Filed 8/11/14 Reposted to provide appendix



## IN THE SUPREME COURT OF CALIFORNIA

JEWERELENE STEEN , ) ) Petitioner , ) ) S 174773
v. ) ) Los Angeles County APPELLATE DIVISION, SUPERIOR ) Super. Ct. No. 6200307 COURT OF LOS ANGELES COUNTY, ) ) Ap p. Div. No. BR046020 Respondent; ) ) Ct. App. 1/2 THE PEOPLE, ) ) Real Party in Interest. )

________________________________ ____ )

In this case we consider the validity of a misdemeanor complaint issued by a superior court clerk under the authority of Penal Code section 959.1, subdiv ision (c) (hereafter section 959.1(c)) . The statute provides that “ [a] magistrate or court is authorized to receive and file an accusatory pleading in electronic form if ,” among other things, “[t] he accusatory pleading is issued in the name of, and

transm itted by, a public prosecutor or law enforcement agency .

. . , or by a clerk of the court with respect to complaints issued for the offenses of failure to appear, pay a fine, or comply with an order of the court .” (§ 959.1(c) & (c)(1) , italics
added .) P etitioner , who pled no contest to the misdemeanor of willfully violating
her written promise to appear ( Veh. Code, § 40508, subd. (a)) , charged in a complaint electronically generated by a court clerk , now challenges the ensuing2

conviction . Invoking the C alifornia Constitution’s separation of powers ( Cal.
Const. , art. III, § 3) and due process ( id. , art. I, § § 7 , subd. (a) , 15 ) clauses , p etitioner contends the complaint was void because it was not issued by an
executive branch officer with prosecutor ial au thority

. Based on that premise , petitioner further contends the complaint did not timely commence a prosecution for purposes of the statute of limitation s

. (Pen. Code, § 802, subd. (a).)
We conclude petitioner is not entitled to relief. A legislative enactment that permitted a judicial branch employee to commence criminal prosecutions without
the prosecutor’s approval would present a serious constitutional question by impairing a core function of the executive branch

— the discretionary power to initia te criminal prosecutions

. ( See People v. Birks (1998) 19 Cal.4th 108, 134

. )
But s ection 959.1(c) does not expressly or by necessary implication permit the
clerk to commence prosecutions without the prosecutor’s approval , and we must construe the statute in a manner that avoids do ubts as to its constitutional validity. ( People v. Le i va (2013) 56 Cal.4th 498, 506

– 507; Young v. Haines (1986) 41 Cal.3d 883, 898.) Furthermore, t he prosecutor may validate a complaint filed by
someone else by approving, author izing or concurring in it

. ( People v. Municipal
Court ( 1972 ) 27 Cal.App.3d 193 , 206 ( Pellegrino )

. ) Here, the relevant prosecutorial agency has , through an established practice , implicitly approved in
advance the clerk’s routine issuance of complaints for the offense of failure to
appear , including the complaint against petitioner

. Accordingly, the complaint
was valid and the prosecution timely commenced

. W e therefore deny the petition
for writ of mandate

. I. B ACKGROUND On June 8, 2002, a police office r cited petitioner Jewerelene Steen for three
infractions of the Vehicle Code: driving a vehicle with an expired registration (Veh. Code, § 4000, subd. (a)(1)), driving without a license ( id. , § 12500 ,3

subd. (a) ) , and failing to provide evidence of financ ial responsibility ( id. , § 16028, subd. (a)). Petitioner signed a written promise to appear in court on or before July 23, 2002 , to answer for those infractions ( s ee id. , § 40500) and was thereupon
released. When p etitioner failed to appear, the clerk of the court for the Los Angeles County Superior Court , on August 13, 200 2, electronically generated and
filed against her a complaint for the misdemeanor of willfully violating her promise to appear. ( Id. , § 40508, subd. (a)

. ) The complaint was one of tho usands
created by the c lerk on a weekly basis by means of a computer program that
matches citation data from county traffic record information systems with data about delinquencies entered by the court’s deputy clerks. About five years later, on July 27, 2007 , petitioner appeared with counsel
before a court commissioner

. Respondent informs us that the vast majority of

o ffense s charged under section 959.1(c) are , with the defendants’ consent, treated
as infractions and punished with fines . (See Pen. Cod e, § 17, subd. (d)(2). ) Instead of consenting to such a disposition, petitioner demurred to the complaint

. (Pen. Code, § 1004, subds. 1, 5

. ) The court lacked jurisdiction, she argued,
because the c lerk has no authority to commence a criminal prosecution and
because section 959.1(c) , if read to confer such authority , unconstitutionally impairs the separation of powers and due process. The People, represented by a deputy of the Los Angeles City Attorney ’s Office , criminal division, offered a
constitutiona l defense of the statute

. Asked by the court whether the People approved and concurred in the complaint agai nst petitioner, the deputy responded
that the People’s “actions .

. . demonstrate[] that we approve and concur of this complaint as well as all the other complaints that are filed in all the other cases in this courthouse. We know the practice exists where a complaint is generated via a notice to appear” and “[w]e have not asked the Court and/or its clerk to stop.” In
rebuttal , p etitioner argued th at the People had needed to concur in the complaint4

against her at the time it was filed and that it was “too late for the City Attorney to

concur ” five years later at the hearing. Rejecting petitioner’s arguments, t he court overruled the demurrer, accep ted
her plea of no contest, found her guilty of violating Vehicle Code section 40508 , subdivision (a), denied probation, and sentence d her to 50 days in county jail with six days of credit

. The a ppellate d ivision affirmed petitioner’s conviction , and t he Court of Appeal denied her petition to transfer

. Having no right to petition for
review from the order denying transfer (Cal. Rules of Court, rule 8.500(a) (1) ) , petitioner invoked our original jurisdiction by filing the instant petition for writ of
mandat e to compel the a ppellate d ivision to vacate the conviction. We took jurisdiction by issuing order s to show cause directing real party in interest the People , and also respondent a ppellate d ivision, 1 to show cause before this court why the relief petition er seeks should not be granted

. II. D ISCUSSION
P etitioner , as noted, challenges her conviction as impairing the separation of powers (Cal. Const., art. III, § 3), denying her due process ( id. , art. I, § § 7, subd. (a), 15 ) and violating the statute of limit ations (Pen. Code, § 802, subd. (a)). We

1 C ourts have no beneficial interest in the outcome of the cases they decide and are not entitled to litigate the correctness of their rulings in a reviewing court

. ( S ee Municipal Court v. Superior Court (Gonzale z ) (1993) 5 Cal.4th 1126, 1129; Matter of De Lucca (1905) 146 Cal. 110, 113

. ) W e have , however, occasionally permitted the respondent courts in writ proceedings to address the legality of their challenged procedures

. ( E .g., People v. Superior Cou rt (Lavi) (1993) 4 Cal.4th 1164 , 1170 [considering whether respondent court’s master calendar department operated as such for purposes of Code Civ

. Proc ., § 170.6] ; Hernandez v. Municipal Court (1989) 49 Cal.3d 713 , 715

– 716 [considering whether respondent court’s practice of transferring criminal cases among branch courthouses was consistent with the vicinage requirement of the 6 th Amend . of the U.S. Const. ]. )5

address petitioner’s separation of powers argument first, as our analysis of it
informs the remainder of our analysis

. A. Separation of Powers.
Petitioner contends section 959.1(c) impairs the separation of power s by permitting the c lerk, a judicial branch employee , to issue misdemeanor complaints. Reasoning that California law entrusts the initiation of criminal proceedings exclusively to executive branch officers with prosecutorial authority , petitioner argues that section 959.1(c) is unconstitutional to the extent it provides
otherwise and that the c lerk’s complaint is accordingly void. We conclude the

statut e , p roperly and narrowly construed, does not permit the clerk to initiate criminal proceedings without the prosecutor’s approval and is thus constitutional , and that the complaint against petitioner is therefore valid.
Penal Code s ec tion 959.1 was enacted in 1988 to permit prosecutors and law enforcement agencies to commence criminal prosecutions by filin g electronic pleadings

. (Stats. 1988, ch. 516, § 1 , p. 1945 .) The language that engendered the present dispute by assigning a role to the clerk was added to the statute in 1990 by Assembly Bill No. 3168 (1989

– 1990 Reg. Sess.) . ( See Stat s. 1990, ch

. 289, § 1 , p

. 1561 [enacting Assem. Bill No. 3168]. ) Presently, the statute provides that “ a criminal prosecution may be commenced by filing an accusatory pleading in electronic form with the magistrate or in a court having authority to receive it” ( § 959.1 , s ubd. (a)) and sets out conditions a court must satisfy in order to accept electronic pleadings. S ection 959.1 (c), with the 1990 amendment set out here in italics, provides that “[a] magistrate or court is authorized to receive and file an accusatory plead ing in electronic form if all of the following conditions are met: [ ¶ ] (1) The accusatory pleading is issued in the name of, and transmitted by, a public prosecutor or law enforcement agency

. . . , or by a clerk of the court with6

respect to complaints i ssued for the offenses of failure to appear, pay a fine, or comply with an order of the court .” (Italics added.) In describing the role the clerk is to play with respect to accusatory pleadings, t he language added to section 959.1(c) in 1990 is somewhat ambiguous

. Considering that language in context and in light of the legislative history, it appears the Legislature intended to permit superior court clerks to generate , electronically and automatically, accusatory pleadings charging certain offenses
tha t arise out of court proceedings and are thus necessarily based on facts that lie uniquely within the clerk’s knowledge. Solely as a matter of form , and putting other considerations aside for the moment, the 1990 language might conceivably be read to per mit the accusatory pleadings designated in section 959.1(c) to be “ issued

. . . by a clerk , ” to be

“ issued in the name of

. . . a clerk , ” to be “ transmitted

. . . by a clerk ” ( ibid. ), or to permit all three readings

. C lose r analysis , however, leaves only one reasonable interpretation: C lerks may “ issue [] ”

— that is, generate electronically

— the specified complaints. We may reasonably assume t he Legislature did not intend
for complaints to issue “in the name of” the clerk because it has repeatedly
declar ed that “[a] criminal action is prosecuted in the name of the people of the State of California, as a party” (Pen. Code, § 684 ; see Gov. Code, § 100 , subd. (b) ), 2 and nothing in the h istory of Assembly Bill No. 3168 suggests the Legislature intended to mod ify that rule by permitting prosecutions to be brought
in the name of a judicial branch employee with no statutory power to represent the People in criminal prosecutions

. ( Cf. Gov. Code, § 26500 [the public prosecutor

2 “ The style of all process shall be ‘ The People of the State of California, ’ and all prosecuti ons shall be conducted in their name and by their authority. ” (Gov. Code, § 100, subd. (b).)7

“ shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses”].) Alternatively, to
read section 959.1(c) as providing that the clerk may only “transmit[]” pleadings

to the court

— namely to him self or hers elf

— for filing has no apparent practical significance. If one rejects those two implausible readings, o ne is necessarily left
with the conclusion that the bill must have been intended to permit the clerk to “issue [] , ” that is to generate, the specified complaints.
This conclusion is consistent with the statute’s legislative history. Originally
p roposed by the Association of Municipal Court Clerks of California and unanimously adopted by both houses of the Legislature , Assembly Bill No. 3168
was presen ted as a measure to “increase court efficiency by streamlining the filing of pleadings by court clerks” through taking advantage of “automated systems that eliminate the need for hard paper.” (Assem. Com. on Pub lic Saf ety , Analysis of
Assem. Bill No. 3168 (1989

– 1990 Reg. Sess.) Apr. 17, 1990 , p. 1.) Legislative committee reports explained that “[e]xisting law permits accusatory pleadings to be filed electronically by prosecutors and law enforcement agencies.

. . . [ ¶ ]

. . . [ ¶ ] This bill would allow c ourt clerks to file electronically complaints issued for the offenses of failure to appear, failure to pay a fine, or failure to comply with an order of the court.” (Sen. Rules Com., Analysis of Assem. Bill No. 3168 (1989

– 1990 Reg. Sess.) June 21, 1990, p

. 1 ; see Sen. Com. on Judiciary, Off. of Sen. Floor Analyses, Analysis of Assem. Bill No. 3168 (1989

– 1990 Reg. Sess.) June 19, 1990 , p p. 1

– 2 [same] .) The reports ’ imprecise use of the word “file” does not
obscure the Legislature’s understanding that the b ill would allow clerks to perform a function previously performed only by executive branch officers : the generation of electronic pleadings . T here was no need in 1990 to amend section 959.1(c) to permit clerks to “file” electronic pleadings, as the Legis lature had already granted that permission in 1988

. (See former § 959.1(c), as enacted by Stats. 1988,8

ch. 516, § 1 , p. 1945 [“A magistrate or court is authorized to receive and file an accusatory pleading in electronic form ”]. )
The potential constituti onal issue raised by permitting court clerks to generate accusatory pleadings did not go entirely unnoticed in the Legislature, but
it did go without documented analysis or resolution. While Assembly Bill No. 3168 was under consideration, the Legislative Counsel advised its author that the bill “might be .

. . deemed to be unconstitutional as a violation of the separation of powers doctrine

. . . . ” (Legis

. Counsel, letter to Assem. Member Robert Frazee regarding Assem. Bill No. 3168 (1989

– 1990 Reg. Sess. ) Feb. 5, 1990, p. 1

. ) Fi ve months later, however, the Legislative Counsel informed the Governor that “the bill, if chaptered, will be constitutional

. ” (Legis. Counsel, letter to Gov

. George Deukmejian, July 13, 1990

. ) In n either letter did the author a ttempt to analyze the
constitutional issue , 3 and the legislative history does not otherwise mention it.
We undertake that analysis now. The separation of powers doctrine owes its
existence in California to art icle III, section 3 of the state Constitutio n, which 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 C onstitution.” We have described the
doctr ine as limiting the authority of one of the three branches of government to arrogate to itself the core functions of another branch. Although the doctrine does not prohibit one branch from taking action that might affect another, the doctrine

3 In his letter to the bill’s sponsor , the Legislative Counsel cited without comment two judicial opinions noting that the charging of criminal cases lies with in the exclusive control of the executive branch. ( Legis. Counsel, letter to Assem. Member Robert Frazee, supra , p. 1, citing People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 262, and People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 275

– 276.)9

is violated when the actions of one branch defeat or materially impair the inherent
functions of another

. ( See In re Prather (2010) 50 Cal.4th 238, 254 ; Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297

– 298 .)
California law leave s no doubt that the initiation of criminal proceedings is a core, inherent function of the executive branch. The state Constitution, in an article defining the powers and responsibilities of the executive branch and its principal officers , appoints the At torney General as “ the chief law [ enforcement ]
officer of the State ” with “direct supervision over every district attorney .

. . .” (Cal. Const., art. V, § 13; see Gov. Code, § 12550 [“The Attorney General has direct supervision over the district attorney s” and “may, where he deems it

neces sary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction” ] .) “The district attorney,” in turn, “is the public prosecutor, except as otherwise provided by law,” who “shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.” (Gov. Code, § 26500 .) Moreover, “all prosecutions shall be conducted in [ the ] name [ of t he P eople of California ] and by their authority ” ( i d. , § 100 , subd. (b) ) , in other words by the designated
executive branch officer

. T hese constitutional and statutory provisions have led us
to hold that “[t]he prosecution of criminal offenses on behalf of th e 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

. ” ( Dix v. Superior Court (1991) 53 Cal.3d 442, 451; see People v.
Eubanks (1996) 14 Cal.4th 580, 588

– 589.) Against that background we turn to the dispositive question: Does section 959.1(c) defeat or materially impair a core, inherent function of the executive branch by permitting the clerk, a judicial branch employee , to issue complaints for10

the offenses of failure to appear, pay a fine, or comply with an order of the court? The question reveals a critical ambiguity in the statute : If the Legislature had
intended to validate criminal complaints issued by the clerk w ithout the approval
of the executive branch prosecutor responsible for initiating criminal prosecutions , then the statute would be difficult or impossible to reconcile with the separation of
powers . On the other hand, if the Legislature did not intend to validate complaints issued by the clerk without the prosecutor’s approval , then the statute , as we explain below, would be constitutional. When an ambiguous statute raises serious constitutional questions, our task is not to resolve such questions in the abstract
but rather to “ ‘ “ endeavor to construe the statute in a manner which avoids any doubt concerning its validity ” ’ ” ( People v. Le i va , supra , 56 Cal.4th 498, 506

– 507, quoting Young v. Haines , supra , 41 Cal.3d 883, 898) , even while , as in every

exer cise of statutory interpretation , seeking to effectuate the Legislature’ s purpose consistently with the language it chose

. To construe section 959.1(c) as permitting the clerk to issue valid complaints only with the prosecutor’s approval serves these int erpretative goals. Such a construction is consistent with the language of the statute, effectuates the Legislature’s purpose, and avoids doubts concerning the statute’s constitutional validity. The language of section 959.1(c) does not expressly or by ne cessary implication authorize the clerk to initiate criminal prosecution s without the prosecutor’s approval , and nothing in the legislative history indicates otherwise. Assembly Bill No. 3168 was presented as a proposal to amend a statute governing
electr onic filing ; nowhere does the history suggest a proposal to reassign prosecutorial authority from the executive branch to the judicial

— a step that would likely have provoked significant recorded debate

. Moreover, t o acknowledge the prosecutor may withho ld approval of complaints under section 959.1(c) need not impair the Legislature’s declared goal of increasing court11

efficiency , because the Legislature could reasonably have assumed prosecutorial agencies and superior courts would cooperate in determining how to implement the statute. A prosecutorial agency might, for example, ask the clerk to issue complaints in some or all cases subject to section 959.1(c) , ask the clerk to stop issuing complaints altogether , or closely coordinate the process to reflect the People’s discretionary enforcement priorities. Finally, to recognize that section 959.1(c) does not authorize the clerk to issue complaints without the prosecutor’s approval obviates the separation of powers problem : B y withholding approval , the
pro secutor effectively prevent s the clerk from issuing a valid complaint. T hese
circumstances reveal no material impairment or defeat of executive branch
power. 4 Petitioner suggests a separation of powers problem would arise if the clerk issued a complaint without the prosecutor’s approval and the court thereafter denied the People’s motion to dismiss

. This scenario, petitioner suggests, might
lead to misdemeanor convictions being entered without executive branch
involvement . Because nolle prosequi is abo lished in California , t he prosecutor may not unilaterally abandon a prosecution (Pen. Code, § 1386) ; only the court may dismiss a criminal charge ( id. , § 1385 , subd. (a) ; see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 512 )

. T hose rule s , howe ver, presuppose a valid complaint : “[T]he existence of a discretionary power in the district attorney to control the institution of criminal proceedings is a necessary prerequisite to the constitutional validity of the requirement that the district attorn ey seek court

4 We note that a fter a valid complaint has been filed under section 959.1(c) , the prosecutor remains solely responsible for the conduct of the case (Gov. Code, § 26500) and free to exercise postfiling discretion by moving to dismiss or reduce the charges (Pen. Code, § 1385, subd. (a); cf. id ., § 17, subd. (d) (2) ).12

approval for abandoning a prosecution as required by sections 1385 and 1386 of
the Penal Code .” ( Pellegrino , supra , 27 Cal.App.3d 193, 204.) Thus, it has been held, purported criminal complaints filed by private persons are “nullities” as t o which the court “lack[s] discretion and in fact jurisdiction to do anything in the matter except to dismiss.” ( Id. at p. 206.) We see n o reason why a different rule would apply to a complaint filed by the clerk under section 959.1(c) without the
prosec utor’s approval

. B. Due Process. While the prosecutor’s decision here to approve the clerk’s issuance of complaints under section 959.1(c) obviates petitioner’s separation of powers argument , it does not necessarily answer petitioner’s argument under the state Constitution’s due process clause s (Cal. Const., art. I, § § 7, subd. (a), 1 5 ). Due
process, she contends , requires a case

- specific, discretionary charging decision by the prosecutor at the time the complaint is filed. We conclude the argument lack s merit in the present context. Petitioner relies mainly on Pellegrino , supra , 27 Cal.App.3d 193. In that case two private citizens, Pellegrino and Bishop , filed in the municipal court
documents purporting to be criminal complaints against each other fo r assaultive
conduct during a July 4th celebration. When t he prosecutor refused to concur in Pellegrino’s complaint , the municipal court entered orders disqualifying the district attorney and appointing a special prosecutor. The Court of Appeal vacated

t hose orders and dismissed the complaint . Relying on b oth the separation of powers doctrine and the right to due process , the court held that criminal complaints “must be approved, authorized or concurred in by the district attorney before they are effecti ve in instituting criminal proceedings against an individual” ( id. at p. 206). This conclusion left Pellegrino’s complaint against Bishop a13

“nullit[y]” ( ibid. ) but validated Bishop’s complaint against Pellegrino, in which the prosecutor had concurred ( id. at p p

. 202

– 203 )

. We need not reiterate the separation of powers principles that support this conclusion. Concerning due process, the court in Pellegrino , supra , 27 Cal.App.3d 193,
made two observations of relevance here. First, the court noted, “[d]ue process of law requires that criminal prosecutions be instituted through the regular processes of law. These regular processes include the requirement that the institution of any criminal proceeding be authorized and approved by the district attorney.” ( Id. at
p. 206.) This observation is self

- evidently correct and entirely consistent with recognizing the validity of complaint s approved by the prosecutor and issued by
the clerk in accordance with section 959.1(c).
The Pellegrino court also observed th at “ t he theme which runs throughout the criminal procedure in this state is that all persons should be protected from having to defend against frivolous prosecutions and that one major safeguard against such prosecutions is the function of the district att orney in screening criminal cases prior to instituting a prosecution.” ( Pellegrino , supra , 27 Cal.App.3d at pp. 205

– 206.) In that statement, the court correctly identified an important general concern underlying the rules of criminal procedur e and
respon ded appropriately to a lower court’s erroneous refusal to dismiss a purported complaint the prosecutor had consistently disapproved , filed by a private party with no constitutional or statutory power to represent the People.
The same statement does not co mpel the conclusion that the prosecutor is forbidden to approve the filing of charges in an entire category of relative ly minor offenses, such as the three categories of offenses subject to section 959.1(c)

. We have, in fact, held the prosecutor may do so

. In Sundance v. Municipal Court (1986) 42 Cal.3d 1101 ( Sundance ) , the court
addressed a variety of claims arising from the mass issuance in Los Angeles14

County of citations for public inebriation

. Even while granting relief to the plaintiffs on some the ories, the court rejected plaintiffs’ claim that due process
forbade the city attorney to file such charges routinely and “without attempting to screen out cases that could not be successfully prosecuted.” ( Id. at p. 1132.) We
reasoned that , except in ca ses of selective or vindictive prosecution , “[p]rosecutors have broad decisionmaking power in charging crimes” and that “ ‘[t]h e judiciary historically has shown an extraordinary deference to the prosecutor’s decision

making function.’ ” ( Sundance , at p. 1132, quoting Gershman, Prosecutorial Misconduct (1985) ch. 4, pp. 4

– 3 to 4

– 6.) This principle sufficiently justified rejecting the claim, as “[p]laintiffs [had] cite[d] no authority for the proposition that the prosecutor’s failure to exercise sufficient , or indeed any, discretion in determining whether to file charges constitutes a denial of due process.” ( Sundance , at p. 1132.)
T he best practice under section 959.1(c) might well be for the clerk of the
court to furnish the responsible prosecutorial a gency in advance with a list of complaints proposed to be issued under the statute and for the agency to indicate
its explicit approval or disapproval of each

. But we are aware of no authority barring a prosecutor from approving in advance, even implicitl y through an established practice such as the Los Angeles City Attorney has followed , the clerk’s routine issuance of complaints in cases subject to section 959.1(c)

. To proceed in this way reflects the practical consideration that such offenses

— failure s to appear, pay a fine, or comply with an order of the court

— arise out of judicial proceedings and are thus necessarily based on facts uniquely within the clerk’s knowledge. In any event , the judiciary cannot compel the prosecutor to review each such of

fense on an individual basis. The deference the judicial branch

owe s to the executive branch’s charging decisions preclude s that sort of review, and due process does not require it . ( See Sundance , supra , 42 Cal.3d 1101, 1132.)15

C. Statute of Limitations

. Finally, p etitioner cont ends her conviction cannot stand because the prosecution was not commenced within the statute of limitations. A prosecution
for the misdemeanor of which she was convicted (Veh. Code, § 40508 , subd. (a) [willfully violating writte n promise to appear] ) must be “ commenced within one year after commission of the offense” (Pen. Code, § 802, subd. (a))

. As relevant here, the “prosecution for an offense is commenced” ( id. , § 804) when a “complaint is filed charging a misdemeanor or infr action” ( id. , § 804, subd. (b )).
The misdemeanor complaint in this case was filed on August 13, 2002, and specifically alleged that petitioner had committed the charged offense on July 23, 2002, a date within the statutory limitations period. Invoking t he same arguments discussed and rejected above , petitioner contends the complaint generated by the clerk under section 959.1(c) was initially
void and thus did not commence a prosecution until the People expressly
concurred in it at the hearing in 2007 , ne arly five years after the statute of limitations had expired. Our conclusion that the complaint was valid when issued compels the rejection of this claim, as well. To rephrase the same conclusion as a matter of statutory interpretation, a “complaint” iss ued by the clerk under Penal
Code section 959.1(c) with the prosecutor’s approval is a “complaint” (Pen. Code, § 804, subd. (b )) that commences a prosecution for purposes of the statute of
limitations. 5

5 Because we hold the complaint timely commenced a prosecution, we need not address the People’s alternative contentions that defendant waived the statute of limitations by pleading no contest (see generally People v. Williams (1999) 21 Cal.4th 335, 345) and that a prosecution was timely commenced by the issuance of an arrest warrant (see Pen. Code, § 804, subd. (d)).16 III. D ISPOSITION
T he petition for writ of mandate i s denied

. W ERDEGAR , J.

W E C ONCUR :

C ANTIL - S AKAUYE , C. J. B AXTER , J. C HIN , J. C ORRIGAN , J.CONCURRING OPINION B Y LIU, J.

There is much in today’s opinion I agree with. I agree that Sundance v. Municipal Court (1986) 42 Cal.3d 1101 for ecloses petitioner’s due process claim. (Maj. opn., ante , at pp. 13

– 14.) As to petitioner’s separation of powers claim, I agree that “the initiation of criminal proceedings is a core, inherent function of the executive branch” ( id. at p. 9); that Governm ent Code section 100, subdivision (b) makes clear that “all prosecutions shall be conducted in [the] name [of the People of California] and by their authority”; that Penal Code section 684 similarly says “[a] criminal action is prosecuted in the name of th e people of the State of California, as a party”; and that “the Legislature did not intend for complaints to issue ‘in the name of’ the clerk” when it enacted Penal Code section 959.1, subdivision (c). (Maj. opn., ante , at p. 6.) The problem, however, is that the complaint in this case was issued by a court clerk, an official with no authority to prosecute a criminal action in the name of the People of California. Although the signature of the “DECLARANT AND COMPLAINANT” is hard to make out, the parties a gree that the signature belongs to a court clerk. Nowhere on the complaint does there appear the name of a prosecuting official. (The complaint is reprinted at the end of this opinion. The initials “LAPD” appear above a line that says, “LAW ENFORCEMENT AGENCY FILING COMPLAINT,” but that seems to indicate that the Los2

Angeles Police Department issued the underlying traffic citation. The LAPD is not a prosecutorial entity.) According to declarations of a senior administrator of the Los Angeles County Supe rior Court, the court clerk issues approximately 8,000 similar complaints for failure to appear every week. These complaints are automatically generated from data entered by deputy clerks or their staff. The data identify which cases are delinquent, and every Tuesday night, a computer gathers the data from the prior week and electronically generates thousands of failure

- to

- appear complaints against defendants throughout the county. The complaints are also automatically transmitted to the Department of Mo tor Vehicles and to the Countywide Warrant System, a database of wanted persons in Los Angeles County. The signature on each complaint is electronically generated, and each complaint is filed as a misdemeanor. When a defendant comes to court for arraignm ent, the charge is typically reduced to an infraction with the prosecutor’s and defendant’s mutual consent. But if the defendant does not consent, the case may result in a misdemeanor conviction and jail time, as in this case. Each complaint exposes the defendant to nearly $400 in fines, fees, and penalties. In
the 2007

– 2008 fiscal year, revenue from such complaints exceeded $75 million. It is rare for this court to hear an appeal in a failure

- to

- appear case. But, as the numbers suggest, this is one of the most common ways that ordinary citizens come into contact with the criminal justice system. The official process that leads to a misdemeanor complaint is, as far as I can tell, entirely automated after a deputy clerk enters data noting a person’s fail ure to appear for a traffic citation. At no point does a prosecuting official engage in any review, exercise any discretion, or otherwise have any role. I do not see how this practice can be squared with the principle of separation of powers.3

Although se paration of powers doctrine under the California Constitution is not identical to its federal counterpart (see Marine Forests Society v. California
Coastal Com. (2005) 36 Cal.4th 1, 28

– 31), the principle throughout American history has reflected the concer n that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, .

. . may justly be pronounced the very definition of tyranny.” (Madison, The Federalist No. 47 (J. Cooke ed. 1961) p. 324; see Parker v. Riley (1941) 18 C al.2d 83, 89.) This does “not mean that these departments ought to have no partial agency in, or no
controul over, the acts of each other.” (Madison, at p. 325; see Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297

– 298 .) But it does mean that the core functions of each branch may not be allocated to or usurped by another branch. Thus, for example, “[t]he magistrate in whom the whole executive power resides cannot of himself .

. . administer justice in person, though h e has the appointment of those who do administer it. The judges can exercise no executive prerogative , though they are shoots from the executive stock

. . . .” (Madison, at p. 326, italics added.) Separation of powers protects liberty not only by creatin g checks and balances, but also by maintaining clear lines of political accountability. “The diffusion of power carries with it a diffusion of accountability.” ( Free Enterprise Fund v. Public Company Accounting Oversight Bd. (2010) 561 U.S. 477, __ [130 S.Ct. 3138, 3155].) When a governmental arrangement blurs the lines of accountability by unduly diminishing the executive’s oversight, it “subverts the [executive’s] ability to ensure that the laws are faithfully executed

— as well as the public’s ability t o pass judgment on his efforts.” ( Ibid. ) This concern is not merely theoretical in the context here. Imagine how things would look if the Los Angeles City Attorney or his designate had to sign his name as the “DECLARANT AND COMPLAINANT” on each of the 8, 0004

failure

- to

- appear complaints issued to Los Angeles County residents each week. That’s over 400,000 complaints each year. Given the mass processing of these complaints, it is all but certain that some fraction of the charges will be found

erroneous or will otherwise result in dismissal, but not until each defendant has been put to significant hassle or expense. Wouldn’t the prospect of disgruntled citizens on such a scale induce a degree of discretion or oversight before an electorally accountable off icial is willing to affix his name to a complaint? And even if not, shouldn’t each complaint

— as with any other criminal complaint

— be issued in a form that entitles the citizenry to judge whether their elected law enforcement officials are setting prio rities and allocating resources in an optimal way? Today’s opinion says this problem of accountability is cured by the fact that a deputy city attorney told the superior court in this case that “we approve and concur of this complaint as well as all the ot her complaints that are filed in all the other cases in this courthouse. We know the practice exists where a complaint is generated via a notice to appear in which a person cited in the notice to appear has failed appear. We have not asked the Court and/ or its clerk to stop.” (See maj.

opn., ante , at p. 3.) Even if I were to agree that a court clerk may sign a complaint as the declarant and complainant so long as the prosecutor approves ( id. at p. 10), I do not believe an unsworn, post hoc statement mad e in the course of litigation suffices to confer such approval. As every elected official knows, there is often a difference in perception if not reality between deciding to undertake a course of action oneself and simply going along with or not stopping a course of action decided by others. This case might be different if the City Attorney had earlier adopted a policy statement that established or expressly approved the current practice. But no such statement appears here.5

Although efficiency and good g overnment are laudable objectives, they must be pursued in conformity with our constitutional structure. That structure requires accountability in all governmental functions, including the prosecutorial function (see Morrison v. Olson (1988) 487 U.S. 654, 697 (dis. opn. of Scalia, J.)), so that the citizenry may hold public officials to answer for error, abuse, or misguided priorities. Whether or not it is realistic to expect the City Attorney to review and approve each of the 400,000 failure

- to

- appear co mplaints issued every year in Los Angeles County, his decision to charge each defendant with a misdemeanor in the name of the People must be transparent and open to public judgment, not obscured by the signature of a court clerk.
This conclusion does not r equire invalidating the thousands of judgments under the current scheme that are not yet final today. In virtually all of those cases, even if the participation of a public prosecutor does not cure the separation of powers violation, we may readily conclu de that the defendants likely suffered no prejudice. (See Smith v. Rae

- Venter Law Group (2002) 29 Cal.4th 345, 372 [nonretroactive application of a judicial decision may be justified by

“ ‘[c]onsiderations of fairness and public policy ,’ ” including “ ‘re troactivity’s effect on the administration of justice’ ”].) But lack of prejudice to individual defendants does not justify use of the present scheme going forward. If the City Attorney wants to continue automatically generating these complaints, the
sep aration of powers problem is easily remedied. And if the remedy were to cause the City Attorney to hesitate, that would tend to confirm the present need for better alignment between prosecutorial action and accountability.6

For the reasons above, I concur only in today’s judgment.

LIU, J.

I CONCUR: SIGGINS , J. *

* Associate Justice of the Court of Appeal, First Appellate Distri ct, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.APPENDIX

— see next pageSee next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Steen v. Appellate Division

______________________________ ____________________________________________________ Unpublished Opinion Original Appeal Original Proceeding XXX Review Granted Rehearing Granted

__________________________________________________________________________________ Opinion No. S174773 Date Filed: August 11, 2014

__________________________________________________________________________________ Court: Superior County: Los Angeles Judge: Patti Jo McKay

__________________________________________________________________________________ Couns el: Michael P. Judge and Ronald L. Brown, Public Defenders, Ilya Alekseyeff and John Hamilton Scott, Deputy Public Defenders, for Petitioner. Frederick R: Bennett; Reed Smith, Paul D. Fogel and Dennis Peter Maio for Respondent. Carmen A. Trutanich, City Attorney, Debbie Lew, Assistant City Attorney, Eric Shannon and Katharine H. Mackenzie, Deputy City Attorneys, for Real Party in Interest. Steve Cooley, District Attorney (Los Angeles), Irene T. Wakabayashi, Head Deputy District Attorney, and Phyllis C. Asayama , Deputy District Attorney, for District Attorney of Los Angeles County as Amicus Curiae on behalf of Real Party in Interest.2

Counsel who argued in Supreme Court (not intended for publication with opinion):

John Hamilton Scott Deputy Publi c Defender 320 West Temple Street, Room 590 Los Angeles, CA 90012 (213) 974

- 3002 Paul D. Fogel Reed Smith 101 Second Street, Suite 1800 San Francisco, CA 94105

- 3659 (415) 543

- 8700

Katharine H. Mackenzie Deputy City Attorney 500 City Hall East 200 N. Ma in Street Los Angeles, CA 90012 (213) 473

- 6900