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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Kurt Albert STAPF, Defendant and Appellant.

No. G016221.

Decided: October 11, 1994

Mark D. Sutherland and John R. Farris, Jr., Santa Ana, for defendant and appellant. Michael P. Judge, Public Defender, Los Angeles, and John Hamilton Scott, Deputy Public Defender, as amici curiae on behalf of defendant and appellant. Michael R. Capizzi, Dist. Atty., Orange, Maurice L. Evans, Chief Asst. Dist. Atty., Wallace J. Wade, Asst. Dist. Atty., David L. Himelson and Gregory J. Robischon, Deputy Dist. Attys., for plaintiff and respondent. Terry C. Andrus, County Counsel, Orange, Laurence M. Watson, Asst. County Counsel, Thomas C. Agin, Karyn J. Driessen, and James Persinger, Deputy County Counsel, James K. Hahn, City Atty., Los Angeles, Debbie Lew and Katharine H. MacKenzie, Deputy City Attys., Susan Minasian, County Counsel, Butte, and Gregory P. Einhorn, Chief Deputy County Counsel, as amici curiae on behalf of Orange County Municipal Court, Harbor Dist.


As has frequently been said, the answer is often a product of how a question is posed.   Here, the appellate department of the superior court asked, “May a court, pursuant to the authorization of Penal Code [section] 959.1[, subdivision] (c)(1) institute a criminal action for the violation of Vehicle Code [section] 40508[, subdivision] (a) against an individual who signs a written promise to appear after being stopped for a traffic offense and subsequently fails to appear for arraignment?”  (Fn. omitted.)   The appellate department concluded such an action by the court would violate the separation-of-powers doctrine.  (Cal.Const., art. III, § 3.)   Maybe so, but the question should have been this: 1  Does a court clerk's causing the filing of a criminal complaint for failure to appear violate article III, section 3 of the California Constitution? 2  The answer to that question is, no.3


Kurt Stapf failed to appear on five different traffic tickets filed against him in the municipal court.   The court clerk caused an additional count to be added for that violation in each case (Veh.Code, § 40508, subd. (a)).   The cases were tried to the court, with a certified law clerk representing the district attorney on all of them;  and defendant was convicted on the five failures to appear, among other things.

Stapf appealed each failure-to-appear conviction on the basis that “[t]he trial court was without jurisdiction since no complaint was filed by the [d]istrict [a]ttorney as to the [Vehicle Code section 40508, subdivision (a) ] charge.”   Astonishingly, although the district attorney elected to prosecute every one of the cases, he conceded defendant's argument in the appellate department and continues to support his position in this court.4


 We begin with a reading of the pertinent portion of Penal Code section 959.1, italicizing the key provision added in 1990:  “(a) Notwithstanding Sections 740, 806, 949, and 959 or any other provision of the law to the contrary, 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.  [¶] (b) As used in this section, accusatory pleadings include, but are not limited to, the complaint, the information, the indictment, and any citation or notice to appear issued on a form approved by the Judicial Council.  [¶] (c) A magistrate or court is authorized to receive and file an accusatory pleading 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 with respect to complaints issued for the offenses of failure to appear, pay a fine, or comply with an order of the court.” 5

Thus, the clerk, not the court, is authorized to file an accusatory pleading for failures to appear or pay fines and for violations of court orders.6  Does this somehow violate the separation-of-powers doctrine?   For several reasons we think not.

People v. Municipal Court [Bishop] (1972) 27 Cal.App.3d 193, 103 Cal.Rptr. 645, a case much discussed in the torrent of briefs we have received, does hold, “Due 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.” 7  (Id. at p. 206, 103 Cal.Rptr. 645.)

But the phrase “authorized and approved” is subject to interpretation.   When and how must the public prosecutor authorize and approve the complaint? 8  We will conclude in the context of the offenses listed in Penal Code section 959.1, subdivision (c)(1), a failure to advise the court sometime before trial that a particular electronically filed charge is “unauthorized” is sufficient authorization.   In that way subdivision (c)(1) can be reconciled with Government Code section 100 (set forth in fn. 7) to promote the efficient operation of the courts and maintain all the prerogatives of the public prosecutor.   In other words, rather than interpret subdivision (c)(1) as an exception to Government Code section 100, we read them together.   Although it matters little to the outcome (affecting only the question of whether the public prosecutor retains the right to refuse to “authorize” a clerk-generated complaint), that interpretation gives each statute the fullest possible effect.

In Bishop the municipal court allowed a private citizen, Florence Pellegrino, to file a criminal complaint against Douglas Bishop, and when the district attorney refused to proceed with it, appointed a special prosecutor.   The district attorney earlier approved the filing of a complaint based on the same incident against Pellegrino that was signed by Bishop, also a private citizen.

The Court of Appeal found the district attorney's rejection of the Pellegrino complaint dispositive and the appointment of the special prosecutor unauthorized by law.   Presumably, however, had the district attorney agreed to prosecute her complaint, the result would have been different because the Court of Appeal had no problem with the complaint signed by citizen Bishop.   And that is this case:  The district attorney did in fact successfully prosecute all five of defendant's failures to appear.   He will not be heard now to complain the prosecutions were unauthorized after pursuing them to a successful conclusion at trial.   Prosecution will always be authorization.

Moreover, court clerks do not exercise judicial functions;  they act in a purely ministerial capacity.  (Copley Press v. Superior Court (1992) 6 Cal.App.4th 106, 115, 7 Cal.Rptr.2d 841;  Riley v. Superior Court (1952) 111 Cal.App.2d 365, 367, 244 P.2d 474.)   And the Supreme Court has refused to apply the separation-of-powers doctrine in a rigid manner, particularly where merely ministerial or clerical acts are involved:  “As this court explained nearly half a century ago:  ‘The courts have long recognized that [the] primary purpose [of the separation-of-powers doctrine] is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government.  [Citations.]   The doctrine has not been interpreted as requiring the rigid classification of all the incidental activities of government, with the result that once a technique or method of procedure is associated with a particular branch of the government, it can never be used thereafter by another.’ ”  (Davis v. Municipal Court (1988) 46 Cal.3d 64, 76, 249 Cal.Rptr. 300, 757 P.2d 11 [italics added by the Supreme Court].)  The court also observed, “Indeed, as a leading commentator on the separation-of-powers doctrine has noted:  ‘From the beginning, each branch has exercised all three kinds of powers.’  (1 Davis, Administrative Law Treatise (2d ed. 1978) § 2:2, p. 63.)”  (Ibid.)

 So far as possible within the confines of the Legislature's goals, our obligation is to construe statutes to avoid constitutional difficulty.  (Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 186, 185 Cal.Rptr. 260, 649 P.2d 902;  Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1722–1723, 19 Cal.Rptr.2d 625.)   That is not a problem here.   Clerks witness the crimes described in Penal Code section 959.1, subdivision (c)(1), frequently in arraignment courts unmanned by a prosecutor or in the office of the clerk when defendants fail to pay fines or appear to set misdemeanors or infractions for trial by posting bail.   Akin to a private person making a citizen's arrest, clerks then initiate these routine proceedings.   But if, for some reason, the public prosecutor does not wish to pursue a particular charge added by a clerk, the court need merely be informed it is “unauthorized”;  and the matter must be dismissed, as in Pellegrino's case.9  (People v. Municipal Court [Bishop], supra, 27 Cal.App.3d at p. 206, 103 Cal.Rptr. 645.)

Thus, as we interpret it, the current system preserves the prosecutor's prerogatives and promotes efficiency in the courts, to the detriment of exactly no one with a legally cognizable objection.   Stapf, for example, had all the process he was due when the district attorney assigned a law clerk to prosecute him, a trial was provided, and he was convicted for each failure to appear.   To require the thousands of these automatic violations to be referred to the district attorney or a city attorney to exercise “discretion” to prosecute would exalt dry formalism over an exhausted fisc.   As the Legislature implicitly recognized in 1990 when it added subdivision (c)(1) to Penal Code section 959.1, the system cannot afford such niceties.10

Moreover, the Supreme Court has long permitted streamlined procedures in relatively minor criminal matters in the municipal court.  (See fn. 10.)   For example, the court noted in the case of In re Dennis B. (1976) 18 Cal.3d 687, 695, 135 Cal.Rptr. 82, 557 P.2d 514, “Unconstrained by the more stringent procedural requirements of a major criminal trial, municipal courts and prosecutors are free to develop innovative procedures to expedite traffic cases․   This type of flexibility benefits all parties:  defendants gain a swift and inexpensive disposition of their cases without risk of major penalties;  and the prosecution, the court system, and ultimately the public benefit because judicial and law enforcement resources are freed to concentrate on serious criminal behavior.”   Surely the Governor and a unanimous Legislature are entitled to similar leeway to promote efficiency and reduce costs.   Or, put another way, de minimis non curat lex.

The judgments of the municipal court are affirmed.


1.   The settled statement was apparently the source of the confusion.   As pertinent, it reads as follows:  “The only issue presented on appeal involves the court's computer-generated filing of a Vehicle Code section 40508[, subdivision] (a) charge.   Defendant failed to appear for arraignment in violation of his signed promise to do so.   In response to defendant's failure to appear, a computer-generated failure to appear charge was added to the underlying offense(s) by the court.   The Vehicle Code section 40508[, subdivision] (a) charge was electronically added to the charge(s) listed on the citation by the clerk of court after notification that defendant had failed to appear.”  (Italics added.)   “Court's” and “By the court” are obviously synonym phrases for “by the clerk of the court” because in local practice where there is a failure to appear for arraignment on a traffic infraction, the file never leaves the clerk's office.   No judge, consequently, participated in the filing of the added failure to appear charges.

2.   Article III, section 3 provides, “The powers of state government are legislative, executive and judicial.   Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”

3.   Indeed, dated case law suggests even the question asked by the appellate department should have been answered in the negative.  (See, e.g., People v. Superior Court [Copeland] (1968) 262 Cal.App.2d 283, 68 Cal.Rptr. 629.)   We express no opinion on that issue, but note in passing that each delict described in Penal Code section 959.1, subdivision (c)(1) is in the nature of an indirect contempt of court.   Courts have historically initiated and pursued contempts on their own, of course.  (See also fn. 8.)   The public prosecutor has a parallel power to prosecute contempts.  (Pen.Code, §§ 166, 657;  Ex Parte Morris (1924) 194 Cal. 63, 227 P. 914.)

4.   The concession reads, “Appellant's position appearing to be meritorious, the People do not contest the appellant's claims of error on appeal.”   We have taken judicial notice of other pleadings where the district attorney has taken the opposite position, vigorously defending the filing of added charges by court clerks.

5.   The amendment passed both houses of the Legislature unanimously and was signed by the governor, although some misgivings were expressed concerning a possible violation of the separation-of-powers doctrine as the amendment wended its way through the legislative process.

6.   Subdivision (a) of Penal Code section 959.1, when read in context, does not authorize the court to initiate prosecutions.   It merely allows the court to receive electronic filings of accusatory pleadings.

7.   As the Orange County Counsel points out, Bishop is a somewhat flawed opinion because it purported to rely on former article VI, section 20 of the California Constitution.   It read, “The style of all process shall be, ‘The people of the State of California,’ and all prosecutions shall be conducted in their name and by their authority.”   The difficulty is that article VI, section 20 was repealed November 8, 1966, almost six years before Bishop appeared, and replaced by Government Code section 100.   That section provides, “(a) The sovereignty of the state resides in the people thereof, and all writs and processes shall issue in their name.  [¶] (b) The style of all process shall be ‘The People of the State of California,’ and all prosecutions shall be conducted in their name and by their authority.”

8.   The district attorney suggests he could give the court clerk a blanket authorization to file the offenses listed in Penal Code section 959.1, subdivision (c)(1).   But would that not also violate the separation-of-powers doctrine if, as he argues, the clerk is considered part of the judicial branch?   It would seem so.Next, the district attorney falls back on the “exclusive powers” vested in public prosecutors;  but, as we have seen, those powers now flow from the Government Code, not the Constitution.   The Legislature is free to make exceptions to Government Code section 100, and the more recent and more specific Penal Code section 959.1, subdivision (c)(1) could be viewed as an exception to the general rule.  (Article V, section 13 of our Constitution makes the Attorney General the chief law enforcement officer in the state, but does not purport to restrict the scope of those who may file criminal charges.)Contrary to the district attorney's argument, there are instances where the Legislature has created exceptions to the allegedly exclusive power of public prosecutors to initiate prosecutions.   For example, a police officer does that when issuing a traffic citation;  and nothing prevents a grand jury from bringing an indictment on its own.   The California Constitution provides, “One or more grand juries shall be drawn and summoned at least once a year in each county.”  (Cal.Const., art. I, § 23.)   But the grand jury is given the power to initiate prosecutions by statute.  Penal Code section 917 provides, “The grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment.”   Although the reality may be different, the grand jury is not, as commonly supposed, a creature of the public prosecutor.   It is “a judicial tribunal” (Greenberg v. Superior Court (1942) 19 Cal.2d 319, 323, 121 P.2d 713) impaneled and charged by the superior court.  (Pen.Code, § 914.)

9.   Ordinarily, once a complaint is filed, only the court has the power to dismiss.  (Pen.Code, § 1385.)   If the prosecution is deemed “unauthorized,” however, the public prosecutor retains the power to derail it without the court's consent.  (People v. Municipal Court [Bishop], supra, 27 Cal.App.3d at p. 206, 103 Cal.Rptr. 645.)

10.   Much more disturbing to us is the practice of trying traffic cases in the total absence of a prosecutor, as apparently occurs with some frequency locally and in other parts of the state.   That presents a far more serious separation-of-powers problem than the gnat in this punchbowl, but the practice has been approved by the Supreme Court.  (People v. Carlucci (1979) 23 Cal.3d 249, 152 Cal.Rptr. 439, 590 P.2d 15.)

CROSBY, Associate Justice.

SILLS, P.J., and WALLIN, J., concur.