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  1. Court Jester

    Court Jester Law Topic Starter New Member

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    This is a response to an old post I just came across it and felt compelled to respond. Those of you who are of the opinion that the "Notice to Appear" constitutes a verified complaint are right, but not for all purposes. There are basically three (3) situations where a NTA can be legally used as a verified complaint.

    1) The prosecutor can file the NTA with the court pursuant to PC 853.6(e)(3) to invoke the jurisdiction of the trial court (However, the defendant still has the right to request a formal verified complaint),

    2) The defendant MAY enter a plea to the NTA and proceed without a complaint from the prosecutor, and

    3) if the notice to appear is verified, upon which a warrant may be issued (VC 40513(b)). This one is a little less understood. VC 40513(b) states in pertinent part:

    "an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea and, if the notice to appear is verified, upon which a warrant may be issued." ​

    The key word here is "magistrate". A magistrate is an officer created by statute with limited authority. PC 808 states:

    "The following persons are magistrates:
    1) The judges of the Supreme Court.
    2) The judges of the Court of Appeal.
    3) The judges of the Superior Court.

    A magistrate's authority is limited by PC 807 stating that they are "an officer having the power to issue a warrant for the arrest of a person charged with a public offence."

    The function of a Magistrate is for the purpose of getting an impartial determination of probable cause and in no way invokes the jurisdiction of a trial court.

    "When a judge of a particular judicial district acts in the capacity of a magistrate, he does not do so as a judge of a particular court but rather as one who derives his powers from the provisions of Penal Code, sections 807 and 808. By initiating proceedings before magistrates, no trial jurisdiction of any court is invoked." KOSKI v. JAMES, (1975) 47 Cal.App.3d 349​

    The other problem I have run into at times is the case HELDT v. MUNICIPAL COURT, 163 Cal.App.3d 322 (1985) which is the controlling case on this issue. In the Heldt case the court ruled that in that case the Notice to Appear constitutes a complaint which confers jurisdiction on the trial court. The problem with that decision is that you have to look at the case closely to understand that in that case it was the prosecutor who filed the NTA, not the police officer. Very few people have caught that.

    So I have changed my position to challenging the authority of the police officer to initiate criminal proceedings on behalf of the people of the State of California. This position is much easier to convince the court of because there are numerous cases that state the arresting officer has no authority to initiate criminal proceedings whereas that authority rests with the appropriate prosecuting official.

    As you can see it's not as simple as yes or no when it comes to determining whether or not the NTA constitutes a verified complaint. I hope this clears this up for some of you.

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