT THE ACT GIVES CRIME VICTIMS THE INDEPENDENT RIGHT TO APPEAL A TRIAL COURT S SUBSTANTIVE RULINGS 32 THIS COURT S DENIAL OF THE VICTIMS PETITION FOR WRIT OF MANDATE DOES NOT REQUIRE THIS COURT TO FIND THAT THE VICTIMS HAVE STANDING ON DIRECT APPEAL 33 THE PLEA AGREEMENT IN THIS MATTER WAS CONSTITUTIONAL, IT WAS JUST AND SERVED THE PUBLIC INTEREST, IT WAS APPROVED BY THE TRIAL COURT, AND DEFENDANT SOCALGAS S CONVICTION SHOULD BE AFFIRMED 34 A. The People Had Sole Discretion to Negotiate A Settlement with Defendant SoCalGas, and The Victims Have No Right to Intervene in Those Negotiations to Decide What Charges to Offer for Plea or Harvey Waiver 34 B. Neither the Victims, the People, nor the Trial Court Could Require Defendant SoCalGas to Give A Harvey Waiver as to Dismissed Count

4 C. The People Complied with Marcy s Law in This Matter by Giving Notice of the Proposed Plea Agreement Hearing to Liaison Counsel Appointed by the Civil Court for All Civil Litigants in This Matter 36 D. The Victims Were Also Reasonably Notified By the Trial Court of the Sentencing Hearing Where Both Counsel and Victims Were Heard In Compliance with Marsy s Law 37 E. The Plea Agreement in This Matter Achieved a Just Result, It Served the Interests of the Public, And It Was Properly Approved by the Trial Court 37 VI VII THE PLEA AGREEMENT WAS PREMISED UPON THE BELIEF OF THE PARTIES THAT THE VICTMS WERE NOT ENTITLED TO RESTITUTION ON COUNT ONE 42 CRIMINAL RESTITUTION WAS NEVER INTENDED AS A SUBSTITUTE FOR THE LITIGATION OF COMPLEX CAUSATION ISSUES AND DAMAGES POSSIBLY RESULTING FROM THIS MASS ENVIRONMENTAL PART INCIDENT, INVOLVING UP TO 14,000 VICTIMS 43 CONCLUSION 47 4

5 TABLE OF AUTHORITIES CASES PAGES In re Luis M. (2014) 59 Cal.4th Berger v. United States (1935) 295 U.S Cianos v. State (Maryland Ct. of Appeal) 659 A.2d Com. v. Hansen (1945) 69 Cal.App.2d Cooper v. District Court (Alaska Sup. Ct. 2006) 133 P.3d Dix v. Superior Court (1991) 53 Cal.3d 442 passim Gansz v. People (Colo. Sup. Ct. 1995) 888 P.2d Hicks v. Board of Supervisors (1977) 69 Cal.App.3d , 25 Johnston v. State (Ind. App. 1998) 702 N.E.2d Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th Melissa J. v. Superior Court (1987) 190 Cal.App.3d People ex rel. Younger v. Superior Court (1978) 86 Cal.App.3d

6 People v. Birks (1998) 19 Cal.4th People v. Carbajal (1995) 10 Cal.4th People v. Connor (1983) 34 Cal.3d People v. Corners (1985) 176 Cal.App.3d People v. Dehle (2008) 166 Cal.App.4th , 29, 40, 44 People v. Giordano (2007) 42 Cal.4th People v. Hale (1965) 232 Cal.App.2d People v. Harvey (1979) 25 Cal.3d 754 passim People v. Haskett (1982) 30 Cal.3d People v. Keenan (1988) 46 Cal.3d People v. Lai (2006) 138 Cal.App.4th People v. Martinez (2017) 2 Cal.5th People v. McKee (1968) 267 Cal.App.2d People v. Millard (2009) 175 Cal.App.4th

7 People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d People v. Orin (1975) 13 Cal.3d People v. Parriera (1965) 237 Cal.App.2d People v. Sidener (1962) 58 Cal.2d People v. Smith (1975) 53 Cal.App.3d People v. Subramanyan (2016) 246 Cal.App.4th 27, 28, 29 People v. Superior Court (Greer) (1977) 19 Cal.3d , 39 People v. Superior Court(Thompson) (1984) 154 Cal.App.3d People v. Walker (2014) 231 Cal.App.4th People v. Wallace (1985) 169 Cal.App.3d , 26 Reed v. Becka (S.C. App.Ct. 1999) 333 S.E.2d Rosato v. Superior Court (1975) 51 Cal.App.3d Sabi v. Sterling (2010) 183 Cal.App.4th Shaw v. Hughes Aircraft Co (2000) 83 Cal.App.4th

8 State v. Barnett (Mo. Sup. Ct.) 980 S.W.2d State v. Lamberton (Arizona Sup. Ct. 1995) 899 P.2d Taliaferro v. Locke (1960) 182 Cal.App.2d , 25, 26 Velazquez v. Superior Court (2014) 227 Cal.App.4th CODES AND STATUTES CALIFORNIA CODE OF REGULATIONS Section 2703, subdivision (a) (4) 12 LOS ANGELES COUNTY CODE Section HEALTH AND SAFETY CODE Section 25510, subdivision (a) 10, 12, 13 Section 41700, subdivision (a) 13 PENAL CODE Section , 28 Section Section Section passim Section 1170, subdivision (d) 23, 30 Section , 31 Section Section , subdivision (b) 35 Section

9 CALIFORNIA CODE OF CIVIL PROCEDURE Code CALIFORNIA CONSTITUTION Art. I, Section 28, subd. (a) 30 Art. I, Section 28, subd. (b) 31 Art. I, Section 28, subd. (b)(13) 26, 27 Art. I, Section 28, subd. (b)(6) 36 Art. I, Section 28, subd. (b)(8) 38 Art. I, Section 28, subd. (c)(1) 26 Art. I, Section 28, subds. (f) 27 Art. V, Section 13 24, 25, 29 GOVERNMENT CODES Section Section 100, subd. (b) 28 Section , 25, 29 Section , 29 9

10 JACKIE LACEY, District Attorney of Los Angeles County PHYLLIS ASAYAMA, State Bar No CASSANDRA THORP, State Bar No Deputy District Attorneys 320 West Temple Street, Suite 540 Los Angeles, California Telephone: (213) (office) (213) (direct) Attorneys for Plaintiff and Respondent APPELLATE DIVISION OF THE SUPERIOR COURT STATE OF CALIFORNIA, COUNTY OF LOS ANGELES PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent. ) v. ) ) SOUTHERN CALIFORNIA GAS CO., ) ) Defendant and Respondent.) ) DEMETRIUS CRUMP, et al., ) Appellants. ) ) INTRODUCTION No. BR (Trial Court Case No. 6SC00433) RESPONDENT S BRIEF Pursuant to a negotiated settlement with the People of the State of California (hereafter the People), Defendant and Respondent Southern California Gas Co. (hereafter Defendant SoCalGas), pled to and was convicted of a misdemeanor violation of Health and Safety Code section 25510, subdivision (a) (count 1), for failing to timely report a natural gas leak at its Aliso Canyon/Porter Ranch gas storage facility. Appellants Demetrius Crump, et al. (hereafter Appellants or victims) are residents of Aliso Canyon/Porter Ranch and victims of the leak. Appellants are not parties to this criminal action. However, they now appeal seeking a reversal of the conviction in this 10

11 matter on the grounds that Defendant SoCalGas was required to pay individual, direct victim restitution. This appeal should be dismissed because the victims are not parties to this criminal action and therefore lack standing. The initiation of a criminal appeal is purely statutory and the applicable statutes limit the right to the People or to the defendant only. No statute exists which entitles victims of crime to initiate an appeal. As a general rule, citizens may never replace the People in a criminal action and intervene into the conduct of a criminal case. (Dix v. Superior Court (1991) 53 Cal.3d 442, 450 (Dix).) Nothing in the Victims Bill of Rights Act of 2008: Marsy s Law (hereafter Marsy s Law), specifically created an exception to this rule and gave crime victims the right to initiate an appeal. Recognition by the courts of such a right would invade the People s exclusive powers to decide who and what to charge, what charges to offer for plea, and what cases to try, and thereby contravene the separation of powers. In addition, even if this Court were to confer standing to the victims, the plea agreement in this matter was reached in compliance with Marsy s Law and all other applicable laws, and there is no basis for reversal of the plea or conviction. The People have sole discretion in deciding what cases to settle or try. In compliance with Marsy s Law, the People reasonably informed the crime victims of the proposed plea agreement and gave them reasonable notice of the hearing thereon. Also in compliance with Marsy s Law, the trial court gave the victims and their counsel the opportunity to be heard, and they were actually heard, on the restitution issue prior to sentencing. The plea agreement in this matter achieved a just result with terms that included: (1) proactive, extensive and costly repairs, and the installation of new leak detection systems; (2) new testing, monitoring, and inspection and safety protocols; (3) the hiring of new personnel to support these functions; and (4) funding of all of these functions by Defendant 11

12 SoCalGas at a cost of millions of dollars. The plea agreement protected not just individual victims, but also protected the greater public interest in providing more safety for all residents of the San Fernando Valley, and did so without costly and protracted litigation. The plea was accepted by the trial court. The plea agreement was legal, it was just, and there is absolutely no basis for its withdrawal or for the reversal of the conviction in this matter. Accordingly, this Court should affirm the conviction and judgment in this matter. STATEMENT OF THE CASE AND OF THE FACTS On February 2, 2016, Defendant SoCalGas was charged in a four-count misdemeanor complaint following a natural gas leak at its Aliso Canyon/Porter Ranch gas storage facility. (Clerk s Transcript, Vol. 1 of 4 (hereafter 1 CT), pp. 1-4.) Defendant SoCalGas was specifically charged with the following crimes: (1) in count 1, the crime of failure to report the release of hazardous material to proper authorities, specifically, the California Emergency Management Agency and to the unified program agency, in violation of Health and Safety Code section 25510, subdivision (a) (hereafter Health and Safety Code section (a)); (2) in count 2, the crime of failure to report the release of hazardous material to proper authorities, specifically the health hazardous materials division of the forester and fire warden, in violation of Los Angeles County Code section ; (3) in count 3, the crime of failure to report the release of hazardous material by failing to provide an immediate verbal report to the administering agency and to the California Emergency Management Agency, in violation of Title 19 of the California Code of Regulations Section 2703, subdivision (a); and 12

13 (4) in count 4, the crime of discharge of air contaminants in violation of Health and Safety section 41700, subdivision (a). (Ibid.) The leak was alleged to have started on October 23, 2015, but was not reported to proper authorities until three days later on October 26, (Ibid.) On September 12, 2016, the People notified attorney Paul Kiesel that a proposed settlement agreement between the parties would be presented to the court the next day. (Clerk s Transcript, Vol. 2 of 4 (hereafter 2 CT), p. 432.) Mr. Kiesel was appointed by the civil court (Honorable John Shepard Wiley, Los Angeles Superior Court, Central Civil West Courthouse, Department 311), as liaison counsel for the numerous private plaintiffs and 86 law firms involved in the 157 coordinated civil suits and class-actions filed against Defendant SoCalGas and Sempra Energy arising out of the subject gas leak. (2 CT, p. 431; Clerk s Transcript, Vol. 3 of 4 (hereafter 3 CT), p. 742.) Mr. Kiesel stated that he would send a representative to the settlement hearing. (2 CT, p. 432.) The People believe that a representative was present in court at the time that the plea was taken. (3 CT, p. 742.) On September 13, 2016, the proposed settlement agreement between the People and Defendant SoCalGas was submitted to the trial court. (1 CT, p. 288; 2 CT, p. 301.) Defendant SoCalGas agreed to plead no contest to count 1 of the complaint, a violation of Health and Safety section 25510(a), failing to report a release of hazardous material to proper authorities. (2 CT, p. 302.) In exchange, Defendant SoCalGas agreed to pay an approximate total of $4 million in fines and penalties, for the purchase of upgraded safety and monitoring equipment and for the hiring of employees to operate and maintain this new equipment, and for the reimbursement of investigative costs. (Id. at pp ) More specifically, pursuant to the plea agreement, Defendant SoCalGas agreed as follows: 13

14 (1) to pay the maximum penalty under the law ($75,000) for each of the three days that it failed to report the leak as alleged in Count 1 (id. at p. 302); (2) at a cost of $1.2 million, to install and maintain a state of the art infrared Methane Leak Detection System at the fence lines of the facility closest to the surrounding residential areas, capable of detecting whether any methane has crossed into those areas (id. at p. 304); (3) to hire six full time employees responsible for the operation and maintenance of the new equipment for at least three years, and the annual cost for the six employees is $750,000 for a total of $2.25 million over the three years (id. at pp ); (4) to use an outside third party to test and certify that the new monitoring equipment was installed correctly and in proper working order, at a cost of $100,000 (id. at p. 305); (5) to revise and adopt new internal leak reporting policies and protocols regarding releases or threatened releases of hazardous materials and training courses for responsible employees regarding the new policies and protocols (id. at p. 306); (6) to pay $246, for the cost of response of the Los Angeles County Fire Department s Health and Hazardous Materials Division. (id. at p. 303); and (7) to provide proof of completion of each of the terms of the agreement at the sentencing hearing. (Id. at p. 310.) The court accepted the plea, found the defendant guilty, and signed the settlement agreement. (2 CT, p. 317.) Upon the completion of the plea hearing, the matter was set for probation and sentencing scheduled for November 29, (Id. at p. 318.) On October 18, 2016, plaintiff law firms, the Parris Law Firm, and Panish Shea & Boyle, who had previously filed civil lawsuits on behalf of 14

15 victims which are currently pending against Defendant SoCalGas, filed a Request for Withdrawal of the Plea Agreement. (1 CT, p. 25.) The Request stated that the plea should be withdrawn because it violated Marsy s law in that the People had not given reasonable notice to the victims prior to the disposition of the matter. (Id. at p. 37.) It also stated that the plea should be withdrawn because it violated the victims general constitutional right to restitution. (Id. at p. 38.) The Request further stated that the plea should be withdrawn because the People had not obtained a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey) on count 4, which would have entitled the court to impose punishment for criminal conduct arising from that count without a plea to that count. (Ibid.) The Request also specifically referenced restitution to the victims for the diminution of the values of the victims homes (id. at p. 36) as well as for serious health consequences, even death (id. at p. 34), but provided no evidence of any such actual losses. On October 19, 2016, the trial court issued a minute order stating that the People and Defendant SoCalGas were permitted to file responses to the Request. (1 CT, p. 240.) The People filed an Opposition. In the Opposition, the People asserted that the plea agreement should not be withdrawn because: (1) The People complied with Marsy s law by notifying attorney Paul Kiesel (lead plaintiff counsel in the civil lawsuits between the residents of the area and Defendant SoCalGas), about the proposed settlement before the hearing on it; (2) residents and/or their counsel still had a right to be heard on the issue of restitution at the November sentencing hearing; (3) direct victims of crime who incur an economic loss as a result of the commission of a crime have a constitutional right to restitution from a defendant convicted of that crime, but there is no right to restitution on 15

16 count 1 to which Defendant SoCalGas pled, because that charge has no direct victims; (4) there is no right to restitution on a dismissed count without a Harvey waiver; (5) private plaintiffs counsel lack standing to institute criminal proceedings; (6) the diminution in value of homes of the residents is not recoverable in criminal restitution; (7) the People properly exercised its broad discretion in reaching the plea agreement in this case, which was fair and just and in the best interests of the people at large given that it brought the utility into compliance with the law; that it provided for significant safety enhancements including new equipment and leak detection systems, new full time personnel to support and maintain the new systems, new policies and procedures for all affected employees and training thereon (none of which would necessarily be required even after a successful jury prosecution and guilty verdict); that it required an over $4 million total outlay for a misdemeanor conviction; that it is a priorable offense which exposed Defendant SoCalGas to a felony filing for any future violation of the same crime; that the People believed that Defendant SoCalGas has already paid over $500 million in temporary relocation and cleaning expenses to residents due to the leak; and that the plea agreement did not curtail or infringe upon any of the pending civil lawsuits or the pending actions brought against Defendant SoCalGas by the California Attorney General s Office, the Los Angeles City Attorney s Office, and the Los Angeles County Counsel; and (8) for the same reasons, the trial court properly exercised its broad discretion in approving the settlement agreement and in dismissing the remaining charges. (3 CT, p. 736.) 16

17 Defendant SoCalGas also filed an Opposition, stating similar arguments. (3 CT, p. 714.) On November 7, 2016, the trial court issued a minute order stating that the victims, by appearing themselves or through their counsel, had standing to be heard and to express their views concerning the negotiated disposition at the probation and sentencing hearing scheduled for November 29, (1 CT, p. 247.) The order stated that the court would hear input, comments, and objections by the victims and further arguments by the parties before it would proceed with the sentencing. (Id. at pp ) The court ordered its clerk to give notice of the entry of the order by mail and fax to the counsel for the parties as well as to all counsel who had filed or joined in the filing of the Request for Withdrawal. (Id. at p. 248.) On November 28, 2016, the victims filed a Reply to the Oppositions which argued that a victim restitution order was required in the case because counts 1 and 4 are transactionally related to each other since the failure to report a leak necessarily encompasses the leak itself and any resulting damages. (2 RT, p. 434.) On November 29, 2016, the matter was called for probation and sentencing hearing. (Reporters Transcript of Proceedings dated September 13 and November 29, 2016 (RT), p. 22.) The court first requested to hear from victims individually or through counsel who had filed the Request for Withdrawal. (Id. at p. 27.) Brian Panish, stating his appearance on behalf of 7,225 victims, argued that the prosecution had illegally bargained away the victims right to restitution and that any disposition without restitution was invalid. (Id. at pp. 27, 29.) Mr. Panish also argued as set forth in the Reply Brief that the trial court could correct the plea and impose restitution by finding that count 4 is transactionally related to count 1 since the failure to report a leak necessarily encompasses the actual emission. (Id. at p. 29.) In the alternative, he argued that the court could give Defendant SoCalGas the 17

18 opportunity to make a Harvey waiver as to count 4, or withdraw the plea. (Id. at p. 31.) R. Rex Parris also appeared on behalf of the 7,225 victims. (RT, pp. 22, 32.) Mr. Parris argued that the trial court did not need a Harvey waiver to impose restitution in the matter, or if it did, the court should withdraw the plea. (Id. at pp ) After hearing counsel s arguments, the trial court then stated that it would hear from the actual victims, explaining first that it had made arrangements for another court to handle its calendar matters and that it had not started a trial in order to dedicate as much time as necessary to the hearing. (2 RT, pp ) The trial court heard six victims of the leak who expressed their concerns about the need for restitution. (Id. at pp ) Another plaintiffs lawyer, Patricia Oliver, also spoke. (Id. at pp ) Mr. Kiesel was present at the sentencing hearing. The trial court asked him twice if he wanted to heard and he declined both times. (RT, pp , ) After hearing from the other plaintiffs counsel and the victims, the trial court explained that it had prepared a draft written order. (RT, p. 54.) The trial court then made a number of statements. It stated that it was treating the motion as a request for victims to be heard pursuant to the Constitution. (Ibid.) It also stated that a prosecutor has discretion on what charges to bring, how to control litigation, and what charges to accept (id. at p. 55), and that the control of a case is with the actual litigants and that the right of the victims to be heard existed but that right did not give them standing to actually intervene into a case. (Id. at p. 57). According to the trial court, therefore, the crux of the matter was whether or not the prosecution had properly exercised its discretion in the proposed disposition such that the court should approve it. (Ibid.) The trial court stated that courts have wider discretion regarding restitution awards in probation cases than in non-probation ones. (Id. at p. 58.) 18

19 It stated that the trial court was not authorized to impose a Harvey waiver if one was not required by the prosecution. (Ibid.) It stated that a licensing violation for failure to notify or failure to do something does not implicate other things that may have happened in the transaction. (Id. at p. 60.) It stated that noneconomic damages for pain and suffering with only one or two exceptions are not allowed as part of criminal restitution. (Ibid.) After making these statements, the trial court then requested argument by the People. The prosecutor stated first that the People appreciated the victims statements and that the People sympathized with what the victims had been through. (RT, p. 61.) The prosecutor then made a number of arguments as follows: (1) that victims cannot remove the People s exclusive right to decide whether and how to settle a case, or to go to trial (id. at pp ); (2) that Marsy s Law created a right of victims to be notified of and informed before a pretrial disposition which the People had complied with when they notified Mr. Kiesel, but that there was no right to confer (id. at pp ); (3) that the victims were not entitled to restitution on count 1 (id. at p. 64); (4) that the trial court could not impose a Harvey waiver on the defendant (ibid.); (5) that the trial court could not impose restitution on count 4 which was not transactionally related to count 1 because an entity could timely report a leak and still cause a public nuisance or conversely fail to report a leak and not create a public nuisance (id. at p. 65); (6) that the People had not negotiated away the victims right to restitution because no restitution was owed, such that no damage amount had been proved and then reduced by agreement with the People (ibid.); and (7) that the victims were not entitled to restitution for the possible diminution in value to their homes, for future health problems, or for pain and suffering (id. at p. 66). The prosecutor also specifically stated that: 19

20 [a]t the time of the plea over $500 million was expended on relocation costs, cleaning of the homes, boarding animals, relocating schools, mileage if a victim s commute to work was longer in the relocated home than it would have been in their original home, and meals if the housing they were provided didn t include a kitchen they were being paid out before the People, meaning the District Attorney s Office, filed any charges. (RT, p. 66, italics added.) The prosecutor explained that the People had not ignored the filing of a felony charge in this matter. (RT, p. 67.) She explained that many environmental crimes, air violations and reporting violations on first offenses, are actually misdemeanors with small penalties. (Ibid.) She further explained: In every case the district attorney s office seeks to properly punish the defendant to deter future criminal activity, to protect the rights of victims, and to protect public safety. This case is not different. We have met all of these goals ( )The plea secured a settlement of over $4 million, including the maximum penalty under the law, improved training protocols in line with the law, mandatory training for all employees based on the new protocol, installation of real-time methane monitors at the southern fence line, an integrated messaging system, six employees with union-protected contracts to maintain and monitor the system on a 24/7 basis, reimbursement of investigative costs to the Los Angeles Fire Department Hazmat Division, and independent third party certification of the system. (RT, p. 68.) The prosecutor also stated as follows: [s]o they [Defendant SoCalGas] weren t just doing what they were already required to do. The District Attorney s Office got them to do something that was important for public safety. ( ) Even Mr. Kiesel, the lead liaison for all of the civil plaintiffs, referred to this plea, and I quote as a home run for the District Attorney s Office. And his statement is a legal and factual understanding of a very important truth. ( ) The Los Angeles County District Attorney s entered into a plea that secured an agreement larger than could have been imposed after a jury verdict or open plea to the court on all counts ( ) The Court would not have the authority to impose any of the terms that 20

21 specifically protect the citizens of Porter Ranch. Those fence line monitors are specifically positioned so that if there is any breakdown, if there is any problem with any of the other monitors that are in place on those wells, that there is a backup system that works together as a backup to protect these citizens so there will be the earliest possible leak detection ( ) Going forward this settlement has made the facility safer for its employees, the residents of Porter Ranch, the environment, and the public at large. (RT, pp ) After also hearing from counsel for defendant SoCalGas (RT, pp ), from Mr. Parris again (id. at pp ), from another plaintiffs lawyer, attorney Brent Ferreira (id. at pp ), and very briefly from two victims for a second time (id. at pp ), the trial court recessed for a short time and then returned and approved the plea. (Id. at p. 84.) The trial court specifically observed: [t]he prosecutor is vested with a role and a job. And the prosecutor s duty involves protecting not only individual victims but in a case of a mass tort type scenario also trying to assure the greater safety of the general public beyond those that have filed claims or made complaints ( )( ) I think that the People s efforts were not designed in any way to abandon people who have been hurt, but to exercise their discretion to get the most cluck for the buck, so to speak, and quickly for protective measures that you re represented have been dragging, Mr. Parris. (Id. at pp ) The trial court also filed a written order, which thoroughly analyzed the issues presented, and the People will refer to it in the arguments below. (2 CT, p. 489.) The victims filed a notice of appeal on December 28, (2 CT, p. 555.) On December 29, 2016, the victims also filed a Petition for Writ of Mandate. (Id. at p. 559.) On January 5, 2017, this Court denied the victims Petition for Writ of Mandate on the ground that the victims had an adequate remedy at law via direct appeal from the order denying restitution. 21

22 (Clerk s Transcript of Proceedings, Vol. 3 of 4 (4 RT), p. 975.) The victims now appeal. ARGUMENT I THE VICTIMS LACK STANDING TO INTERVENE IN THIS CRIMINAL MATTER AND APPEAL THE TRIAL COURT S SUBSTANTIVE RULINGS, AND THE MATTER SHOULD THEREFORE BE DISMISSED A A Criminal Appeal is Purely Statutory and No Criminal Statute Exists Which Permits Crime Victims to Appeal It is a well settled principle that the right to appeal from an order or judgment in a criminal case is purely statutory. (People v. McKee (1968) 267 Cal.App.2d 509, 511; People v. Hale (1965) 232 Cal.App.2d 112, 125.) Section 1466 governs appeals in misdemeanor cases and specifically limits the initiation of an appeal to the People or the defendant. (Pen. Code 1466.) Sections 1237 and 1238 governs appeals in felony matters and directs the same. (Pen. Code 1237, 1238.) There is no statute which entitles a victim of crime to initiate a criminal appeal. B Section 902 of the Code of Civil Procedure Does Not Authorize Crime Victims Who Are Not Parties to a Case to Initiate an Appeal The victims cite California Code of Civil Procedure Code 902 as one of their authorities for their standing on appeal. (Cal. Civ. Pro. 902.) That statute provides that [a]ny party aggrieved may appeal in the cases prescribed in this title. (Ibid., italics added.) However, the statute does not authorize a non-party to litigate: 22

23 The test is twofold one must be both a party of record to the action and aggrieved to have standing to appeal. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1342, 100 Cal.Rptr.2d 446, italics added.) Thus, notwithstanding an appealable judgment or order, [a]n appeal may be taken only by a party who has standing to appeal. [Citation.] This rule is jurisdictional. [Citation.] (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947, 107 Cal.Rptr.3d 805.) It cannot be waived. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295, 50 Cal.Rptr.2d 493.) (Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 67.) An aggrieved party is not just any aggrieved human; the human must be a party to the case. C Pursuant to Dix, Crime Victims May Not Replace the People, In Whose Sovereign Name Criminal Actions Are Prosecuted, and Intervene into The Conduct or Outcome of a Criminal Case; Recognition of Such a Right Would Contravene the Separation of Powers Doctrine Neither a crime victim nor any other citizen has a legally enforceable interest, public or private, in the commencement, conduct, or outcome of criminal proceedings against another. (Dix, supra, 53 Cal.3d at p. 450.) In Dix, the California Supreme Court analyzed whether a crime victim had the right to object to a prosecutor's decision to ask the sentencing judge to recall (i.e., vacate) a defendant's prison sentence under Penal Code 1 section 1170, subdivision (d), and to allow the defendant to be released to a jail and re-sentenced at a later time, so that the defendant could testify against other offenders and thus, potentially, earn a reduction of his prison sentence to local 1. All further statutory references are to the Penal Code, unless otherwise indicated. 23

24 jail time. (Id. at p. 449.) The California Supreme Court concluded that the victim had no standing to litigate the sentencing issue, because [e]xcept as specifically provided by law, a private citizen has no personal legal interest in the outcome of an individual criminal prosecution against another person... [T]he victim of the crime is not a party. (Id. at p. 451.) The high court further reasoned as follows: The parties to a criminal action are the People, in whose sovereign name it is prosecuted, and the person accused ( 684, 685; Gov.Code, 100); the victim of the crime is not a party (see People v. Parriera (1965) 237 Cal.App.2d 275, , 46 Cal.Rptr. 835). The prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor. (Gov.Code, 26500, 26501; see Cal. Const., art. V, 13.) The prosecutor ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek. (E.g., People v. Sidener (1962) 58 Cal.2d 645, 650, 25 Cal.Rptr. 697, 375 P.2d 641.) No private citizen, however personally aggrieved, may institute criminal proceedings independently (e.g., Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 226, 124 Cal.Rptr. 427), and the prosecutor's own discretion is not subject to judicial control at the behest of persons other than the accused. (People v. Wallace (1985) 169 Cal.App.3d 406, 410, 215 Cal.Rptr. 203; Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, , 138 Cal.Rptr. 101; Taliaferro v. Locke (1960) 182 Cal.App.2d 752, , 6 Cal.Rptr. 813.) An individual exercise of prosecutorial discretion is presumed to be legitimately founded on the complex considerations necessary for the effective and efficient administration of law enforcement... (People v. Keenan (1988) 46 Cal.3d 478, 506, 250 Cal.Rptr. 550, 758 P.2d 1081, quoting People v. Haskett (1982) 30 Cal.3d 841, 860, 180 Cal.Rptr. 640, 640 P.2d 776.) (Dix, supra, 53 Cal.3d at p. 451.) The Dix court also stated that: Exclusive prosecutorial discretion must also extend to the conduct of a criminal action once commenced. In conducting a trial a prosecutor is bound only by the general rules of law and 24

25 professional ethics that bind all counsel. (Taliaferro v. Locke, supra, 182 Cal.App.2d at p. 756, 6 Cal.Rptr. 813.) The prosecutor has the responsibility to decide in the public interest whether to seek, oppose, accept, or challenge judicial actions and rulings. These decisions, too, go beyond safety and redress for an individual victim; they involve the complex considerations necessary for the effective and efficient administration of law enforcement. There is no place in this scheme for intervention by a victim pursuing personal concerns about the case. (Id. at p. 452, italics added in last sentence added.) Therefore, the California Supreme Court has already determined that as a general rule, a crime victim is not entitled to step into the role of the prosecutor and intervene into any criminal proceeding in pursuit of his or her personal interests, and this matter should be dismissed. Furthermore, any recognition by this Court of public citizen standing to intervene into a criminal matter to pursue personal interests and to initiate a criminal appeal would have very serious separation of powers implications. The California Constitution, Art. III, 3, provides that [t]he powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. The district attorney of each county is the public prosecutor, vested with the power to conduct on behalf of the People all prosecutions for public offenses within the county. (Gov.Code, 26500; Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, 240.) Subject to supervision by the Attorney General (Cal. Const., art. V, 13; 26.Code, 12550), therefore, the district attorney of each county independently exercises all the executive branch's discretionary powers in the initiation and conduct of criminal proceedings. (People ex rel. Younger v. Superior Court (1978) 86 Cal.App.3d 180, 203; People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, ) The prosecution's authority in regard to its exclusive discretion in deciding whom to charge, what charges 25

26 to file and pursue, and what punishment to seek is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch. (People v. Birks (1998) 19 Cal.4th 108, 134; People v. Wallace (1985) 169 Cal.App.3d 406, 409; People v. Adams (1974) 43 Cal.App.3d 697, 708; see also Taliaferro v. Locke (1960) 182 Cal.App.2d 752.) Accordingly, the approval by this Court of a right for victims to interfere with the People s exercise of its exclusive powers would have serious separation of powers implications, and this matter should be dismissed. II NO PROVISION OF THE CONSTITUTION SUPERCEDES DIX, AND SPECIFICALLY PERMITS CRIME VICTIMS TO STAND IN THE ROLE OF THE PROSECUTOR AND INITIATE A CRIMINAL APPEAL A No Provision of Marsy s Law or Any Other Law Has Created an Exception to the Dix General Rule Prohibiting Citizen Prosecutions The victims cite Section 28, subdivision (c)(1) of the California Constitution, Article I, as authority for their independent right of appeal. Section 28 of the California Constitution was enacted after Dix and put into effect a number of new rights which may be exercised by crime victims, including the right to recover restitution from convicted criminals. (Cal. Const. Art. I, 28, subd. (b)(13).) Section 28 was added to the California Constitution by Proposition 8 ( Victims Bill of Rights), as approved by voters on June 8, 1982, and was amended by Proposition 9 ( Victims Bill of Rights Act of 2008: Marsy s Law ), as approved by voters on November 4, The rights that Marsy's Law created with respect to restitution are (1) the right to seek and secure restitution, (2) to an order of restitution in every case... in which a crime victim suffers a loss, and (3) first priority of payment 26

27 to the victim when the defendant receives money or property. (Cal. Const. Art. I, 28, subd. (b)(13).) As written, Marsy's Law also indicates that a victim, his or her attorney or representative, or the district attorney may enforce the rights enumerated in subdivision (b) and that these rights are personally enforceable by victims. (Cal. Const. Art. I, 28, subds. (c)(1), (f).) Implementing legislation was passed, now found at section , which applies when a court imposes judgment but does not impose probation, as in this case, and which requires a defendant to pay restitution for losses resulting only from the criminal conduct supporting the crimes of which the defendant was convicted. (Pen. Code , subds. (a)(1), (a)(3)(b), and (f); People v. Lai (2006) 138 Cal.App.4th 1227, 1247.) Section allows the court to impose restitution as a condition of probation with a freer hand as long as the restitution imposed is reasonably related to the crime of which the defendant was convicted or to future criminality. (Pen. Code ; People v. Walker (2014) 231 Cal.App.4th 1270, 1274; People v. Giordano (2007) 42 Cal.4th 644, ; People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) However, neither Cal. Const. Art. I, 28, subdivision (c)(1), nor any other provision of Marsy s Law, nor of section or any other statutory law, has created an actual exception to the Dix general rule that a public citizen may not intervene into a criminal proceeding. Neither Marsy s Law nor any other legal authority has specifically permitted a crime victim to step into the role of the prosecutor to initiate a criminal appeal if they disagree with a trial court s findings regarding restitution and the People decline to appeal. To the contrary, in People v. Subramanyan (2016) 246 Cal.App.4th Supp. 1 (Subramanyan), the Appellate Division of the Orange County Superior Court, citing Dix, recently dismissed an appeal of a 27

28 restitution order specifically because it was initiated by the victim, stating as follows: There is no provision in Marsy's Law that specifically permits a victim to appeal a restitution order. The Penal Code specifically directs that appeals are limited to the People or the defendant. (Pen. Code 1466.) Penal Code section does not authorize an appeal by the victim after a restitution hearing. Nothing in the legislative intent or the amendment itself allows the victim to substitute in and replace the role of the prosecutor. In California, all criminal prosecutions are conducted in the name of the People of the State of California and by their authority. (Gov.Code 100, subd. (b).) California law does not authorize private prosecutions. Instead, [t]he prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor... [ ] [who] ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek. [Citation.] No private citizen, however personally aggrieved, may institute criminal proceedings independently [citation], and the prosecutor s own discretion is not subject to judicial control at the behest of persons other than the accused. [Citation.] The district attorney of each county is the public prosecutor, vested with the power to conduct on behalf of the People all prosecutions for public offenses within the county. [Citations.]... [ ]... [ ]... The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of The People includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name. [Citation.] Thus the district attorney is expected to exercise his or her discretionary functions in the interests of the People at large, and not under the influence or control of an interested individual. [Citation.]' (Dehle, supra, 166 Cal.App.4th at , 83 Cal.Rptr.3d 461.) (Id. at pp. 7-8.) The Subramanyan court further stated: Nothing in Marsy's Law established a private vehicle for victims to initiate criminal proceedings. The prosecution of criminal 28

29 (Id. at p. 8.) offenses on behalf of the People is the sole responsibility of the public prosecutor. (Gov.Code 26500, 26501; see Cal. Const. art. V, 13.) (Dix v. Superior Court (1991) 53 Cal.3d 442, 451, 279 Cal.Rptr. 834, 807 P.2d 1063.) By the same reasoning, once the judgment was entered at the trial court, only the prosecutor, acting on behalf of the People, or the defendant could initiate the appeal. If such an appeal were initiated, the victim could then participate pursuant to Marsy's Law. Similar to the situation in Dehle, the prosecutor's absence from this appeal is inconsistent with the prosecutor's obligation to exercise his or her discretionary functions in the interests of the People at large, and not under the influence or control of an interested individual. [Citation.] (Dehle, supra, 166 Cal.App.4th at p. 1388, 83 Cal.Rptr.3d 461.) Subramanyan is of course not binding authority on this Court. (People v. Corners (1985) 176 Cal.App.3d 139, 148 [decision of an Appellate Division of one Superior Court is not binding upon the Appellate Division of another Superior Court].) However, it is persuasive authority. (Velazquez v. Superior Court (2014) 227 Cal.App.4th 1471, 1477 [a]ppellate division decisions have persuasive value ] The People urge this Court to adopt the reasoning of Subramanyan because it is consistent with the California Supreme Court rule in Dix prohibiting private prosecutions, because it is consistent with the separation of powers, because protecting the independent and impartial role of the prosecutor and not permitting criminal prosecutions to become focused upon individual interests is an essential part of the pursuit of criminal justice, and because there is no statutory or specific constitutional authority which gives standing to crime victims to appeal a restitution order. // 29

30 B Dix Specifically Considered and Rejected the Argument that the Enactment of the Victims Bill of Rights Created a Personal Right for Crime Victims to Intervene in a Criminal Proceeding In Dix, the crime victim argued that the contemplated recall of the defendant's sentence would jeopardize the victim's personal safety, since the defendant had allegedly threatened the victim with future harm. (Dix, supra, 53 Cal. 3d at p. 449.) The crime victim pointed out that the California Constitution had been amended in 1982 to guarantee crime victims the right to appropriate detention, trial, and punishment of criminal offenders. (Id. at p. 452.) The victim argued that, because of the threat to his personal safety, any recall of the defendant's sentence would violate those rights. The California court answered: Petitioner asserts that recent statutory and constitutional changes have broadened victims' rights in the conduct and results of felony proceedings. In particular, he observes, the voters have justified substantial reforms of the rules governing bail, evidence, and sentencing in felony cases by declaring that felony victims have the right to expect the appropriate detention, trial, and punishment of those who injured them. (Cal. Const., art. I, 28, subd. (a), added by initiative, Primary Elec. (June 8, 1982) [commonly known as The Victims' Bill of Rights ].) Petitioner suggests we must infer that felony victims possess any remedies necessary to enforce their rights. No such inference is proper here. In the first place, the statute at issue, section 1170(d), was not adopted under the rubric of victims' rights. Moreover, it is obvious that many recent legislative declarations about the rights of felony victims have been intended primarily as moral and philosophical abstractions supporting reform of the substantive criminal law. Such abstract references do not suggest an intent to alter criminal practice fundamentally by giving individual victims standing to intervene in ongoing criminal cases. (Cf. California Emp. etc. 30

31 Com. v. Hansen (1945) 69 Cal.App.2d 767, , 160 P.2d 173.) The Constitution and statutes do accord individual felony victims certain rights of a more specific and personal nature. These include the right to restitution in appropriate circumstances, and to receive notice, appear, and state views in connection with disposition and sentencing. (Cal. Const., art. I, 28, subd. (b); Pen. Code, , , , , g, h, k, ) Whatever special considerations of standing may apply to this limited category of victims' rights (see People v. Superior Court (Thompson) (1984) 154 Cal.App.3d 319, , 202 Cal.Rptr. 585; but see Melissa J. v. Superior Court (1987) 190 Cal.App.3d 476, , 237 Cal.Rptr. 5), challenges based on section 1170(d) do not implicate them. We hold that petitioner has no personal right or interest which would permit his intervention in the decision to recall Bradley's sentence. (Dix, supra, 53 Cal. 3d 442, , footnotes omitted.) Marsy s Law, which added a right of enforcement to the constitutional right to restitution, was enacted in 2008 after Dix. However, similar to the reasoning of Dix, this does not mean that there are no limits to enforcement, and that crime victims have any and every remedy necessary to enforce their rights. Crime victims have the procedural right to be heard. Crime victims may enforce their procedural right to heard by making a request to the trial court, but the abstract reference to an enforcement right was not intended to alter fundamental criminal practice by giving crime victims the right to intervene in a criminal matter by initiating an appeal. C Important Policy Reasons Dictate Against the Recognition of Citizen Standing to Intervene into a Criminal Prosecution and Initiate an Appeal. The Dix court already set forth important policy reasons militating against the recognition of citizen standing to intervene in a criminal prosecution in general: 31

32 [R]ecognition of citizen standing to intervene in criminal prosecutions would have ominous implications. (Carsten, supra, 27 Cal.3d at p. 799, 166 Cal.Rptr. 844, 614 P.2d 276.) It would undermine the People's status as exclusive party plaintiff in criminal actions, interfere with the prosecutor's broad discretion in criminal matters, and disrupt the orderly administration of justice. (Dix, supra, 53 Cal. 3d 442, ) Citizen standing to intervene into a criminal prosecution even just limited to the initiation of an appeal would also have very serious consequences. Not only would it interfere with the People s broad discretion to settle cases, it would open the floodgates in the appellate courts of this state to citizen driven appeals potentially in every instance where a victim disagrees with a restitution award or any other outcome of the case, without vetting, analysis, or agreement from the prosecution. There is no question that this would disrupt the orderly administration of justice. III NO OTHER JURISDICTION WITH A VICTIMS RIGHTS ACT HAS DETERMINED THAT THE ACT GIVES CRIME VICTIMS THE INDEPENDENT RIGHT TO APPEAL A TRIAL COURT S SUBSTANTIVE RULINGS Many states have enacted victims rights acts, either by constitutional amendment or by legislation or both, and have rejected the position that the enactment of a victims rights act gives crime victims the right to participate as independent parties to a criminal prosecution or to otherwise challenge the substantive ruling of the trial court. (Cooper v. District Court (Alaska Sup. Ct. 2006) 133 P.3d 692, 705, citing State v. Lamberton (Arizona Sup. Ct. 1995) 899 P.2d 939, ; Cianos v. State (Maryland Ct. of Appeal) 659 A.2d 291, [note: The Court of Appeal is the highest court in the state of Maryland]; Gansz v. People (Colo. Sup. Ct. 1995) 888 P.2d 246, ; Johnston v. State (Ind. App. 1998) 702 N.E.2d 1085, 1088; State v. Barnett (Mo. Sup. Ct.) 980 S.W.2d 287, 308; and Reed v. 32