Case No. C081603

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner,

v. SUPERIOR COURT OF EL DORADO COUNTY; HONORABLE JAMES

R. WAGONER, Respondents,

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

Real Party in Interest.

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

El Dorado County Superior Court, Case No. P16CRF0064, The Honorable James R. Wagoner, Department 1, (530) 621-6426

REAL PARTIES IN INTEREST CITY OF SOUTH LAKE TAHOE AND CHIEF OF POLICE BRIAN UHLER

RESPONSE TO ORDER TO SHOW CAUSE

BRUCE D. PRAET (SBN 119430)FERGUSON, PRAET & SHERMAN

A Professional Corporation 1631 E. 18 Street, Santa Ana, CA 92705th

Tel: (714) 953-5300 Fax: (714) 953-1143

Attorneys for Real Parties in Interest, CITY OF SOUTH LAKE TAHOE

and CHIEF OF POLICE BRIAN UHLER

1

TABLE OF CONTENTS

Certificate of Interested Entities or Persons California Rules of Court 8.208 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. PREFATORY STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. IT IS CLEAR THAT AMICUS AND THE COURT HAVE BEEN FACTUALLY MISLED.. . . . . . . . . . . . . . . . . . . . . . 4

3. CONSISTENT WITH THE LEGISLATIVE INTENT OF SB 227, THIS JACKSON MATTER SHOULD NOT BE DECIDED IN SECRET PROCEEDINGS.. . . . . . . . . . . . . . . . 10

4. PETITIONER’S CHALLENGE TO SB 227 SHOULD BEDETERMINED BY DECLARATORY RELIEF WITHOUT STAYING THE JACKSON FAMILY’S FEDERAL LAWSUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

5. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . 17

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TABLE OF AUTHORITIES

Cases

1973 Grand Jury ((1975)13 Cal. 3d 430. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Garrity v. New Jersey (1967)385 U.S. 493.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

In re J.W. (2002)29 Cal. 4 200. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8th

Lybarger v. Superior Court (1985) 40 Cal. 3d 822 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

McClatchy Newspapers v. Superior Court (1988) 44 Cal. 3d 1162. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

People v. Arroyo (2016)62 Cal. 4 589. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9th

Statutes

Penal Code

Section 917(b). . . . . . . . . . . . . . . . . . . . 2, 3, 6, 7, 9, 10, 13, 15

Section 918.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11

Section 939.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Section 1324.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Senate Bill

No. 227. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5-8, 10-13, 15, 16

OtherProposition 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court 8.208

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

interest of 10 percent or more in the party or parties filing this certificate or

(2) a financial or other interest in the outcome of the proceeding that the

justices should consider in determining whether to disqualify themselves:

None known at this time.

Dated: May 23, 2016 FERGUSON, PRAET & SHERMANA Professional Corporation

/s/ Bruce D. Praet Bruce D. Praet, Attorneys for RealParties in Interest, City of South LakeTahoe and Brian Uhler

1

1. PREFATORY STATEMENT.

While the Court has ordered Real Party in Interest, City of South

Lake Tahoe and Police Chief Uhler (hereafter “City”) to show cause why

Petitioner’s requested relief should not be granted, it is important from the

outset that the scope of the actual relief sought be put into its proper

perspective. On its face, Petitioner’s relief is limited to seeking a writ of

mandate to order the Respondent Superior Court to reverse its order

quashing the grand jury subpoenas and terminating the grand jury

proceeding solely related to the shooting death of Kris Jackson by SLTPD

Officer Joshua Klinge on June 15, 2015. As more fully set forth below, that

relief is simply not necessary since that matter has been fully investigated

and could easily be determined without the need for a grand jury.

However, as evidenced by the scant attention paid to the actual

Jackson case in Petitioner’s almost fifty (50) page brief and the level of

support Petitioner has solicited from various District Attorney groups, it is

apparent that this Writ Petition has little or nothing to do with the Jackson

case, but is instead a thinly veiled effort by the El Dorado County District

Attorney to use this case as a vehicle by which to politically challenge the

recent amendment to Penal Code § 917(b).

2

As more fully set forth below, this Court should not grant

Petitioner’s narrow relief sought for several compelling reasons:

• As evidenced by the Amicus briefs of the California District

Attorneys Association (CDAA) and the Riverside County

District Attorney, the underlying facts of this case and even

the legislative history of the statute in question have been

misrepresented.

• Contrary to Petitioner’s suggestion that SB 227 precludes

grand jury consideration of officer-involved shootings, the

amendment to Penal Code § 917(b) actually permits the grand

jury to consider such matters on its own, but simply imposes a

procedural change which eliminates the District Attorney

from the process.

• Because the entire investigation into the Jackson incident has

been completed and all witnesses have given statements, the

constitutional and statutory purpose(s) of the grand jury will

not be fulfilled by convening a grand jury in the Jackson case.

• All of the parties to the pending federal lawsuit between the

Jackson Estate and the City are being held hostage by this

unnecessary appellate process since the federal court has

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issued a stay pending the resolution of this matter.

2. IT IS CLEAR THAT AMICUS AND THE COURT HAVE

BEEN FACTUALLY MISLED.

The Amicus brief submitted by the CDAA is particularly revealing in

several ways. First, the CDAA attempts to erroneously portray the Jackson

case as somehow similar to a few high profile cases across the nation such

as those in Ferguson, Missouri or Baltimore, Maryland. Quite the contrary,

the brief media attention given to the Jackson case barely made it out of

South Lake Tahoe, much less outside of El Dorado County.

In their further attempt to convince this Court that this Jackson case

should somehow become a matter of statewide concern, the CDAA has

suggested that this was somehow a racially motivated officer-involved

shooting by describing Officer Klinge as a “white officer” who, “with few

details” shot an “unarmed person of color”. While this inflammatory

description has undoubtedly piqued the Court’s interest, it might also help

the Court to learn the actual (and virtually undisputed) facts:

• While Kris Jackson may technically have African-American

blood, he was literally Albino with no more “color” than the

“white” Officer Klinge.

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• Contrary to the representation that Officer Klinge had “few

details”, the officer actually recognized Jackson as a known

member of the violent Crips street gang who had been

arrested during a very recent narcotics transaction in which

the subjects were in fact armed with guns. Officer Klinge

was also familiar with Jackson’s extensive criminal history

which included various felonies ranging from burglary to

pimping and narcotics violations.

• Contrary to the suggestion that there is “no forensic evidence

to shed light on the murky situation”, all witnesses (including

Officer Klinge) provided voluntary statements with the very

comprehensive criminal investigation and all lab work having

been completed and provided to the District Attorney by

October, 2015, including the toxicology tests which revealed

that Jackson was under the influence of both alcohol and

cocaine as he attempted to flee from the scene of reported

domestic violence.

• Ironically, the CDAA submitted its opposing view when the

underlying SB 227 was first introduced [See: Senate Rules

Committee, Third Reading, SB 227, attached hereto as Exhibit

5

“1"]. Although much of the current media attention to officer

involved shootings was raised, the CDAA had the opportunity

to, but never raised any of the constitutional challenges it now

raises in this proceeding. In other words, if SB 227 wasn’t

unconstitutional when it was on the Senate floor, how did it

suddenly become unconstitutional now?

Perhaps most importantly, however, Petitioner and Amicus

completely misrepresent the facially limited scope and impact of the

amended Penal Code § 917(b) when they erroneously claim that it now

precludes all grand jury consideration of officer-involved shootings.

Toward this misleading objective, Petitioner cites the Court’s attention to

Legislative comments which imply that SB 227 “as currently drafted, could

be read to limit the ability of a grand jury to, on its own, initiate an

investigation into an offense that involves the shooting. . . by a peace

officer. . .” [See: Writ Petition, p. 36]. While Petitioner has cleverly

isolated this preliminary comment to mislead the Court into believing that

no grand jury could henceforth ever review an officer-involved shooting,

Petitioner has in fact conveniently omitted the actual and final Legislative

history which completely eliminated this concern.

6

In fact, a review of the Legislative Counsel’s Digest to SB 227 from

March 19, 2015, confirms that the comment Petitioner cites came in the

early stages of the Bill at a time when that version of the Bill would have

completely precluded all grand jury considerations of any officer-involved

shooting. [See: Exhibit “2]. However, a review of the next Legislative

Counsel’s Digest to SB 227 from April 27, 2015, reveals that the

Legislature cured this initial concern cited by Petitioner by adding the

phrase “Except as provided in Section 918, the. . .” [See: Exhibit “3"]

The importance of this latter amendment and its retention in the final

statute cannot be understated. Contrary to the representation of Petitioner

and Amicus, SB 227 does not preclude the grand jury from ever considering

an officer-involved shooting. Instead, Penal Code § 917(b) merely

provides for a procedural change by which the District Attorney may no

longer bring such matters before the grand jury. Given that Penal Code §

918 continues to expressly recognize the grand jury’s authority to have any

of its members bring any officer-involved shooting before it, SB 227 has

done absolutely nothing to undermine or limit the authority or jurisdiction

of the grand jury - it has instead simply removed the District Attorney’s

ability to initiate such a procedure.

7

When the Legislature expressly added language to allow members of

the grand jury to continue to consider officer-involved shootings on their

own, it became clear that the Legislative intent was to merely exclude the

District Attorney from the process of initiating such proceedings. When the

Legislative intent is clear from both the language of the statute and the

Legislative history, it is incumbent on the courts to construe such legislation

in a manner which most likely promotes rather than defeats such a purpose.

In re J.W., 29 Cal. 4 200, 213 (2002)th

While Petitioner has certainly provided a very lengthy constitutional

history of the grand jury, this is simply not a constitutional issue since the

authority and jurisdiction of the grand jury itself (vs. the District Attorney)

remains completely unaffected by SB 227. Ironically, even Petitioner and

Amicus have acknowledged the Legislature’s authority to statutorily address

procedural aspects of the grand jury. As the California Supreme Court has

recognized:

“Although the grand jury’s powers are broad, they are

carefully defined and limited by statute, and the grand

jury has no inherent investigatory powers beyond those

granted by the Legislature.” 1973 Grand Jury ((1975)

13 Cal. 3d 430, 437. [Cf. McClatchy Newspapers v.

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Superior Court (1988) 44 Cal 3d 1162, 1172.]

The authority of the Legislature to regulate the procedural aspects of

the grand jury (e.g. who may bring a matter before it) continues to be

reinforced most recently by the Supreme Court’s recent consideration of the

expansion of the grand jury’s ability to consider public offenses committed

by minors as provided by Proposition 21.

“Had the electorate not intended to permit the initiation of

prosecutions against minors in adult court to be by Grand

Jury indictment, one would expect it to have made such an

intention plain by explicitly limiting the Grand Jury’s

statutory authority.” People v. Arroyo (2016)

62 Cal. 4 589, 597 (emphasis added).th

In other words, the Supreme Court not only continues to affirm the

Legislature’s authority to expand the statutory authority of the Grand Jury,

but the Court has expressly acknowledged that the Legislature also has the

power to limit the Grand Jury’s statutory authority. Thus, contrary to the

convoluted arguments raised by Petitioner, it is rather clear that the

Supreme Court would uphold the constitutionality of Penal Code § 917(b)

which actually does nothing to even limit the authority of the Grand Jury,

but instead merely omits the District Attorney from the initiation process.

9

Reinforcing the propriety of the Superior Court’s ruling in this matter, the

Supreme Court noted that it is the duty of the superior court to enforce the

statutory limits placed on the Grand Jury. 1973 Grand Jury, supra, p. 430

Although Petitioner has made it clear that District Attorneys disagree

with the Legislature’s enactment of Penal Code § 917(b) eliminating their

ability to convene a secret Grand Jury to consider this or any other officer

involved shooting, the Supreme Court has made it clear that “it would be

anomalous for a court of law to participate in the law’s violation.” 1973

Grand Jury, supra., 13 Cal. 3d at 442. By quashing the (illegal) subpoenas

issued in this case and discharging the (improper) Grand Jury, the

Respondent Superior Court followed not only the Legislative mandate, but

the consistent holdings of the Supreme Court.

3. CONSISTENT WITH THE LEGISLATIVE INTENT OF

SB 227, THIS JACKSON MATTER SHOULD NOT BE

DECIDED IN SECRET PROCEEDINGS.

In their lengthy treatise on the history of the grand jury, Petitioner

notes that grand juries are essential in order to insure the candor and secrecy

of reluctant witnesses. McClatchy Newspapers v. Superior Court (1988) 44

Cal. 3d 1162, 1175, fn.6. While the City does not disagree with this

concept, there is no such need in the instant Jackson case.

10

As Petitioner is well aware, the very thorough investigation into the

Jackson shooting was completed by and provided to the District Attorney

by October, 2015. In particular, all witnesses gave detailed recorded

statements, including Officer Klinge who provided a voluntary statement.

In other words, Petitioner knows that there are no “reluctant witnesses” in

this case and there is nothing for the grand jury to investigate. In fact, all

Real Parties in Interest have outwardly encouraged the District Attorney to

fulfill the Legislative intent of SB 227 by evaluating any potential criminal

culpability in public as opposed to the secrecy of the grand jury recently

condemned by the Legislature. Moreover, while any individual member of

the El Dorado Grand Jury could still initiate proceedings in this Jackson

case pursuant to Penal Code § 918, there has been no such interest

expressed.

Except in rare instances in which a grand jury is needed to hear

reluctant witnesses or even compel testimony (a process still available

under Penal Code § 918), the vast majority of officer-involved shooting

cases in California and across the nation are being reviewed by District

Attorneys without a grand jury. While the Legislature highlighted the need1

1

e.g. As of March, 2016, the Hennepin County, MN District Attorney hasimplemented a policy of no longer using a grand jury to consider officer-involved shootings.

11

to avoid deciding officer-involved shootings in the secrecy of a grand jury,

SB 227 fulfills a collateral benefit of protecting peace officers from

becoming the subject of a District Attorney who might seek an indictment

of an officer for improper political purposes. For example:

C The officer under investigation is not entitled to legal

representation in the grand jury proceeding. Penal Code §

939. As such, a politically motivated District Attorney

reviewing an officer’s conduct in the secrecy of a grand jury

proceeding remains free to present a one-sided view of the

evidence without the right of the officer or his/her legal

counsel to make objections, cross-examine witnesses or even

present exculpatory evidence.

C While peace officers retain the Fifth Amendment right to

remain silent in any normal criminal proceeding, the officer’s

employing agency retains the right to administratively compel

the officer to provide a statement for administrative purposes

only. Lybarger v. Superior Court (1985) 40 Cal. 3d 822.

While the District Attorney might previously have been able

to circumvent the officer’s Fifth Amendment rights in a grand

jury process [See: Penal Code § 1324], SB 227 now provides

12

the officer with the assurance that his/her actions can no

longer be considered behind closed doors. As the United

States Supreme Court long ago noted, “Policemen are not

relegated to a watered down version of constitutional rights.”

Garrity v. New Jersey, 385 U.S. 493, 500 (1967).

There is simply no reason why Petitioner would need to convene a

grand jury to consider the potential criminal culpability of Officer Klinge in

the Jackson matter before the Court. Conversely, Petitioner consciously

delayed his request to convene a grand jury for several months after the

investigation was completed and until after January 1, 2016, so that he

could use Officer Klinge as a vehicle to mount a personal challenge to SB

227. The fact that Petitioner is motivated by political gain rather than the

merits of this case further reinforces the need to uphold the provisions of

Penal Code § 917(b).

4. PETITIONER’S CHALLENGE TO SB 227 SHOULD BE

DETERMINED BY DECLARATORY RELIEF

WITHOUT STAYING THE JACKSON FAMILY’S

FEDERAL LAWSUIT.

Although Petitioner’s challenge of the amendment to section 917(b)

is legally flawed, it certainly could have been raised by a simple request for

13

declaratory relief rather than holding Officer Klinge, the City and even the

family of Kris Jackson hostage. As Petitioner knows, but refuses to

acknowledge, the completed investigation into the Jackson matter

demonstrates that there is woefully insufficient evidence to ever consider

criminal charges against Officer Klinge. Had there been evidence of

criminal conduct by the officer, Petitioner could have, in fact should have,

simply filed charges with no need to ever consider a grand jury.

In the meantime, the family of Kris Jackson has attempted to

exercise their right to seek damages for his death and their loss of familial

relations by filing a federal lawsuit on January11, 2016. [Ainley, et al v. City

of South Lake Tahoe, et al, USDC Case No. 2:16-cv-00049 TLN-CKD].

However, just as that civil matter was beginning to proceed in the district

court, Petitioner filed this appeal and U.S. District Judge Nunley has now

ordered that the entire federal case remain stayed pending the resolution of

this potential criminal proceeding. [See: Stay Order attached as Exhibit “4"]

Both the family of Kris Jackson and Officer Klinge deserve timely

resolution of their rights and there is no valid reason to prolong the federal

case while this appeal runs its course. If this Court is inclined to consider

Petitioner’s request for relief, it should be limited to the Court’s generic

determination of the validity of the amendment to Penal Code § 917(b)

14

without regard to the Jackson case. As noted above, except for using the

Jackson case as a pretext for challenging SB 227, there is no need to

actually bring the case before a grand jury.

Instead, Petitioner can simply make the decision whether to

prosecute Officer Klinge just like any other District Attorney - i.e. based on

the evidence contained in the thorough investigation already completed.

With Petitioner’s pretextual need for a grand jury out of the way, the Court

will be free to consider any and all challenges to SB 227 without impacting

or further delaying the pending civil lawsuit in federal court.

5. CONCLUSION.

As noted above, it is respectfully requested that the Court deny

Petitioner’s requested relief since SB 227 and the amendment to Penal

Code § 917(b) is valid as it did not limit the authority of the grand jury, but

instead simply imposed a procedural change to eliminate the District

Attorney from the grand jury process in the limited context of officer-

involved shootings. Relief should further be denied since there is no valid

reason to convene a grand jury to consider the fully completed investigation

into the Jackson matter used to take this appeal. Finally, on behalf of the

Jackson family and Officer Klinge, it is respectfully requested that the

15

Court minimally dismiss the Petition in this case and alternatively consider

the validity of SB 227, if at all, by way of declaratory relief.

Dated: May 23, 2016 FERGUSON, PRAET & SHERMANA Professional Corporation

By: /s/ Bruce D. Praet Bruce D. Praet, Attorneys for RealParties in Interest, City of South LakeTahoe and Brian Uhler

16

CERTIFICATE OF WORD COUNT

Pursuant to Rule 8.204(c)(1) of the California Rules of Court, Icertify that this brief consists of 2,863 words, as counted by the computerprogram used to generate the document.

DATED: May 23, 2016 FERGUSON, PRAET & SHERMANA Professional Corporation

By: /s/ Bruce D. Praet Bruce D. Praet, Attorneys for RealParties in Interest, City of South LakeTahoe and Brian Uhler

17

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF ORANGE

I, Cathy Sherman, am employed in the aforesaid County, State ofCalifornia; I am over the age of 18 years and not a party to the withinaction. My business address is 1631 East 18th Street, Santa Ana, California92705-7101.

On May 23, 2016, I served the foregoing REAL PARTIES ININTEREST CITY OF SOUTH LAKE TAHOE AND CHIEF OFPOLICE BRIAN UHLER RESPONSE TO ORDER TO SHOWCAUSE on the interested parties in this action by placing a true copythereof, enclosed in a sealed envelope, addressed as follows:

Attorneys for People of theState of California William Clark Vern Pierson El Dorado Co. District Attorney 515 Main Street Placerville, CA 95667

Attorneys for California DistrictAttorneys’ AssociationMark Zahner921 11 St. Ste. 300th

Sacramento, CA 95814

Thomas T. WatsonCity of South Lake Tahoe1901 Airport Road, Ste. 300South Lake Tahoe, CA 96150

Judith A. Odbert Joshua A. Olander Tashayla D. Billington Mastagni Holstedt A Professional Corporation 1912 I StreetSacramento, CA 95811

XXX (By e-filing) The above noted individuals are registered with theCourt to receive notice of electronically filed documents. Per ECFrules, hard copies must be served only on parties who are not set upfor electronic notification.

And;

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Superior Court of El DoradoHonorable James R. Wagoner495 Main St., Dept. 1Placerville, CA 95667

XXX (By Mail) I placed such envelope for deposit in accordance withoffice practice, sealed, with postage thereon fully paid and thecorrespondence to be deposited in the United States mail at SantaAna, California on the same day.

Executed on May 23, 2016, at Santa Ana, California.

/s/Cathy Sherman Cathy Sherman

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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court 8.208 1. PREFATORY STATEMENT. 2. IT IS CLEAR THAT AMICUS AND THE COURT HAVE BEEN FACTUALLY MISLED. 3. CONSISTENT WITH THE LEGISLATIVE INTENT OF SB 227, THIS JACKSON MATTER SHOULD NOT BE DECIDED IN SECRET PROCEEDINGS.4. PETITIONER’S CHALLENGE TO SB 227 SHOULD BE DETERMINED BY DECLARATORY RELIEF WITHOUT STAYING THE JACKSON FAMILY’S FEDERAL LAWSUIT. 5. CONCLUSION.