CA-F060737-AO.tif

Code 128

Docket #F060737

Brief Type: Appellant's Opening

Box #: 929

Entered 2/4/2011 1:15:49 PM by KPotter

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH DISTRICT COURT OF APPEAL

CITY OF WOODLAKE, ET AL.,

Plaintiff/Respondent, Case No.: F060737

v.

TULARE COUNTY GRAND JURY,

Defendant/ Appellant.

Tulare County Superior Court No. VCU237194 The Honorable Lloyd L. Hicks, Judge Presiding

APPELLANT'S OPENING BRIEF

PHILLIP J. CLINE Tulare County District Attorney

DON H. GALLIAN Assistant District Attorney

SHANI D. JENKINS Assistant District Attorney

BARBARAJ.GREAVER Supervising Deputy District Attorney

JOHN F. SLINEY, SBN 219657 Deputy District Attorney

221 S. Mooney Blvd., Room 224 Visalia, CA 93921 (559) 733-6411 Fax (559) 730-2658

TO BE FILED IN THE COURT OF APPEAL APP-008

COURT OF APPEAL, Fifth APPELLATE DISTRICT, DIVISION Court of Appeal Case Number:

F060737 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): Superior Court Case Number:

Deputy District Attorney John F Sliney, SBN 219657 VCU237194 -Tulare County District Attorney's Office

221 South Mooney Blvd. Room 224 FOR COURT USE ONLY

Visalia, CA 93291 TELEPHONE NO. (559) 733-6411 FAX NO (Optional)

E-MAIL ADDREss (Optional) : j sliney@co. tulare. ca. us (559) 730-2658

ATTORNEY FOR (Name): Tulare County Grand Jury

APPELLANT/PETITIONER: Tulare County Grand Jury

RESPONDENT/REAL PARTY IN INTEREST: City of Woodlake, et aJ.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one): [l] INITIAL CERTIFICATE 0 SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed.

1. This form is being submitted on behalf of the following party (name):_T_u_l_a_re_C_o_u_n_t .... y_G_ra_n_d_J"-. u_ry~-----------

2. a. [{] There are no interested entities or persons that must be listed in this certificate under rule 8.208.

b. D Interested entities or persons required to be listed under rule 8.208 are as follows :

(1)

(2)

(3)

(4)

(5)

Full name of interested entity or person

D Continued on attachment 2.

Nature of interest (Explain):

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Date: December 7, 2010

John F. Sliney

Form Approved for Optional Use Judicial Council Of California

APP-008 [Rev January 1, 2009]

(TYPE OR PRINT NAME)

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS / Page 1 of 1

Cal. Rules of Coun . rules 8.208. 8.488 www.courtinfo.ca.gov

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES........................................... n

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF APPEALABILITY.............................. 3

STATEMENT OF THE CASE AND FACTUAL BACKGROUND . . . . . . . . . . . ...... ... . . . . .. . . . . . . . . . . . . . . . . 3

STANDARD OF REVIEW .. .. . . .. .. . . . . . . . . .. . .. . .. . . . . . . . . . . . . .. . .. . 5

ARGUMENTS

I. THE SUPERIOR COURT'S RULING WAS BASED ON DICTA FROM PEOPLE v. SUPERIOR COURT (TULARE COUNTY) (2003) 107 CAL.APP.4TH 488 .......... 5

II. NEITHER CRIMINAL NOR CIVIL GRAND JURIES' SUBPOENA DUCES TECUM REQUIRE AN AFFIDAVIT OF GOOD CAUSE .. .. . . . . . . . . . .. . . .. .. .. . . . .. . . .. .. . . .. .. . . . . . . .. .. . 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . . . . ... 13

CERTIFICATE OR RULE 8.204(C)(l) COMPLIANCE . . .... . ... 14

PROOF OF SERVICE . . . . . . . . . .. . .. .. . . .. . .. . . . . . .. .. .. . . . . . . . . .. . . .. . ... 15

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TABLE OF AUTHORITIES

CASES PAGE

Ahrens v. Evans (1942) 42 Cal.App.2d 738 ... ........... ............... 3

Alvarez v. Superior Court (2007) 154 Cal.App.4th 642 . . . . . . . . . . . . ... 10

Berardi v. Superior Court (2007) 149 Cal.App.4th 476 ... . . .. . . . . .... 8, 9

City ofSanta Cruz v. Patel (2007) 155 Cal.App.4th 234 . . . . . . . . . . . ... 3

Daily Journal Corp. v. Superior Court (1999) 20 Cal. 4th 1117 . . . ... 9, 10

Ex parte Sontag (1884) 64 Cal. 525 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Farnow v. Superior Court (1990) 226 Cal.App.3d 481 . . . . . . . . ... . .. . . 3, 9, 10

Goldstein v. Superior Court (2008) 45 Cal.4th 218 ............ ........ 3, 9, 10

Haight v. Joyce (1852) 2 Cal.2d 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 5

Los Angeles Times v. Superior Court (2003) 114 Cal.App.4th 247 ... 10

MB. v. Superior Court (2002) 103 Cal.App.4th 1384 . . . . . . . . . . . . . . .... passim

McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162 . . . 12

Millan v. Restaurant Enterprises Group, Inc. ( 1993) 14 Cal.App.4th 4 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 3

People v. Albritton (1998) 67 Cal.App.4th 64 7 . . . . . . . . . . . . . . . . . . . . . . . .. 2, 5

People v. Sperl (1976) 54 Cal.App.3d 640 ........................ ~..... 12, 13

People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403 . . . . .. . .. . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . 9, 10

People v. Superior Court (Tulare County) (2003) 107 Cal.App.4th 488 ............................................. ,. . . .. . passim

People v. Viray (2oosrl34 Cal.App.4th 1186 . . . . . . . . . . . . . . . . . . . . . . . ... 10

Pitches v. Superior Court (1974) 11 Cal. 3d 531........................ 11

Regents of University a/California v. Superior Court (2010) 183 Cal.App.4th 755 .. .. ..... ............... .... ........ .... ........ ... 10

San Jose Mercury News, Inc. v. Criminal Grand Jury of Santa Clara County (2004) 122 Cal.App.4th 410 ......... ...... 10

Snow v. Woodford (2005) 128 Cal.App.4th 323 ... . . . . .. . .. . .. . . ... .... 5

State of California ex rel. Department of Pesticide Regulation v. Pet Food Express Limited (2008) 165 Cal.App.4th 841 . . . . . . . 3

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CASES (Continued) PAGE

United States v. Dionisio (1973) 410 U.S. 1 . . . . . . . . . . . . . .. . . . .. . . .. . . .. 11, 12 Yount v. City of Sacramento (2008) 43 Cal.4th 885 . . . . . . . . . . . . . . . . . ... 5

STATUTES PAGE

Code of Civil Procedure§ 904.1.................. .. . . . . . . . . . . . . . . . . . . . . . .. 3

Code of Civil Procedure§ 1985........ .. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . ... 7, 8, 11

Code of Civil Procedure§ 1987.5.......................................... 7, 8

Pen. Code§ 888 .. .. .. .. .. .. .. .. .. .. .. .. .. .. .... .. .. .. .. .. .. .. .... . .. . .. .. .. .. 8, 9, 10

Pen. Code§ 891 . .. . . . . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . ... . . . . . . . . . . .. 3

Pen. Code § 904.5 .. . . .. .. . . . . . . . .. .. . . . . . .... . . . . . . . . . . . .. .. . . . . .. . . ...... . . . . . 9

Pen. Code§ 904.6 .... .... .. .. .. .. .. .. .. .. .... .. .. .. .. .. .. .... .. .. .. ............ 8, 9, 10

Pen. Code§ 904.9 .............................................................. 9

Pen. Code § 909 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Pen. Code§ 914 ...................... .-.. .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 9

Pen. Code§ 914.1 .. . . . .. . .. . .. . .. . . . .. . . .. . .. . . . . .. . .. . . . . . . .. . . . . .. . . . . . . ... 9

Pen. Code § 917 ...................... ·........................ .... .. .. .. .. .. .. 8, 9, 10

Pen. Code § 911 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3

Pen. Code§ 915.... ........ .. . . . . . . . . . . ........ ... . . . . . . . ... . . . . . . . ...... ......... 3

Pen. Code§ 921 .... .... .. .. .. .. .. .. .. .. .... ............ ...... ............ ...... . 12

Pen. Code § 924 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pen. Code§ 924.2 ... . .... .. . . . . . . . . . . . . .. ................ ....... .. . . ........... 3

Pen. Code§ 924.3 .. ...... .. .. .. .. .. .. .. .. .. .. . .. .. .. .. .... .. .. .. .. .... ...... .. 3

Pen. Code § 933.05 .................... ................. ... . . . . . . . ...... ........ 3

Pen. Code § 934 .. .. .. .. .. .. . .. .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. . . . .. .. .. .. .. .. .. 3

Pen. Code § 935 .. .... .. .. .. .. . . . .. .. .. .. .. . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .. . 3

Pen. Code§ 939 .. .... .. .. .. .. .... .. .. .. .. .. .. . .. .. .. .. ................ ........ 3

Pen. Code § 939.1 .... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .... .. .. . .. .. .. .. .... .. 3

Pen. Code§ 939.21 .. .. . .. .. .. .. .. .. .. .. .. .. .... .. .. .. ...... .. .. .. .. .. .. .... .. 3

Welfare and Institutions Code§ 827 .. .. . . . . . . .. . .. . .. . . .. . . .. .. .. . . . . . ... 5, 6, 7, 8

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California Rules of Court

Rule 5.552 .................................................................... .

iv

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH DISTRICT COURT OF APPEAL

CITY OF WOODLAKE, ET AL.,

Plaintiff/Respondent,

v.

TULARE COUNTY GRAND JURY,

Defendant/ Appellant.

INTRODUCTION

Case No.: F060737

Tulare County Su_Qerior Court Case# VCU237194

"The form ofthe oath in general use for centuries binds the grand

j~ror to preserve inviolate the secrets of the grand jury room." (Ex parte

Sontag (1884) 64 Cal. 525, 526 [2 P. 402, 403]; see also Penal Code§ 911.)1

Here, the Tulare County Superior Court quashed a subpoena duces tecum

issued by the Tulare County Grand Jury because the subpoena was not

served with an affidavit showing good cause for the production of the items

subpoenaed, an action that would necessarily require the grand jury to

disclose evidence brought before the grand jury in violation of§ 911. (CT

89-91.)

The superior court erred as it relied upon obiter dictum from this

court's decision in People v. Superior Court (Tulare County) (2003) 107

Cal.App.4th 488 [132 Cal.Rptr.2d 144] which conflicts with the rational in

the controlling decision in MB. v. Superior Court (2002) 103 Cal.App.4th

1384, [127 Cal.Rptr.2d 454]. The Tulare County case dealt with two

conflicting societal interests, the interest in maintaining the confidentiality of

1 All further references to statutory code sections refer to penal code sections unless otherwise specified.

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the juvenile court files as espoused in Welfare and Institutions Code §827

(hereafter§ 827) and the interest in maintaining the secrecy of grand jury

investigations. (People v. Superior Court (Tulare County), supra, 107

Cal.App.4th at 493-494.) The court found the Legislature has continuously

amended § 827 and "intentionally omitted grand juries" from the list of

entities which it granted a self-executing right to inspect juvenile court

records. (!d. at 494.) As such, the court held that the Legislature had

evinced intent that the interest in maintaining the confidentiality of juvenile

court files took precedence over the interest in maintaining grand jury

secrecy and upheld the juvenile court's denial ofthe grandjury's § 827

motion. (!d.) Section 827 has no relevance to this case.

While the Tulare County case did address MB., the only legally

controlling point it made regarding MB. was that MB. did not affect the

outcome because MB. did not address§ 827. (People v. Superior Court

(Tulare County), supra, 107 Cal.App.4th at 495.) The Tulare County

decision does note a distinction between criminal and civil grand juries and

questions whether the presumption "that a grand jury acts within the

legitimate scope of its authority," applies to civil grand juries as well as

criminal grand juries. (!d. at 495-496.) But, it notes, "even if'' it does, it

would not change the court's decision. (!d.) Statements not necessary to the

decision are mere observations or dictum, not statements of law. (People v.

Albritton (1998) 67 Cal.App.4th 647, 655.) As such, the superior court's

reliance on the Tulare County case in making its ruling was misplaced and

resulted in an erroneous decision. MB. v. Superior Court, supra, 103

Cal.App.4th 1384, should have guided the superior court to deny the motion

to quash the subpoena duces tecum. The rationale in MB. applies equally to

civil and criminal grand juries. As such this court should remand the case

with instructions to the superior court to reverse its order quashing the

subpoena duces tecum.

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STATEMENT OF APPEALABILITY

Typically, a superior court's order quashing a subpoena duces tecum

is not an appealable order as the orders are not from a final judgmenL

(Ahrens v. Evans (1942) 42 Cal.App.2d 738, 738-739.) However, where the

order is analogous to a final judgment and, as such, a '"final determination

of the rights of the parties in an action or proceeding[,]"' the order is

appealable pursuant to Code of Civil Procedure § 904.1, subdivision ( a)(l ).

(The State of California ex ref. Department of Pesticide Regulation v. Pet

Food Express Limited (2008) 165 Cal.App.4th 841, 849-853; see also City of

Santa Cruz v. Patel (2007) 155 Cal.App.4th 234, 240243; Millan v.

Restaurant Enterprises Group, Inc. (1993) 14 Cal.App.4th 477, 484-485.)

Here, the superior court's order is a final determination of the rights of the

parties and, therefore, is appealable pursuant to Code of Civil Procedure

§ 904.1, subdivision (a)(l).

STATEMENT OF THE CASE AND FACTUAL BACKGROUND2

Appellant, the 2009-2010 Tulare County Grand Jury, began

investigating an incident involving respondents, the Woodlake Police

Department's, use of the Exeter Police Department's shooting range on

January 16, 2009. (CT 34, 47.) On AprilS, 2010, the grand jury issued

subpoenas requiring various Woodlake Police Officers to appear before the

Grand Jury. (CT 28-36.) Included among these subpoenas was a subpoena

duces tecum directing respondent, through its chief, to produce various

documents related to the investigation for the grand jury. (CT 29, 34.) On

2 As the issue before the court is strictly procedural, the Statement of Facts and the Statement of the Case are combined. Moreover, given the secrecy requirement of grand jury proceedings, there is a dearth of information related to the factual investigation undertaken by the Grand Jury. (See e.g. Penal Code§§ 891, 911, 915,924, 924.1, 924.2, 924.3, 933.05, 934, 935, 939, 939.1, 939.21; Farnow v. Superior Court (1990) 226 Cal.App.3d 481; Goldstein v. Superior Court (2008) 45 Cal.4th 218.)

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April 16, 2010, respondent filed a Petition for Writ of Prohibition and

Complaint for Declaratory Relief in the Tulare County Superior Court, case

number 10-237194, which was ultimately deemed a motion to quash the

subpoenas. (CT 1-5, RT 6.)

On April 20, 2010, appellant filed a notice of an ex parte application

for an order to show cause why sanctions should not be imposed on

respondent and/or an order to produce documents, Tulare County Superior

Court case number 10-237228. (CT 111-128.) This case, case 10-237228,

was consolidated with case 10-237194 and the consolidated cases retained

the case number 10-237194. (CT 110.)

On May 13, 2010, appellant filed its opposition to the motion to

quash the subpoenas and on May 14, 2010, respondent filed a memorandum

of points and authorities in support of the motion to quash. (CT 46-63.) On

May 18, 2010, appellant filed a reply to respondent's memorandum and on

May 18, 2010, respondent filed a reply memorandum in support of its

motion. (CT 70-87.) On May 20, 2010, the superior court heard oral

argument on the motion to quash along with a third party's motion to

intervene. (RT 1-25.) The superior court denied the motion to intervene and

took the remaining issues under submission. (RT 8, 25.)

On June 3, 2010, the court issued its ruling. (CT 8-93.) The superior

court denied the motion~o quash the subpoenas requiring the various

Woodlake Police officers to appear before the grand jury. (CT 92-93.) The

superior court did, however, quash the subpoena duces tecum, finding it was

defective for failing to comply with Code of Civil Procedure § 1985,

subdivision (b) as it failed to include an affidavit showing good cause. (CT

89-91:) On July 12, 2010, appellant filed its notice ofappeal ofthe superior

court's order quashing the subpoena duces tecum. (CT 95-96.)

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STANDARD OF REVIEW

Appellant contests the superior court's determination that because the

Grand Jury's subpoena duces tecum failed to contain an affidavit as outlined

in Code of Civil Procedure § 1985, subdivision (b), pursuant to Code of Civil

Procedure § 1987.5 it was legally insufficient. This is a purely legal issue.

A court of appeal reviews a superior court's legal rulings under a de novo

standard. (Snow v. Woodford (2005) 128 Cal.App.4th 323, 393-394.) Thus,

this court applies a de novo standard when reviewing the trial court's

decision that the subpoena was invalid.

ARGUMENTS

I THE SUPERIOR COURT'S RULING WAS BASED ON DICTUM

FROM PEOPLE V. SUPERIOR COURT (TULARE COUNTY) (2003) 107 CAL.APP .4TH 488

It has long been the law in California that obiter dictum in an opinion

does not establish legal precedence. (See e.g. Haight v. Joyce (1852) 2

Cal.2d 64, 66-67; Yount v. City of Sacramento (2008) 43 Ca1.4th 885, 903-

90 [76 Cal.Rptr.3d 787, 803, 183 P.3d 471, 485], concurring opinion of

Justice Werdegar], reh'g denied (July 16, 2008), cert. denied, (U.S. 2009)

129 S.Ct. 905 [173 L.Ed.2d 109].) Portions of the opinion which are

unnecessary to the final ruling constitute such dictum. (Yount v. City of

Sacramento, supra, 43 Cal. 4th at 903, concurring opinion of Justice

Werdegar.) These portions of the opinion are "not statements oflaw ... but

mere general observations. (People v. Albritton, supra, 67 Cal.App.4th at

655.)

Here, the superior court relied on dicta in People v. Superior Court

(Tulare County), supra, 107 Cal.App.4th 488, that conflicts with the

rationale providing for the holding in MB. v. Superior Court, supra, 103

Cal.App.4th 1384 when ruling to quash the subpoena duces tecum. (CT 91.)

In the Tulare County case a grand jury filed an § 827 motion seeking an

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order permitting it to inspect the juvenile court's records related to a

dependency case. (People v. Superior Court (Tulare County), supra, 107

Cal.App.4th at 490.) Section 827 delineates who may access a juvenile

court case file. Subdivisions (a)(l)(A) through (a)(l)(O) designate who may

inspect juvenile court files without prior leave of the juvenile court.

Subdivision (a)( 1 )(P) provides that the juvenile court may allow "any other

person" to inspect the records upon the filing of a petition, commonly known

as a"§ 827 petition."3 In the Tulare County case this court held that since

grand juries were not designated in § 827 as a party that may access juvenile

court records without prior juvenile court authorization, that the grand jury

must petition the juvenile court, as would "any other person," before it may

be granted access to inspect the records. (People v. Superior Court (Tulare

County), supra, 107 Cal.App.4th at 492.)

California Rule of Court 5.552, subdivision (c), et. seq.4 govern the

procedures related to a§ 827 petition made by any other person.5 In

particular Rule 5.552 subdivision (e)(l) provides that when a petition is filed

"[t]he court must review the petition and, if petitioner does not show good

cause, deny it summarily." In the Tulare County case, this court reasoned

3 Section 827 has been amended several times since this court issued its opinion in People v. Superior Court (Tulare County), supra, 107 Cal.App.4th 488. At the time of that opinion subdivisions (a)(l)(A) through (a)(l)(L) designated who had access to the juvenile court's records without prior approval ofthejuvenile court judge and subdivision (a)(l)(M) provided any other person may file a petition with the juvenile court seeking access. Thus, the references in People v. Superior Court (Tulare County), supra, 107 Cal.App.4th 488 to "subpart (M) " relate to the current subpart (a)(l)(P). 4 All further references to rules refer to California Rules of Court. 5 At the time this court decided People v. Superior Court (Tulare County), supra, 107 Cal.App.4th 488, California Rule of Court 1423 governed the procedures for§ 827 motions. Rule 5.552 has superseded Rule 1423. Thus, the references in the opinion to Rule 1423 would now apply to Rule 5.552.

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that because the rule requires a showing of good cause and the grand jury's

§ 827 petition did not provide good cause, the juvenile court had properly

denied the grand jury's § 827 petition seeking access to juvenile court

records related to a dependency hearing. (People v. Superior Court (Tulare

County), supra, 107 Cal.App.4th at 492-493.)

The Tulare County opinion addressed the grand jury's argument that

the juvenile court was compelled to grant its §827 petition "with 'no

questions asked' because it is a grand jury and there is a public interest in the

unfettered investigative power of the grand jury which overrides what [the

grand jury] characterizes as the public's lesser interest in the confidentiality

of juvenile court records." (I d. at 493.) The court rejected this argument,

noting the Legislature had already resolved the issue when it enacted § 827.

(!d. at 493-494.) The court noted the Legislature has continuously amended

§ 827 and always "intentionally omitted grand juries" from the list of entities

which it granted a self-executing right to inspect juvenile court records. (!d.

at 494.) The court held that by enacting§ 827 and intentionally not

including grand juries on the list of entities that with a self-executing right to

inspect juvenile court records the Legislature had indicated that it considered

society's interest in maintaining the confidentiality of juvenile court records

higher than its interest in maintaining the unfettered investigative power of

the grand jury. (Jd.)

Nothing beyond the above was necessary to the holding in the Tulare

. County case and as such, nothing else in the opinion is controlling law. The

Tulare County case does discuss MB. v. Superior Court, supra, 103

Cal.App.4th 1384 but notes, "nothing in MB . ... persuades us otherwise,"

and that "MB. did not address section 827." (People v. Superior Court

(Tulare County), supra, 107 Cal.App.4th at 495.) Aside from these

comments, the Tulare County case's discussion of MB. is all dicta.

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Part of this dictum included a discussion distinguishing criminal and

civil grand juries. The court noted that MB. arose from a criminal grand

jury and held that Code of Civil Procedure § § 1985 and 1987.5 requirements

do not apply to criminal cases. (People v. Superior Court (Tulare County),

supra, 107 CaLApp.4th at 495-496.) The Tulare County opinion stated that

,<.llJB: restates t~e proposition "the law "'presumes, absent a strong showing

' :{(j the contrary, that a grand jury acts within the legitimate scope of its

authority;""' (!d. at 496, quoting MB. v. Superior Court, supra, 103

CaLApp.4th 1386.) It noted that this principle was derived from criminal

cases, implying that the court questioned whether the principle applied to

civil grand juries. The Tulare County opinion, however, goes on to note

"even if the principle does apply to civil grand jury matters," it would not

change its decisions that § 827 requires the grand jury to provide a statement

of good cause when petitioning for juvenile court records. (!d. at 496.) As

its conclusion on this issue could not have changed the outcome of the case,

even if the opinion can be read to imply a conclusion on the issue, the

conclusion is dictum and not controlling law.

Here, the superior court relied upon this dictum in reaching its

decision in this case. The superior court's order states that the Tulare

County case held that MB. 's holding that Code of Civil Procedure § 1985

does not apply to criminal grand juries could not be extended civil grand

juries. (CT 91, lines 17-19.) As discussed above, the Tulare County case's

discussion of MB. on this point was dictum. No such holding is found in the

Tulare County case. Quite to the contrary, this case, which does not involve

a§ 827 motion, shows that the rationale of MB. applies equally to civil as

well as criminal grand juries.

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II NEITHER CRIMINAL NOR CIVIL GRAND JURIES' SUBPOENA

DUCES TECUM REQUIRE AN AFFIDAVIT OF GOOD CAUSE

The distinction between criminal and civil grand juries does not

justify different procedures for the issuance of subpoenas duces tecum. Both

are investigative bodies and both, where appropriate, can return an

indictment. (§888; § 904.6; § 917; Berardi v. Superior Court (2007) 149

Cal.App.4th 476, 489-90 [57 Cal.Rptr.3d 170, 179-80]; McClatchy

Newspapers v. Superior Court (1988) 44 Cal. 3d 1162, 1170 [245 Cal.Rptr.

774, 751 P.2d 1329].)

Title 4 of the Penal Code, beginning with§ 888, governs Grand Jury

Proceedings. Section 888 defines what a grand jury is and further requires

that "onegrandjury in each county, shall be charged and sworn to

investigate or inquire into county matters of civil concern .... "6 (emphasis

added.) Chapter 3 of title 4 of the Penal Code, beginning with § 914,

provides the instructions the court is required to provide to the grand jury.

In particular, § 914.1 notes specific items the judge must instruct on when

the grand jury is conducting "investigation of, or inquiry into, county matters

of civil concern." The instructions require investigation into alleged

misfeasance, malfeasance or dereliction of public officials, public employees

6 Penal Code§ 888 provides in its entirety: "[a] grand jury is a body ofthe required number of persons returned from the citizens of the county before a court of competent jurisdiction, and sworn to inquire of public offenses committed or triable within the county.[,] Each grand jury or, if more than one has been duly impaneled pursuant to Sections 904.5 to 904.9, inclusive, one grand jury in each county, shall be charged and sworn to investigate or inquire into county matters of civil concern, such as the needs of county officers, including the abolition or creation of offices for, the purchase, lease, or sale of equipment for, or changes in the method or system of, performing the duties of the agencies subject to investigation pursuant to Section 914.1."

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or government agencies. (See§§ 914, et. seq.) This type of grand jury is

the grand jury commonly referred to as the "civil" or "regular" grand jury.

(See e.g., § 904.6; Goldstein v. Superior Court, supra, 45 Cal.4th at 226;

Daily Journal Corp. v. Superior Court (1999) 20 Ca1.4th 1117, 1127 [86

Cal.Rptr.2d 623, 979 P.2d 982]; People v. Superior Court (Tulare County),

supra, 107 Cal.App.4th at 496; People v. Superior Court (Mouchaourab)

(2000) 78 Cal.App.4th 403, 431 [92 Cal.Rptr.2d 829]; Farnow v. Superior

Court, supra, 226 Cal.App.3d at 484.)

Penal Code § 904.6 allows the court to impanel one additional grand

jury on its own motion or upon the request of the district attorney or attorney

general. A grand jury em panelled pursuant to § 904.6 "may inquire into any

matters which are subject to grand jury inquiry and shall have the sole and

exclusive jurisdiction to return indictments, except for any matters which the

regular grand jury is inquiring into at the time of its impanelment." (§ 904.6,

subd. (d), emphasis added.) Given its exclusive right to return indictments

on matters not being investigated by the regular or civil grand jury at the

time of its impanelment, these grand juries are commonly known as

"criminal" grand juries. (See e.g. Goldstein v. Superior Court, supra, 45

Cal. 4th at 226; Daily Journal Corp. v. Superior Court, supra, 20 Cal. 4th at

1127; Regents of University of California v. Superior Court (2010) 183

Cal.App.4th 755 [107 Cal.Rptr.3d 637]; Alvarez v. Superior Court (2007)

154 Cal.App.4th 642, 653 [64 Cal.Rptr.3d 854]; People v. Viray (2005) 134

Cal.App.4th 1186, 1219 [36 Cal.Rptr.3d 693]; San Jose Mercury News, Inc.

v. Criminal Grand Jury of Santa Clara County (2004) 122 Cal.App.4th 410

[18 Cal.Rptr.3d 645]; Los Angeles Times v. Superior Court (2003) 114

Cal.App.4th 247, 258 [7 Cal.Rptr.3d 524]; People v. Superior Court (Tulare

County), supra, 107 Cal.App.4th at 496; MB. v. Superior Court, supra, 103

Cal.App.4th at 1386.)

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While distinct names have been attached to the grand jury empanelled

pursuant to § 888 and the grand jury empanelled pursuant to § 904.6, the

distinct names provide no basis for failing to extend the holding in MB. v.

Superior Court, supra, 103 Cal.App.4th at 1394 to subpoena duces tecum

issued by civil grand juries. While the civil grand jury is charged with

additional specific investigatory duties, it also has the same obligation as

criminal grand juries to return indictments where appropriate. (§ 917.) The

additional duties of the civil grand jury provide no basis for not extending

the holding of MB. to civil grand juries as well as criminal grand juries.

Code of Civil Procedure § 1985, subdivision (b) requires that a

subpoena duces tecum be served with an affidavit showing good cause for

the production of the items subpoenaed. Code of Civil Procedure § 1987.5

provides that service of a subpoena duces tecum is invalid unless it is served

with an affidavit showing good cause for the production of the items

subpoenaed. However, in MB. v. Superior Court, supra, 103 Cal.App.4th at

1394, the court found that an affidavit of good cause is not required for a

criminal grand jury subpoena. In part, the court in MB. relied upon Pitches

v. Superior Court (1974) 11 Ca1.3d 531 [113 Cal.Rptr.897, 522 P.2d 305]

which held that statutory provisions governing civil actions do not apply to

criminal proceedings. (MB. v. Superior Court, supra, 103 Cal.App.4th

1384.) This court, in the Tulare County case noted this basis for the decision

in MB. (People v. Superior Court (Tulare County), supra, 107 Cal.App.4th

at 496.) However, what the Tulare County case did not address, was that

this was not the only basis for the MB. court's ruling. The court in MB.

also noted another reason it was ruling that Code of Civil Procedure § 1985

did not apply to subpoena duces tecum issued by criminal grand juries. It

held:

Equally important, we conclude no affidavit should be required because the very purpose of a grand jury investigation

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would be vitiated if a subpoena duces tecum had to be justified by a threshold good cause showing. "'[The grand jury] is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labors, not at the beginning. [Citation.]' [Citation.]"

(!d. at 1394-1395, quoting United States v. Dionisio (1973) 410 U.S. 1, 13,

fn. 12 [35 L.Ed.2d 67; Ill S.Ct 722.].)

Although the holding in MB. is limited by its facts to criminal grand

jury subpoenas, the same reasoning applies to subpoena duces tecum issued

by a civil grand jury. To require an affidavit of probable cause before an

investigation has occurred would involve forecasting probable results of the

investigation. Moreover, it may require the grand jury to disclose secret

information that it is statutorily prohibited from disclosing. As such, here,

the superior court erred in failing to apply the holding of MB. to the civil

grand jury's subpoena duces tecum and instead improperly applied dicta

from the Tulare County case.

As noted above, the Tulare County case dealt with competing societal

interests present when a grand jury files a § 827 petition seeking confidential

juvenile court records. Here, there are no competing public policy interests.

Instead, the strong public policy behind the watchdog function of the grand

jury, as stated in McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d

1162, 1170 [245 Cal.Rptr. 774, 751 P.2d 1329], favors disclosure.

Additionally,§ 921 evinces a legislative intent that the grand jury be given

unfettered access to examine public records. "This section was enacted to

avoid the rule in some jurisdictions that the authority to investigate crimes

and misconduct by public officers did not also permit the grand jury to

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examine public records." (People v. Sperl (1976) 54 Cal.App.3d 640, 653-

54 [126 Cal.Rptr. 907], emphasis added.) These factors, when combined

with the requirement of secrecy surrounding a grand jury investigation, are

ample justification for enforcing the subpoena duces tecum without an

affidavit of good cause. The superior court erred in finding otherwise and in

quashing the grand jury's subpoena duces tecum. This court should remand

the case to the superior court with directions to reinstate the subpoena duces

tecum and deny the motion to quash.

CONCLUSION

For the foregoing reasons the superior court erred when it quashed the

grand jury's subpoena duces tecum. This court should remand the case to

the superior court with directions to reinstate the subpoena duces tecum and

deny the motion to quash.

Dated: December 8, 2010

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CERTIFICATE OF RULE 8.204(c)(l) COMPLIANCE

Case: City of Woodlake v. Tulare County Grand Jury Fifth Appellate District Case#: F060737 Tulare County Case#: VCU237194

I certify pursuant to California Rule of Court 8.204(c)(l), that I used Microsoft Word's word counting feature and Appellant's Opening Brief contains 3,978 words.

TATTORNEY

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PROOF OF SERVICE CCP 1013a(3)

FRCP 5(b) STATE OF CALIFORNIA, COUNTY OF TULARE

1 am employed in the County of Tulare. I am over the age of eighteen and not a party to the within . action; my business address is 221 So. Mooney, Room 224, Visalia, California, 93291. I served the document described as Appellant's Opening Brief, Case# F060737 City of Woodlake v. Tulare County Grand Jury, by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list; by placing_ the originalX a true copy thereof enclosed in sealed envelopes addressed as follows:

Tulare County Superior Court Hon. Lloyd Hicks County Civic Center 221 S. Mooney Blvd. Visalia, Ca 93291

_.K_ BYMAIL

_ (BY PERSONAL SERVICE)

_ (BY TELECOPIER)

Thomas T. Watson Supreme Court of California

Fike & Watson 350 McAllister Street

401 Clovis Avenue, Suite 208 San Francisco, CA 94102-4 797

Clovis, CA 93612 (Attorney for Plaintiff and

Respondent)

_ I deposited such envelope in the mail at Visalia, California. The envelope was mailed with postage thereon fully prepaid.

_x_ As follows: I am "readily familiar" with the firm's practice of collection and procession correspondence for mailing. Under that practice it would be deposited with U.S. Postal service on that same day with postage thereon fully prepaid at Visalia, California in the ordinary course of business.

_x_ I deposited such envelope in the Inter-Office mail at Visalia, CA. (To Tulare County Superior Court)

I caused such envelope to be delivered by hand to the offices of addressee.

I caused the above-referenced document to be delivered by telecopier to the addressee.

_ (BY OVERNIGHT COURIER) I caused the above-referenced envelope(s) to be delivered to an overnight courier service for delivery.

_K_ (State)

_ (Federal)

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made.

Executed on December j_,20 I 0 at Visalia, California: cr::& 15

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