People v. Wolf ( 2018 )

Filed 3/16/18
TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
APPELLATE DIVISION
THE PEOPLE, LEAD CASE:
Appellate Division No.: CA271353
Plaintiff(s) and Respondent(s), Trial Court Case No.: M214209
v. Trial Court Location: Central Division
JEFFREY WOLF,
Defendant(s) and Appellant(s).
THE PEOPLE, Appellate Division No.: CA271362
Trial Court Case No.: M216752
Trial Court Location: Central Division
Plaintiff(s) and Respondent(s),
v.
THOMAS VARUOLO,
OPINION
Defendant(s) and Appellant(s).
APPEAL from the denials of demurrers, granting of motion to quash subpoenas, and
denying motions to dismiss on behalf of Jeffrey Wolf and Thomas Varuolo, after hearings by the
Superior Court, San Diego County, Melinda J. Lasater, Kenneth K. So, David M. Gill, Joan P.
Weber, Lorna A. Alksne, and Albert T. Harutunian, III, Judges. Following argument on March 15,
2018, this consolidated matter was taken under submission.
AFFIRMED.
Appellants argue the San Diego County District Attorney has no authority to deputize City
of San Diego Deputy City Attorneys to prosecute misdemeanors that occurred in the City of Poway
and filed in the Central (downtown San Diego) Division of the Superior Court. Appellants also
argue City of San Diego Deputy City Attorneys have no authority to prosecute misdemeanor
offenses that occurred outside the boundaries of the City of San Diego. These arguments might be
appropriate before applicable legislative or executive branches of government, but they are not
relevant in the context of Mr. Wolf’s or Mr. Varuolo’s cases. Furthermore, Appellants lack
standing to challenge the authority of the prosecuting agency in these criminal cases.
Quo warranto is the specific action by which one challenges “any person who usurps,
intrudes into, or unlawfully hold or exercises any public office….” (Code Civ. Proc., § 803.) It is
the exclusive remedy in cases where it is available. (Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d
627, 633.) District Attorneys and City Attorneys are public officers. (Coulter v. Pool (1921) 187
Cal. 181, 187.) Title to an office cannot be tried by mandamus, injunction, writ of certiorari,
petition for declaratory relief or in a criminal case as a collateral issue. (People v. Bowen (1991)
231 Cal. App. 3d 783, 789.) Furthermore, the de facto officer doctrine requires that a valid
challenge to the authority of a public officer must be raised and resolved in a separate proceeding.
(Marine Forests Soc. v. California Coastal Commission (2005) 36 Cal. 4th 1, 54 - 55.)
Government Code sections 24101 and 24102 establish authority and procedures for District
Attorneys to approve and authorize deputies. In these cases, the San Diego County District
Attorney approved and authorized City of San Diego Deputy City Attorneys to prosecute
misdemeanor offenses that occurred within the City of Poway. All of the cases and statutes cited
by Appellants are distinguishable from the facts in this case or do not support Appellants’ legal
argument. Appellants are unable to cite any applicable case law or statute that supports their
demurrers, dismissal of the charges or reversal of the trial court’s decision to quash the subpoenas
served on the District Attorney, her assistant, and chief deputy.
Finally, Appellants failed to allege any “prejudicial error amounting to a miscarriage of
justice.” (People v. Garza (2005) 35 Cal. 4th 866, 881.) California Constitution, article VI, section
-2-
13 provides that “[n]o judgment shall be set aside…for any error as to any matter of pleading, or for
any error as to any matter of procedure, unless, after an examination of the entire cause, including
the evidence, the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.” A review of the record in these matters clearly shows there was no
miscarriage of justice.
The trial court’s orders overruling the demurrers, denying the motions to dismiss, quashing
the subpoenas, and the finding of guilt following the bench trials are affirmed.
__________________________________
CHARLES R. GILL
Presiding Judge, Appellate Division
KANESHIRO, J., concurring:
I concur.
_____________________________
GALE E. KANESHIRO
Judge, Appellate Division
SHORE, J., concurring:
I concur.
______________________________
HOWARD H. SHORE
Judge, Appellate Division
-3-
Counsel:
Mara Elliot, City Attorney, Jonathan Lapin, Deputy City Attorney, for Plaintiff and Respondent.
Michael Fremont, for Defendant and Appellant.