Nicolaie Cocis (CA Bar # 204703)

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DEFENDANT MERRITT’S REPLY IN SUPPORT OF HER MOTION TO DISMISS

Nicolaie Cocis (CA Bar # 204703) Law Office of Nic Cocis & Associates 38975 Sky Canyon Drive, Suite 211 Murrieta, CA 92563 Tel: (951) 695-1400 Fax: (951) 698-5192 Email: [email protected] Horatio G. Mihet* Liberty Counsel P.O. Box 540774 Orlando, Florida 32854 Tel: (407) 875-1776 Fax: (407) 875-0770 [email protected] * Admitted Pro Hac Vice Attorneys for Defendant Sandra Susan Merritt

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

THE PEOPLE OF THE STATE OF CALIFORNIA

Plaintiff, vs.

DAVID ROBERT DALEIDEN and SANDRA SUSAN MERRITT,

Defendants.

Case No.: 17006621 DEFENDANT SANDRA SUSAN MERRITT’S REPLY IN SUPPORT OF HER MOTION TO DISMISS Hearing Date: August 24, 2017 Time: 9:00 a.m. Dept.: 9 Judge: Christopher C. Hite

DEFENDANT SANDRA SUSAN MERRITT’S REPLY

IN SUPPORT OF HER MOTION TO DISMISS

INTRODUCTION

Perhaps not surprisingly, the Attorney General has elected not to file any response to the written

Motion to Dismiss filed by Defendant Sandra Susan Merritt. For this reason alone, the Court may and

should grant Ms. Merritt’s motion, and should dismiss Counts One through Fourteen of the Criminal

Complaint.

The Attorney General has, however, served (and presumably filed) a Response in Opposition to

Defendant Merritt’s Oral Motion to Dismiss (hereinafter “Opposition”). Procedurally, this Opposition is

improper because this Court instructed Ms. Merritt to file a written motion to dismiss. (Transcript of July

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17, 2017 Hearing, 13:3-11) (copy attached as Exhibit B to Merritt’s Motion to Dismiss).1 The Attorney

General should have awaited (and responded to) that motion, which Ms. Merritt did timely file. But the

Attorney General is continuing to display a remarkable inability or unwillingness to follow the plain

requirements of the law or this Court’s instructions.

Substantively, as shown below, the Attorney General’s Opposition is entirely non-responsive to

the arguments and authorities for dismissal actually presented by Ms. Merritt. The Court may search every

word in the text and footnotes of the Opposition and not find a single reference to (let alone discussion of)

either Williams v. Superior Court or Osman, the two cases principally relied upon by Ms. Merritt, which

Ms. Merritt’s counsel provided to the Attorney General (and the Court) at the July 17 hearing. What the

Court will find instead are misrepresentations upon misrepresentations (both factual and legal), as well as

citations to civil cases and civil rules, as if (bizarrely) the Attorney General has forgotten that he has

brought a criminal case.

At the end of the day, no amount of obfuscation or misrepresentation can change the simple and

undeniable fact that the Attorney General did not file an amended complaint in Ms. Merritt’s case within

the 10 days allotted by the Court and the mandatory statutes. Notwithstanding the Attorney General’s

unsupported pleas for “correction” of what he calls a mere “clerical error,” there is only one remedy the

law allows: dismissal. For these reasons, Ms. Merritt’s Motion to Dismiss should be granted, and Counts

One through Fourteen of the Criminal Complaint should be dismissed.

1 This was the Court’s instruction to the parties, which the Attorney General acknowledged: THE COURT: I am actually convinced by counsel that we'll take it one step at a time. So with regards to

Ms. Merritt, just to file the motion to dismiss. And for Mr. Daleiden, it will be on for demurrer and entry of plea. So both parties, Ms. Merritt and Mr. Daleiden, you are ordered present back in this department on August 24, 2017, at 9:00 a m., okay?

MS. JAURON: Thank you, Your Honor.

Id. (emphasis added).

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ARGUMENT

A. The Attorney General Misrepresents This Court’s Ruling in Sustaining Ms. Merritt’s Demurrer.

Right out of the starting gate, on the first page of his Opposition, the Attorney General incredibly

claims that when this Court sustained Ms. Merritt’s demurrer to the original Complaint, “[t]he Court

granted the Attorney General leave to amend the Complaint within 10 days, pursuant to Penal Code

Section … 1009.” (Opposition at 1) (emphasis added). The Attorney General then builds his entire

argument upon the seemingly more lenient requirement of Penal Code 1009. (Id. at 2-4).

The problem with the Attorney General’s representation is that it is demonstrably false, and, like

a house of cards, his argument collapses under the slightest scrutiny. This Court most certainly did not

grant the Attorney General leave to amend pursuant to Penal Code Section 1009.2 Instead, at the June 21,

2017 demurrer hearing, this Court referenced only Penal Code Section 1007 when it sustained both Ms.

Merritt’s and Mr. Daleiden’s demurrers. (See June 21, 2017 Transcript of Proceedings (hereinafter, “June

21 Tr.”), relevant portions attached hereto, as Exhibit A.) Indeed, Section 1009 does not appear one time

in the 30-page transcript. (Id.). On the contrary, the Court was very clear that it granted the Attorney

General 10 calendar days to amend “as set forth in Penal Code Section 1007.” (June 21 Tr. at 19:27 to

20:3) (emphasis added).

2 Section 1009 provides: An indictment, accusation or information may be amended by the district attorney, and an amended complaint may be filed by the prosecuting attorney, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed. The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint. The amended complaint must be verified but may be verified by some person other than the one who made oath to the original complaint.


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Penal Code Section 1008 works in lock-step with Section 1007. Section 1007 provides a prosecutor

with maximum 10 days to file an amended complaint after a demurer is sustained: “If the demurrer to a

complaint is sustained, the court must, if the defect can be remedied, permit the filing of an amended

complaint within such time not exceeding 10 days as it may fix.” Code § 1007 (emphasis added). Section

1008 prescribes what happens when this filing deadline is missed: “If the demurrer is sustained, and …

no amendment is made or amended pleading is filed within the time fixed therefor, the action shall

be dismissed . . ..” Code § 1008 (emphasis added). Unlike Section 1009, Section 1008 provides a strict

and mandatory (i.e., “shall”) remedy – dismissal.

The Attorney General’s attempt to transmute his failure to timely file an Amended Complaint in

Ms. Merritt’s case from Sections 1007 and 1008 to Section 1009 is understandable, but not original, and

certainly not permitted. In Williams v. Superior Court, 111 Cal. App. 4th Supp. 1 (App. Dep’t Super. Ct.

2003), the court encountered – and rejected – the exact same maneuver attempted by the Attorney General

here: Contrary to the People’s assertion, section 1009 does not control the facts at bar. While that section confers discretionary power upon a court to allow amendments at any stage of the proceedings and within any time it desires, the section contains no explicit time limit for amendments after the sustaining of a demurrer. The section simply allows an amended complaint without leave of court at any time before a defendant pleads or a demurrer to the original pleading is sustained. Only section 1007 contains any express time limit for filing an amended complaint after a demurrer has been sustained by court order. Section 1009’s language permitting the filing of an amended complaint “... for any defect or insufficiency, at any stage of the proceedings, ...” follows the section’s grant of authority to file without leave of court an amended complaint “at any time before the defendant pleads or a demurrer to the original pleading is sustained.” Thus, we construe section 1009 to mean that an amended complaint will be permitted after a defendant pleads, or within such discretionary time limit as the court directs subject to section 1007, but that section 1007 controls one unmistakable circumstance, namely, filing an amended complaint after a successful demurrer. Section 1007 specifies the amended complaint must then be filed “... within such time not exceeding 10 days as [the court] may fix.”

Id. at 6-7 (alterations in original) (emphasis added).

This Court should hold likewise. By its plain language, Section 1009’s leniency on amendments

ended after Ms. Merritt filed her demurrer. Once this Court sustained that demurrer, Sections 1007 and

1008 governed the Attorney General’s deadline for filing an Amended Complaint. The Attorney General

eschews Sections 1007 and 1008 because he knows that he failed to meet that deadline, and he also knows

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that dismissal is the only appropriate remedy for that failure. Counts One through Fourteen should be

dismissed.

B. The Attorney General Has Not Timely Filed an Amended Complaint as Required by Penal Code Section 1007, and He Misrepresents Material Facts to Hide or Excuse His Failure.

The Attorney General makes yet another, even more egregious, misrepresentation when he

brazenly asserts without any proof that “two separate Amended Complaints were filed under only one

(Daleiden’s) court docket number.” (Opposition at 1-2.) Premised on this demonstrable misrepresentation

is the Attorney General’s argument that he merely made a “clerical error” with one of those “two separate”

Amended Complaints, which, he argues, is entitled to more leniency than an outright failure to file. (Id.)

However, this Court will undoubtedly recall that, at the July 17, 2017 hearing, Deputy Attorney

General Jauron stated before this Court that “[her] understanding [was] that by filing the complaint [not

multiple complaints] on June 30th with both names, that it was statutorily sufficient.” (July 17 Tr., Exh. B

to Merritt Mot. to Dismiss, at 4:15-17) (emphasis added.). The July 17 explanation that a single Amended

Complaint was filed in Daleiden’s case alone was not only more candid, but is also likely the true one. On

August 15, 2017, Nic Cocis, counsel for Ms. Merritt, spoke with this Court’s Criminal Division Court

Supervisor, Ms. Sherife Huseny. (Declaration of Nic Cocis, ¶¶ 1-2, attached hereto as Exhibit B).

Supervisor Huseny confirmed that the Court’s records indicate that only one Amended Complaint was

filed on June 30th, and it was filed in Mr. Daleiden’s case, using only his case number. (Id. at ¶ 3). There

are no notes in either Mr. Daleiden’s file or Ms. Merritt’s file indicating that two separate Amended

Complaints were filed under Mr. Daleiden’s case number. (Id. at ¶¶ 4-5). Supervisor Huseny stated that if

the Attorney General had in fact filed two Amended Complaints as he claims, he would have been

provided with two time-stamped copies as proof of filing, which the Attorney General would be able to

produce. (Id. at ¶ 6). Critically, Ms. Huseny also confirmed that a Court Clerk would not allow two

identical Amended Complaints to be filed in the same case – as the Attorney General claims to have

done – absent a Court order. (Id. at ¶ 7). “It would not happen” without a court order, because such

duplicate filing attempts would be rejected by the clerk. (Id.) (emphasis added). Supervisor Huseny

confirmed that there is no indication anywhere in this Court’s records that a duplicate or separate amended

pleading was presented but rejected by a Clerk of Court. (Id. at ¶ 5.)

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Notably, and consistent with Supervisor Huseny’s information, the Attorney General has not

produced (and cannot produce because he does not have) any proof of filing an amended complaint in Ms.

Merritt’s case, or even proof of filing a “separate Amended Complaint” in any case, for that matter.

Accordingly, the Attorney General’s current statement that he filed “two separate Amended Complaints”

and merely got the docket number wrong in one of them: (1) is nothing more than the unsworn argument

of counsel (and therefore not sworn evidence properly considered by this Court); (2) is conclusively

rebutted by Deputy Attorney General Jauron’s candid in-court statement on July 17, 2017 that she filed

“the complaint” (not multiple complaints); and (3) is rendered highly improbable if not categorically

impossible by Supervisor Huseny’s statement regarding how such a duplicative filing would have been

received, rejected and documented by the Clerk, had it actually been attempted.

Therefore, the issue before this Court has been and remains the Attorney General’s failure to timely

file an amended complaint in Ms. Merritt’s case, and not a mere “clerical” or “scrivener’s” error, and

certainly not any failure on the part of the Clerk of Court to properly receive and file a document. As

explained in Ms. Merritt’s Motion to Dismiss and reiterated above, both Sections 1007 and 1008 explicitly

require an amended complaint to be filed. The Attorney General’s failure to file any amended complaint

in Ms. Merritt’s case, let alone a timely one, is fatal. Section 1008 is mandatory and jurisdictional, and

thus it must be strictly enforced to protect Ms. Merritt’s constitutional and statutory rights. Dismissal is

warranted.

C. The Attorney General Has Provided No Authority Allowing for His Asserted “Clerical Error” to be Corrected or Excused.

Even if the Attorney General’s failure to timely file an amended complaint in Ms. Merritt’s case

had been a “mere” “clerical error” in writing the wrong docket number on a separate pleading actually

filed with the Clerk – which it was not – the Attorney General inaptly resorts to inapplicable statutes and

standards in his unsuccessful attempt to excuse it, while completely ignoring controlling statutes and

caselaw holding that his error is neither excusable nor curable.

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1. The Attorney General’s Reliance on Civil Law Standards and on Penal Code Sections 959 and 960 Is Misplaced.

Curiously, after setting forth the (in)applicable law (Section 1009), the Attorney General, without

any argument or explanation tersely sets forth both the civil and criminal standards for determining a

demurrer. (Opposition at 2-3.) The case at bar is well past the argument on Ms. Merritt’s demurrer, and

that law has no relevance to Ms. Merritt’s instant motion to dismiss.

Nevertheless, the Attorney General moves on to cite, without meaningful argument or explanation,

Sections 959 and 960, (Opposition at 3-4), and thereafter resorts to a quote from a civil case, seemingly

for the proposition that liberal leave to amend should be granted. (Id. at 4 (citing Harris v. City of Santa

Monica, 56 Cal. 4th 203, 240 (2013)). Tellingly, the Attorney General does not include the internal

citations in the block quote from the civil case, which would have more obviously revealed the civil (and

thus inapplicable) nature that law.3

The Attorney General surely must know and understand that the charges his office brought against

Ms. Merritt are criminal charges, and not mere civil allegations. The Attorney General should also know

that the government’s burden will be more difficult to surmount when attempting to cut inroads through

criminal defendants’ constitutional and statutory protections. Yet, without explanation or argument, the

Attorney General invokes the civil standard—the rule of liberal amendment to correct a defective

pleading. As explained above and in Ms. Merritt’s Motion to Dismiss, the applicable statutes are Penal

Code Sections 1007 and 1008, which are statutes designed to supplement and safeguards defendants’

constitutional protections in criminal cases.

3 The full quote is set forth below, with civil law citations emphasized: However, “[n]o error or defect in a pleading is to be regarded unless it affects substantial rights.” (Buxbom v. Smith (1944) 23 Cal.2d 535, 542, 145 P.2d 305, citing Code Civ. Proc., § 475.) The primary function of a pleading is to give the other party notice so that it may prepare its case (Leet v. Union Pac. R.R. Co. (1944) 25 Cal.2d 605, 619, 155 P.2d 42), and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. This principle is consistent with the rule that leave to amend a pleading should be liberally granted as long as there is no timeliness problem under a statute of limitations or prejudice to the opposing party. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412, 75 Cal.Rptr.2d 257; see also 5 Witkin, Cal. Procedure, supra, Pleading, § 1194, pp. 625–627.)

Harris v. City of Santa Monica, 418, 56 Cal.4th 203, 240 (2013) (emphasis added).

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As for Penal Code Sections 9594 and 9605, they likewise provide no refuge for the Attorney

General, because he badly misreads them out of context. Sections 959 and 960 are found in the Penal

Code, Part 2, Title 5 (The Pleadings), Chapter 2 (Rules of Pleading), while Sections 1007 and 1008 are

found in the Penal Code, Part 2, Title 6 (Pleadings and Proceedings Before Trial), Chapter 3 (Demurrer

and Amendment). Although statutes under Title 5, Chapter 2 can form the bases for a demurrer, those

sections are not relevant to determine whether the Attorney General should be excused from his failure to

file an amended complaint in Ms. Merritt’s case. Challenges under Sections 959 and 960 concern proper

notice of the charges to protect criminal defendants, while avoiding archaic common law pleading

requirements. See, e.g., People v. Silver, 75 Cal. App. 2d 1, 3 (1946) (Sections “951, 952, 954, 956 and

959 of the Penal Code [were amended] so as to simplify and modernize the archaic rules of pleading

theretofore governing indictments and informations.”).

The purpose of Sections 959 and 960 (among other pleading statutes) is to determine the

substantive elements necessary to sufficiently state a cause of action. See, e.g., People v. Kelly, 59 Cal.

372 (1881). Section 959, for example, prescribes “general regulations as to the form and substance of

indictments and informations.” Id. at 375-76 (emphasis added). Similarly, the court in People v. Curtis,

4 Section 959 provides: The accusatory pleading is sufficient if it can be understood therefrom: 1. That it is filed in a court having authority to receive it, though the name of the court be not stated. 2. If an indictment, that it was found by a grand jury of the county in which the court was held, or if an information, that it was subscribed and presented to the court by the district attorney of the county in which the court was held. 3. If a complaint, that it is made and subscribed by some natural person and sworn to before some officer entitled to administer oaths. 4. That the defendant is named, or if his name is unknown, that he is described by a fictitious name, with a statement that his true name is to the grand jury, district attorney, or complainant, as the case may be, unknown. 5. That the offense charged therein is triable in the court in which it is filed, except in case of a complaint filed with a magistrate for the purposes of a preliminary examination. 6. That the offense was committed at some time prior to the filing of the accusatory pleading.

Id. (emphasis added). 5Section 960 provides:

No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.


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36 Cal. App. 2d 306 (1940), warned that the sufficiency of an indictment cannot be determined by focusing

solely on one statute, and further explained the purpose of Section 959, inter alia, in context:

“While appellants base their demurrer [to the indictment] entirely upon section 950 of the Penal Code, it is clear that section 950 must be construed in conjunction with sections 951, 952, and § 959, as amended by St. 1935, p. 859, in order to determine how and in what manner an indictment must allege the name and charge so that a defendant will be able to properly prepare a defense.”

Id. at 319 (quoting People v. Gilbert, 26 Cal. App. 2d 1, 8 (Ct. App., 2d Dist. 1938)) (emphasis added).

The pleading requirements found under Title 5, Chapter 2, are for the benefit of defendants—to provide

them with the required constitutional notice. That the Attorney General is relying on these statutes at this

juncture is puzzling; he appears to still be trying to re-litigate the validity of Ms. Merritt’s demurrer, which

has long since been sustained. The question before the Court is no longer whether Ms. Merritt’s demurrer

should have been sustained, but whether the Attorney General’s failure to file an amended complaint

within the statutory deadline can be excused.

In any event, the Attorney General’s reliance on Sections 959 and 960 standing alone—without

answering the obvious conflict with Sections 1007 and 1008 (if Section 959 and 960 did apply)—defies

common sense. The cases cited by Ms. Merritt in her Memorandum of Points and Authorities in Support

of her Motion to Dismiss demonstrate that Section 1008 carries a valid penalty of dismissal. Tellingly, the

Attorney General fails to even acknowledge, let alone discuss, Williams v. Superior Court or Osman v.

Appellate Div. – both of which are directly on point – even after counsel for Ms. Merritt raised these cases

at the July 17, 2017 hearing, provided copies to the Court and the Deputy Attorney General at that hearing,

and cited them extensively in Ms. Merritt’s subsequent Motion to Dismiss. The Attorney General has

nothing to say in response, and his silence is deafening. Sections 1007 and 1008 impose mandatory,

jurisdictional deadlines which cannot be altered or enlarged absent Ms. Merritt’s consent, which she has

not given.

Beyond the general inapplicability of Sections 959 and 960 to the issue at hand, the Attorney

General’s specific argument that “‘Docket Number’ is Not an Enumerated Requirement Within the

Accusatory Pleading Statute” (Opposition at 3) also widely misses the mark. That the term, “docket

number” (or case number) is not found in Section 959 does not speak to whether a docket/case number is

required. Common sense dictates that docket/case numbers are required (not to mention actually filing

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the pleadings with the Clerk, which the Attorney General did not do in Ms. Merritt’s case). Otherwise,

there would be sheer chaos at the Clerk’s office. In any event, there is a Rule of Court on point: Rule

2.111(5) of the California Rules of Court (“CRC”) requires the case number to be set on the first page, to

the right of and opposite the title of the case. Rule 2.111(5) is found within the “Trial Court Rules,” (CRC,

Rule 2.2), which “apply to all cases in the superior courts unless otherwise specified by a rule or statute.”

(CRC, R. 2.2). Notably, Rule 2.118 of the Trial Court Rules states that, with a handful of specific

exceptions not relevant here, the “clerk of court must not accept for filing or file any papers that do

not comply with the rules in this chapter.” (CRC, R. 2.118(a) (emphasis added).6 The Attorney General

cannot pretend that these Rules of Court do not exist, even if his fanciful construct of a “mere” “clerical

error” were to be accepted.

At the end of the day, however, the Attorney General’s outright failure to file any amended

complaint at all in Ms. Merritt’s case is the issue squarely presented by Ms. Merritt’s Motion to Dismiss.

The Attorney General’s reliance on People v. Biggins, 65 Cal, 564 (1881) is likewise misplaced. The

analysis in that case pertains to Section 951 with regard to the form of an indictment; it does not concern

a “missing” case number, let alone a missing Amended Complaint in its entirety. Biggins further does not

involve the application of the mandatory requirements of Sections 1007 and 1008.

6 Rule 2.118 provides: (a) Papers not in compliance

The clerk of the court must not accept for filing or file any papers that do not comply with the rules in this chapter, except the clerk must not reject a paper for filing solely on the ground that:

(1) It is handwritten or hand-printed; (2) The handwriting or hand printing on the paper is in a color other than black or

blue-black; or (3) The font size is not exactly the point size required by rules 2.104 and 2.110(c)

on papers submitted electronically in portable document format (PDF). Minimal variation in font size may result from converting a document created using word processing software to PDF.

(b) Absence of fax number or e-mail address The clerk must not reject a paper for filing solely on the ground that it does not contain an attorney’s or a party's fax number or e-mail address on the first page.

(c) Filing of papers for good cause For good cause shown, the court may permit the filing of papers that do not comply with the rules in this chapter.


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Likewise, the Attorney General’s reliance on United Farm Workers of Am. v. Agric. Labor

Relations Bd., 37 Cal. 3d 912, 918 (1985), and Carlson v. State of Cal. Dep’t of Fish and Game, 68 Cal.

App. 4th 1268, 1270 (1998), is to no avail. Both cases concerned a clerk of court’s failure to accept a filed

pleading on the date that it was delivered. In United Farm Workers, the clerk mailed back to the filer the

petition that had timely arrived at the court clerk’s office, for failure to comply with a rule. 37 Cal. 3d at

914. Similarly, in Carlson, the clerk of court mailed a complaint back to the plaintiff for failure to include

a “Certificate of Assignment” required by a local rule. 68 Cal. App. 4th at 1270. No such conduct by a

clerk of court occurred in the case at bar, because the Attorney General never presented any complaint for

filing in Ms. Merritt’s case, as confirmed by the Criminal Division Court Supervisor. The fault in this case

lies only with the Attorney General, who could have complied with the law but did not.

2. The Rules Permitting Courts to Correct Their Own Clerical Errors Do Not Permit Correction of Litigant Errors.

Besides misrepresenting facts, the Attorney General also misrepresents or misunderstands the law,

particularly when claiming that courts in general, and this Court in particular, have the unbounded

discretion to “correct” the Attorney General’s failure to file an amended complaint. (Opposition at 4-5.)

The Attorney General’s quote taken from People v. Mitchell, 26 Cal. 4th 181, 185 (2001) expressly refers

to a trial court’s correction of an error in an abstract of judgment. Id. Further, the Mitchell case itself

concerned whether an appellate court should order the trial court to make a correction to an abstract of

judgment. Id. at 184-85. Each citation in the lengthy string cite in the Mitchell quote stands for the same

representative legal principle: “If the judgment entered in the minutes fails to reflect the judgment

pronounced by the court, the error is clerical, and the record can be corrected at any time to make it reflect

the true facts.” People v. Rowland, 206 Cal.App.3d 119, 123–24 (Ct. App., 6. Dist. 1988) (citation

omitted). The Attorney General’s further citation to Witkin & Epstein (borrowed nearly verbatim from

People v. Trotter, 7 Cal. App. 4th 363, 370 (1992), without proper citation) (Opposition at 5), yields more

of the same. The court in People v. Trotter referred only to a court’s ability to correct an error on a verdict

form after the jury was discharged, where the court’s interlineation did not modify the jury’s verdict at all.

Id. at 369-70. Trotter does not stand for the proposition that a court, presiding over a criminal case, may

step in to correct a party’s (least of all a prosecutor’s) failure to meet a critical deadline. If the deadline

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of Sections 1007 and 1008 were not critical, the courts in Williams v. Superior Court and Osman would

not have ruled that the requirements of Sections 1007 and 1008 were mandatory (as fully explained in

Defendant Merritt’s Memorandum in support of her Motion to Dismiss).

Ultimately, the Attorney General’s repeated assertion that the issue here concerns only a minor,

technical, “clerical error,” or a “scrivener’s error” (Opposition at 5), is wrong both factually and legally.

That no amended complaint was filed against Ms. Merritt is emphatically not the Court’s error. Nor is it

the error of the Clerk of Court. There was no “scrivener’s error.” There was no second Amended

Complaint submitted for filing in Ms. Merritt’s case, on which a clerk, with notice to the Attorney General,

could have interlineated the correct case number. The Attorney General’s request of this Court to “correct”

his error is not proper. Instead, dismissal is the only legally cognizable remedy.

D. The Attorney General Has Provided No Authority for His Contention that Lack of

Prejudice Excuses His Statutory Noncompliance.

Even if the issues raised in Ms. Merritt’s motion to dismiss required consideration as to whether

her rights were substantially affected (Ms. Merritt disputes such a burden), as previously argued in Ms.

Merritt’s Memorandum in Support of her Motion to Dismiss, the courts in Williams v. Superior Court and

Osman have already ruled that the requirements of Sections 1007 and 1008 are mandatory. Should this

Court strip Ms. Merritt of the mandatory protections of Sections 1007 and 1008, her rights certainly would

be substantially prejudiced.

Moreover, the Attorney General is wrong on the law as to any burden on Ms. Merritt to show

prejudice. Ms. Merritt has timely objected to the Attorney General’s failure to meet the mandatory

requirements of Sections 1007 and 1008, and consequently she need not show any prejudice. See People

v. Wilson, 60 Cal. 2d 139 (1963). Where Section 1007’s deadline and Section 1008’s corresponding

penalty are mandatory, Ms. Merritt “ha[s] the right to have [Counts One through Fourteen] dismissed

on [her] motion.” See id. at 151 (emphasis added). Ms. Merritt properly brought her motion to dismiss in

a timely manner, and thus, “no further showing [is] required of [her]; in particular, [she is] not

required to affirmatively show that [she] ha[s] been prejudiced by the delay.” See id. at 151 (emphasis

added).

EXHIBIT A

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

HONORABLE CHRISTOPHER C. HITE, JUDGE PRESIDING

DEPARTMENT NO. 9

---oOo--- THE PEOPLE OF THE STATE OF ) CALIFORNIA, ) ) Plaintiff, ) ) Court No. 2502505

) 17006621 vs. ) ) DAVID ROBERT DALEIDEN AND )SANDRA SUSAN MERRITT, ) ) Defendants. ) ______________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Wednesday, June 21, 2017

Please note Government Code Section 69954(d):

"Any court, party, or person who has purchaseda transcript may, without paying a further fee tothe reporter, reproduce a copy or portion thereofas an exhibit pursuant to court order or rule, orfor internal use, but shall not otherwise provideor sell a copy or copies to any other party orperson."

Reported by: Janet S. Pond, CSR No. 5292, RMR, CRR Official Reporter

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A P P E A R A N C E S O F C O U N S E L

For the People: STATE OF CALIFORNIA, DEPARTMENT OF JUSTICE OFFICE OF THE ATTORNEY GENERAL BY: JOHNETTE JAURON, Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 For Defendant David Daleiden:

STEVE COOLEY & ASSOCIATES BY: BRENTFORD J. FERREIRA, Attorney At Law 5318 E. 2nd Street, #399 Long Beach, CA 90803 For Defendant Sandra Merritt: LAW OFFICE OF NIC COCIS & ASSOCIATES BY: NIC COCIS, Attorney at Law 38975 Sky Canyon Drive, No. 211 Murrieta, CA 92563 LIBERTY COUNSEL BY: HORATIO G. MIHET, Attorney at Law (Pro Hac Vice) P. O. Box 540774 Orlando, FL 32854

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P R O C E E D I N G S

Wednesday, June 21, 2017

---o0o---

THE COURT: This is Lines 14 and 15, David Daleiden and

Sandra Merritt.

Counsel's appearance.

MS. JAURON: Johnette Jauron, Deputy Attorney General.

MR. FERREIRA: Brentford Ferreira for Mr. Daleiden.

MS. COCIS: Nic Cocis on behalf of Ms. Merritt.

Ms. Merritt is present out of custody.

THE COURT: Good morning, Mr. Daleiden, and good

morning, Ms. Merritt.

This matter is on for several different items.

The first thing the Court wanted to make sure to state

on the record is this matter has been referred to this court

by the presiding judge as well as the supervising judge of

the court for all purposes including and through trial. I

just want to make sure all counsel knew that.

And I take it that you were informed of that via email

through my clerk at some point.

We also have before us a motion for a pro hac vice

appearance by Mr. Mihet. And I did not have an opposition

to that; is that correct?

MS. JAURON: Correct, Your Honor.

THE COURT: So the motion with regard to the

pro hac vice is granted. Mr. Mihet has complied with the

rules set forth in California Rules of Court, Rule 9.40(e),

and appears to be competent and qualified to represent

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criminal complaint.

So, at a minimum, that's why I mention the initials and

maybe a more specific date stamp inside the video itself

which would -- time stamp, not date stamp -- time stamp

which would give us a clear indication who they're

contemplating.

So in the video, I don't want to be talking about this

individual when the AG's Office is talking about a different

individual.

MR. MIHET: It would be one thing if each video only

had one conversation in it, Judge. But even the ones that

have been provided to us have multiple, numerous

conversations in them. They may know who the person is but

we don't, and we need to.

MR. FERREIRA: And we now know that there were other

conversations that weren't provided to us with the same

people.

THE COURT: Ms. Jauron?

MS. JAURON: Your Honor, all of this sounds like

evidentiary issues that need to be hashed out at preliminary

hearing, certainly not a notice issue for the complaint.

THE COURT: All right.

I've heard and considered all of the arguments at this

time and reviewed all of the papers, and I appreciate the

arguments of all counsel and clarity with regards to the

issue.

At this time, contrary to counsel for Mr. Daleiden, the

Court does find good cause to exclude the names of the

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victims from the complaint at this time pursuant to Penal

Code Section 1054.7 and Alvarado vs. Superior Court, 2000,

23 Cal.4th 1121.

Based on the danger imposed upon the victims as set

forth in the sealed affidavit and recent allegations of

exposure of those individuals by Defendant Daleiden and his

attorneys in apparent violation of the federal injunction as

well as Judge Yaggy's order, the Court further finds good

cause to exclude the victims' names from the complaint based

on the possible compromise of other investigation by law

enforcement.

As I indicated, the Court is troubled with excluding

the names of the Does from the complaint and the factual

allegations associated with the counts.

The Court agrees with Defendant Merritt as well as

Defendant Daleiden that the informal discovery of the names

and the information associated with the counts are not part

of the complaint and that the defendant is entitled to

sufficient notice of the specific factual allegations based

on the circumstances of the case.

This Court does not and will not require the AG to

present its theory of the case in each of the counts, but it

must at least identify what acts are associated with each

count and the corresponding Doe for each count.

The simple use of the language of the statute under

these specific circumstances is insufficient notice.

The Court will hereby sustain the demurrer as to both

defendants with leave to amend within 10 calendar days as

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set forth in Penal Code Section 1007 as to the lack of

specificity as to each of the counts, with the exception of

Count 15.

Count 15 is sufficiently pled, and I believe that's the

conspiracy charge?

MS. JAURON: Yes, Your Honor.

THE COURT: The Court does believe that is sufficiently

pled and therefore any demurrer as to that count is

overruled.

As indicated above, the Court is not requiring the use

of the names of the victims in the complaint at this time,

just a clarification of the specific acts for each of the

individual counts, with the exception of Count 15, of which

the demurrer is overruled.

The Court will quickly address the issue of the federal

injunction, which I think was mentioned in the papers as

well.

The Court overrules any general demurrer to the

complaint based on the grounds that the federal injunction

somehow impedes the defendants' ability to receive a fair

preliminary hearing or trial. The Court agrees that certain

due process issues may arise depending on the disclosure of

the video evidence during the preliminary hearing and the

trial, but these are not matters that are resolved via

demurrer.

The only reasonable threat to the defendants and

defense counsel is the posting of the videos or the names of

the victims on a public access website. The use of the

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names of the victims and the videos during the preliminary

hearing and the trial does not pose the same threat.

The Court tentatively agrees that the AG would need to

disclose under protective order all of the videos obtained

in relationship to this case to the defendant and have that

available for use by the defense at any evidentiary hearing

subject to any relevancy or 352 exclusions.

Under these circumstances, the federal injunction does

not unreasonably impede the defendant from obtaining a fair

preliminary hearing or trial.

In addition, Mr. Daleiden brought a motion to stay

proceedings in relationship to the injunction as well. That

stay is denied. If the AG decides to file an amended

complaint in this case, which I assume it will, the

defendant may enter a plea to the amended complaint and

waive the 10-day or 60-day rule at that time, and the Court

will then entertain any reasonable continuance based on good

cause thereafter. But as far as now, the stay is denied.

MR. FERREIRA: Thank you.

THE COURT: With regard to the motion for sanctions and

referral to the State Bar, I will take brief arguments from

the AG and any response by the defense.

MS. JAURON: Your Honor, it sounds like an issue that

perhaps should be addressed later. Does the Court want to

deal with this now?

If we're going to be going into a new preliminary

hearing -- if the Court wants to start over again and

proceed in a manner that is appropriate, I am perfectly

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State of California ) ) County of San Francisco )

REPORTER'S CERTIFICATE

I, Janet S. Pond, CSR No. 5292, Official Court Reporter

for the Superior Court of California, County of San

Francisco, do hereby certify:

That I was present at the time of the above proceedings

and took down in machine shorthand notes all proceedings had

and testimony given;

That I thereafter transcribed said shorthand notes with

the aid of a computer;

That the above and foregoing is a full, true, and

correct transcription of said shorthand notes, and a full,

true and correct transcript of all proceedings had and

testimony taken;

That I am not a party to the action or related to a

party or counsel;

That I have no financial or other interest in the

outcome of the action.

Dated: June 23, 2017

________________________________ Janet S. Pond, CSR No. 5292

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EXHIBIT B

Nicolaie Cocis (CA Bar # 204703)

Documents

Transcript of Nicolaie Cocis (CA Bar # 204703)