SUPERIOR COURT OF THE STATE OF CALIFORNIA FILED COUNTY OF ALAMEDA ALAMEDA COUNTY MAR 0 3 2017 THE PEOPLE OF THE STATE OF Nos. 178801, CLERK OF THE SUPERIOR COURT CALIFORNIA, ORDER DENYING By NORA BECERRA Plaintiff MOTION TO Deputy COMPEL AN ACCURATE AND v. CONTEMPORANOUS RECORD ERIC CRUZ and PATRICA SMITH, OF COURT PROCEEDINGS Defendant. This court having reviewed Defendants? Motion to Compel an Accurate and Contemporaneous Record of Court Proceedings (Motion), filed on November 15 and. 17, 2016, NOW HEREBY ORDERS: The Motion is DENIED. STATEMENT OF THE CASE On August 1, 2016, the Alameda County Superior Court?s new case management system, Odyssey, was fully implemented. In Fall 2016, the Office of the Public Defender (Public Defender) ?led motions to compel an accurate and contemporaneous record of court proceedings in approximately 2000 cases. The following individuals submitted declarations in support Of the motions: Brendon Woods, Public Defender; Charles Denton, Assistant Public Defender; Kathleen Ryals, Assistant Public Defender; Tracy Wellenkarnp, Division Director of Criminal Operations; and Youseef Elias, Assistant Public Defender.1 The Motion requests the following: 1. That the court order the court clerk to prepare a complete and accurate record of its proceedings; The declarations were ?led on various dates in November 2016 and January 2017. 2. If a contemporaneous written minute order is created in the courtroom, a legible copy of the minute order must be uploaded to Odyssey within 24 hours; 3. Ensure that the court?s actions during each proceeding are coded and integrated into case management software databases used by other criminal justice system partners within 24 hours; and 4. Ensure that all court actions having the potential to affect a defendant?s custodial status be coded into case management software databases used by other criminal justice system partners by the end of the business day. If the court cannot meet the above-referenced demands, then the Public Defender requests that the court discontinue its use of Odyssey and return to the previous case management system. The Public Defender cites to the following legal concepts as authority for the demands asserted in the Motion: 1. The court has a duty to contemporaneously record its proceedings in a complete and accurate manner; 2. The defendant has a due process right and equal protection right to the complete and accurate record for an effective defense or appeal; 3. The press and the public have a First Amendment right to records; and 4. The Fourth Amendment guarantees the right to be free from arrests on recalled warrants and probation conditions that have been stricken. On January 31; 2017, the parties submitted arguments on the Motion and the court took the matter under submission.2 2 Since the 2000 motions to compel address identical issues, the government and the Public Defender agreed that a single ruling would be incorporated by reference to all 2000 cases. STATEMENT or FACTS3 Since Odyssey?s implementation in August 2016, there have been delays in the preparation of minute orders and errors in the manner that certain data is inputted into Odyssey. Furthermore, there are coding and interface problems between Odyssey and other case management systems used by criminal justice agencies in Alameda County, such as the Consolidated Records Information Management System As detailed below, the issues associated with Odyssey?s implementation have impacted multiple aspects of the criminal justice system in Alameda County. As a result of various problems associated with Odyssey?s implementation, several defendants have been subject to unlaw?il arrests. For instance, defendants have been arrested because the recall or stay of a bench warrant was not re?ected in Odyssey (Case Nos. 262154, 176807, 607343, 256549, 16-CR-007979, 617124A, 175913, 605575, 616100, 02277DA, 177963, 592536, 465282, 587149, 458420, 466511, 615291, 178260). Defendants have also been arrested because Odyssey has erroneously re?ected that a bench warrant had been issued (Case Nos. 609827, 608931) or that a probation violation warrant had been issued (Case No. 174925). In addition, defendants have been arrested for violating probation conditions, such as a curfew or a stay away order, because Odyssey failed to re?ect that the court had terminated probation (Case Nos. 177789, 453376A). 3 All the facts were culled from the various declarations filed in support of the Motion. On January 31, 2017, the prosecution stipulated to the truth of the information presented in the various declarations. Accordingly, the facts are not controverted. The Public Defender has represented that the cases mentioned in the declarations are merely a ?snapshot? of the number of cases affected by Odyssey?s implementation. 4 For instance, due to Odyssey?s inability to transmit data to CRIMS, CRIMS showed that defendant had started a three year probation term on September 11, 2015 even though the case was dismissed on that same date (Case No. 310625A). 3 Moreover, defendants have also been subjected to serve additional, unwarranted time in custody as a result of Odyssey-related errors, including, but not limited to, the following: a setting or posting of bail that was not re?ected in Odyssey (Case Nos. 618488, 467900, a court date that was either not re?ected in Odyssey or not integrated in the Alameda County Sheriffs Of?ce database that resulted in a deputy?s failure to bring the defendant to court, which often caused a delay in the disposition of the defendant?s case (Case Nos. 176128, 167086, 16-CR-009593, 006474, 178801; -016741, an error in inputting or the failure to input into Odyssey the prosecution?s representation that it would not ?le a complaint (Case Nos. H5 8756, 615107); and the delay in uploading a minute order to Odyssey that re?ects a defendant?s release date (Case Nos. 178029, H58459, 178260, 613736, 467632) or re?ects that bail had been reinstated (Case No. 615753). In addition to unlawful arrests and incarcerations, problems associated with Odyssey have resulted in defendants being erroneously subject to Penal Code section 290 registration conditions (Case Nos. 178428, 175875, H53767) and misdemeanor cases being incorrectly designated as felony matters (Case Nos. 459525, 453578). Lastly, more than 100 sentenced state prisoners have been forced to remain at Santa Rita Jail awaiting transport to San Quentin because their commitment orders and abstracts of judgment have not been processed into Odyssey due to a backlog. (See Case No. 16-CR-002109.) The court?s Division Director of Criminal Operations recognizes that there are many reasons why Odyssey is not an ef?cient tool for the criminal courts in Alameda County. For instance, Odyssey contains a cumbersome and time consuming interface for recalling warrants and converting cases that predate the August 2016 implementation into the Odyssey format. Another example of Odyssey?s inef?ciency is demonstrated when a clerk attempts to change the name of a judge assigned to a particular case and the Odyssey system changes all prior 4 hearings to re?ect the name of the new judge, which results in the rewriting of the case?s history. It is ?extremely time-consuming? to effect the conversions of these cases. Lastly, the calendar aspect of Odyssey fails to provide the clerks with a system wherein cases heard in a department for a particular day are alphabetized. As a result, the clerks must navigate a disorganized list of names to locate the case being called at a given moment. In essence, Odyssey?s complicated and non-user- friendly interface coupled with its failure to automatically integrate its data with other agencies? databases has resulted in unfortunate situations for numerous individuals. Accordingly, based on the problems of Odyssey?s implementation in Alameda County?s criminal courts, the court terminated the second phase of its contract with the Odyssey vendor and cancelled the implementation of the system in the court?s family, probate, and civil divisions. DISCUSSION ormul Minute Orders Are Not Required To Be Prepared Contemporuneously With A Court Ruling, By The End of Business Day FollowingA Court Ruling, 0r Within 24 Hours of A Court Ruling Government Code section 698445 provides: The clerk of the superior court shall keep the minutes and other records of the court, entering at length within the time speez?ed by law, or forthwith if no time is speci?ed, any order, judgment, and decree of the court which is required to be entered and showing the date when each entry is made. Failure so to enter the date or failure to enter the order, judgment, or decree within the time specified in this section shall not affect the validity or effectiveness of the entry. (Govt. Code, 69844, emphasis added.) Section 69844 refers to the formal minutes, not the clerk?s rough notes about the court proceedings that may be re?ected on docket sheets. (Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 112; see Fortenberry v. Weber (1971) 18 Cal.App.3d 213, 219- 220 [rough minutes are not the same as permanent minutes and the entry of order 5 stated. All further statutory references are to the Government Code unless otherwise for new trial must be made in the permanent minutes within 60 days].) Stated otherwise, a clerk?s rough notes are not of?cial records, but are merely ?notes prepared for the purpose of creating those of?cial minutes at a later time.? (Copley, supra, 6 Cal.App.4th at p. 112.) The Public Defender has interpreted the term ?forthwith? in section 69844 to mean that the clerk has a duty to prepare minute orders for certain proceedings contemporaneously with the court ruling, by the end of the business day, or within 24 hours. The Public Defender fails to cite to any authority which supports its de?nition of ?forthwith?. Instead, the only authority cited by the Public Defender addresses the court?s duty to prepare a complete and accurate record and to permit public access to electronic trial court records. (See Govt. Code, 69844.5, 69844.7, 69846; see Cal. Rules of Court, rules 2.504, 2.507) Contrary to the Public Defender?s interpretation of ?forthwith?, the term ?forthwith? in section 69844 does mean contemporaneously or within a certain time period 24 hours). (Lewis v. Curry (1909) 156 Cal. 93, 101 [?There is no precise de?nition, so far as time is concerned, of the words ?forthwith? and ?immediately.? In every case the meaning depends upon the circumstanes [sic] of the case and the act to be N.C. Roberts Co. v. Topaz Transformer Products, Inc. (1966) 239 Cal.App.2d 801, 817 [?The term ?forthwithnecessarily construed as a time immediately succeeding without an Instead, ?forthwith?, in the context of section 69844, means that the clerk must construct the minutes within a reasonable time. (Total; People v. Thomas (1959) 52 Cal.2d 521, 530 [clerk must prepare the formal minutes within a reasonable time]; see Copley, 6 Cal.App.4th at p. 110 [formal minutes prepared by the clerk are usually prepared at some time later than the occurrences Moreover, the court must look at the circumstances of a particular case to determine What constitutes a ?reasonable time.? (People v. MeAllister (1940) 15 Cal.2d 519, 527, disapproved on other grounds in People v. Thomas (1959) 52 6 Cal.2d 521, 529-530; see People v. Karaman (1992) 4 Cal.4th 335, 345, fn. 11 [When a clerk enters judgement in the permanent minutes by the end of the day, he or she has satis?ed his or her duty to complete such minutes within a reasonable time.].) Accordingly, the Public Defender?s contention that formal minute orders must be prepared contemporaneously with a court ruling, by the end of the business day or within 24 hours is not supported by any legal authority. Instead, California jurisprudence provides that minute orders must be constructed within a reasonable time in light of the circumstances of the particular case. The Clerks Are Not Required To Code And Integrate Court Orders Into Case Management Software Databases Used By Other Criminal Justice Agencies By The End Of The Business Day Or Within 24 Hours There is no authority to support the Public Defender?s demand that clerks input data related to court proceedings into case management systems used by other criminal justice agencies by the end of the business day or within 24 hours. However, as illustrated below, the court recognizes that clerks working in criminal departments have certain time-sensitive duties as it relates to the reporting and transmission of criminal case information to other criminal justice agencies. Signi?cantly, none of the reporting requirements establish an end of business day or 24 hour deadline for the transmittal of such information. Below are examples of statutes that require the court or the clerk to transmit certain criminal case information to government agencies. Penal Code section 1203.01 requires the clerk, within 60 days after a defendant is sentenced to death or to life without parole (LWOP), to mail various court documents, such as the accusatory pleading and sentencing transcript, to the institution where the defendant will be delivered. (Pen. Code, 1203.01, subd. When the defendant is not sentenced to death or LWOP, then the clerk must mail a copy of the accusatory pleading and a copy of the waiver and plea form, if any, to the institution where the defendant will be delivered. (Pen. Code, 1203.01, subd. There is no time limit imposed for the mailing of such documents if the defendant was not sentenced to death or LWOP. Penal Code section 13151 requires the superior court to deliver a disposition report to the Department of Justice (DOJ) within 30 days for any case for which an arrest was required to be reported to the DOJ pursuant to Penal Code section 13150 or for which fingerprints were required to be taken and submitted to the DOJ. (Pen. Code, 13151.) It should be noted that the mandate described in Penal Code section 13151 does not speci?cally mention that the transfer of diSposition reports to the DOJ must be completed by the clerk, but even if it was one of the clerk?s duties, the clerk would have 30 days to transmit such information. Section 69844.5 requires the clerk to certify and submit criminal records to the DOJ for entry into the computer database. (Govt. Code, 69844.5) Section 69844.5 does not require a clerk to actually perform the data entry into the database. Instead, the statute only requires the clerk to certify and submit the necessary criminal conviction records ?for entry? into the computer database. (See People v. Martinez (2000) 22 Ca1.4th 106, 128 [The DOJ transfers the information from a court?s disposition report to its Penal Code section 1203 mandates a clerk to immediately send a c0py of the probation report to the Department of Corrections and Rehabilitation at the 6 The California Law Enforcement Telecommunications System (CLETS) is a program that is used statewide to report criminal history information and is under the direction of the Attorney General, who is required to adopt and publish operating polices, practices, and procedures regarding that program. (Govt. Code, 15153, 15160; Martinez, supra, 22 Cal.4th at p. 113.) The California Supreme Court has noted that the statutes governing CLETS lack specificity ?regarding the duty to enter the criminal information it receives into the CLETS database.? (Id. at p. 127.) Nevertheless, the court concluded that the DOJ has a duty to enter criminal information it receives from the courts into CLETS. (Id. at p. 128 Department?s entry into CLETS of criminal information it receives does not depend on memory, but simply involves a transfer of information from one form of storage?the disposition reports-to another-the CLETS 8 prison or other institution where the defendant will be delivered if the court denied probation. (Pen. Code, 1203, subd. There is no case law de?ning the word ?immediately? within this context. However, the courts have indicated that the meaning of the term ?immediately? depends upon the circumstances of the case and the act to be performed. (Lewis, supra, 156 Cal. at p. 101.) In addition to a clerk?s duty to transmit criminal case information to certain criminal justice agencies, a clerk must also submit certain criminal case information to agencies responsible for issuing professional licenses and/or certi?cates. (See Bus. Prof. Code, 803, subd. [the clerk must notify certain agencies responsible for licensing or certi?cate issuances, within 0 days after judgment, that a licensee or certi?cate holder has committed a crime]; 803.5, subd. [the court clerk must, within 48 hours of conviction, transmit a certi?ed copy of the record of conviction to the applicable agency that issued a professional license to the defendant]; 6101, subd. [when an attorney is convicted of a crime, the clerk, within 48 hours after the conviction, must transmit a certi?ed copy of the record of conviction to the Of?ce of the State Bar]; 5590 [if an architect is convicted of a crime, the clerk, within 10 days after judgment, must report the judgment to the State Board of Architectural Examiners unless the judge who tried the matter ?nds that the crime did not relate to the defendant?s professional competence or integrity and orders the report not to be sent]; Veh. Code, 1803, subd. [the court clerk must transmit a certi?ed abstract of the record to the Department of Motor Vehicles within 5 days after judgment].) Akin to the clerk?s reporting requirements to criminal justice agencies, none of the above-mentioned reporting requirements to licensing agencies involve an end of the business day or 24 hour deadline. Furthermore, the Public Defender?s contention that the clerks must input data in other criminal justice agencies? case management systems when a warrant is recalled or a probation condition is stricken is not supported by any legal authority. Instead, there is authority to the contrary. For instance, as explained 9 supra, none of the statutes requiring clerks to submit information to the DOJ explicitly requires that the clerks input such data to the database. (Govt. Code, 69844.5.) Speci?cally, as to the recall of warrants, case law suggests that law enforcement personnel, not clerks, must perform the data entry associated with the recall of bench warrants. (See People v. Ramirez (1983) 34 Cal.3d 541, 547 [?Had the recall of the warrant for defendant's arrest been entered into the appropriate data processing systems by the responsible law enforcement personnel, Of?cer Brown would have received an accurate response to his warrant check, he would have been informed there were no outstanding warrants for defendant's emphasis added; see Martinez, supra, 22 Cal.4th at p. 128 [the has the duty to enter the information that it receives from the courts into Similarly, the termination of probation conditions must be reported pursuant to section 69844.5 and/or Penal Code section 13151, neither of which requires clerks to enter such probation modi?cations into other agencies? databases. (See Govt. Code, 69844.5 [court clerk must provide relevant information ?for entry? into the computer system]; see Pen. Code, 13151 [court clerk must ensure that a disposition report is furnished to the DUI in a format prescribed by the DOE.) In sum, a clerk in a criminal department has duties regarding the preparation, certi?cation, and transmission of certain criminal court records for use by other government agencies. However, there is no statute or court rule that requires the clerk to be responsible for performing the data entry of such information into these agencies? case management systems. Nevertheless, assuming, arguendo, that a clerk did have a duty to perform such data entry, there is no legal authority that demands such entry to be completed by the end of the business day or within 24 hours of the relevant event. 10 Errors Resulting From Odyssey?s Implementation Do Not Justify Odyssey ?5 Termination The Public Defender alleges that Odyssey has caused violations of individuals? Fourth Amendment right to privacy, defendants? right to an accurate and complete appellate record, and the press? and public?s First Amendment right to inspect court records. As an initial point, clerical errors have been in existence long before Odyssey. There is no case management system that would result in a zero percent error rate because clerical data entry will always be subject to human error. Consequently, the court always has jurisdiction to correct minute orders to ensure that they accurately re?ect the court?s actions. (People v. Mitchell (2001) 26 Cal.4th 181, 185 {?Courts may correct clerical errors at any People v. Little (1993) 19 Ca1.App.4th 449, 451-452 trial court has inherent power to correct clerical errors in its records so as to make these records e?ect the true Ex pnrte Robert (1962) 200 Ca1.App.2d 95, 97 court of general jurisdiction has power after final judgment and regardless of lapse of time to correct clerical errors or misprisions in its records, whether made by the clerk, counsel or the court itself, so that such records will conform to and speak the Although the court recognizes that Odyssey has resulted in unlawful arrests and searches, clerical errors that affect a defendant?s Fourth Amendment right to privacy will occur regardless of the case management system used by the court. (See Arizona 12. Evans (1995) 514 U.S. l, 5 [defendant arrested pursuant to a warrant that had been quashed, but due to clerical error the fact that the warrant had been quashed was not communicated to law enforcement]; see People v. Downing (1995) 33 Ca1.App.4th 1641, 1645-1647 [defendant?s house was searched after computer showed, due to clerical error, that defendant was still on probation with a search waiver even though probation had been terminated]; see People v. Ramirez (1983) 34 Ca1.3d 541, 546?547 [defendant arrested on a bench 11 warrant that was recalled but not entered into the appropriate data processing systems].) Therefore, the Public Defender?s implicit suggestion that such errors will not occur if the court complies with its demands or eliminates Odyssey and reverts to the prior case management system lacks merit. Likewise, any suggestion that Odyssey has caused or will cause problems with regards to the preparation of the appellate record is unfounded. The Public Defender does not allege that the clerks are preparing the minute orders or other documents required to be contained in the clerk?s transcript for appeal in an untimely manner. Instead, the Public Defender?s main complaint is that the preparation of the formal minutes has been signi?cantly delayed or contains errors due to the implementation of Odyssey. Notably, there are procedures in place to ensure that the clerk timely and accurately prepares a defendant?s trial record for appellate review.7 Significantly, the Public Defender has not cited to a single case wherein a defendant?s appellate rights was abridged by Odyssey?s implementation. Lastly, the Public Defender fails to present speci?c evidence that the implementation of Odyssey has violated the press? and the public?s access to court records under the First Amendment. Rather, the Public Defender makes blanket accusations that Odyssey has severely limited public access to court records because ?there are more than 12,000 ?les that are incomplete in one way or another.? There is no authority that a delay in the composition of the formal 7 See California Rules of Court, rules 8336(c)(2) and [The clerk?s and reporter?s transcripts must be completed within 20 days after the notice of appeal has been ?led], 8.23 [?At any time, on motion of a party or on its own motion, the reviewing court may order the record augmented or [?The reviewing court may order the superior court to settle disputes about omissions or errors in the 8.340(c) [The failure of a court reporter or clerk to perform any duty imposed by statute or these rules that delays the ?ling of the appellate record is an unlawful interference with the reviewing court's proceedings. It may be treated as an interference in addition to or instead of any other sanction that may be imposed by law for the same breach of duty. This rule does not limit the reviewing court's power to define and remedy any other interference with its 12 minutes or the uploading of criminal ?les to Odyssey somehow abridges the public?s and the press? right to inSpect court records. Equally, there is no authority that the court is required to immediately produce court ?les for inspection in order to protect the press? or public?s First amendment right. (See Rogers v. Superior Court (1993) 19 CalAppxilth 469, 483 [records requested under the California Public Records Act must be produced in a ?reasonably timely manner?]; see Govt. Code, 6253, subd. [public agency has 10 days to decide whether it will comply with a disclosure request].) Therefore, the Public Defender has failed to demonstrate how Odyssey?s implementation abridges the public?s and media?s First Amendment right to access court records. CONCLUSION Based on the reasons set forth above, the Motion is DENIED. Mo MN JUDGE OF ERIOR COURT ?9 DATED: