IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICTWORD Version of File: Opening Brief 6th Didt (Word)
APPELLANT’S OPENING BRIEF8A Cal D 2d-576. Cal.App. 1977. It is the failure to have an appropriate adjudication of a defense that reduces trial to a farce or a sham, and which thus renders Petitioner's trial fundamentally unfair, in violation of constitutional due process rights guaranteed to Petitioner. U.S.C.A.Const. Amends. 6, 14. People v. Rodrigez, 141 Cal.Rptr. 118, 73 C.A.3d 1023.
Cal. 1979. A trial procedure in which the trier of fact can only find against the accused, even if only advisory, is a blatant violation of constitutional standards; all triers of fact must be free to find for or against the party appearing before them. West's Ann.Const. art. 1, Sec. 7(a); art. 6, Sec. 22; U.S.C.A.Const.Amend. 14. In re Perrone C., 603 P.2d 1300, 160 Cal.Rptr. 704, 26, C.3d 49. - 8A Cal D 2d-572
STATEMENT OF APPEALABILITYThis appeal from a final judgment of conviction that disposes of all the issues between the parties is authorized by Penal Code section 1237. INDEXTOC \o "1-3" \h \z \u EXECUTIVE SUMMARY STATEMENT OF FACTS TEN DAY JUDICIAL NOTICE & CONTRACT - TIME IS OF THE ESSENCE: STATEMENT OF FACTS - CASE BACKGROUND DEFENSE & PROSECUTIONS ARGUMENT J. State Witness’ And Prosecution’s Fraud Voids Trial. L. The Court Failed To Establish Subject Matter Jurisdiction.
Note regarding structure and form of Opening Brief: Appellant, in Propria Persona, Sui Juris, submits this Opening Brief under duress. Instead of simply referencing the transcript, transcript has been inserted directly into the Opening Brief. While this makes the brief significantly longer in form, it makes reading the brief substantially more efficient and captures some essence of the sham trial and outrageously biased and out of control Court and Prosecution. This case can be dismissed based on the simple fact that evidence denied in trial proves beyond any reasonable level of doubt that it is impossible for Appellant to be guilty of the charges, this evidence is summarized in EXECUTIVE SUMMARY STATEMENT OF FACTS Page 4. While only matters relating to the false charges and violations of legal standard by the Court and Prosecution need be addressed in this Opening Brief, as a consequence of the State Counsel incorporating libelous and false information from the Prosecution as Case Background, a reasonably comprehensive Case Background section titled “STATEMENT OF FACTS - CASE BACKGROUND” starting on Page 14 has been included to set the record straight. Legal Authorities have been incorporated in a section titled as such (Page 154) and have not been included in each and every argument so as to prevent repeated duplication. EXECUTIVE SUMMARY STATEMENT OF FACTSThis Santa Cruz Superior Court Case F 06858 is not complicated. Irrefutable evidence proves well beyond any reasonable doubt that it is impossible for Appellant to be guilty of the charges. Brief Background: March 10, 2003, without probable cause, a Santa Cruz Deputy Sheriff shot at Appellant and his children. To cover up the extreme malpractice, false charges were filed against Appellant: Appellant was also ordered to not communicate with his children for three years; two felonies and nine misdemeanors, all false, were filed against Appellant who is an outstanding member of the local and international community without any criminal record; three times Appellant has been falsely arrested and imprisoned, twice without any right to bail. In a blatantly sham trial in the Santa Cruz Superior Court, Appellant was found guilty of a VC § 2800.2(a) charge (Driving with a willful wanton disregard to the safety of public and property with the intent to evade). However, a police NETCOM recording of the event which the judge improperly refused to allow into evidence proves the duration of the alleged chase. When the duration is applied to the known distance, the speed of the alleged chase is proven at 27 mph and slower, making it impossible for Appellant to be guilty of the VC § 2800.2(a) charge or any lesser charge or any of the other two dependant false charges Appellant was fraudulently found guilty of: “Child Endangerment!” and Resisting Arrest. Furthermore, there never was any probable cause or reason to chase Appellant in the first place and therefore no underlying charge to make the VC § 2800.2(a) charge valid in the first place. The purpose of this case continues to be to maliciously prosecute Appellant so as to cover up crimes committed against Appellant and his children and to bankrupt Appellant. JUDICIAL NOTICEAppellant, submits this Opening Brief under extraordinary duress. The State having appointed Counsel to represent Appellant, and said Counsel having submitted an Opening Brief after the appointed Counsel refused to meet with or discuss the case or her Opening Brief with Appellant despite Appellant having specifically requested such on numerous occasions and having specifically instructed his Counsel to not file any Opening Brief without his preview and approval. The Opening Brief the State Appointed Counsel filed in Appellant’s name, against Appellants express instruction, totally misstates important facts, ignores an abundance of critical errors by the Court and Prosecution, is completely misleading and has been written according to Appellants Counsel by the Prosecution where Appellants Counsel obtained the false information. For example, State Counsel ignores the glaring fact that critical evidence which proved Appellant innocent, the NETCOM report and the TRO Appellant filed just before the event, was repeatedly and specifically improperly prevented from coming into evidence by the Court and Prosecution – the NETCOM recording proved Appellant drove a slow speed and could not be guilty of a 2800 charge – The TRO proved that Appellant was the one following the law and had absolutely no reason to evade, eliminating the specific intent necessary for a VC § 2800 charge (While Appellant was doing the right thing going to put his children in their home out of harms way, the Sheriffs neither followed the law nor the most rudimentary ethical process, the sheriffs literally ambushed appellant and shot at appellant and his children, then again assaulted appellant when placing appellant under false arrest). The State appointed Counsel states that Defense did not use one of all the available preemptory challenges on the juror, Mr. Fu, who said flat out that he would be biased towards the police yet the Court refused to dismiss Mr. Fu for cause, however Defense did use a preemptory challenge against Mr. Fu. State Counsel actually goes as far as sanitizing the State Witnesses testimony, not drawing light to the fact that the key State Witness was caught out with lying blatantly on the stand, which went uncorrected by both the Prosecution and the Court. The state witnesses testimony is so contradictory and convoluted that the Prosecutor uses this fact to try to claim that his key witness’ lie could not be a lie (RT P996 L5). From a strategic analysis of the State Counsel’s Opening Brief, it would appear that there has been cooperation with Prosecution in an attempt to file an Opening Brief in which the Appellant is found guilty of something, thereby somehow justifying the false arrest in this case or alternatively that the case be remanded for a retrial and thereby continue the malicious prosecution of Appellant. Clearly the State Counsel cooperated with the Santa Cruz Court and Prosecutions consistent delaying of this case. See the letter from the 6th District threatening to take the case from the State Counsel unless she file an opening brief. This case is not complex and can be quickly and fairly adjudicated due to the irrefutable evidence erroneously excluded by the Court, the NETCOM recording which proves that it is impossible for Appellant to be guilty of the crimes and the TRO with removed specific intent. No such argument was made by the State appointed Counsel and the Court clearly erred in preventing such evidence from coming before the jury, let alone the fact that a Public Prosecutor, who is commissioned to act in the interests of justice, has a duty to bring such evidence forward. As earlier stated and submitted before the Court, the Opening Brief submitted by the State appointed counsel does not represent Appellant and must be disregarded. From the submission of this Opening Brief by the Appellant, it should be blatantly obvious the extent of the ineffective representation by the State Appointed counsel. May it also be Judicially Noted that Appellant has been attempting to enforce a lawful Court Order to pay off his wife on his homestead and thus allow Appellant to refinance and raise capital to hire competent counsel, however, the Santa Cruz Superior Court, in insolence to the Constitution of the United States and California and lawful orders, has been preventing such. The Santa Cruz Superior Court in fact went as far as sanctioning Appellant for simply seeking his lawful rights in this regard. Consequentially, Appellant has been prevented though unlawful actions by the Santa Cruz Superior Court, and as a consequence of the duress of ongoing malicious prosecution, from submitting this Opening Brief earlier. Appellant begs the courts patience in this regard and seeks the courts protection and expedient and fair adjudication in this matter. Appellant would have made this Opening Brief shorter, however, Prosecution and the State Appointed Counsel injected so much unnecessary and false information that it is necessary for Appellant to set the record straight. TEN DAY JUDICIAL NOTICE & CONTRACT - TIME IS OF THE ESSENCE:Appellant, the Founder, Key Man, Chairman and CEO of a number of National and International corporations has been outrageously and shamefully denied any justice or due process in California’s Courts. The extremely malicious nature of the assault against Appellant has severely impacted Appellant and the corporations Appellant runs. Appellants name has even bee reported to California’s Central Child Abuse Index and Felons Index when Appellant is totally innocent. Some of the customers Appellant in the course of business has provided high level strategic advice to in the banking, business, communications and computer fields are: Sun Micro Systems; Microsoft; Motorola; Sequent Computer Systems; Teknekron Software Systems; Intuit; Boeing; Hitachi Data Systems; General Electric; StorageTek; Bank Of America; Lucent Technologies / Octel; Lockheed Missiles & Space; NCR; Open Software Foundation; US Defense Force U.S. Satellite Command Center in Colorado; TCI; Washington Legislative Commission; Intelsat; IDC; amongst many other banking and fortune 500 clients. The impact of this case and the unlawful actions of agents of the State of California against Appellant is extreme to say the least. Under the highest laws of the land Appellant is entitled to speedy and fair trial. The California Courts and the Attorney General have totally failed again and again. The California Courts and the Attorney General have a duty to act fairly and expediently. By filing this Opening Brief California Attorney General and California Courts agree to dismiss this ridiculous case, reverse all the charges and exonerate Appellants good name within ten days of the filing of this Opening Brief, should this not occur within ten days as contracted, the State of California agrees to immediately pay out Appellant, Appellants Children and the Corporations Appellant runs for full damages as listed in Appellants Complaint filed in the San Jose United States District Court Case Number C05 00996 JF RS multiplied by at least three times for racketeering and at a rate of 12% interest per month for any delay in payment – this contract does not exclude any other remedies or claims. Time is of the essence. Californian authorities have no excuse to not immediately dismiss this case. Appellant has more than adequately proven his innocence. STATEMENT OF THE CASEOn March 10, 2003, without a warrant and without probable cause, from a range of five to seven feet, on Appellant’s private estate, a Santa Cruz Deputy Sheriff shot at Appellant and Appellant’s children. Appellant and his children were returning home from court where Appellant filed a Temporary Restraining Order and Verified Criminal Complaint against his ex-wife in an attempt to stop his ex-wife continuing to make false police calls. The police recording and report indicates that Appellant’s ex-wife had made yet another police call laced with false information, such as her claim that Appellant was a former Elite Forces Militant, heavily armed, had just assaulted her boyfriend, was very dangerous and likely to harm both herself and his own children. Appellant was in fact following the law and had no reason or any of the necessary intent to evade the police. The sheriffs however, neither followed the law or standard practice. The Sheriffs failed to obtain a warrant and ignored glaring evidence such as: o The Sheriffs were aware that Appellant was returning home from the Courthouse – obviously Appellant must have been doing something with regard to the law if he was at the Courthouse – Appellant was in fact filing a TRO to prevent his ex-wife from continuing false police calls. Appellant showed the sheriffs the TRO after they shot at him and his children before Appellant was again assaulted by the sheriffs and placed under flase arrest. o The Sheriffs were aware that Appellant’s ex-wife has a track record of making false police calls and that she was ordered out of the family home on July 12, 2002 for false calls she made to CPS and 911 on July 2 and 9, 2002, respectively. o The Sheriffs were aware that Appellant is an outstanding member of the community who followed the law and had no criminal record what so ever. o Only five and a half hours after the children would have been in school the sheriffs literally shot at the father and children, before any formal custody depravation for the mother between 3:00 pm and 6:00 pm. Custody Orders which left open custody between 9:00 am and 3:00 pm, only placing ‘responsibility’ for the children who would normally be at school with the mother. o The Sheriffs were aware that Appellants children were with Appellant in the car when they shot at Appellant and the children. o Appellants ex-wife had a stolen million dollar life insurance policy on Appellants life and had threatened Appellants life as reported to the very Sheriffs office who responded to the call -Soquel Sheriffs’ Department Case# 02-06194. Perhaps it was the tweed jacket Appellant was wearing on March 10, 2003, or Appellants nice family home that triggered the Sheriff Deputy to shoot at Appellant and his children – forgive the sarcasm. The same absurd ignorance and refusal to consider the most obvious facts by Santa Cruz County officials can be found throughout Appellants trial transcript and the case in general. The abuse of Californian authorities against Appellant is extreme and outrageous. An information filed on March 11, 2003 charged appellant in count I with assault with a deadly weapon on a peace officer with force likely to cause great bodily injury (Pen. Code § 245, subd. (c)) Appellant was accused of bumping two officers with his vehicle, no injuries what so ever and no evidence; in count II with operating a motor vehicle with the intent to evade, flee, or otherwise attempt to elude police (Veh. Code § 2800.2, subd. (a)) however no evidence was put forward for this charge either, other than the one officer stating that he thought Appellant drove around 40 mph in a 25 mph zone, when pressed, the officer also however stated that he had absolutely no idea how fast Appellant drove! (Vol 3 P581 L5); in count III with resisting, delaying or obstructing an officer (Pen. Code § 148, subd. (a)(1)) also no evidence other than Appellant being accused of ‘freezing’ – discovery on the officer who violently assaulted Appellant during the false arrest was also denied by the Court; and in count IV (the most absurd of all the charges considering the Sheriffs literally shot at the children), with child endangerment (Pen. Code § 273a, subd. (b)).[1] (CT 17-19.)[2] Apparently for driving 27mh down Appellants private road with his children in the car, or perhaps, for the fact that the sheriffs shot at the children. On December 19, 2003 Appellant filed CCP §170.1 Motions to Dismiss Judge Samuel S Stevens who jumped in to adjudicate with bias against the 995 Motions to dismiss the case and a Motion to Dismiss Judge Art Danner who was assigned to preside over the case. SS Stevens is a judge with a long history of bias against Appellant when in 1997 SS Stevens presided over a SLAP suit filed against Appellant. SS Stevens belonged to and his children worked at the same law firm who filed the SLAP suit against Appellant in 1997 (CT 378). Appellant raised the fact that Judge Art Danner was rated as “Not Qualified” by the California Judicial Nominations Committee (only 2 of 678 or so nominees by Governor Wilson received such a rating) and the fact that two Grand Juries mysteriously dissolved after they were formed to indict Art Danner for serious well substantiated criminal charges. Judge Art Danner is in fact according to many reliable and reputable sources a nationally renowned criminal. Instead of following the law, both judges acted as their own judges in cases filed against themselves and simply struck the 170.1 Motions, the judges thereby placed themselves in the precarious position of acting without subject matter jurisdiction throughout the rest of the case, including the trial. Appellant’s counsel refused to assist Appellant in ensuring the laws were followed in this area and the 6th Appellate District Court denied Appellant’s in Propria Persona, Sui Juris Appeal to remove Art Danner as judge (CT 388). Judge Art Danner acted with wanton disregard to the law and with blatant bias throughout the case and trial in sheer insolence to his oath of office and the most rudimentary forms of decency and due process. On August 19, 2004, appellant’s sham trial began. (CT 501-503.) On August 26, 2004, without any evidence the rigged jury found appellant guilty of count 2 evading an officer (Veh. Code § 2800.2, subd. (a)); count 3 resisting arrest (Pen. Code § 148, subd. (a)(1)); and count 4 child endangerment (Pen. Code § 273a, subd. (b)). However, the jury completely acquitted appellant of count 1, assault with a deadly weapon on a peace officer with force likely to cause great bodily injury (Pen. Code § 245, subd. (c)). (CT 689-690; RT 1335-1136.). On October 5, 2004, the court sentenced appellant as follows. Appellant received three years of probation with standard terms and conditions including no right to freely travel outside of California. On The Courts instruction the DMV withdrew Appellant’s driving license for one year and the Court has taken Appellants passport indefinitely. Immediately following trial Appellant was remanded into custody, without any right to bail despite Appellant having formally filed his Appeal, to serve 180 days in county jail for count 2, evading a police officer (Veh. Code § 2800.2, subd. (a)). As to counts 3 and 4, the court imposed 6 months county jail time to run consecutive, imposition of sentence suspended. (CT 776-777; RT 2287-2293.) The court acknowledged 44 days of presentence custody credit prior to sentencing as Appellant was remanded into custody without any right to bail prior to sentencing (CT 776-777; RT 2293.). Appellant filed a timely notice of appeal on September 24, 2004 which the Court ignored. While in custody the Sheriffs refused to duplicate or file any of Appellants motions. On December 3, 2004 Appellant filed a second notice of appeal (CT 778.). The Santa Cruz Superior Court has consistently delayed and maligned issues in this case so as to maximize the malicious prosecution burden and stress against Appellant. STATEMENT OF FACTS - CASE BACKGROUND
On July 2 & 9 Appellant’s ex-wife made false calls to CPS & 911 respectively. The sheriffs who made the call were polite and courteous – the shock of having police rush into your home however severely impacts children. After the call Appellant had to take his 6 ½ year old son to the emergency room to be treated for severe stress induced ailments.
Void Kelly Ordero The July 12, 2002 Custody Order which was issued after Appellant’s ex-wife made false calls to CPS and 911 on July 2 and 9 respectively, was Stipulated and made res judicata by a new Stipulated Custody Order dated August 13, 2002. The July 12, 2002 Order stated amongst other issues:
o The 8/13/2002 Stipulated res judicata Custody Order stated amongst other issues:
The Ex Parte Void Kelly Order is void for multiple reasons: 1. The Void Kelly Order for which there was no hearing was never signed. 2. The Stipulated Custody Orders specifically ordered and contracted that they could only be modified by reaching written mutual agreement signed by both parties (1st Order P3L11: 19. Modifications: and 2nd Order P2L11: 4. Modifications). 3. California Code prohibits the issuance of Ex Parte Custody Orders given without notice or hearing: “Except as provided in Section 6300, an order described in section 240 may not be granted without notice to the respondent unless it appears from facts shown by the affidavit in support of the application for the order, or in the application for the order, that great irreparable injury would result in the applicant before the matter can be heard on notice.”: California Family Code § 240 Readiness for hearing; continuance; counter-affidavit (a) when the matter first comes up for hearing, the applicant must be ready to proceed. (b) If an order described in section 240 has been issued without notice pending the hearing, the applicant must have served on the respondent, at least two days before the hearing, a copy of each of the following: (1) The order to show cause. (2) The application and the affidavits and points and authorities in support of the application. (3) Any other supporting papers filed with the court. (c) If the applicant fails to comply with subdivisions (a) and (b), the court shall dissolve the order. 4. A judge has no authority to overrule a Stipulated Res Judicata Order. The Custody Orders of July 12 and August 13, 2002 were Stipulated and Res Judicata. California Supreme Court Montenegro v. Diaz filed July 30, 2001: In Montenegro v. Diaz, the California Supreme Court held that a stipulated custody order is a final judicial custody determination: “We hold that a stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule” 5. Motions may be made to set aside an order or issue a new order, however, there is no legal basis to ‘Clarify’ and Order. The Void Kelly Order has no basis at law. 6. Following the Void Kelly Order and the severe impact on his children, not knowing what to do legally, Appellant filed an order to Dismiss Judge Kelly. By so doing, pursuant to CCP § 170, the Void Kelly Order is void “If a judge is disqualified as a matter of law, every order entered by him is as equally void under the new law as it was under the old” Briggs v. Superior Court of Los Angeles County 7. Appellant and his ex-wife were under contract to not enter any legal action outside mediation with Chip Rose without a formal written fifteen day notice.
o Appellant was ordered to not communicate with his children for three years. o A total of two false felonies and nine false misdemeanors in six cases were filed against Appellant, eliminating Appellants companies or Appellants ability to work. o Appellant was thrown in jail three times for a total of five months, once with bail set at 15 times the schedule the other two times without any right to bail. o Repeatedly at hearings where Appellant presented irrefutable proof of his innocence the Santa Cruz Court ignored the facts and even went as far as repeatedly sanctioning Appellant for seeking his rights. o Appellant was given sham trials including this trial where submission of all relevant evidence proving Appellants innocence was denied; the opposing parties were allowed to submit known lies and hearsay; and Appellant was not allowed to argue any effective theories of defense or law and his testimony was literally struck from the record. o Appellant’s passport and drivers’ license were taken from him.
CASE TIMELINE
DEFENSE & PROSECUTIONS ARGUMENTA. The Defense’s CaseAppellant testified in his own defense. During his testimony, appellant stated that he did not receive any cell phone messages because the battery in his phone was dead after driving back from Lake Tahoe the previous day (RT 1040). Appellant was prevented by the Court from testifying that he had spent all morning and early afternoon filing a TRO which directly related to the events of this case. The TRO Appellant filed was not allowed into evidence. On returning home from the courthouse Appellant passed many police vehicles including a stationary parked patrol car on the side of Hidden Valley road. The patrol car had no lights on and no officer was visible and no attempt was made to stop Appellant as he approached and passed the patrol car. At least 20 seconds after Appellant passed the parked patrol car, according to Deputy Pool, Deputy Pool followed Appellant. Appellant was not aware that Deputy Pool was following him as one typically does not watch your rear view mirror when driving along your own windy private road (RT 1042-1052, 1089, 1095-1098). Appellant did not hear Pool’s patrol car siren because he had the SUV’s radio turned up loudly as the radio station was playing his son’s favorite song and Appellant has hearing problems (RT 1052, 1096-1098.) Once at his house, Appellant noticed a police car parked in front of his gate (RT 1053-1055, 1100.), he also saw Deputy MacDonald well off the side of the road holding a large gun. Deputy MacDonald was standing behind a bush near Appellant’s neighbors pump. Appellant went to put his children in the family home out of harms way and out of a stressful environment, so that he could come out and talk to the Sheriffs alone and show them the Temporary Restraining Order and Verified Criminal Compliant Appellant had just filed (RT 1055-1058, 1101-1108.) – the Court however ruled this information inadmissible. Appellant drove through the gate and down the driveway as carefully as possible. (RT 1058-1060, 1107.) While waiting for the garage door to open, MacDonald rand down into Appellants driveway and shot at appellant’s head without warning (RT 1060-1061, 1114-1115.). Appellant yelled for MacDonald to stop shooting and that he was just trying to put the kids into the house (RT 1060-1062.). MacDonald was going to shoot at Appellant again, however Christey stopped MacDonald from taking a second shot. This was the first time Appellant saw Sergeant Christey. Christey ordered Appellant to drive his SUV into the garage where Appellant spoke for some time to Christey, showing Christey the TRO and Verified Criminal Complaint he had just filed – The Court struck Appellants testimony in this regard. (RT 1060, 1063-1064, 1101, 1118-1121.) Appellant later spoke to Deputy Pool in the garage regarding the same information which he had given Christey. (RT 1065.). While talking to Deputy Pool, Appellant was violently assaulted by Deputy Brzozowski while being placed under arrest, however, the Court also struck this testimony from the record, the Court also denied any Pitches Motion Discovery on Brozozwski (RT 10665). Defense was prevented from putting the NETCOM recording of the alleged chase into evidence by the Court. The NETCOM recording, a government document, proved the duration of the alleged chase and proves Appellant drove a slow 27 mph.
B. The Prosecution’s CaseOn March 10, 2003, appellant’s ex-wife, Anamaria, reported to Santa Cruz County Sheriff’s Department that appellant had failed to transfer custody of their two sons to her. (RT 301-302.) The custody agreement stated that Anamaria was ‘responsible’ for the boys from 9 a.m. until 6 p.m. on weekdays and as agreed on weekends. (RT 308-310, 382-384.) Anamaria told Deputy McConnell that appellant had failed to return the boys to her that morning and she was concerned because her older son was not in school. (RT 303-304.) Prosecution stated there had been an altercation the previous day involved Anamaria’s boyfriend, Appellants former Personal Assistant, Steffan Tichatschke (The Prosecution called Anamaria’s boyfriend her ‘current fiancé’ and appellant’s former ‘business partner’. At the time Anamaria was still legally married to Appellant). Appellant was to take the boys for part of the weekend to a ski resort at Lake Tahoe to celebrate his older son’s birthday. Anamaria and her boyfriend drove up to the ski resort separately and she was to have the boys on Sunday during the day. (RT 304, 402.) Prosecution falsely claimed that Appellant handed the boys to Anamaria at 9 a.m. on Sunday morning. Prosecution failed to state that appellant saw the youngest boy abandoned in the middle of a learner ski run and went to rescue his son. Prosecution stated that Appellant went to get in an altercation with Anamaria’s ‘fiancé’. (RT 305, 386.) Prosecution indicated that Appellant believed that this contact between his young son and the boyfriend violated a current court order, which it clearly does. Specifically, the August 13, 2002 court order required that the boyfriend not have contact with both boys – The Prosecution deceptively argued that a separate line item relating to romantic relationships in the Stipulated Custody Court Order, was specifically related to Tichatschke, which it was not. Prosecution deceptively argued that Tichatschke had a right to contact Appellants children (RT 310, 384, 389-390, 403.) Defense was prevented from arguing any issues regarding this matter. Prosecution fraudulently claimed that Appellant confronted the boyfriend and the altercation became physical and that Appellant punched the boyfriend in the face. (RT 305.) Appellant took both boys with him and left the ski resort. (RT 307.) Anamaria and her boyfriend reported the incident to the Placer County Sheriff’s Department. (Ibid.) Based on information provided by Appellants ex-wife and information gleaned from other court and police reports, Deputy Mary McConnell spoke to Sergeant Amy Christey. (RT 310-311, 328-330, 367, 388, 392-393, 409-411.) Sergeant Christey told McConnell to contact appellant to get his version of events. But if they had not heard anything from appellant by the end of the day, they had already begun researching what charges they could file against Appellant for what the Sheriffs assumed was a violation of a court order by Appellant. (RT 311, 411, 512.) McConnell called appellant’s cell and home phone numbers and left a message for him at around 11:30 a.m. She identified herself, discussed Anamaria’s report, and told him the reason for her call. She asked appellant to call her back so she could get his side of the story. (RT 312-313.) By 1 p.m., appellant still had not returned McConnell’s call. (RT 313, 411.) At about 2:25 p.m., Sergeant Christey decided to go to appellant’s home to check on the whereabouts of appellant and the children. (RT 411-415.) Christey wore her sheriff’s uniform and parked her patrol car in front of appellant’s residence. (RT 409, 412, 415.) Christey called McConnell at the sheriff’s substation and told McConnell that she was at appellant’s home. (RT 315, 412.) There was a gate and fence across the front of appellant’s property on Suncrest Drive. Christey stepped over the fence, walked up the driveway, and to the front door (Prosecution failed to address the fact that Christey failed to obtain a warrant and that if Christey had followed the law the Sheriffs would have learned that Appellant was at the Courthouse following the law). (RT 415-416, 511.) Since the front door was made of glass, Christey could see snow clothing which belonged to one adult and two children inside which she concluded that the children had returned home. She rang the doorbell. (RT 416.) At this point, McConnell again called appellant’s home telephone number in an effort to speak with him. (RT 315.) A male by the name of “J.R.” answered the phone and said that he had to hang up because Christey was at the front door. She identified herself and told him the reason for her call. (RT 315-317.) McConnell told J.R. why Christey was at the front door and that he should go and speak with her. McConnell then radioed to Christey that the individual in the house was named J.R. (RT 317.) J.R. went to the front door, and after learning that Christey had not warrant refused to open the door for Christey. Christey described J.R. as a heavy-set white male, whereas appellant was described as a tall thin man. (RT 421, 425.) J.R. told her that appellant was not home, but did not say anything about the two children. Christey warned J.R. that if he hindered their investigation, she would arrest him. But J.R. just walked away from the front door. (RT 422-423.) The deputies tried to contact J.R. several other times. (RT 424.) For example, once Deputy Mike MacDonald arrived, he tried speaking to J.R., but was unsuccessful. (RT 426-428, 832-834.) After this encounter, McConnell again called J.R. and asked for appellant. J.R. told McConnell that he was not appellant and that they should get a warrant. He then hung up the phone. (RT 318-319, 332.) Christey asked McConnell to get a physical description of appellant. (RT 425.) McConnell looked at appellant’s DMV records and called Anamaria to ask for appellant’s description. Anamaria told McConnell that she had just seen appellant leaving the Santa Cruz County Courthouse. She saw appellant in his car and she ran toward the car as he was backing up. She saw that he was wearing a tan or khaki colored shirt, but she could not see if the children were in the car. Appellant drove a silver 2001 Mitsubishi Montero. (RT 321, 428.) Since Deputy Pool was on route to appellant’s house, McConnell radioed him the description and license plate number for appellant’s car. (RT 321, 429, 580-581.) Sergeant Christey instructed Deputy Pool to stop on the road before appellant arrived at his house, Christey also gave Pool other instructions over a cell phone which were not recorded. Deputy Pool drove a marked patrol car. (RT 575.) He parked on Hidden Valley Road past Muir Road and waited for appellant’s car to appear. (RT 429, 576-577.) Pool’s patrol car had neither lights nor siren on when appellant’s SUV drive up Hidden Valley Road from North Rodeo Gulch and Pool made no effort what so ever to stop or indicate to Appellant when Appellant dove past that he wished to stop and question Appellant (RT 582.). Pool stated that he had no idea what speed Appellant drove at (RT 581.). After appellant past Pool, Pool checked Appellants registration number and then according to Pool 20 seconds later followed behind appellant’s SUV (RT 582.) Pool later turned on his overhead lights and stayed behind the car. When appellant failed to acknowledge, Pool turned on his siren, however appellant again failed to acknowledge (RT 583-586, 764-768.). In his testimony Pool made various contradictory claims as to Appellant speed ranging from Pool stating that he had no idea what speed Appellant traveled at (RT 581 L7) this fact was also confirmed by the Court, to an alleged constant 40 miles per hour (RT 589 L10) to an alleged variable speed (RT 775 L18). At no time in the Prosecutions case did Pool or any of the other State Witnesses testified that Appellant drove with a willful wanton disregard to the safety of public and property as required by the VC § 2800 charge. Other state witnesses stated that when Appellant drove past them, the speed Appellant was driving was a ‘roll’ (RT 783 L8; RT 593 L15). The Prosecutions key and only witness to the VC § 2800 charge, Deputy Pool, was later caught out in another blatant lie when on the stand Pool claimed to have never discussed his testimony with the Prosecutor or other officers (RT P772 L16- P774 L26). When challenged regarding the State Witness’ lies (RT P963 L1-P964 L9), the Prosecutor deceptively claimed that he never met with all the state witnesses and that proof of this was that the State Witness’s testimony was so convoluted and contradictory that it showed they could not have planned things together (RT P996 L5). MacDonald confirmed meeting with Prosecution (RT 885 L25) and with other officers (RT 886 L3-19). Pool later confirms his and the Prosecutions lies in claiming to have never discussed testimony regarding the case when asked why he went to re-measure the distance of he alleged chase, Pool responded that the Prosecutor, Drottar, instructed him to do so (RT P778 L6). When Defense raised the fact of the lie, the Court refused to admonish the State witness or the Prosecution (RT P995 L20). Prosecution went to the expense of ordering and paying for aerial photographs and video of Appellants property, sent detectives and sheriffs repeatedly out to Appellants road and property and at one time even went as far as to get Appellants alarm company trigger the Alarm in Appellants home so that the Sheriffs could conduct an unwarranted search of Appellants home. Deputy Pool radioed Christey that appellant failed to yield, she and MacDonald returned to the street in front of appellant’s gate. Christey took her gun out of the holster and pointed it down at the ground. She hid behind a van about 50+ feet from the gate. (RT 430-433, 591-592.) MacDonald contradicted the location of where he stood at one point he state that he was ‘out of the driveway’ (RT 539 L26), at another time he stated that he was ‘right behind the van somewhat by the driveway’ (RT 840 L19), then ‘behind the van’ (RT 843 L6), then ‘crossed over the driveway here so I was located closer to my patrol car’ (RT 856 L1). When Appellant approached his home, MacDonald claimed to have a long conversation with Appellant relating to property rights, the Prosecutor initially asked MacDonald about this and at first MacDonald admitted that Appellants window was rolled up (RT 856 L26; RT 857 L23). Later in his testimony, MacDonald claimed to have two conversation with Appellant during the time he said Appellant drove off the road to get past a patrol car while MacDonald ran behind the vehicle and the vehicles window was “window up here once when he passed me and again here when he passed me” (RT 867 L8; L22). As MacDonald claims change illogically throughout his testimony (RT 856 – 937), it is far too confusing, from a documentary perspective, to describe the Prosecutions case from the officers testimonies. . For example, MacDonald stated that Appellant made an abrupt left turn (in a straight driveway) and that Appellant struck both sides of MacDonald simultaneously with the left front quarter panel of Appellants vehicle “he had the left front quarter panel and bumper of his vehicle ran into both my right thigh, right shin, left thigh and left shin” (RT 861 L15). In his testimony, MacDonald amazingly superimposes himself from the back of the vehicle to the front of the vehicle (RT 863 L22; RT 863 L13) and claimed to place himself between the vehicle and the gate after the vehicle had bumped into the gate (RT 864 L23; RT 866 L5). MacDonald claimed that his pants were torn as a result of being struck on both sides by Appellant’s vehicle. However, when asked if he had taken pictures of his pants, MacDonald claimed that he had run out of photographic film and that he failed to turn in his pants as evidence and that he had now lost his pants (RT P917 L9). MacDonald took pictures of many other incidentals (RT 877 – 881) Christey noticed that the two boys were in the car with appellant. So, she re-holstered her gun and told the other deputies about the children in the car. (RT 436-438, 854.) Deputy Pool followed the SUV in his patrol car up to the patrol car parked in Appellants driveway. He parked his patrol car behind one of the patrol cars, got out, and followed the SUV up the driveway on foot. (RT 592-593, 595-596.) Once appellant moved through the gate entrance, Christey claimed she walked along side the SUV and briefly became been pinned between the car and the white picket fence (however, the white picket fence is only on the other side (the house side) of the gate) (RT 441-444, 562, 597, 785-786, 804, 865-866.). Christey stated that there was no physical evidence what so ever regarding her claims of being ‘pinned’ by appellants vehicle (RT P562 L26). In the preliminary examination Christey stated that she might have ran into the back of Appellants vehicle (RT P564 L10), in trial she denied this and the Court prevented Appellants Counsel from showing the disparity in Christey’s testimony to the jury (RT P563 L4 – P564 L22). Christey then circled around the back of the SUV and followed it ‘up’ the driveway on the rear driver’s side, behind MacDonald. (RT 445.) MacDonald rand down behind Appellant and shot at Appellant from a range of only 5 to 7 feet (RT 901.) MacDonald admitted that he aimed the less-lethal-weapon at an area of appellant’s body which could have proven fatal (RT 888.). When asked why he fired his weapon at Appellant and the children, MacDonald stated “my fear was that the two children were still located in the back seat of the car. We had not been able to confirm their welfare or what their situation was” so he shot at Appellant and the children (RT 871 L23) (We suppose MacDonald concluded that if he shot the children he would know what the welfare of the children would be, they would be dead). MacDonald stated that he felt that “if he [Appellant] was able to make it into the garage and shut the garage door, that this may create a hostage situation and we would be trying to negotiate for the children's safety”, however MacDonald never stated on what information or how he came up with this imaginary situation, the court by that time in the trial strongly insisting on no speaking objections such as hearsay, other than of course Prosecutions objections to ‘speaking objections’ (RT 871 L26). Christey stopped MacDonald from taking a second shot at Appellant (RT P872 L23). Christey then entered the garage alone with Appellant to speak to Appellant, the garage door was closed behind Appellant and Appellant discussed the custody dispute and the TRO he had just filed in Court, however the Court would not allow the fact that Appellant had just filed a TRO relating to the very issue of his ex-wife making false police calls, which had just occurred, to be brought before the jury (RT 449-450, 545, 599-601, 795, 874-875.). Christey then asked Deputies Pool to speak with appellant who also showed Pool the TRO which the court also refused to allow into evidence or testimony. Christey then directed the deputies to arrest appellant during the discussion with Pool, Deputy Brzozowski assaulted Appellant, however, that testimony was also struck from the record, Brzozowski never testified and Discovery on Bzozowski was denied (RT 451, 601-602. 1065).
ARGUMENTA. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Convicted Appellant When Irrefutable Evidence Proved Appellants Innocence:A.1. Appellant Drove At A Slow Speed And Never Endangered Public Or Property – VC § 2800 Cannot ApplyThe trial Court and the Prosecution abused their oath of office and not only ignored blatant evidence proving appellant’s innocence, but actively conspired to unlawfully exclude such evidence from trial. Not once did any State witness state that Appellant drove with a willful wanton disregard for the safety of public and property as required by VC § 2800. To the contrary, the only State witness testifying regarding the VC2800.2(a) conviction, stated that he had no idea what speed Appellant actually drove at: Vol 3 P582: Questioning Deputy Pool: 18 Q And where did you see the Mitsubishi? 19 A It was coming up Hidden Valley Road from North 20 Rodeo Gulch. 21 Q Can you describe the speed it was traveling? 22 A It was -- it was driving over the speed limit. 23 MR. GUY-SMITH: I'm sorry. I will object. 24 THE COURT: Okay. And so without foundation I'm 25 going to sustain it. 26 BY MR. DROTTAR: 581 1 Q Do you have any estimate of what the speed was? 2 A No, I didn't. 3 MR. GUY-SMITH: Objection. Speculation. I'm 4 sorry. Withdraw. 5 THE COURT: He answered. You don't really have 6 any idea how fast it was going? 7 THE WITNESS: No. 8 THE COURT: All right.
The State Witness contradicts himself in other areas regarding speed, at one point he states that Appellant drove a constant 40 mph (impossible for the road), then at another point he states that he varied his speed: Vol 3 P589: Questioning Deputy Pool: 5 BY MR. DROTTAR: 6 Q For the record, the yellow box says pursuit ends. 7 How would you describe the Appellant's speeds 8 during that time period from start to the turn? Were they 9 consistent? How would you describe them? 10 A They were consistent. He consistently was around 11 40 miles per hour.
Vol 4 P775: Questioning Deputy Pool: 16 Q Now, during the time that you were driving on the 10:13:59 17 road on March 10th, did you engage in that same behavior of 10:14:03 18 at times slowing down and speeding up again depending on 10:14:09 19 what the conditions of the road were? 10:14:12 20 A My vehicle, myself, yes. 10:14:13
Clearly the State Witness, Deputy Pool had no idea what speed Appellant was traveling at. Adding to the fact that the Sheriffs had no reason or Probable Cause to chase Appellant in the first place, further impounded by the fact that there is no underlying charge to the VC § 2800.2(a) charge as required by law! Other state witnesses described Appellants speed as a ‘roll’ Vol 3 P594 L12: Speed of vehicle past Christey, a roll. 12 Q How would you describe the speed of the SUV as it 13 passed Sergeant Christey? 14 A It was -- it slowed down to more of a, I guess 15 you could call it a roll. Evidence which the Court and Prosecution repeatedly and explicitly conspired to exclude from the Jury, the NETCOM report, proves that Appellant actually drove slowly, while Evidence on record shows the State Witness stating the alleged ‘chase’ duration was three minutes: Vol 4 P786,787: Questioning Deputy Pool BY GUY-SMITH 22 Q And with regard to the distance, what do you have 10:28:36 23 as a distance there? 10:28:40 BY POOL: 24 A It's 1.5 miles. 10:28:41 25 Q Where did you get that information at the time 10:28:43 26 that you wrote the pursuit report? 10:28:45 787 1 A That was given to me by Deputy Brozewski, 10:28:47 2 (phonetic). 10:28:47 3 Q I see. And it has a time there? 10:28:51 4 A Yes, it does. 10:28:55 5 Q What is the time that's put in there? 10:28:56 6 A You mean the actual time or time of the pursuit? 10:28:59 7 Q Time on your pursuit report. 10:29:00 8 A 1439. 10:29:02 9 Q I'm sorry? 10:29:04 10 A I'm sorry. 2:39. 10:29:06 11 Q Which is 1439? 10:29:08 12 A Yes. 10:29:10 13 Q Did you put that time in there? 10:29:10 14 A Yes, I did. 10:29:11 15 Q You didn't get that information from Deputy 10:29:13 16 Brozewski, (phonetic), did you? 10:29:16 17 A No. 10:29:16 18 Q Well, if the time was 1439 that the pursuit 10:29:18 19 commenced and it went on for two minutes, then the end time 10:29:26 20 would be what? 10:29:32 21 A 2:41. 10:29:33 22 Q I see. And that would be -- and if the time was 10:29:35 23 started at 1438, and it went on for three minutes, what 10:29:41 24 would the time be? 10:29:47 25 A 2:41. 10:29:50
While this information profited in State Witness testimony from the State Witness’ reliance on the NETCOM report, gives the State Witness testimony of an alleged chase duration of three minuets (180 seconds) over distance of 1.5miles – i.e. 1.5 miles / 180 seconds * 60 * 60 = 30 MPH, the distance quoted by Pool is longer than the actual distance of either 1.2 miles or 1.4 miles dependant on which of the two locations Deputy Pool places himself at the beginning of the alleged chase. This fact proves an alleged chase speed of 24 MPH or 28 MPH max. There is therefore absolutely no possibility what so ever of the alleged chase in any way even approaching or meeting the “willful wanton disregard for safety of public and property” of the VC § 2800.2(a) or any lesser 2800.1 charges. The State Witness testimony and the NETCOM Incident Recall provides irrefutable proof that Appellant is not guilty of the VC Sec 2800.2(a) Charge or any lesser charge or the dependent and ridiculous PC § 273 Child Endangerment Charge or consequentially the PC § 148(a)(1) Resisting Arrest charge since the arrest was false, despite the fact that Deputy Brzozowiski violently assaulted Appellant during the false arrest (All incidentally witnessed by Appellants poor children who had just been shot at by the Sheriffs). So as to further remove any ambiguity what so ever relating to the impossibility of Appellant being guilty of the VC § 2800.2(a) charge or of any lesser 2800.1 charge, analysis of the actual NETCOM recording shows key points on the NETCOM recording, at Tape Time 5:27 where Deputy Pool can be heard saying: “It’s his vehicle.” Obviously this is when Appellant passed Deputy Pool who was parked on the side of Hidden Valley Road (Why did Deputy Pool not wait out of his vehicle and stop Appellant on Hidden Valley Road? Or why did Deputy Pool not leave his lights on when he was parked on Hidden Valley Road so as to indicate that he was conducting a traffic stop?). Taking another key point on the tape, Tape Time 8:05 where Deputy Pool states: “4 1 5 were pulling onto Suncrest at 25 MPH” (Exhibit A). Simple math reveals an actual duration of at two minuets and thirty eight seconds to cover the point less than 1.2 miles away on Hidden Valley Drive where Deputy Pool waited for Appellant: 1.2 miles / 158 sec = 0.007594937 Miles Per Second 0.007594937 *60 *60 = 27.3 Miles Per Hour on Hidden Valley Drive At these speeds on a road where local residents regularly travel at speeds of 40 MPH, it is utterly impossible for Appellant to be guilty of “driving with a willful disregard to the safety of persons and property” as required by VC § 2800.2(a) – this is neither a misdemeanor nor a felony, there is no crime other than the crimes the Sheriffs committed against Appellant and his children. NOTE: The average speed slows even further to less than 24 mph when taking into account the Suncrest portion of the alleged “chase”. The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed.
A.2. Evidence Showed Appellant Followed The Law - Prosecution Failed To Prove Intent Necessary For VC 2800.2(a)Prosecution failed to prove any of the necessary specific intent for a VC § 2800.2(a) charge. The Court and Prosecution literally conspired to exclude relevant evidence that explicitly disproved any of necessary intent Appellant might have had, namely the TRO and Verified Criminal Complaint Appellant filed just prior to the Sheriffs ambushing Appellant and Appellants Children. The fact that Appellant had just filed the TRO in compliance with the law, proved that Appellant was in fact following the law and would have absolutely no reason or need to evade the police (Judicial Notice: In blatant violation of Due Process, the Santa Cruz Superior Court refused to hear the TRO Appellant lawfully filed before any of the events in this case on March 10, 2003 thereby making this case a mistrial). According to statements made by the Sheriffs and the Prosecution, Appellant acted responsibly when he arrived home and went to first put his children in their home: Vol 2: P313: Questioning Deputy Mary McConnel 7 BY MR. DROTTAR: 11:31:25 8 Q Do you have any confrontations of any kind in 11:31:29 9 front of the children with the officers and parents? 11:31:36 10 A Always that's a concern of ours whenever I deal 11:31:39 11 with a case like this or call like this, I automatically 11:31:42 12 tell the parents that we're going to do it in the best 11:31:44 13 interest of the children; that there won't be any kind of 11:31:49 14 a -- we won't go and physically retrieve their children 11:31:54 15 that need to be settled in family law Court but we will 11:31:57 16 hear the other side of the story and check on the 11:32:00 17 children's welfare if there's a concern of that. 11:32:02
Vol 2 P227: DROTTAR: 9 Well, Deputy McConnel spoke with Sergeant 10:30:55 10 Christey who was also at the Sheriff's substation. They 10:31:00 11 discussed all the facts, what had been told to them, and 10:31:03 12 tried to figure out what the best course of action would 10:31:06 13 be. They're concerned in a situation like this about 10:31:08 14 getting into a confrontation in front of the children. 10:31:12 15 They weren't quite sure how they could do this the best way 10:31:15 16 to minimize any potential risk to the children. 10:31:18
Who in their right mind would think that the Sheriffs would actually shoot at Appellant an his children? Appellant was acting responsibly by first going to place his children in their home out of harms way, particularly as it relates to previous false 911 calls made by appellants ex-wife (which the sheriffs were aware of), removing any possibility of the necessary specific intent for the VC § 2800.2(a) Charge or any lesser charge or the dependent and ridiculous PC § 273 Child Endangerment Charge or consequentially the PC § 148(a)(1) Resisting Arrest charge. The court erred in specifically disallowing evidence that proved intent, the TRO Appellant filed just before the events of this case. The fact is that it was the Sheriffs who were not following the law. The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed. A.3. Necessary Intent Absent Sheriffs In Fact Knew Appellant Had Just Left The CourthouseAdding further evidence to the fact that there was no necessary intent for the VC § 2800.2(a) charge, and brining further question to the Sheriffs actions, is the fact that the Sheriffs testified that they knew Appellant had just left the Courthouse before this incident. The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed. B. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When No Evidence Was Put Forward Proving Any Of The Alleged Crimes.Deputy Pool who was driving on an unfamiliar windy road chasing after Appellant who had driven past Pools stationary silent vehicle at least 20 seconds before Pool even started following Appellant. In such conditions, Dep. Pool would have little if any perspective as to what speed he traveled at. Furthermore, it must be noted that Dep. Pool never stated that Petitioner drove with any "willful or wanton disregard to the safety of persons or property" as required by VC § 2800.2(a), all Dep. Pool testified was that he thought Petitioner drove around 40 mph (Which is actually a common speed of many of the residents along this private road). Irrefutable NETCOM evidence shows Appellant drove a slow 27mph. Vol 3 P581: Pool even stated he had no idea how fast Appellant was driving when Appellant passed him. 1 Q Do you have any estimate of what the speed was? 2 A No, I didn't. 3 MR. GUY-SMITH: Objection. Speculation. I'm 4 sorry. Withdraw. 5 THE COURT: He answered. You don't really have 6 any idea how fast it was going? 7 THE WITNESS: No. 8 THE COURT: All right.
Dep. Pool was also caught out lying on the stand during trial when he denied having ever had any discussions regarding his testimony Ass. D.A. Stephen Drotter, or spoke with other officers regarding this case see G. The Court And Prosecution Erred When They Failed To Correct And In Fact Conspired To Cover Up Perjury By State Witnesses Page 83. The Prosecutions case is utterly without merit or evidence. The trial Court and the Prosecution abused their oath of office and not only ignored blatant evidence proving appellant’s innocence, but actively conspired to unlawfully exclude such evidence from trial and in fact attempted to manufacture false evidence against Appellant. The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed.
C. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Disallowed Relevant Evidence:C.1. Disallowing Entry of NETCOM Evidence That Proved Alleged Chase Speed Of 27 Mph.The trial court abused its discretion when it prevented critical relevant evidence in the form of Government Documents that State Witnesses relied upon from being entered into the record and brought before the jury, in specific the NETCOM police recording which amongst other critical factors proved the duration of the alleged ‘chase’. Applied to the known distance, the NETCOM police recording, both transcript and tape, proves appellant drove at around 27 MPH along his private road, making it impossible for Appellant to be guilty of driving with a “willful wanton disregard for the safety of public and property”. Let it also be judicially noticed that the Santa Cruz Sheriffs cut the NETCOM tape sort of the ridiculous alleged Assault With A Deadly Weapon charge and any record of the Deputy shooting at Appellant and his children. Vol 2 P 370 – questioning McConnel – 1st denial of entry of NETCOM report – and DA attempting to prevent NETCOM report going before the jury: P370: L5: MR. GUY_SMITH: May I approach, Your Honor? I’m going to show you what’s been marked as Defense Exhibit A for identification and see whether or not you recognize – first of all, just whether you recognize the document? MCConnel: Yes, (Whereupon, Computer Printout from NETCOM was marked for Defense Exhibit A for identification.) BY MR. GUY-SMITH: Q: Is that document that is a written transcription of all the radio traffic that would occur with regard to any investigation into – MR. DROTTAR: Objection, Your Honor, foundation. MR. GUY-SMITH: If you know. THE COURT: Sustained. MR. GUY-SMITH: If she knows. If she doesn’t know, she doesn’t know. If she know, she knows. THE COURT: No. No. She may know because she thinks somebody told her, right, Mr. Guy-Smith. So let’s don’t do that. Let’s just ask her the questions that need to be asked and let’s see how far we get here. BY MR GUY-SMITH: Q: Do you recognize that document? P371: A: I do. Q: Have you ever seen a document like that before? A: A document, yes. Q: Okay. Do you know what that document purports to be? A: This appears to be a computer printout of radio traffic or occurances regarding 210 Suncrest Drive. Q: Okay. Now, for the purposes of our discussion, is there any significant to you in 210 Suncrest Drive? MR. DROTTAR: Again, Your Honor, objection. Foundation. Coming in as a business document. It’s not been established.
In the following section of transcript both The Court and Prosecution, who are eminently familiar with the method and basis of the NETCOM police recording, actively conspire in blatant deception to prevent a Government Document which proves the Appellants innocence from coming before the jury: Vol 3 P539: GUY-SMITH questioning Sergeant Christey 8 Q Show you what's been marked Appellant AA for 9 identification. I'd like you to take a look at this 10 particular line right here and see whether or not that 11 refreshes your memory as to when, refreshes your memory as 12 to when you learned that Mr. Boustred had left the 13 courthouse? 14 A It is a time on a piece of paper. 15 Q I understand. 16 A As far as refreshing my memory -- 17 Q Okay. 18 A -- I don't know that it does that. I don't know 19 who said that or if the dispatcher merely recorded it based 20 on what may be somebody else said. I'm not actually sure 21 what that says; however, it does state male half left the 22 courthouse at 1428. I don't know if that's when the 23 dispatcher heard it and typed it. 24 MR. DROTTAR: Objection, Your Honor. Hearsay. 25 MR. GUY-SMITH: So even -- the issue is it does 26 not refresh your memory? 540 1 THE COURT: Okay. 2 MR. GUY-SMITH: Okay. 3 THE WITNESS: No. 4 MR. GUY-SMITH: Fine. If it doesn't refresh your 5 memory, it doesn't refresh your memory. 6 THE COURT: All right. Then there was an 7 objection. 8 MR. DROTTAR: Yes, Your Honor, there was 9 objection to hearsay; motion to strike. 10 THE COURT: The thing she said about -- 11 MR. DROTTAR: Yes, Your Honor. 12 THE COURT: All right. It will be granted. 13 Strike it, ladies and gentlemen. All right.
The State Witness Sergeant Christey who is eminently familiar with the NETCOM report continues the perjury on P 553 L 17 through to P 554 L5. Prosecution and the Court have a duty to ensure State Witnesses profit the truth and that justice ensues, clearly the Court and Prosecution actively conspired to prevent relevant evidence in the form of a Government Document, which according to California Evidence Code may not be excluded: AUTHORITES: CALIFORNIA CODES EVIDENCE CODE SECTION 1280-1284 1280. Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.
Deputy Pool however, admits on the record that he relied on the NETCOM report for the start and end times of the alleged ‘chase’. Vol 4 P797: Deputy Pool admitting to his reliance on the NETCOM report: 13 Q And the way, you know, for your start time is 10:42:55 14 based upon your reliance of NETSCAM (SIC); is that it? 10:42:58 15 A NETCOM. 10:42:58 16 Q Net -- 10:43:03 17 A NETCOM. 10:43:04 ` 9 Q And referring your attention to -- directing your 10:44:04 10 attention to notation 1438; that is the notation you were 10:44:13 11 referring to when you told us that it started at that time, 10:44:19 12 1438? 10:44:22 13 A Yes. 10:44:23
Vol 4 P798: Pool stating on the record that he relied on NETCOM report. 1 Q Showing you what's been marked Appellant's A for 10:43:29 2 identification, would you take a look at that? 10:43:35 3 A Okay. 10:43:37 4 Q Is that the NETCOM printout? 10:43:38 5 A Yes, it is. 10:43:40 6 Q Is that the document upon which you relied for 10:43:41 7 the time in which Mr. Boustred's car passed you; right? 10:43:45 8 A Yes. 10:43:51
Further evidence form the transcript illustrating the blatant disregard for the law and the most elementary ethical principles by The Court and Prosecution: Vol 5 P1024: 10:05:57 4 MR. GUY-SMITH: And the other is that I did 10:05:58 5 forget yesterday to move the introduction of Appellant's A 10:06:04 6 and Appellant's K. 10:06:06 7 THE COURT: Well, you're all right because you're 10:06:09 8 not at the end of your case. We don't have to worry about 10:06:11 9 that. Have you looked at them, Mr. Drottar? 10:06:14 10 MR. DROTTAR: Yes. I would object. There's no 10:06:15 11 foundation for either of those to come in. 10:06:18 12 MR. GUY-SMITH: Foundation for both of them. 10:06:20 13 Appellant A is NETCOM report that Deputy Pool indicated he 10:06:25 14 relied upon for his date. He specifically -- he 10:06:31 15 specifically identified this particular -- 10:06:38 16 THE COURT: Well, he said he made -- when he 10:06:40 17 looked at it, he made some reference to it. 10:06:43 18 MR. GUY-SMITH: He said it's a NETCOM report he 10:06:44 19 relied upon with the start time of 1438. 10:06:48 20 THE COURT: I think the reference is to NETCOM, 10:06:52 21 right. But in any event, I'll think about that. There's 10:07:00 22 no foundation as far as I'm concerned. 10:07:02 23 MR. GUY-SMITH: Well, I mean, if he identifies 10:07:04 24 the object, if I identifies -- 10:07:05 25 THE COURT: Used it to refresh your recollection 10:07:09 26 from my view. 1025 10:07:09 1 MR. GUY-SMITH: I used it to ask him what he 10:07:09 2 relied upon for the purposes of his start time of 1438. 10:07:14 3 And the other document is Appellant's K which is a pursuit 10:07:24 4 report that he identified as having filled out. 10:07:28 5 THE COURT: Right. Okay. I do remember him 10:07:30 6 talking about this. And you asked him about the time that 10:07:34 7 he filled in there and said 1439. So what's your position, 10:07:41 8 Mr. Drottar? 10:07:42 9 MR. DROTTAR: Your Honor, I don't see what the 10:07:42 10 relevance is or how it. 10:07:45 11 THE COURT: No, it's got relevance. 10:07:49 12 MR. DROTTAR: How it's admissible, officers fill 10:07:51 13 out all kinds of reports. Just because they fill it out 10:07:53 14 doesn't make it admissible report. 10:07:56 15 THE COURT: I'll go back and look at his 10:07:57 16 testimony, Mr. Guy-Smith, on both those, but I'll hold them 10:08:00 17 in abeyance until the end of your case. I won't admit them 10:08:04 18 at this point. I don't think the NETCOM report comes in 10:08:07 19 because I don't think even if he looked at it, you know, I 10:08:11 20 don't see how, unless you're telling me that he relied on 10:08:14 21 it for the purposes of what -- 10:08:16 22 MR. GUY-SMITH: He relied on it for the purposes 10:08:20 23 of determining when the start time was of the pursuit. 10:08:23 24 THE COURT: All right. I'll go back and look at 10:08:24 25 it. That may be right. Okay. So now, what else? 10:08:30 26 MR. GUY-SMITH: Is it okay if I ask him how old 1026 10:08:34 1 it is? 10:08:34 2 THE COURT: I'm sorry? What? I still didn't get 10:08:39 3 you. 10:08:40 4 MR. GUY-SMITH: Is it okay if I ask him how old 10:08:42 5 it is? 10:08:43 6 THE COURT: We're getting down to argument. I can 10:08:45 7 see --
Vol 5 P : Court excluding relevant NETCOM evidence relied upon by Prosecution’s witnesses. 15:46:47 15 MR. GUY-SMITH: I'm moving into evidence A, C. 15:46:56 16 THE COURT: You're looking at these, Mr. Drottar, 15:46:57 17 while he's talking about them? 15:47:00 18 MR. GUY-SMITH: A and C we've been fighting 15:47:01 19 about. 15:47:01 20 THE COURT: A and C. All right. I got those. I 15:47:05 21 know what those are. 15:47:05 22 MR. GUY-SMITH: And then it seems I see what's 15:47:14 23 happening here. I'm sorry. A, C and then I am moving into 15:47:23 24 evidence K through the end, which is K, L. 15:47:34 25 THE COURT: Y. 15:47:35 26 MR. DROTTAR: K through Y. 1168 15:47:38 1 MR. GUY-SMITH: With regard to the exhibits that 15:47:41 2 I am moving into evidence, which are photographs that were 15:47:46 3 identified, I believe those are exhibits C, and then 15:47:50 4 exhibits L through Y. Those were exhibits that were 15:48:02 5 testified today by Mr. Boustred. 15:48:07 6 THE COURT: Mr. Drottar, any objection from -- 15:48:11 7 let's see. Let's take them. What is it? 15:48:14 8 MR. DROTTAR: L through Y I have no objection, 15:48:15 9 Your Honor. 15:48:16 10 THE COURT: L through Y? 15:48:18 11 MR. DROTTAR: Those were the ones testified to 15:48:20 12 this afternoon. 15:48:21 13 THE COURT: Okay. So they'll be admitted. 15:48:22 14 MR. GUY-SMITH: As was C. C was is the exhibit 15:48:29 15 of the car. 15:48:32 16 THE COURT: Car going through the gate. 15:48:34 17 MR. GUY-SMITH: Going through the gate. 15:48:34 18 THE COURT: Right. 15:48:35 19 MR. GUY-SMITH: Mr. Boustred testified. 15:48:37 20 MR. DROTTAR: I'm not questioning counsel except 15:48:40 21 for the fact I wrote down B for whatever reason. 15:48:44 22 THE COURT: Was it marked. It's marked. Take a 15:48:48 23 look at C, see if you have any objection. 15:48:53 24 You have those Miss [Fitch]? Any objection to C 15:48:55 25 and the others as indicated through Y, Mr. Drottar? 15:48:59 26 MR. DROTTAR: No, Your Honor. 1169 15:49:02 1 THE COURT: All right. So only two left are 15:49:07 2 the -- 15:49:07 3 MR. GUY-SMITH: A and K. 15:49:08 4 THE COURT: A and K. I was going to go back and 15:49:11 5 look at Deputy Pool's testimony because I do not remember 15:49:15 6 what Mr. Guy-Smith said. Although certainly it may thereby 15:49:21 7 -- I don't remember him relying on it. I remember him 15:49:24 8 being asked about them but I don't remember that he relied 15:49:28 9 on them such that there was a foundation here that could be 15:49:32 10 established. So -- 15:49:35 11 MR. DROTTAR: Your Honor, if I can be heard 15:49:35 12 regarding the NETCOM documents? 15:49:37 13 THE COURT: All right. 15:49:42 14 MR. DROTTAR: There was certainly not those 15:49:43 15 NETCOM documents are, what, five pages long, in the Exhibit 15:49:46 16 4, or five pages. 15:49:49 17 MR. GUY-SMITH: The answer to that question -- 15:49:51 18 THE COURT: I don't think so. A is one, two, 15:49:56 19 three pages. And the -- what's pursuit report isn't that 15:50:01 20 what we said entitled pursuit report, it's K. Is pursuit 15:50:06 21 report, it's one page. 15:50:08 22 MR. DROTTAR: The problem is with the NETCOM 15:50:13 23 report specifically there's tons of information on that 15:50:19 24 that is subject to all types of interpretation. As the 15:50:23 25 Court's aware with NETCOM, those are not transcripts of 15:50:26 26 anything. That's simply dispatchers logging in times and 1170 15:50:31 1 typing in shorthand what things mean. Quite often there 15:50:34 2 are mistakes made by the dispatcher that has nothing to do 15:50:40 3 with the officer. And there's times and, times, blocks and 15:50:48 4 streets that are listed. There's no foundation that those 15:50:55 5 are accurate in any way, shape or form. 15:50:58 6 MR. GUY-SMITH: You know -- 15:50:59 7 MR. DROTTAR: Deputy Pool did not testify that 15:51:01 8 he's aware of a person who input that, he had information. 15:51:06 9 He doesn't know how it was inputted. Certainly counsel has 15:51:09 10 a copy of the NETCOM tape and had a copy of the NETCOM 15:51:15 11 tape. If he had wished to put actual radio traffic in, 15:51:21 12 then the NETCOM tape would have been the way to do it. 15:51:25 13 Because then you would get the actual traffic. Here what 15:51:27 14 you have is you have times that are entered by a 15:51:31 15 dispatcher. Deputy Pool indicated that they faxed him that 15:51:35 16 document and he looked at that document regarding the 15:51:41 17 times. The other information. There's no indicia in 15:51:45 18 reliability to get over any exception to have that 15:51:49 19 introduced. 15:51:51 20 MR. GUY-SMITH: Deputy Pool testified -- I'm 15:51:53 21 sorry. Are you done? Deputy Pool testified that he relied 15:51:58 22 upon that document as it related to the time that he began 15:52:04 23 and he ended his pursuit. If the Court -- if the Court is 15:52:11 24 of the opinion that the balance of that document is 15:52:18 25 information that should not come in, although Deputy Pool 15:52:27 26 is the one who identified that document as being whatever 1171 15:52:31 1 it may be, I'm willing to live with such a ruling. 15:52:39 2 THE COURT: All right. 15:52:40 3 MR. GUY-SMITH: I do believe that with regard to 15:52:43 4 the time that he began his pursuit and the time that his 15:52:47 5 pursuit was finished, on documented, I mean, the rest lf 15:52:55 6 it. You know, I can live without it, quite frankly. I'd 15:53:00 7 rather have it but I can live without it. 15:53:02 8 THE COURT: I understand. I just don't think 15:53:05 9 there's any foundation for this even though it was, you 15:53:08 10 know, faxed over to him and supplied to him. He just takes 15:53:10 11 the time that's written on it. There's nothing to suggest 15:53:14 12 here that that's accurate in any event. And that's where 15:53:16 13 we're going. And it seems to me we are -- I don't see that 15:53:20 14 it comes in. 15:53:21 15 MR. GUY-SMITH: Well, then, I take it there will 15:53:23 16 be no argument by the prosecution as to the length of the 15:53:26 17 pursuit. I take it the testimony as it relates to the 15:53:29 18 pursuit report, which is exhibit K and all of that 15:53:33 19 testimony, will not be argued because obviously the issue 15:53:37 20 of the time, the time of the pursuit is something which I 15:53:42 21 think is something the Court must devote to Mr. Drottar and 15:53:46 22 to myself. There's no doubt about the fact that deputy 15:53:49 23 said that he relied upon that particular document with 15:53:54 24 regard to his start time. That's what he told us. That's 15:53:57 25 what he said. 15:53:58 26 THE COURT: Well, I understand. The problem is, 1172 15:54:00 1 is that that may or may not be accurate. 15:54:06 2 MR. GUY-SMITH: But that's a different issue, 15:54:07 3 Your Honor. That's a totallily different issue because 15:54:13 4 fact of the matter is at some point in time there's going, 15:54:14 5 you know as well as I do there's going to be discussion 15:54:17 6 about how long this pursuit took. There's a document that 15:54:20 7 indicates that the pursuit began and there was a radio 15:54:25 8 transmission, the pursuit began at 1438 hours. And he 15:54:29 9 testified that he believed it began at 1438 hours as a 15:54:33 10 result of reviewing that document. And stark contrast to 15:54:39 11 that document we have a document that he filled out that 15:54:42 12 has 1439 hours. There's a minute. And that minute may or 15:54:48 13 may not be -- may or may not be of importance to regard 15:54:52 14 either Mr. Drottar's argument or my own. We also had a 15:54:55 15 concluding time of the pursuit. I think all parties 15:54:58 16 agreed. By all parties I mean that Deputy Pool agreed that 15:55:04 17 the concluding time of the pursuit as he put it was at 15:55:07 18 1441. And as a matter of fact, if I'm not mistaken, during 15:55:11 19 the examination of Deputy Pool, Mr. Drottar elicited 15:55:16 20 information from that same document with regard to when the 15:55:20 21 pursuit time ended because there was an indication the 15:55:23 22 subject was running into the house. There's also another 15:55:27 23 indication with regard to the time of 1441 as it relates to 15:55:33 24 what was going on in terms of the pursuit and the location 15:55:37 25 of the pursuit which is I believe as it says there 1100 15:55:50 26 Suncrest which is clearly information that is potentially 1173 15:55:54 1 probative of issues this jury is to determine with regard 15:55:57 2 to time. Because time and distance will become a factor in 15:56:03 3 determining the guilt or innocence of my client with regard 15:56:07 4 to certain of the charges that are here. 15:56:11 5 THE COURT: All right. 15:56:11 6 MR. GUY-SMITH: Submitted. 15:56:13 7 THE COURT: Thank you. And the Court has to 15:56:17 8 determine whether there is not only relevant but whether or 15:56:22 9 not there's underlying reliability. And having not only 15:56:28 10 some familiarity with the way in which the, this 15:56:34 11 information is collected through NETCOM but also based on 15:56:38 12 what the document shows itself, I just can't find that it's 15:56:43 13 reliable because there is nothing to show that 15:56:47 14 foundationally. While Deputy Pool said there was a time he 15:56:49 15 utilized and you're certainly free to explore that in your 15:56:54 16 argument that he said, yeah, I utilized the time of 1438. 15:56:58 17 On this other document I had 1439. Those are certainly 15:57:02 18 open to argument. 15:57:03 19 However, the documents themselves it seems to me 15:57:06 20 are not admissible. So they're excluded. All right. Do 15:57:09 21 we have any other -- 15:57:11 22 MR. GUY-SMITH: For the purposes of the record I 15:57:12 23 would ask that those documents, understanding they are not 15:57:16 24 going to be introduced, are made part of the record so that 15:57:21 25 at any other point in time they're available for any 15:57:24 26 Court's review such as necessary?
The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed. C.2. Court Disallowing Evidence of TRO Appellant Filed Which Proved Intent To Evade Was Absent. Ant The Court Erred In Failing to Declare a Mistrial.The court and Prosecution not only conspired to unlawfully exclude the NETCOM report they also conspired to exclude all evidence of the Temporary Restraining Order Appellant filed just before the events of this case. The TRO Appellant filed sought the courts protection in preventing Appellant’s ex-wife from resuming false police calls, which was taking place at that very time. The TRO relates directly to the events in this case as it show that Appellant was following the law and had absolutely no reason to evade the police. The best way to illustrate how utterly out of control The Court and Prosecution is in their blatant attempt to operate a sham trial is to put forward the actual transcript, showing that this is not Court or Prosecution error, it illustrates further blatant intent by The Court and Prosecution to exclude relevant evidence so as to falsely convict Appellant (similar sham proceedings are found on in Vol 4 pages 960 through to 963 relating to the Court refusing relevant info which relates amongst other issues to intent: Vol 5 P1038: Court Striking evidence re TRO: 10:44:03 1 A I must have got here around about 10:00 to file a 10:44:07 2 temporary restraining order. 10:44:09 3 MR. DROTTAR: Objection, Your Honor, irrelevant. 10:44:11 4 THE COURT: Sustained. 10:44:14 5 MR. DROTTAR: Move to strike. 10:44:15 6 THE COURT: It will be stricken. Jurors will 10:44:16 7 disregard it.
Vol 5 P1038: Court again striking testimony re TRO 10:44:41 19 A Far too long. I came to file the TRO. 10:44:47 20 MR. DROTTAR: Objection, Your Honor. 10:44:50 21 Nonresponsive. Motion to strike. 10:44:50 22 THE COURT: Sustained. Okay. (Note the Court allowing Prosecution Object yet instructing Defense throughout the trial that there are to be no speaking objections.) Vol 3 P513: Court prevents evidence regarding TRO and Verified Criminal Complaint from being brought before the jury – significant Due Process Violation. 14:05:01 5 Q Now, during the period of time that you were in
14:05:07 6 the garage, Mr. Boustred gave you information about his 14:05:12 7 view of issues concerning child custody; correct? 14:05:16 8 A He gave me some views that the father never 14:05:20 9 went -- 14:05:20 10 MR. DROTTAR: Objection, Your Honor. Your Honor, 14:05:22 11 hearsay. 14:05:23 12 THE COURT: Okay. 14:05:24 13 MR. DROTTAR: As to content. 14:05:25 14 MR. GUY-SMITH: Not offered to prove the truth of 14:05:29 15 the matter asserted. It's offered -- excuse me. 14:05:30 16 THE COURT: Just a second. Let's approach. Thank 14:05:32 17 you. 14:07:42 18 (Discussion held at the bench not reported.) 14:07:42 19 THE COURT: Ladies and gentlemen, I'm going to ask 14:07:43 20 you to leave the courtroom for a couple minutes, please. 14:07:47 21 Sorry. Once in awhile it happens and everything -- 14:07:48 22 Sergeant Christey. Yes. Okay. Remember my admonition. 14:07:56 23 All right. 14:08:26 24 (Jurors leave the courtroom.) 14:08:28 25 THE COURT: Sergeant Christey, maybe you ought to 14:08:29 26 leave right now too just for the purposes of our discussion 514 14:08:34 1 here. Then we'll call you back in. Thanks. 14:08:35 2 (Witness leaves the courtroom.) 14:08:35 3 (The following proceedings were held outside the 14:08:35 4 presence of the jury.) 14:08:43 5 THE COURT: All right. We're out of the presence 14:08:44 6 of the jurors and alternates. First of all, gentlemen, I 14:08:47 7 hope we're not going to have what we just had. And that is 14:08:50 8 to have both of you so upset, as my characterization, that 14:08:58 9 we have raised voices at the sidebar. That's not going to 14:09:04 10 help. And the purpose of sidebar is to discuss issues such 14:09:06 11 that this jury does not hear things that they shouldn't 14:09:10 12 here. 14:09:10 13 My job is to make those legal decisions. Both of 14:09:13 14 you are good advocates for your side. I can see that. You 14:09:18 15 both want to put your position clearly before this jury. I 14:09:23 16 want to rule in the best way I can. But I will not 14:09:26 17 tolerate actions by either of you that will in any way 14:09:31 18 affect this jury and their ability to make a fair decision. 14:09:36 19 So I want both of you to behave the way in which 14:09:42 20 lawyers do and we're going to go from there. 14:09:45 21 I've asked the jury to leave so we can discuss 14:09:47 22 this further because it seemed to me you weren't being able 14:09:51 23 to do that without voices being raised such that the jury 14:09:54 24 could possibly hear. 14:09:55 25 So now we're at the juncture of Mr. Guy-Smith 14:10:01 26 wanting to elicit from Sergeant Christey apparently what 515 14:10:06 1 was said. And as I understand it, Mr. Guy-Smith, you want 14:10:11 2 to offer this to the -- for the truth of the matter but 14:10:11 3 simply from the standpoint of how it affected Sergeant 14:10:16 4 Christey in terms of what she did, which is similar to what 14:10:20 5 the people have offered in the past as far as statements 14:10:24 6 that were made but offer them for a nonhearsay purpose 14:10:28 7 again. 14:10:31 8 So -- and that being a limited purpose and the 14:10:32 9 jury was so instructed at the time; am I right, 14:10:35 10 Mr. Guy-Smith, is that it? 14:10:37 11 MR. GUY-SMITH: That is correct. I have, I have 14:10:42 12 been quite attentive to the manner in which what I believe 14:10:47 13 to be hearsay was coming into this trial. And I've been 14:10:52 14 quite attentive to the ruling of the Court. And the ruling 14:10:54 15 of the Court has consistently been each and every time that 14:11:00 16 the information can be considered not to prove the truth of 14:11:04 17 the matter asserted but rather for the purposes of whether 14:11:08 18 or not it was information that was considered by the 14:11:14 19 officer in the performance of their duties. 14:11:16 20 At this point in time, my client factually on 14:11:23 21 that day has not been arrested. He is involved and having 14:11:29 22 a discussion with, I believe, a Sergeant Christey and I 14:11:33 23 think others with regard to a series of issues. 14:11:40 24 Those issues as I understand them cover I think 14:11:41 25 three separate areas. Those areas were: 14:11:48 26 One, his general views as was elicited. If I 516 14:11:53 1 might also add on direct examination. So the door was 14:11:55 2 opened. And not by me. Those views were one on his 14:12:01 3 issues, his views concerning custody. 14:12:04 4 Two, his views concerning Court orders. Court 14:12:04 5 orders; 14:12:10 6 and, three, Sergeant Christey's concerns with 14:12:14 7 regard to what had occurred just immediately prior to them 14:12:19 8 entering the garage. 14:12:20 9 Those are the three areas of conversation. I'm 14:12:24 10 not intending on going through a blow-by-blow factual 14:12:30 11 recitation because, quite frankly, among other things as 14:12:35 12 offended as I was at the time I objected, I remain 14:12:38 13 offended, but in terms of issues concerning general areas 14:12:42 14 of conversation and only general areas of conversation, I 14:12:48 15 believe that this is information that I'm able to inquire 14:12:53 16 about for a number of reasons. 14:12:56 17 Not only the reasons that I have laid out which 14:12:59 18 is, one, is relevant for the purposes of the jury making 14:13:04 19 determination of what information in general sense Sergeant 14:13:08 20 Christey had with regard to her activities which has been 14:13:13 21 the theme of Mr. Drottar's presentation again and again and 14:13:16 22 again, and the Court has so ruled; but also because Mr. 14:13:22 23 Drottar by questions that he asked of Sergeant Christey in 14:13:26 24 direct examination opened this up. 14:13:29 25 And so far as I'm concerned, he opened it up well 14:13:34 26 beyond what my intention is here. 517 14:13:35 1 THE COURT: All right. Well, let me ask you this, 14:13:38 2 Mr. Guy-Smith. I don't know specifically what your 14:13:43 3 reference is to when he opened it up, by what kind of -- 14:13:48 4 MR. GUY-SMITH: He asked her whether or not she 14:13:49 5 had a conversation with my client in the garage. 14:13:54 6 THE COURT: I see. 14:13:57 7 MR. GUY-SMITH: That's about as opened up as you 14:13:57 8 can get. You can't get it less opened up than that. 14:14:01 9 Now, he may have been thinking about something 14:14:03 10 else at the time but that was the question asked. He 14:14:07 11 got -- 14:14:08 12 MR. DROTTAR: Your Honor, I'm sorry. 14:14:10 13 MR. GUY-SMITH: And he received a response to 14:14:11 14 that question. 14:14:13 15 THE COURT: All right. I get it. Mr. Drottar? 14:14:15 16 MR. DROTTAR: As to opening the door, did 14:14:19 17 somebody say something to you doesn't open the door to what 14:14:21 18 the content of the conversation was. 14:14:23 19 If I asked Deputy Christey: Deputy Christey, 14:14:25 20 what did he tell you? Well, gosh, I think I opened the 14:14:30 21 door, absolutely. But when I say: Did you talk to him? 14:14:32 22 Yes. Okay. There's a conversation. 14:14:34 23 I mean, they're in the garage for half an hour. 14:14:37 24 Are you not going to tell the jury that he had a 14:14:39 25 conversation? 14:14:39 26 What did you do in the garage? Did you beat the 518 14:14:43 1 crud out of him? Did you play ping-pong with him? No. 14:14:45 2 The question: Did you talk to somebody? But
14:14:47 3 Your Honor, if I can go back to my objection, which I 14:14:52 4 haven't been heard on, the hearsay objection. 14:14:55 5 Number one, the reason these things have come in 14:14:59 6 have been because of the charges, 245(c), on Deputy 14:15:04 7 Christey and Deputy MacDonald. All this hearsay has come 14:15:08 8 in based on that. Based on the 148, based on the 2800. 14:15:16 9 The 245(c) has already occurred. It's over. It doesn't 14:15:21 10 matter what Deputy Christey finds out after-the-fact in 14:15:24 11 regards to whether she was acting in the performance of her 14:15:27 12 duties at the time that she was assaulted by the Appellant. 14:15:31 13 It doesn't matter what happens after-the-fact in regard to 14:15:35 14 the 148 where he failed to abide by her commands. 14:15:40 15 The things that she learns after don't have 14:15:43 16 anything to do with whether she was acting as she should 14:15:48 17 have, whether she had reasonable suspicion or probable 14:15:50 18 cause at the time. 14:15:54 19 THE COURT: Well -- 14:15:55 20 MR. DROTTAR: Vague and ambiguous as the reading 14:15:56 21 the letter that she finds after-the-fact isn't relevant to 14:16:03 22 the 148 at the time or reading the Palcer County report 14:16:05 23 after the fact, isn't relevant to the 148 at the time 14:16:09 24 we're talking. 14:16:11 25 THE COURT: How did it affect her actions at this 14:16:13 26 point, Mr. Guy-Smith? 519 14:16:14 1 MR. GUY-SMITH: Because she still has the 14:16:18 2 discretion to make a determination of whether or not she is 14:16:21 3 going to press charges against Mr. Boustred. And she may 14:16:27 4 take into account a panoply of considerations that 14:16:31 5 otherwise would not have been taken into account. 14:16:34 6 And I've been in cases, as I know you have 14:16:37 7 before, where there has in fact been -- a charge been and 14:16:43 8 activity that would form the basis of the charge and the 14:16:47 9 police officer, based upon their consideration of all the 14:16:50 10 facts and circumstances surrounding the particular 14:16:53 11 incident, has made a determination that is not appropriate 14:16:56 12 for a charge to be levied against a particular Appellant 14:17:01 13 because that's part of what they do as police officers. 14:17:03 14 Now, once again, I wasn't planning on spending a 14:17:06 15 lot of time here, but I will say for the purposes of the 14:17:09 16 record, because I think it's -- two things are important. 14:17:12 17 First of all, Mr. Drottar is at best disingenuous 14:17:16 18 with regard to the question asked and response received, 14:17:19 19 because Sergeant Christey testified on direct that my 14:17:27 20 client talked about custody issues and talked about the 14:17:31 21 order. 14:17:33 22 Now, I didn't elicit that testimony. That's how 14:17:38 23 he opened the door. If had he not asked those questions, 14:17:41 24 that door would not be open. 14:17:43 25 But I am also very troubled by something 14:17:47 26 Mr. Drottar just said, which is the reason why I have made 520 14:17:52 1 each and every objection I've made with regard to where 14:17:55 2 we've been going. And he said the following: 14:17:57 3 All this hearsay has come in based on the 14:18:03 4 charges. 14:18:04 5 Now, if ever there was a plainer indication of 14:18:09 6 the People's intent with regard to the use of this 14:18:12 7 information, I can't think of one. And I am, quite 14:18:17 8 frankly, Your Honor, an independent limiting instruction 14:18:19 9 you gave because this is what I started off being concerned 14:18:23 10 about, because I have been around for a long enough period 14:18:27 11 of time, as have you, to know about the difficulties 14:18:30 12 limiting instructions which we talked about at the 14:18:33 13 beginning. 14:18:33 14 I am offended because in fact what Mr. Drottar 14:18:37 15 has done is he is indicating by this particular language 14:18:42 16 all this hearsay has come in based on the charges, what his 14:18:47 17 specific intent was and what he wanted to have done. And 14:18:52 18 he intended then and he intends now to have this 14:18:56 19 information used specifically for that purpose. 14:18:59 20 And since he has made it that clear, I at this 14:19:03 21 point, unfortunately, for the purposes of the record, I 14:19:07 22 have to move, one, for a mistrial. And two for a hearing 14:19:13 23 for sanctions based upon prosecutorial misconduct because 14:19:18 24 his activities indicate precisely that particular intent. 14:19:21 25 Not something that I am very pleased about having to do but 14:19:25 26 having heard that particular statement, I think for the 521 14:19:28 1 purposes of protecting my client, I now am in a position 14:19:32 2 where I have to do that. 14:19:35 3 THE COURT: Mr. Drottar? 14:19:36 4 MR. DROTTAR: Your Honor, one: The statement 14:19:47 5 made, the hearsay for the charges because the charges have 14:19:52 6 elements. Elements have to be proven by the People. We 14:19:56 7 have the burden. The same reason I did the motion In 14:19:59 8 Limine to have this hearsay come into evidence is because 14:20:03 9 of the fact that a lawful arrest or detention must be based 14:20:07 10 upon reasonable cause or reasonable suspicion. 14:20:10 11 THE COURT: His point is that -- 14:20:12 12 MR. DROTTAR: It is my burden to prove that. 14:20:13 13 THE COURT: But his point is you're using the 14:20:15 14 word "hearsay" which he believes belies your ultimate 14:20:18 15 motives here, Mr. Drottar. That's what he's talking about 14:20:21 16 in terms of the fact that you said you offered it for 14:20:24 17 nonhearsay purposes. And now you're using the 14:20:28 18 word "hearsay" to convey what he believed in the first 14:20:31 19 instance apparently that that was your purpose or 14:20:33 20 motivation. Okay? That's what he's talking about. 14:20:39 21 MR. DROTTAR: It is being used for nonhearsay 14:20:41 22 purposes. Hearsay being used for nonhearsay purposes 14:20:44 23 that's what it is. It's not an exception to the hearsay 14:20:47 24 rule. This is hearsay that is used for nonhearsay 14:20:52 25 purposes. By me using the term "hearsay" is ludicrous way 14:20:59 26 for somebody to say that this is prosecutorial misconduct. 522 14:21:05 1 MR. GUY-SMITH: Your Honor -- 14:21:06 2 MR. DROTTAR: And it sticks on my tongue that I 14:21:09 3 would be accused of such a things. Certainly never 14:21:14 4 happened as my ten years as a prosecutor and using the term 14:21:18 5 hearsay, which is what it is, because hearsay used for a 14:21:22 6 nonhearsay purpose and nonhearsay purpose is to prove the 14:21:25 7 elements of the offense that the officers had reasonable 14:21:30 8 suspicion and reasonable cause to detain the Appellant for 14:21:35 9 this investigation. And that is in the jury instructions. 14:21:38 10 That's my burden. That's what I have to prove. That's why 14:21:43 11 it's being introduced. 14:21:43 12 And counsel wants to back door the Appellant's 14:21:47 13 statements without him having to testify, I guess. He 14:21:52 14 wants to back door his statements that are absolutely 14:21:57 15 irrelevant to the underlying charges because his statements 14:22:01 16 have nothing to do with the officers reasonable suspicion 14:22:05 17 or probable cause. 14:22:08 18 Of course the officers can relay on hearsay for 14:22:09 19 reasonable suspicion and probable cause. That's what they 14:22:13 20 have to do all the time. And that's why we use it. 14:22:18 21 THE COURT: Well, this is not a hearing about the 14:22:18 22 legal sufficiency of the arrest in that sense that a Court 14:22:22 23 has to find probable cause. 14:22:26 24 What the jury has to find is that they're in the 14:22:28 25 lawful performance of their duties. And so to that extent 14:22:32 26 I'll allow it for that limited purpose the kind of 523 14:22:36 1 statements that are made here. But his point, 14:22:39 2 Mr. Drottar, is that you keep using the word "hearsay." 14:22:42 3 Well, there's a specific definition in the law for hearsay. 14:22:45 4 A statement not made under oath out of court. An out of 14:22:51 5 court statement. Okay. So if it's not then offered for 14:22:54 6 truth of the matter, it has to either be defined as a 14:22:58 7 hearsay statement or a nonhearsay statement. And his point 14:23:02 8 is when you keep using the word hearsay, that it belies 14:23:05 9 your real motivation but you otherwise couldn't get it in 14:23:08 10 as hearsay, but there's no exception to it. You see? 14:23:11 11 That's his point. So that's what he's saying here if I 14:23:16 12 understand him correctly. So -- 14:23:18 13 MR. DROTTAR: I wish I was that cunning in the 14:23:20 14 use of the language to use it at a tool. As a prosecutor I 14:23:26 15 use facts as a tool. I use evidence as a tool. And 14:23:29 16 sometimes my language may be limited and I apologize to the 14:23:34 17 Court and counsel for referring to terms as hearsay. I 14:23:36 18 guess I should have referred to them as the stuff that was 14:23:39 19 told to the officer prior to them being arrested every time 14:23:42 20 I refer to that type of a term, because I guess that's the 14:23:45 21 only way I can refer to it is -- I mean, I guess could be 14:23:49 22 for formal -- could be the statements by Anamarria Boustred 14:23:54 23 made to Deputy McConnell and paperwork to Deputy McConnell 14:23:58 24 and the police reports gathered by Deputy McConnell, and I 14:24:01 25 could use those words every time and maybe I should be 14:24:05 26 using all of those words every time as opposed to using 524 14:24:09 1 the words that he's been using calling it hearsay and 14:24:12 2 objecting, objecting, objecting. Hearsay, hearsay. And I 14:24:16 3 guess it's my fault for falling into the trap of the 14:24:19 4 hearsay objection. 14:24:21 5 MR. GUY-SMITH: Your Honor -- 14:24:22 6 THE COURT: Well, it's not that. All right. I'm 14:24:24 7 ready to rule on this. Okay. Your motion for mistrial's 14:24:29 8 denied, Mr. Guy-Smith. Mr. Drottar is at times not the 14:24:36 9 most articulate lawyer. I have had him in my Court many 14:24:38 10 times. He's not a person, a lawyer or anybody else that 14:24:46 11 proceed by way of chicanery or some device here. His use 14:24:52 12 of the word "hearsay" is clearly misplaced here. These are 14:24:57 13 nonhearsay statements and the Court has so ruled for the 14:25:00 14 purposes of this hearing. 14:25:01 15 Counsel has argued with me they are indeed 14:25:04 16 otherwise hearsay statements. I've ruled they are not for 14:25:08 17 the purposes of this trial. And they're given to the jury 14:25:11 18 with limited instructions, with limitation instructions and 14:25:15 19 the jury will be so instructed. 14:25:18 20 With regard to sanctions against Mr. Drottar, I 14:25:21 21 don't find any basis for that as I've indicated while he 14:25:24 22 may not be at times the most articulate and in terms of his 14:25:30 23 use of these terms, perhaps as misplaced. Clearly those do 14:25:37 24 not amount to, in the Court's view, any kind of devious 14:25:41 25 attempt to in any way put before this jury evidence that 14:25:45 26 this Court would otherwise not allow. 525 14:25:49 1 So those issues have been been dealt with. I 14:25:52 2 want to move to the specific issue here. All right. 14:25:56 3 MR. GUY-SMITH: My intent was as follows: And I 14:25:59 4 understand the Court's ruling. I, quite frankly, find it 14:26:03 5 shocking that a District Attorney practicing for ten years 14:26:07 6 does not know what hearsay is and uses it in ill-advised 14:26:11 7 manner in the fashion that he's suggesting. I found what 14:26:14 8 he says to be, quite frankly, absurd from the standpoint of 14:26:20 9 this is evidence. Evidence is what we use. This is a nuts 14:26:25 10 and bolts of our profession. 14:26:28 11 THE COURT: Okay, Mr. Guy-Smith. 14:26:30 12 MR. GUY-SMITH: The man has been doing it for ten 14:26:32 13 years; however, it was my intention, because I do not seek 14:26:38 14 necessarily to elicit these statements made, I said topics. 14:26:45 15 My question to Sergeant Christey was topics. And my 14:26:49 16 question was: Did he speak to you about topics concerning 14:26:56 17 custody, orders, and what happened on his way back home. 14:27:04 18 And that was what I was going to ask her. She would say 14:27:07 19 either yeah or nay. I was not planning on engaging in 14:27:13 20 further conversation with "what did you say specifically? 14:27:17 21 What did he say specifically?" In each and every one of 14:27:22 22 those situations. 14:27:22 23 THE COURT: No, I understand that. 14:27:23 24 MR. GUY-SMITH: Then I was going to ask her 14:27:24 25 whether or not that conversation contributed to her 14:27:30 26 decisions with regard to the investigation and ultimately 526 14:27:35 1 ultimate charging decision in this particular case. Pretty 14:27:38 2 clean. Pretty simple. Pretty straightforward. 14:27:42 3 THE COURT: Not a charging decision. That's not 14:27:45 4 her prerogative. That's the District Attorney's 14:27:46 5 prerogative. You mean that in the sense of arresting? 14:27:50 6 MR. GUY-SMITH: Correct.
14:27:51 7 THE COURT: So that's what you want to do? 14:27:53 8 MR. GUY-SMITH: That's what I want to do. 14:27:54 9 THE COURT: You know, I can't see that that would 14:27:58 10 make any difference. I think Mr. Drottar's correct from 14:28:01 11 the standpoint that either of these offenses have either 14:28:06 12 been committed or not at that point. I cannot see that 14:28:12 13 that's going to in any way affect what goes on here in 14:28:16 14 terms of the charges that this jury has to resolve. 14:28:20 15 MR. GUY-SMITH: Well, you see the thing is this: 14:28:22 16 It's interesting what is being done here in terms of 14:28:26 17 editing and non-editing in terms of what's in the officer's 14:28:30 18 mind. The officer, until the point in time that she makes 14:28:33 19 a determination to arrest this individual, is engaged in a 14:28:38 20 process of listening to facts, observing facts and trying 14:28:45 21 to determine what is the appropriate action with regard to 14:28:48 22 a particular individual and this particular situation with 14:28:51 23 regard to Mr. Boustred. 14:28:52 24 As I said to you before, and I know that you have 14:28:55 25 been in this situation, because I know I have been in this 14:28:58 26 situation many times. Excuse me, I don't want to 527 14:29:02 1 exaggerate. At times. 14:29:04 2 THE COURT: At times. 14:29:05 3 MR. GUY-SMITH: At times. Police officers have 14:29:06 4 in fact seen a crime or what they believed to be criminal 14:29:10 5 activity committed. And based upon a whole community of
14:29:21 7 are not going to charge or arrest a person for that 14:29:23 8 activity based upon their determination of intent. 14:29:28 9 Let us take for example in our case right here 14:29:31 10 what we have here is we have an officer or a series of 14:29:34 11 officers who have seen a series of orders. And what has 14:29:38 12 occurred so far is we now made the determination, 14:29:43 13 determination in the absence of any information from 14:29:46 14 Mr. Boustred, that he is in violation of those orders. 14:29:51 15 Well, perhaps he's not in violation of those 14:29:53 16 orders. And perhaps if the officer was aware of the fact 14:29:57 17 that he was not in violation of those orders, the officer 14:29:59 18 may have taken a different position as to any one of the 14:30:02 19 charges for which he is charged because you recall he's not 14:30:06 20 only charged with assaulting a police officer and resisting 14:30:10 21 arrest, but evading and child endangerment. Perhaps that 14:30:14 22 fits into the equation. Perhaps it doesn't. That is the 14:30:18 23 question I can't answer, Your Honor, because I haven't had 14:30:20 24 . a chance to ask the question 14:30:21 25 THE COURT: But -- well, let's take your example, 14:30:23 26 though, Mr. Guy-Smith. And in the extreme. Let's say the 528 14:30:26 1 officer said, no, don't arrest him, and we're sending this 14:30:30 2 report, et cetera, to the DA's office. The DA's office 14:30:34 3 goes, what's the matter with this Sergeant? We're going to 14:30:36 4 charge this guy and they do. All right? Now, would it be 14:30:40 5 relevant that the Sergeant Christey made a decision not to 14:30:44 6 arrest in the most extreme of -- in terms of your argument 14:30:51 7 that would be then, what, something you'd want to elicit? 14:30:54 8 Absolutely not. There's no way that that is relevant in my 14:30:57 9 mind because it's an officer's decision in terms of what 14:31:03 10 they have in front of them and these particular charges 14:31:05 11 don't have anything to do with her decision to arrest or 14:31:09 12 not. 14:31:09 13 MR. GUY-SMITH: Well, I take somewhat of a 14:31:11 14 different view. 14:31:12 15 THE COURT: I'm sure you do. You're a very good 14:31:15 16 advocate. But I can't see that there's any relevance to 14:31:20 17 this. 14:31:21 18 MR. GUY-SMITH: You know what, but, say, okay. 14:31:23 19 That's a different issue. If what you're saying you find 14:31:25 20 no relevance, then what I would do for the purposes of the 14:31:28 21 record, I will object. I have you're ruling. We will 14:31:32 22 proceed. 14:31:33 23 THE COURT: Okay. All right. There we go. And 14:31:35 24 so I think that's it. I just don't -- 14:31:39 25 MR. GUY-SMITH: But I think you're wrong. 14:31:40 26 THE COURT: I understand. I've been told that 529 14:31:41 1 before. That's not surprising probably to you. 14:31:44 2 MR. GUY-SMITH: I understand. 14:31:46 3 THE COURT: All right. So I find no relevance in 14:31:49 4 these statements that were made here in the garage to 14:31:55 5 Sergeant Christey. So we're not going to go into that and 14:31:56 6 the response by Sergeant Christey would be stricken. All 14:32:01 7 right. Such that the jury will -- 14:32:02 8 MR. GUY-SMITH: Does that include the response 14:32:03 9 that she made -- excuse me. Does that include the response 14:32:05 10 she made on direct when he asked the question "Did you talk 14:32:10 11 to her?" She said, "Yeah, he talked to me about the 14:32:13 12 custody issue" or did that one slip in? If that slips in, 14:32:16 13 then I get to talk about it. 14:32:18 14 THE COURT: Did you object at the time? I don't 14:32:20 15 remember. 14:32:21 16 MR. GUY-SMITH: No. I didn't object at the time 14:32:22 17 because I didn't object. Because I didn't object, doesn't 14:32:26 18 foreclose the fact -- that doesn't foreclose me from 14:32:29 19 evidentiary standpoint from now asking those questions 14:32:32 20 because in another situation you would say, well, I'm 14:32:35 21 sorry, Mr. Drottar, guess what, you shouldn't ask the 14:32:39 22 question did you have a conversation with the Appellant in 14:32:42 23 which he talked about custody issues because if he didn't 14:32:44 24 want to come in, you shouldn't ask your witness to get that 14:32:48 25 information. You've been in that situation before perhaps 14:32:51 26 and occasional, oh, perhaps more carefully I know I have 530
14:32:56 1 asked that sloppy questions before. I've been told by the 14:32:58 2 judge, you know what, shouldn't ask the question, 14:33:01 3 Mr. Guy-Smith. You ask the question, you got to live with 14:33:02 4 the answer and you got to live with the ability to engage 14:33:05 5 in the examination. 14:33:07 6 THE COURT: Yeah, but the shoe's on the other foot 14:33:10 7 now so to speak. You want me to strike that answer, I 14:33:12 8 mean, when there was no objection. 14:33:15 9 MR. GUY-SMITH: I'd rather you don't strike the 14:33:15 10 answer. I'd rather you let me not strike the answer you 14:33:19 11 just gave now. 14:33:20 12 THE COURT: I know you want me to let you do that 14:33:22 13 based on the fact that he was asked but I'm not going to do 14:33:25 14 it. He objected. The grounds are relevance and I find no 14:33:28 15 relevance at this point. I mean, if you would have 14:33:31 16 objected, then I would have said, yeah, I don't see how 14:33:33 17 it's relevant either. 14:33:34 18 MR. GUY-SMITH: But I believe it's relevant. 14:33:37 19 THE COURT: I know you do. 14:33:41 20 MR. GUY-SMITH: He believed it's relevant; 14:33:41 21 otherwise, he wouldn't have asked the question. 14:33:43 22 THE COURT: I don't know. 14:33:43 23 MR. GUY-SMITH: Then we're in whole interesting 14:33:45 24 other aspect how Mr. Drottar conducts his examinations so 14:33:50 25 be it. Let's get the jury in. 14:33:51 26 THE COURT: That's a different question. 531 14:33:53 1 MR. GUY-SMITH: That is indeed a different 14:33:54 2 question.
The trial Court and Prosecution committed error by allowing hearsay to enter the record regarding the officers intent and by disallowing facts to enter the record that obviously affected Appellants intent. Appellant’s conviction must be reversed. C.3. Court Disallowing Testimony of Excessive Force During Arrest.The Court strikes valid testimony of Appellant regarding excessive force in the false arrest, this also relates to the Court’s conspiracy to disallow Pitches Discovery on Deputy Brozozowiski. After Appellant testifies to the truth, The Court orders the jury out of the court room and threatens Appellant with Contempt (Vol 5 P1066). Vol 5 P1065: Court Strikes Testimony of Excessive Force During Arrest: 11:25:15 17 Q After you finished your conversation with Deputy 11:25:18 18 Pool, where did you go? 11:25:21 19 A Well, I was in the garage and another deputy came 11:25:27 20 in, drove his knuckles into my neck cuffed my wrist with 11:25:33 21 his bloody hand then they dragged me out of my garage. 11:25:36 22 MR. DROTTAR: Objection, Your Honor. No question 11:25:37 23 pending. The Court proceeds to move the Jury out of the courtroom and admonish Appellant for testifying to the truth. The Court struck the Excessive Force During Arrest testimony so as to avoid Caljic 9.28 instructions and mislead the jury into the false belief that petitioner resisted arrest. Note also The Court refusing to address the issue regarding Deputy Pools lies on the stand and any discovery or testimony by Deputy Brozoowski. The trial Court and Prosecution committed error and appellant’s conviction must be reversed. C.4. Further Refusal Of Court To Allow Relevant Evidence That Specifically Relates To Intent, Yet Allowing Hearsay Against Appellant.Again Defense specifically lays out the issue regarding the TRO Appellant filed just prior to the events of this case which relate directly to Appellant’s intent: Vol 5 P1009 L1 “MR. GUY-SMITH: I think it has a critical bearing on what happens on the 10th. Part of the reason, part of the reason that I think it's important apart from credibility it also deals with issues concerning his intent because we have both specific as well as general intent”. Vol 5 P1009 L11 - 09:44:49: “And one of the things happening in this trial which I've been complaining about since the outset is everything with regard to all of these issues, and by that I mean the custody, the custody orders, the statements that were allegedly made by Anamarria Boustred that came from McConnell ultimately got to Christey which theoretically were used for the purposes of influencing or in some other fashion affecting the officer's decision to do what they did. How they did. When they did. Has all come in. And whether or not they have come in for what I believe to be clearly hearsay purpose, although I understand the Court says has issued limiting instruction, which I think is, quite frankly, ineffectual, quite frankly, not only because of the amount of time that has been introduced, number of witnesses that have dealt with it and the kind of information that it is. We're also once again in a position where, where we intend to or attempt to introduce anything with regard to self same issue. The precise issues. We're foreclosed. Absolutely foreclosed. And we're foreclosed because it does not seem to be relevant. I can't object strongly enough with regard to this issue.” The Courts Ruling: Vol 5 P1010 L9: 09:46:11 9 THE COURT: Yeah, I just don't see the relevance. What is particularly interesting is how THE COURT determines that events occurring immediately prior to the events of this case, the filing of the TRO which obviously directly relates to the case not just from an intent basis but also from a Due Process basis and the fact that the TRO dealt with the very issues of the case, an ex-wife making false police calls, are ruled as not relevant, however THE COURT considers that events some six months later when Santa Cruz Authorities issued a false warrant for Appellants arrest due to four new false charges, was somehow relevant. However, in the event six months later, the Court refuses to let any facts relating to the four new false charges that were dropped and for which Appellant was again falsely arrested, to enter the record. The Court only allows the Prosecution to introduce elements which could be construed as detrimental and miss characterization of the Appellant to enter the record, literally striking testimony by Appellant that in any way explained facts and the Appellants position or intent. The Court also refused to allow any information regarding the Void Kelly Order, which not only forms the underlying legal basis to this case and the Placer Case, but also directly impacts Appellant’s intent. The court also disallowed any information relating to the repeated setup attempts by appellant’s ex-wife and her lover, yet the Court allowed flat out lies made by Appellant’s ex-wife to be submitted into the record “for information purposes” (P1021:L10). Vol 5 P1018:L24: “MR. GUY-SMITH: I understand. No March 9th. No testimony with regard to him filing of the TRO. THE COURT: But I will listen to his testimony. And at the end of that, I’m willing to entertain a further offer to - - so to speak - - at this point I thing that’s what be by - - Mr. Guy-Smith as to any other testimony you believe is relevant concerning his actions that day? Yes, Mr. Drottar, go ahead next. Another example of the Court’s rulings: Vol 5 P1021: 10:03:09 20 MR. GUY-SMITH: Well, I can't argue my opening 10:03:12 21 statement? 10:03:12 22 THE COURT: I agree with that.
Vol 5 P1022L17: 10:03:54 11 MR. GUY-SMITH: He was relevant enough to have 10:03:56 12 information concerning the fact that Mr. Boustred's ex-wife
10:04:02 13 indicated that he was popped in the nose. Relevant enough 10:04:06 14 for those purposes. 10:04:06 15 THE COURT: The Court ruled that, ruled on that 10:04:08 16 because that was a factor that the officers who have to act 10:04:14 17 in the lawful performance of their duties had that piece of 10:04:16 18 information when they did act. 10:04:19 19 MR. GUY-SMITH: The police can have all the 10:04:21 20 information in the world and lawful performance in order to 10:04:24 21 establish they're moving forward. And they can still 10:04:28 22 violate the law. And as you know as well as I do on 10:04:30 23 occasion do. And the fact that they have the information 10:04:35 24 or not is not once again critical to the issue and the 10:04:38 25 relevant whether or not they're operating lawful 10:04:41 26 performance of their duties. 1023 10:04:41 1 THE COURT: I'm not going to rehash that.
The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed. D. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Refused To First Hear Appellants TRO Filed Before The Events Of This Case.Prior to the events of this case Appellant filed a Temporary Restraining Order in the Santa Cruz Superior Court seeking the courts protection from his ex-wife who had resumed making false police calls, and at that very moment was engaged in making the false police call that culminated in the Sheriffs shooting at Appellant and his children and the events of this case. Due Process dictates that matters be heard in logical and filed sequence, as a consequence the Court erred in refusing to hear the TRO Appellant filed on March 10, 2003 before the events of this case. Had the court allowed the TRO hearing, it would be evident that Appellant followed the law and that his ex-wife was again attempting to fraudulently employ state agencies to position herself for divorce. To this day the Santa Cruz Superior Court refuses to hear the TRO Appellant filed before the events of this case. The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed. E. Court Erred In Disallowing Relevant Discovery Information On Officer Who Assaulted Appellant During The False Arrest.On June 7, 2004 Defense submitted a “Notice of Motion and Motion to Produce Documents for inspection pursuant to evidence code section 1043” (CT400), discovery on Deputy Brozozwiski was specifically requested. In the hearing on June 30, 2004, The Court approved discovery only on MacDonald, Pool, Christie, and McConnell. The Court did not allow discovery on Deputy Brzozowski. The trial court abused its discretion when it disallowed discovery on the Deputy who assaulted Appellant during the false arrest. Had this information been made available Defense could show the violent pattern of practice of Deputy Brzozowski and Appellant would not have been found guilty of resisting arrest. The trial Court and Prosecution committed error and appellant’s conviction must be reversed. F. Court Acted With Extreme Bias Allowing Hearsay And Irrelevant Evidence By Prosecutions Witnesses And Ignored Valid Objections By Defense. The Court Even Litigated For The Prosecution.The trial court abused its discretion when it disallowed lawful objections by Defense then allowed the submission of irrelevant hearsay by the Prosecution. The transcript is full of such examples of extreme bias, some extracts are show here to illustrate: ++Vol 5 P : Hearsay objections on the record 16:02:57 2 MR. GUY-SMITH: I'm very concerned in the event 16:02:58 3 there are convictions and there is an appeal that there is 16:03:02 4 no waiver with regard to the issues that I have raised 16:03:07 5 concerning the hearsay relevance issues. I don't believe 16:03:11 6 that there is but I want to make double sure that it is 16:03:18 7 understood that my objection is strenuous and repeated; 16:03:21 8 that I'm sure the Court is tired of hearing of them. Both 16:03:27 9 state as well as federal constitutional grounds. I say 16:03:30 10 this specifically because I am concerned in this day in age 16:03:35 11 based upon the Court of appeals decisions that I have seen 16:03:40 12 if it's not acknowledged, that the issues are preserved on 16:03:42 13 both and state and federal ground. 16:03:44 14 THE COURT: They're waived. 16:03:47 15 MR. GUY-SMITH: They are waived and I want to 16:03:47 16 make sure that it is understood that I am asserting both 16:03:48 17 state and federal ground in the extent I have to cite the 16:03:53 18 amendments to the constitution, I believe I have done so. 16:03:58 19 THE COURT: I think you have. But I agree with 16:04:00 20 you that there's caution here. And so your objection again 16:04:05 21 is on the record and I think you've done all you can from 16:04:09 22 the Court's perspective of preserving that. 16:04:13 23 MR. GUY-SMITH: Very well. I have that concern. 16:04:15 24 THE COURT: Okay.
Vol 2 P428 The Court allowing hearsay: L 24: Guy-Smith: For the purposes of the record, I’d object on the grounds not only hearsay, double hearsay. P429: L1: THE COURT: I understand. So, again, it’s for limited purposes, laides and gentlemen. So I’ll overrule the objection but you can only use it to further explain perhaps further explain the actions of Sergeant Christey. Go ahead.
Vol 2 P422: The Court disallowing speaking objections P442:L11: THE COURT: No speaking objections. You object?
Vol 2 P363: The Court allowing hearsay on behalf of prosecution but limiting Defense: P363 L14: THE COURT:… All right? So to that limited extent seems to me reference can be made by Deputy McConnel to the Dodd report and attachments. MR. DROTTAR: Basically, Your Honor, like the date of the incident; that the fact that is was consistent. I’m not – MR. GUY SMITH: I’m sorry. Then we’re going to have to litigate the incident. Then we’re going to have to litigate the incident. THE COURT: No. MR. GUY-SMITH: Yeah, sure, we are. For him to say it’s consistent is predictate upon hearsay and conclusions that are made by someone else. Going far [P364:L1] a field. I have no opportunity for cross-examination. THE COURT: No. I understand. You can make that objection, Mr. Guy-Smith, but this is for a limited purpose. L15….MR. GUYSMITH: … I objected because of the - - as I said before, mountains of hearsay that were coming in.
Vol 2 P393: The Court allowing Submission of hearsay:
MR. GUY SMITH: I’m going to object at this point. THE COURT: Okay, And your offer is for limited purpose again? MR. DROTTAR: Yes, Your Honor. THE COURT: All right. Objection’ noted. Overruled. Remember, ladies and gentlemen, all of this so far is for a limited purpose of determining what action, if any, Deputy McConnel’s going to take after receiving this information. It’s not for the truth of the matter. It’s not to be used by you in any way to say Mr. Boustred’s a bad person or that, you know, anybody’s at fault in the, you know, child custody situation. It’s simply offered for the purpose of having you know what, if you will, information Deputy McConnel had when she began to do what she did that day. All right. And so with that limitation, go ahead. MR GUY-SMITH: If I might, Your Honor, since I know you don’t want any speaking objections. THE COURT: Sure. MR. GUY-SMITH: If we can approach the sidebar with the assistance of the reporter. THE COURT: Sure. (Discussion held at bench not reported) THE COURT: All right. And so you had completed your answer; is that right? THE WITNESS: I don’t remember. THE COURT: Fair enough. Okay. So the objection is overruled. She answered. And no go ahead, Mr. Drottar. MR DROTTAR: Yes. Thank you, Your Honor.
Deputy McConnel raises a very interesting fact “Well, the occurrence of a child custody exchange that from two weeks prior in Deputy Dodd’s report appeared to be similar somewhat to this circumstances that I was dealing with”. The Sheriffs were aware of the fact that Appellants’ ex-wife was trying to employ the sheriffs for divorce positioning, they were aware that these matters were being adjudicated in court. Why then did the sheriffs act in the way they did, why did the sheriffs literally shoot at Appellant and the children? Vol 2 P428 – The Court again allowing submission double hearsay by Prosecution: Christey A: Deputy McConnel said that Anna Boustred described Clyde as a tall thin guy; said she had just seen him within the last five minuets at the courthouse here in Santa Cruz. And that she attempted to make contact and did not make contact with Clive. Q: What about the children? Did she have any information on the children? A: She did not think the kids were with Mr. Boustred in the car. Q: That’s the information you had from Deputy McConnel? MR. GUY-SMITH: For the purposes of the record, I’d object on the grounds not only hearsay, double hearsay the - - THE COURT: I understand. So, again, it’s for limited purpose, ladies and gentlemen. So I’ll overrule the objection but you can only use it to further explain perhaps further explain the actions of Sergeant Christey. Go ahead.
Vol 4 P826: Court bias regarding objections by defense and allowing submission of hearsay by prosecution. 21 Q What happened when you met with Sergeant 11:35:11 22 Christey? 11:35:13 23 A She had explained to me that she -- 11:35:13 24 MR. GUY-SMITH: Objection. Hearsay. 11:35:15 25 THE COURT: It would be. 11:35:17 26 MR. DROTTAR: Your Honor, it's not offered for 11:35:19 826 1 the truth of the matter asserted but based on what this 11:35:20 2 officer knew regarding this incident and what it is he was 11:35:23 3 investigating and the following conduct. 11:35:27 4 THE COURT: All right. 11:35:31 5 MR. GUY-SMITH: Objection relevance and it also 11:35:31 6 violates the 4th, 5th, 6th Amendment to the United States. 11:35:36 7 MR. DROTTAR: Objection. Speaking objection, 11:35:39 8 Your Honor. 11:35:40 9 MR. GUY-SMITH: To the constitution. 11:35:41 10 THE COURT: Mr. Guy-Smith, I said no speaking 11:35:43 11 objections. 11:35:45 12 MR. GUY-SMITH: I didn't mean that as a speaking 11:35:46 13 objection. 11:35:47 14 THE COURT: I understand the basis for it. Okay. 11:35:48 15 So the objection's overruled. This will be for a limited 11:35:49 16 purpose, ladies and gentlemen. You're so instructed before 11:35:53 17 and again consider it only for limited purpose the Court 11:35:55 18 instructs you. Go ahead. 11:36:00 19 THE WITNESS: I spoke with Sergeant Christey who 11:36:00 20 explained to me that she had gone to this residence and in 11:36:03 21 an attempt to do a welfare check on two children. 11:36:09 22 MR. GUY-SMITH: Excuse me, Your Honor. For the 11:36:12 23 purposes of the record, and the record only -- 11:36:14 24 THE COURT: Continuing objection? 11:36:15 25 MR. GUY-SMITH: Thank you very much, because I do 11:36:17 26 not wish to waive any -- 11:36:18 827 1 THE COURT: Yes, the record will show continuing 11:36:19 2 objection, Mr. Guy-Smith. Go ahead. 11:36:23
Vol 5 P1108: Yet another example of The Court ignoring valid objections by Defense: 13:53:16 11 MR. GUY-SMITH: Excuse me. And I would move to 13:53:18 12 strike it and I would ask for an admonition with regard to 13:53:23 13 arguing with Mr. Boustred.
13:53:26 14 THE COURT: Well -- 13:53:28 15 MR. GUY-SMITH: He can engage in effective 13:53:29 16 examination without arguing with him. 13:53:31 17 THE COURT: Well -- 13:53:34 18 MR. DROTTAR: Objection, Your Honor. Speaking 13:53:34 19 objections. 13:53:35 20 THE COURT: I understand. Let's just move ahead 13:53:36 21 here. I made my ruling. Let's go ahead, ask the next 13:53:40 22 question.
Vol 4 842: The Court engaged in litigating for prosecution: 18 Q After receiving that information, did you observe 11:55:46 19 anything else? Did you hear anything or see anything? 11:55:49 20 MR. GUY-SMITH: Objection. Compound. 11:55:52 21 THE COURT: It is. We can start with one or the 11:55:54 22 other here. 11:55:57 23 BY MR. DROTTAR: 11:55:57 24 Q Did you observe anything else? 11:56:01 25 A I did not observe visually, no. 11:56:02 26 Q Were your senses stimulated in any way by 11:56:05 842 1 anything that was relevant? 11:56:09 2 THE COURT: Okay. Mr. Drottar -- 11:56:12 3 THE WITNESS: I'm sorry, Your Honor. 11:56:14 4 THE COURT: All right. Let's move it ahead here. 11:56:15 5 Did you hear anything? 11:56:20 6 THE WITNESS: Yes, sir. 11:56:20 7 THE COURT: There we go. All right. Let's -- 11:56:20 8 MR. DROTTAR: I wouldn't ask leading questions, 11:56:22 9 Your Honor. 11:56:25 10 THE COURT: I understand you're not supposed to. 11:56:25 11 C'mon, let's go. 11:56:26
Vol 5 P1023: Preventing relevant information regarding second false arrest information from entering the record – except for any element that could be falsely manipulated against Appellant 10:05:01 10 MR. DROTTAR: Last thing I know it's probably not 10:05:04 11 an issue but I'm trying to address it anyway trying to 10:05:06 12 avoid these lengthy sidebar conversations by doing it here 10:05:09 13 where it's on the record. There was a prior -- there was a 10:05:11 14 misdemeanor case that happened subsequent to this incident 10:05:14 15 involving the Appellant that was dismissed that the People 10:05:19 16 would request there be no mention of that.
Clearly the trial was a complete farce and sham, The Court literally engages in litigating for the incompetent Prosecution all while the Court repeatedly overrules valid objections allowing misleading hearsay and lies to enter the record so long as it benefits the Prosecution and literally striking testimony and evidence in Appellant’s favor. Note how the Prosecution seeks to exclude events of the dismissed misdemeanor case (Vol 5 P1023 L13), but then goes and introduces only elements relating to the false arrest for this case that are detrimental to Appellant so long as the Appellant is prevented from answering any aspects regarding this false arrest in Mill Valley. The trial Court and Prosecution not only committed error, they actively conspired to conduct a sham trial and to fraudulently convict Appellant, Appellant’s conviction must not only be reversed and the case dismissed, The Court and Prosecution must be severely sanctioned for extreme misconduct. This also serves as a Notice & Complaint to the Attorney General. G. The Court And Prosecution Erred When They Failed To Correct And In Fact Conspired To Cover Up Perjury By State Witnesses.The trial court abused its discretion when it disallowed lawful objections by Defense then allowed the submission of lies and irrelevant hearsay by the Prosecution. The transcript is full of such examples of extreme bias. Further transcript extracts are show here to illustrate: Vol 4 P772: Deputy Pool lying on the stand: 16 Q And apart from reviewing your prior testimony and 10:09:53 17 your police report, I take it obviously you had an 10:09:56 18 opportunity to speak with Mr. Drottar about your testimony; 10:09:58 19 correct? 10:10:02 20 A Not about my testimony, no. 10:10:02 21 Q Really? He just said, Hey, come to court. 10:10:04 22 You're going to testify? 10:10:07 23 A No, he didn't say that, but we didn't talk about 10:10:09 24 my testimony, no. 10:10:11 25 Q In terms of preparing for this matter, how many 10:10:16 26 times did you speak to Mr. Drottar? 10:10:20 773 1 A Maybe two or three times. 10:10:26 2 Q All right. And I take it he told you that your 10:10:28 3 testimony was going to be required; correct? 10:10:31 4 A Yes. 10:10:33 5 Q He told you when you were going to have to be 10:10:34 6 here; right? 10:10:36 7 A Yes. 10:10:38 8 Q But apart from telling you your testimony was 10:10:38 9 required and when you were going to have to be here, you 10:10:40 10 didn't discuss any facts and circumstances concerning what 10:10:46 11 your testimony would be; right? 10:10:47 12 A Not what my testimony would be, no. 10:10:49 13 Q Okay. Talk about what you testified about? 10:10:51 14 A I'm sorry. 10:10:58 15 Q Did he talk to you about what you would testify 10:10:59 16 about? 10:11:01 17 A He discussed what -- I wouldn't say what I'd 10:11:02 18 testify about, no. Just -- 10:11:09 19 Q You didn't discuss with him what your testimony 10:11:13 20 would be and you didn't discuss with him what you would 10:11:17 21 testify about. So I take it that apart from telling you 10:11:18 22 that you were going to be here to testifying, you had no 10:11:23 23 conversation at all with Mr. Drottar concerning your 10:11:26 24 testimony; that is your testimony here today? 10:11:32 25 A Concerning my testimony, what I'm going to say on 10:11:32 26 the stand, no. 10:11:35 774 1 Q Okay. Did you have an opportunity to speak with 10:11:36 2 officer McConnell concerning what your testimony would be 10:11:55 3 here today? 10:11:58 4 A No. 10:11:58 5 Q Did you have an opportunity to speak with officer 10:11:59 6 McConnell concerning the case? 10:12:03 7 A No. 10:12:06 8 Q By that I mean before you came here to court 10:12:10 9 today. 10:12:13 10 A You mean today? 10:12:13 11 Q Yeah. 10:12:14 12 A No. 10:12:14 13 Q You have never spoken with Officer McConnell 10:12:15 14 about this case? 10:12:17 15 A No, I haven't spoken with Officer McConnell in a 10:12:18 16 long time. 10:12:21 17 Q Okay. I take it the same would be true with 10:12:21 18 regard to Officer Christey? I'm sorry. Sergeant Christey? 10:12:30 19 A Yes. 10:12:33 20 Q Everybody knows that; right? 10:12:34 21 A Yes. 10:12:36 22 Q Okay. And same also would be true of Deputy 10:12:38 23 MacDonald? 10:12:40 24 A Yes. 10:12:41 25 Q Correct? And there was another deputy involved 10:12:43 26 in this matter who's name I can't pronounce properly so of 10:12:46 775 1 course it escapes me. Deputy -- starts with a 'B'? 10:12:51 2 A Brozewski, (phonetic). I think you know how to 10:12:57 3 spell that now. 10:12:58 4 Q Good. I take the you didn't talk with Deputy 10:13:00 5 Brozewski, (phonetic), about this case at all, did you? 10:13:04 6 A No. 10:13:06 Later Pool indicates that he went to measure hidden valley Rd. based on instructions he received from Drotter, thereby confirming his earlier lie that both the Court and Prosecution tried to hide: Vol 4 P776: Deputy Pool confirms his testimony above is a lie when he indicates getting instruction from the Prosecutor, Drottar: 15 Q Now, these measurements that you took for which 10:16:47 16 you didn't write a report, the information that you did jot 10:16:52 17 down and destroyed, is that something that you did all on 10:16:57 18 your own? And by that I mean did you get information from 10:17:01 19 Mr. Drottar that you were going to be testifying in court 10:17:07 20 pretty soon and so you figured you should go out and take 10:17:08 21 the measurements? 10:17:12 22 A Can you ask that again? I'm sorry. 10:17:14 23 Q Sure. Did you go out and take these measurements 10:17:16 24 all on your own? 10:17:20 25 A No. 10:17:21 26 Q Because somebody directed you to take these 10:17:22 778 1 measurements? 10:17:26 2 A They didn't direct me to, no. 10:17:26 3 Q Somebody suggested you do that? 10:17:26 4 A Yes. 10:17:28 5 Q Who was that? 10:17:29 6 A It was Mr. Drottar. 10:17:30 7 Q And Mr. Drottar suggested you take these 10:17:31 8 measurements in preparation for your testimony; correct? 10:17:33 9 A Yes. 10:17:36
Vol 4 P786: Deputy Pool claims to have never spoken to Sgt. Christey regarding case. P786L9 Q: And that’s because you never talked to Sergeant Christey about the case? A: Never talked to her, no.
Vol 4 P786: Deputy Pool confirms his lie when he states Deputy Brzozowski gave him information relating to the case: 25 Q Where did you get that information at the time 10:28:43 26 that you wrote the pursuit report? 10:28:45 787
1 A That was given to me by Deputy Brozewski, 10:28:47 2 (phonetic). 10:28:47 3 Q I see. And it has a time there? 10:28:51 4 A Yes, it does. 10:28:55
Vol 4: P967,968: Court & People refusing to acknowledge perjury of State Witness and correct that false testimony: 26 MR. GUY-SMITH: There is another issue that has 16:15:21 963 1 come up. And I really don't mean to ruffle any feathers by 16:15:22 2 raising this issue. However, I find that Deputy Pool's 16:15:29 3 testimony with regard to two things: One, not speaking to 16:15:36 4 any other officers about this case, especially in light of 16:15:44 5 what Deputy MacDonald said, as well as his statement that 16:15:47 6 he did not speak to Mr. Drottar about this case to be flat 16:15:50 7 out false. And I'm putting it specifically in those terms. 16:15:56 8 And I am not in any way respect whatsoever attributing any 16:16:02 9 bad motive nor am I attributing any bad action on the part 16:16:09 10 of Mr. Drottar. And I want that to be said because I don't 16:16:15 11 want to get involved with some of the things we've been in 16:16:20 12 before. 16:16:22 13 However, having said that, and perhaps I am 16:16:23 14 incorrect and certain things that happened will bear me out 16:16:26 15 differently. 16:16:32 16 It's my understanding that under a case called 16:16:33 17 Napue or Napue, N-A-P-U-E versus Illinois and I don't have 16:16:38 18 a cite off the top of my head, it's an age old case. The 16:16:44 19 prosecutor has an affirmative duty to correct knowingly 16:16:50 20 false testimony. And it is my position and perhaps 16:16:54 21 Mr. Drottar will say this that Deputy Pool never talked to 16:16:59 22 him about the case. If that's the case, so be it. But as 16:17:04 23 far as I'm concerned, the testimony that I heard from 16:17:12 24 Deputy Pool, because I asked a question in a variety of 16:17:14 25 different ways, I was actually somewhat surprised with the 16:17:17 26 answers to be honest with you. And is a statement that was 16:17:19 964 1 absolutely incorrect and false. 16:17:25 2 So I'm raising the concern because it is an 16:17:29 3 affirmative duty that rests with the District Attorney 16:17:33 4 independent of any issue concerning ungood or bad motive. 16:17:37 5 If false testimony's presented, the District 16:17:42 6 Attorney's got a duty to correct it. That's the state of 16:17:44 7 the law in the United States, has been the state of the law 16:17:48 8 federally and in the state for a long period of time. And 16:17:50 9 I'll leave it at that. 16:17:53 10 THE COURT: Well -- 16:17:56 11 MR. GUY-SMITH: I'll get the exact cite tomorrow 16:17:56 12 so you have that. 16:17:59 13 THE COURT: All right. That will be fine. I'll 16:17:59 14 certainly look at that, but I think I'm aware of what 16:18:00 15 you're talking about here, counsel. But I -- I have to say 16:18:03 16 with regard to Deputy Pool, the questions that were asked 16:18:06 17 in that regard, my recollection of it obviously it's in 16:18:09 18 the record is that about what he was going to testify 16:18:15 19 about. And that's what he said he didn't talk to 16:18:17 20 Mr. Drottar about. He said he talked to Mr. Drottar but 16:18:22 21 not about the specifics of what he was supposed to testify 16:18:24 22 to or going to testify to. 16:18:27 23 MR. GUY-SMITH: Well -- 16:18:32 24 THE COURT: That's what I got. 16:18:32 25 MR. GUY-SMITH: I want to be very specific here 16:18:32 26 because I never asked him the question did you talk to 16:18:33 965 1 Mr. Drottar about the specifics of what you were going 16:18:37 2 testify about. 16:18:40 3 THE COURT: That's my characterization. 16:18:41 4 MR. GUY-SMITH: I understand that. I think it 16:18:43 5 becomes important because in this regard that would be a 16:18:44 6 different kind -- that would be a much different question 16:18:47 7 and I would have been focusing on a much different kind of 16:18:50 8 relationship between the witness and Mr. Drottar had that 16:18:54 9 been the focus and thrust of my testimony. 16:18:58 10 THE COURT: Well, I don't know. As I said, it's 16:19:01 11 in the record and we can certainly go back and check that 16:19:03 12 since I have realtime, actually might be able to find it. 16:19:06
14 MR. DROTTAR: And I agree with the Court the 16:19:11 15 questions were: Did you talk to Mr. Drottar about your 16:19:12 16 testimony? Did you talk to Mr. Drottar about your 16:19:14 17 testimony? Was it -- did you talk to Mr. Drottar about the 16:19:17 18 facts of this case? It was did you talk to 16:19:20 19 Mr. Drottar about your testimony. 16:19:23 20 THE COURT: And he said no. But it didn't rule 16:19:26 21 out the fact that he didn't talk to you, Mr. Drottar; and I 16:19:28 22 thought he indicated that he had. But maybe not. But in 16:19:32 23 any event, Mr. Drottar, you may want to look at the 16:19:36 24 citation he has. I certainly have never had a situation 16:19:39 25 where Mr. Drottar wouldn't clear up that -- 16:19:42 26 MR. GUY-SMITH: Absolutely. 16:19:42 966 1 THE COURT: -- kind of problem here if one 16:19:47 2 developed. And then as far as him speaking to the other 16:19:49 3 officers in the case, Mr. Drottar, are you aware of any 16:19:52 4 indication that's otherwise? 16:20:00 5 MR. DROTTAR: That in preparation for this case, 16:20:02 6 no, I'm not aware. We've had no meetings where we've all 16:20:04 7 gotten together, talked about this case. Obviously that 16:20:08 8 goes without being said from looking at the evidence. If 16:20:12 9 we had talked about the case, talked about the testimony, 16:20:14 10 things may have come out a little differently than this. 16:20:18 11 Pretty obvious from the way things come out nothing was 16:20:20 12 staged or put together here. 16:20:24 13 MR. GUY-SMITH: I'm not suggesting that. 16:20:25
The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed. H. Court Erred In Preventing Evidence Of State Witness Changing Testimony Between Preliminary Examination and Trial – Affecting Believability Of Witness And Outcome Of Trial.The trial court abused its discretion when it disallowed evidence of State Witness changing testimony between Preliminary Examination and Trial coming before the jury thereby adversely affecting the believability of a State Witness. In the Preliminary Examination Sgt. Christey testified that she might have run into the back of Appellant’s vehicle, in trial Christey denied any such possibility. The Court actively conspired to prevent this critical information coming before the jury which is critical with respect to the credibility and believability of the State Witness: Vol 3 P564: Sgt. Christey changing testimony regarding running into back of vehicle – affecting believability of witness and outcome of trial: 4 Q Are you telling us that it is possible or not 5 possible that you ran into the vehicle as you were 6 attempting to get to the passenger's side? 7 A You're asking me is it possible or not possible 8 that I ran into the vehicle? 9 Q Possible? 10 A It's possible the vehicle ran into me. 11 Q My question: Possibly you ran into the vehicle? 12 A I think it's possible that anything can happen. 13 Q That's not my question, Sergeant Christey. 14 A I understand that. 15 Q I understand that's what bankers would say? 16 MR. DROTTAR: Objection. Argumentative. 17 MR. GUY-SMITH: In best of all possible worlds. 18 THE COURT: Sustained. Wait a minute. I think 19 I'm still the judge here; right? Sustained. So ask your 20 next question. 21 MR. GUY-SMITH: I am. My question to you is 22 this: Is it possible that you ran into the car? 23 MR. DROTTAR: Objection. Asking her to 24 speculate. 25 THE COURT: And, Mr. Guy-Smith, I suppose 26 anything's possible. So I don't see that we're going to 564 1 get anywhere on that. So I would sustain the objection. 2 MR. GUY-SMITH: Well, because I do not wish to
3 offend the Court's ruling, I am referring to a particular 4 point in the preliminary hearing transcript which I can 5 refer the Court and counsel to. I don't think we need to 6 approach sidebar. You can see precisely where I'm going 7 with the question. 8 THE COURT: Sure. Go ahead. Reference the page. 9 We can take a look. 10 MR. GUY-SMITH: Page 62. And line ten. 11 THE COURT: All right. I see it. There's not 12 anything here that I see is different than what she has 13 said, Mr. Guy-Smith. So let's go from there. 14 MR. GUY-SMITH: Well, I have a question to ask. 15 And in light of the Court's ruling with regard to you 16 saying anything is possible, and I don't want to -- once 17 again, I'm not interested in involving myself in a speaking 18 objection because we're not doing that. 19 THE COURT: Well, let's go to the sidebar here. 20 (Discussion held at the bench not reported.) 21 THE COURT: All right. Objection's sustained.
The Court has a duty to allow facts regarding testimony of State Witnesses to enter the record, again the Court sustains irrelevant objections and prevents the absolutely relevant fact that Sgt. Christy testified that it is possible that she ran into the back of Appellants vehicle from entering the record. Possibly in an attempt to mitigate this blatant abuse of the law, The Court later dismisses the PC § 245c Felony Assault With A Deadly Weapon charge, but only for Sgt. Christey. While the Court dismisses what the (biased) Court even recognized as an unsubstantiated charge by Sgt. Christey, the fact that the State Witness’ testimony changed between Preliminary Examination and Trial does not enter the record, prejudicing the jury in favor of the Prosecution as this directly affects the believability of the State Witnesses and consequentially the jury’s ability to weigh facts and testimony. The trial Court committed error and appellant’s conviction must be reversed.
I. Court Erred In Limiting And Striking Appellant’s Relevant Testimony Relating to 6 month anniversary 4 False Misdemeanors and the related false arrest in Mill Valley.The Court Allows the Prosecution to question Appellant in a case that occurred six months after the events of this case where the Santa Cruz District Attorney filed four new false charges against Appellant and Appellant was again falsely arrested – Dismissed Santa Cruz Superior Court Case M19946. However, the Court only allows questions relating to this other malicious prosecution case that are detrimental to Appellant. The Court literally goes as far as to edit Appellant’s testimony and threaten Appellant with contempt when Appellant raises relevant issues relating to this other malicious case relating to Appellants reasonable fear that the Santa Cruz Sheriffs who had just stolen Appellants vehicle off Appellants Church’s parking lot and who had filed four new false charges might kill Appellant after Appellant had jut filed a formal claim against the Sheriffs. Yet the Court disallows any information relating to the event and case that occurred immediately prior to the events of this case, the TRO and Placer Case, excepting for the fact that The Court did allow the Prosecution to enter into the record hearsay and lies by State Witnesses suggesting that apparently Appellant had boxed his former Personal Assistant on the nose in the Placer County case (Vol 5 P1022L17). Vol 5 P1026: L8: The Court allowing irrelevant case that occurred 6 months later to enter the record, but prevents a case that happened immediately before this incident from entering the record: 10:08:45 8 MR. GUY-SMITH: One last issue. It is my 10:08:48 9 assumption that after Mr. Boustred testifies the People 10:08:54 10 have the opportunity to use for the purposes of impeachment 10:08:57 11 the event on September 26th, 2003, which is -- we've called 10:09:04 12 Mill Valley event. That is the event in which an officer 10:09:09 13 has -- 10:09:10 14 THE COURT: Right. 10:09:11 15 MR. GUY-SMITH: Right. 10:09:12 16 THE COURT: Right. 10:09:12 17 MR. GUY-SMITH: With regard to Placer County, 10:09:13 18 they are not going to use any evidence with regard to 10:09:16 19 Placer County? 10:09:17 20 THE COURT: That's right. Mr. Drottar, is that 10:09:18 21 correct? 10:09:19 22 MR. DROTTAR: That is correct, Your Honor.
Vol 5 P1120: Court allowing Prosecution to introduce evidence from an incident that occurred 6 months after this case, however, the court disallows the fact that this incident also involved a false arrest for another dismissed malicious prosecution case Santa Cruz filed against Appellant. 14:06:15 3 Q Now, Mr. Boustred, on September 26th, 2003, at 14:06:21 4 about 11:36 p.m. you were driving a car in Mill Valley, 14:06:27 5 California; correct?
In Vol 5 P1121 L18, Appellant testifies “Yes, in fear for my life I did do that.” relating to the second false arrest of Appellant. However, when Defense asks Appellant why he was in fear for his life the Court prevents relevant facts from being brought before the jury: Vo 5 P1124: The Court preventing relevant facts from entering the record relating to the 6 month later Mill Valley event: 14:10:44 6 BY MR. GUY-SMITH: 14:10:49 7 Q Why were you in fear for your life? 14:10:53 8 MR. DROTTAR: Objection, Your Honor. 14:10:56 9 THE COURT: Let's approach. 14:11:54 10 (Discussion held at the bench not reported.) 14:11:54 11 THE COURT: Ladies and gentlemen, if you'd excuse 14:11:56 12 us, please, and wait outside. 14:12:08 13 (Jury excused) 14:12:14 14 THE COURT: Okay, Ken? All right. Now at sidebar 14:12:59 15 -- I rather have this on the record. And so, 14:13:02 16 Mr. Guy-Smith, you want to ask him why he was in fear of 14:13:05 17 his life. And I asked you at sidebar what's he going to 14:13:09 18 say? You replied, I did not know precisely what he was 14:13:12 19 going to say. You did not know. 14:13:15 20 MR. GUY-SMITH: Precisely what he was going to 14:13:16 21 say. The Court said there was concern about being "set up" 14:13:18 22 and I will indicate quite absolutely, positively I am 14:13:24 23 concerned and take umbrage at the notion of there being a 14:13:28 24 setup. I'll explain to the Court why. 14:13:30 25 THE COURT: Just a second, Mr. Guy-Smith. And 14:13:32 26 what I said to you at that point was I'm not talking about 1125 14:13:35 1 you. I'm talking about your client. And now for the 14:13:38 2 record I've gone back since I have realtime indications 14:13:43 3 here on my computer which gives me the testimony 14:13:47 4 Mr. Boustred said in answer to a question that he is the 14:13:55 5 one who, "yes, in fear of my life I did do that." And in 14:14:00 6 response to a question I lied to him again and wrote down 14:14:03 7 Robert M. DeMontez and so it was Mr. Boustred who inserted 14:14:08 8 "I did do that in fear of my life." And my point to you, 14:14:12 9 Mr. Guy-Smith, is that your client has repeatedly in the 14:14:19 10 Court's view inserted issues into the case that otherwise 14:14:22 11 he has been instructed not to. So that's what he said. 14:14:27 12 MR. GUY-SMITH: I understand, Your Honor. The 14:14:27 13 extent to which -- the extent to which we are sanitizing 14:14:32 14 and turning this into, as far as I am concerned, a 14:14:36 15 one-sided trial is quite a fear and I am very concerned 14:14:41 16 about my client's right under the constitution directly how 14:14:45 17 it effects his right under the Fourth, Fifth and Sixth 14:14:49 18 Amendment. 14:14:49 19 However, or in addition, there is no surprise 14:14:55 20 here. I brought a motion In Limine with regard to the use
14:14:59 21 of this information. My attempt was to keep this 14:15:03 22 information out and away from the jury. 14:15:04 23 Mr. Drottar is fully aware of what occurred 14:15:08 24 during this stop. And during this stop my client told the 14:15:15 25 officer, officer Epstein, if officer Epstein is to be 14:15:20 26 believed for the purposes of our discussion he might well 1126 14:15:22 1 be, he told officer Epstein he lied because he was worried 14:15:25 2 about the Santa Cruz Police Department killing him. That's 14:15:30 3 what he told the police officer. He made it real clear. 14:15:32 4 And Mr. Drottar new about it before we ever entered into 14:15:36 5 this area. 14:15:37 6 I, quite frankly, and, you know, I fought hard to 14:15:40 7 keep it out. Mr. Drottar decided to bring it in. And he's 14:15:43 8 bringing it in for the purposes of what? To prove that he 14:15:46 9 lied but he doesn't want the jury to know why he lied? He 14:15:50 10 doesn't want the jury to know what the intent of Mr. 14:15:53 11 Boustred is. As a matter of fact, every time we deal with 14:15:55 12 that issue he does everything he can to avoid what's going 14:15:58 13 on in my client's mind in this particular situation. And 14:16:01 14 in this particular situation, which is why I said I take 14:16:05 15 umbrage. Mr. Drottar was well aware ages before the 14:16:10 16 question was even thought of what the, what the area was 14:16:14 17 and what Mr. Boustred said because it was information that 14:16:20 18 was contained in the police report. A police report that 14:16:21 19 Mr. Drottar supplied me with, which forced me to bring the 14:16:26 20 motion In Limine. 14:16:27 21 Now, at this point, for him to say -- at this 14:16:29 22 point for him to say, for him to object, with regard to the 14:16:34 23 reason why did you lie and he said and the answer is my 14:16:38 24 question why did you lie, his answer, assuming he gives the 14:16:44 25 answer that I expect him to give, but once again I don't 14:16:46 26 know, but assuming I get the straight answer is I lied 1127 14:16:49 1 because I was worried that Santa Cruz Police would kill me. 14:16:52 2 Beginning and end of the discussion. 14:16:55 3 THE COURT: We got the cart before the horse. 14:16:57 4 Probably should have asked him what he was going to say, I 14:16:58 5 guess, so Mr. Boustred what's your answer to that question? 14:17:03 6 THE WITNESS: I'll speak to my counsel; that is 14:17:05 7 okay? 14:17:06 8 THE COURT: Sure. Go ahead. 14:17:29 9 (The Appellant has a discussion with his counsel) 14:17:35 10 THE COURT: And so, Mr. Boustred, after receiving 14:17:38 11 advice from your counsel, do you want to answer the Court's 14:17:42 12 question? 14:17:46 13 THE WITNESS: Counselor? 14:17:47 14 MR. GUY-SMITH: Answer the question. 14:17:49 15 THE WITNESS: The obvious I was fearful that I 14:17:51 16 was going to be killed by the Santa Cruz Sheriff's. I've 14:17:57 17 been shot at. They had just stolen my car off the church 14:18:02 18 property. They were not following the law in the least. 14:18:07 19 They were trying to arrest me for supposedly disobeying 14:18:11 20 court orders, which I was not disobeying. I was seriously 14:18:17 21 concerned for my life. And I still am. 14:18:24 22 THE COURT: All right. That's his answer. So 14:18:28 23 that somewhat follows what you said, Mr. Guy-Smith. And so 14:18:32 24 do you have anything else to add here? 14:18:36 25 MR. GUY-SMITH: No, Judge. I mean, I'm beating 14:18:39 26 pretty much the same drum and have been beating the same 1128 14:18:44 1 drum since the beginning. I mean, in my opinion, and I 14:18:48 2 certainly mean no disrespect to the Court, the extent in 14:18:51 3 which this matter's becoming lopsided is astounding in this 14:18:57 4 particular situation there. For the purposes of this 14:18:59 5 discussion there are no surprises here. 14:19:02 6 Mr. Drottar cannot assume to be surprised at all. 14:19:06 7 And he pulled it and he played it and he bounced back and 14:19:10 8 forth on the particular issue and he knew at some point in 14:19:13 9 time that the reason -- once again the reason why something 14:19:18 10 occurred which is what we've been foreclosed from 14:19:20 11 discussing with this jury again and again and again as it 14:19:26 12 relates to my client, the reason why he did something is 14:19:28 13 now not going to be in front of the jury if Mr. Drottar has
14:19:31 14 his way. 14:19:32 15 THE COURT: All right. Mr. Drottar, what's your 14:19:35 16 view? 14:19:36 17 MR. DROTTAR: The People didn't ask the reason. 14:19:38 18 That was not anything that was in the motions In Limine. 14:19:42 19 What the motions In Limine were for, were for the, you 14:19:46 20 know, truth. The People's questions were closed. The 14:19:49 21 Appellant interjected his own gratuitous comments. This 14:19:55 22 wasn't something that -- the People didn't ask why did you 14:20:01 23 lie? There was nothing of that nature asked. There was no 14:20:06 24 question about it. 14:20:06 25 MR. GUY-SMITH: You're right. 14:20:08 26 MR. DROTTAR: "Why" was interjected by the 1129 14:20:09 1 Appellant. 14:20:10 2 MR. GUY-SMITH: You're right. The People didn't 14:20:11 3 ask "why," you know, what -- this is a trial. This is give 14:20:13 4 and take. This isn't a one-sided affair where the 14:20:16 5 government gets to put on the case the way they want. They 14:20:19 6 get to tailor their evidence in the way they want and get 14:20:22 7 to proceed to the jury what they want in an attempt to 14:20:25 8 establish their case. That is not what trials are about. 14:20:28 9 Trials give and take. There are two sides to a story here 14:20:31 10 and especially with regard to this issue.
14:20:34 11 THE COURT: There are always two sides to the 14:20:35 12 story. 14:20:36 13 MR. GUY-SMITH: Issue is he lied; okay. Now he's 14:20:39 14 going to get up, he's going to look at this jury. He's 14:20:40 15 going to say in closing argument he lied. And whatever 14:20:42 16 else he does with it, I don't know. I'm not going to say 14:20:45 17 what he's going to do with it, because I don't know what 14:20:46 18 he's going to do with it. But I know one thing that's 14:20:49 19 going to happen for sure. The jury's never going to 14:20:52 20 understand why he lied. The jury's never going to 14:20:55 21 understand what his motivations were and whether or not his 14:20:58 22 motivations impact upon his credibility. And I think 14:21:02 23 they're entitled to do that. I think it's really at this 14:21:06 24 point it's really a matter of being absolutely unfair to 14:21:10 25 not let the question be answered. I will be happy to keep 14:21:15 26 it defined and defined to the very specific answer that he 1130 14:21:20 1 gave. We can even have the answer read back if you want. 14:21:22 2 So that he doesn't go any far afield if the Court so ruled 14:21:29 3 but otherwise it would be extent of which we're being 14:21:30 4 denied our rights here to present a defense both recognized 14:21:34 5 under California constitution and recognized under federal 14:21:37 6 constitution. It is quite shocking to me, Your Honor. 14:21:40 7 I've been involved in practice of law for a fair period of 14:21:42 8 time. And I got to tell you, I'm used to walking up the 14:21:46 9 hill. I have no problem walking up the hill. And I think 14:21:49 10 in fair comment with regard to the manner in which the 14:21:55 11 People have chosen to present this case, what they're doing 14:21:58 12 is they are putting on a one-sided case and they are 14:22:02 13 foreclosing us from giving to the trier of fact information 14:22:06 14 that they need to consider with regard to issues that are 14:22:11 15 going to be critical on determination of my client's guilt 14:22:15 16 or innocence. 14:22:15 17 THE COURT: How is the jury supposed to in any 14:22:17 18 way, shape or form evaluate something like that, 14:22:21 19 Mr. Guy-Smith? You know very well, you know very well that 14:22:24 20 they can't do that under these circumstances without 14:22:28 21 delving into all of these issues in a way that will take us 14:22:31 22 probably another week. All right. 14:22:33 23 MR. GUY-SMITH: But I, Your Honor, specifically I 14:22:35 24 begged the Court don't let us go into this. Please don't 14:22:38 25 go into this. The Court made a determination. 14:22:40 26 THE COURT: No. No. No. Mr. Guy-Smith, you 1131 14:22:42 1 don't get that. You don't get it both ways here. You 14:22:44 2 don't say don't go into this and then as a result of a 14:22:48 3 ruling on evidentiary ruling get to have and I'm not 14:22:52 4 suggesting you did it but your client did it, inject the 14:22:56 5 very problem into an answer to a straight-up question that 14:23:01 6 now causes the problem. You don't get to do that. 14:23:04 7 MR. GUY-SMITH: Excuse me, Your Honor. Are you 14:23:05 8 suggesting realistically if somebody is put forth the
14:23:12 9 following question by me by the prosecutor by anybody you 14:23:15 10 said so and so. 14:23:18 11 THE COURT: Yeah, I am suggesting it. 14:23:20 12 MR. GUY-SMITH: And the person said, yes, I did 14:23:21 13 and then I said you lied. You say you lied. Are you 14:23:25 14 telling me that the other party, the person who didn't, the 14:23:31 15 adversary of that question can't say why? 14:23:34 16 THE COURT: I'm suggesting that he put into his 14:23:38 17 answer something that was not allowed by the Court. 14:23:41 18 MR. GUY-SMITH: Assuming for purposes of 14:23:43 19 discussion he said that he lied. And that was the end of 14:23:45 20 what he said. I still would have gotten up and said why. 14:23:48 21 I still would have asked the question because I think the 14:23:51 22 jury's entitled to know what his motivations were here. 14:23:53 23 Otherwise, you know what? He's going to get up and say 14:23:58 24 he's a liar. 14:23:58 25 THE COURT: That's not what happens when you have 14:24:01 26 this kind of information that's elicited. Okay. It's 1132 14:24:05 1 elicited for the limited purpose bearing on somebody's 14:24:09 2 credibility. 14:24:10 3 MR. GUY-SMITH: You're right. I agree with you, 14:24:11 4 Your Honor. Here there's two issues here. One did you 14:24:14 5 make a false statement? You said, yeah, I made a false 14:24:17 6 statement. No, I didn't make a false statement. Makes no 14:24:20 7 difference to me which way it is. There's underlying 14:24:22 8 reason why the statement was made. There's a motivation 14:24:24 9 for the statement. And when judging an individual's 14:24:29 10 credibility, the jury has got to have that information. 14:24:31 11 What is the motivation for the lie? Why did you lie? 14:24:36 12 THE COURT: No. If it's relevant and if it has a 14:24:37 13 material in it that's otherwise, you know, doesn't send the 14:24:41 14 jury off in some direction that's misleading. 14:24:44 15 MR. GUY-SMITH: But I'm not going to send the 14:24:45 16 jury off in a direction. Why did you lie? I lied because 14:24:48 17 I thought the Santa Cruz Police Department's going to kill 14:24:51 18 me, period. You know what? I'm sitting as a juror, you 14:24:54 19 know what? All right. I understand why he lied, you know. 14:24:57 20 What doesn't make sense to me? 14:25:00 21 THE COURT: Well, you know, I don't know, if I 14:25:03 22 were Mr. Drottar, I might encourage that, but that's him, 14:25:07 23 it's up to him. 14:25:08 24 MR. GUY-SMITH: That's right. That is up to him. 14:25:10 25 The point is all I'm asking is for him to be able to 14:25:13 26 explain why he lied. 1133 14:25:16 1 THE COURT: That's not what he's going to do. 14:25:16 2 He's not going to do what you said. He's going to do more. 14:25:18 3 He already did more than what he was supposed to do, which 14:25:22 4 is part of the problem. 14:25:22 5 MR. GUY-SMITH: If I direct him to say -- if I 14:25:25 6 direct him with regard to this, although I object to this,
14:25:27 7 but if I direct him to say, why did you -- if I ask you a 14:25:30 8 question why you lied, you lied because I was concerned the 14:25:33 9 Santa Cruz Police Department was going to kill me, period. 14:25:36 10 Can we do that? 14:25:37 11 THE COURT: I don't think so because then the next 14:25:40 12 thing that's going happen is Mr. Drottar is going to want 14:25:41 13 to say, well, let's just explore that here for a minute 14:25:44 14 because, you know, you thought the police were going to 14:25:48 15 kill you. Wow, let's hear about that. I mean, you know, 14:25:51 16 that's what the obvious follow-up is, 14:25:54 17 Mr. Guy-Smith. 14:25:55 18 MR. GUY-SMITH: Wait a minute, you know what, 14:25:55 19 Judge -- 14:25:56 20 THE COURT: Mr. Guy-Smith, we're not going to have 14:25:57 21 it -- 14:25:58 22 MR. GUY-SMITH: That's advocacy. That's what 14:26:00 23 this is all about. That's why we have trials. If he 14:26:03 24 chooses to do so, so be it. I wouldn't choose to do so. I 14:26:06 25 would not choose to do so, but right now you're leaving the 14:26:09 26 jury with absolutely false and misleading impression with 1134 14:26:13 1 regard to Mr. Boustred with regard to his character, with 14:26:16 2 regard to his credibility, with regard to his intent. 14:26:20 3 THE COURT: No, I'm not. He admitted he lied. 14:26:22 4 MR. GUY-SMITH: But there's a reason why. That's 14:26:23 5 what I'm getting at. 14:26:25 6 THE COURT: It didn't matter for the purposes of 14:26:27 7 credibility. 14:26:29 8 THE WITNESS: Your Honor, may I speak to my 14:26:31 9 counsel for a moment? 14:26:31 10 THE COURT: Certainly. Go ahead. 14:26:32 11 MR. GUY-SMITH: Of course it matters. That is 14:26:33 12 credibility, the motivation of individual -- sit down. The 14:26:36 13 motivation. 14:26:37 14 THE COURT: Mr. Guy-Smith, settle down, 14:26:39 15 Mr. Guy-Smith. 14:26:40 16 MR. GUY-SMITH: Always matters with regard to 14:26:41 17 credibility. 14:26:41 18 THE COURT: I understand. You need to settle down 14:26:43 19 here. 14:26:44 20 MR. GUY-SMITH: I'm fine, Your Honor. Motivation 14:26:46 21 when you're dealing with credibility. 14:26:52 22 THE COURT: I don't think so. 14:26:52 23 MR. GUY-SMITH: I do. Motivation deals with 14:26:52 24 credibility, always is important for a jury to understand 14:26:55 25 the thinking of an individual witness is critical. 14:26:59 26 THE COURT: I have your position, okay. That is 1135 14:27:02 1 enough. Okay. What is it, Mr. Boustred wants to speak to 14:27:05 2 you about? Go ahead, take a moment. 14:27:07 3 (Appellant speaks with his counsel.) 14:27:24 4 MR. DROTTAR: Your Honor, for the record, there 14:27:26 5 are actually two warrants for Appellant's arrest. One from 14:27:31 6 the Placer County for failure to appear for sentence for 14:27:32 7 242. 14:27:34 8 THE COURT: And why are you telling me that? 14:27:39 9 MR. DROTTAR: As counsel made representations 14:27:40 10 about what's in or is not in the police reports. 14:27:43 11 MR. GUY-SMITH: I made representation as to what 14:27:45 12 my client told the police officer was the reason why he 14:27:48 13 lied. 14:27:48 14 THE COURT: Yeah. The -- so the point that you're 14:27:52 15 making, Mr. Drottar, is you're going to ask him about the 14:27:56 16 fact that he was wanted, he was wanted on a warrant; is 14:27:57 17 that it? 14:27:58 18 MR. DROTTAR: That would be something that if we 14:28:00 19 go down this road, Your Honor. 14:28:03 20 THE COURT: Well, you know -- 14:28:04 21 MR. GUY-SMITH: You know what, Your Honor? You 14:28:07 22 know what? I've said it before. I'll say it again. In 14:28:09 23 this trial the prosecution opened the door repeatedly. 14:28:12 24 Every time the prosecution's opened the door, we've 14:28:15 25 attempted to respond to that door being opened, we have 14:28:18 26 been foreclosed. Quite frankly, I feel like I'm hog tied. 1136 14:28:23 1 I really do. I feel like I'm hog tied. 14:28:26 2 THE COURT: I understand. I respect the fact you 14:28:27 3 have feelings. My job is not to determine the case on the 14:28:31 4 basis of feelings. My job is to determine the case on the 14:28:34 5 rules of evidence and the law that applies. And so -- 14:28:36 6 MR. GUY-SMITH: I do apologize. What I'm saying
14:28:38 7 feeling, what I meant is as a matter of law I am being hog 14:28:44 8 tied in representing my client. 14:28:44 9 THE COURT: I understand. 14:28:45 10 MR. GUY-SMITH: I'm being hog tied in presenting 14:28:49 11 a defense so I'm foreclosed from presenting a defense and 14:28:50 12 I'm foreclosed from discussing with this jury issues that 14:28:54 13 are critical to the question of his credibility, which they 14:28:58 14 are going to have to judge because he is the sole witness 14:29:01 15 for the defense. And no other witness exists. 14:29:04 16 THE COURT: All right. 14:29:05 17 MR. GUY-SMITH: As a result of that, as far as I 14:29:07 18 am concerned, I am being denied my right to represent him 14:29:11 19 and he's being denied his rights under California 14:29:15 20 constitution and federal constitution; Fourth, Fifth, Sixth 14:29:19 21 Amendments. 14:29:20 22 THE COURT: I've got it. 14:29:21 23 MR. GUY-SMITH: Submitted. 14:29:22 24 THE COURT: All right. Anything else, 14:29:22 25 Mr. Drottar? What would you ask in response if the Court 14:29:25 26 allowed his response? 1137 14:29:29 1 MR. DROTTAR: That Mr. Boustred you have a -- not 14:29:34 2 just Santa Cruz Police Department you're worried about, you 14:29:36 3 actually have warrants from Placer County that you have a 14:29:49 4 failure to appear for sentencing. 14:29:50 5 THE COURT: That's what you ask him in terms of 14:29:51 6 any response you gave to Mr. Guy-Smith question? 14:29:56 7 MR. DROTTAR: I don't know about any response or 14:29:56 8 response of having his car stolen and having the officers 14:30:00 9 chase him and try to arrest him at the school. Certainly 14:30:03 10 we can bring the people from the school in here. They'd be 14:30:05 11 happy to talk about Mr. Boustred. 14:30:08 12 THE COURT: All right. Tell the jury, 14:30:11 13 Miss Beckman, we're going take our afternoon recess at this 14:30:14 14 point. They'll return at 15 before the hour. Okay. 14:30:20 15 All right. 14:30:22 16 (Whereupon, a recess was taken.) 14:49:36 17 (The following proceedings were held outside the 14:49:36 18 presence of the jury.) 14:49:37 19 THE COURT: We're back on the record. 14:49:37 20 Mr. Boustred, Mr. Boustred here with Mr. Guy-Smith, his 14:49:41 21 colleague and Mr. Drottar. The Court's considered the 14:49:44 22 arguments of Mr. Guy-Smith, the People, and has reviewed 14:49:49 23 from the -- for my purposes the record. And the record 14:49:53 24 does in my view reflect the fact that in response to a 14:49:57 25 question that was -- that did not call for an elongated
14:50:05 26 response, Mr. Boustred inserted that he did so when he lied 1138 14:50:11 1 in fear of his life. The DA then in the Court's view was 14:50:15 2 placed in an untenable position and went on from there 14:50:23 3 asking questions, but in no way invited that response. Mr. 14:50:31 4 Boustred volunteered that response and with all due respect 14:50:36 5 to Mr. Guy-Smith's position, and I understand his advocacy, 14:50:40 6 it's very competent advocacy, but the Court previously 14:50:43 7 ruled and I will not and under these circumstances permit 14:50:51 8 any further questions into this area. We've been able to 14:50:55 9 in my -- in the Court's view -- prevent extraneous material 14:50:59 10 from misleading this jury in a way that is otherwise will 14:51:03 11 confuse them. And so I will sustain the objection by Mr. 14:51:09 12 Drottar and we're going to move on. All right. Bring the 14:51:13 13 jury in. 14:51:14 14 (In the presence the jury) 15:02:00 15 THE COURT: All right. And so we're now on the 15:05:40 16 record in the People versus Boustred. And Mr. Boustred is 15:05:45 17 here. Miss Beckman's back as well. Mr. Guy-Smith here. 15:05:48 18 Mr. Drottar, our jurors, our alternate. 15:05:52 19 Mr. Boustred, I'll remind you, you're still under 15:05:54 20 oath. All right. And the objection to the last question 15:05:57 21 by the People was sustained. And so you'll disregard 15:06:00 22 anything having to do with that and we'll move ahead. Any 15:06:03 23 other questions, Mr. Guy-Smith?
For the record, Appellant maintains strict policies within his corporations regarding telling lies for which written policies state “Lying is categorically and absolutely forbidden, contractors may be terminated for lying.” The Mill Valley event was a great struggle for Appellant who had every reason to fear for his life. Considering the concept of “Christian Names”, which were developed by Christians for the express purpose of avoiding giving the Roman authorities their names, as the authorities would arrest the Christians and crucify them if they gave their real name. When asked his name by the officer in Mill Valley, appellant gave another name, literally in fear for his life. The Court and Prosecution however worked adamantly to ensure that none of this perspective came before the jury, literally striking any testimony by appellant that might lead to a truthful or complete testimony. Repeatedly the judge allows the Prosecutions witnesses to submit hearsay and known lies into the record. When Defense’s witness is asked what happened and answers as to what happened the judge repeatedly literally strikes the Defense witness testimony: Vol 5 P 1040: The Court again disallows valid testimony by Appellant: 10:46:38 8 Q Did you have the ability at that time to receive 10:46:39 9 any telephone messages? By that I mean did you have a 10:46:42 10 radio or cell phone or anything like that? 10:46:44 11 A I had a cell phone. 10:46:46 12 Q I'm sorry? 10:46:47 13 A I had a cell phone but the batteries are flat. 10:46:51 14 I've driven the previous day from Tahoe. I hadn't charged 10:46:55 15 it. 10:46:55 16 MR. DROTTAR: Objection, Your Honor. 10:46:56 17 Nonresponsive. 10:46:58 18 THE COURT: Just try to stay with his questions, 10:46:59 19 Mr. Boustred. Okay? We'll be fine here. Sustained.
Note, Prosecution asks “did you have the ability at that time to receive any telephone messages?” Appellant responds that he had his cell phone but the battery was flat. The Court and Prosecution then conspire to remove only the fact that Appellants battery was flat, clearly blatantly attempting to mislead the jury in the regard to Appellants ability to receive calls. The sheer absurdity of the Court and Prosecutions attempts to mislead the jury is illustrated again where the Prosecution asks Appellant about his arrest. Clearly both the Court and Prosecution wish to prevent the fact that Deputy Sheriff Brzozowski, whom the Court denied discovery on, violently assaulted Appellant during the false arrest: Vol 5 P1041: Prosecution questioning Appellant and objecting to a valid response from Prosecutions own question, and the Court striking valid testimony from the record so as to mislead the jury and prevent relevant facts from entering the record: 10:48:09 26 Q Lastly with regard to assaulting police officers, 1042 10:48:13 1 did you on March 10th assault any police officers? 10:48:16 2 A Goodness no. I would never do that. 10:48:17 3 MR. DROTTAR: Objection, Your Honor. Leading. 10:48:20 4 THE COURT: It is. Sustained.
Note the clear relevance as to “intent and state of mind” of Appellant as related to specific intent charges: On July 9, 2002, Appellant had to take his oldest son RCB, aged six and a half at the time, to the emergency room following his ex-wife making a false 911 call on that date for which his ex-wife was ordered out of the family home on July 12, 2002 – see court order of same date. Vol 5 P1056: Yet another classic example of invalid objections being sustained by the court with the intent to mislead the jury: 11:12:01 19 Q When you say he was going to scare your kids, why 11:12:04 20 were you concerned about your kids being scared? 11:12:07 21 A My kids had been scared before from the Sheriff's 11:12:09 22 being called up at my property. My wife had made many 11:12:13 23 false calls to the sheriff. 11:12:16 24 MR. DROTTAR: Objection, Your Honor, irrelevant. 11:12:18 25 MR. GUY-SMITH: Excuse me. When there's an 11:12:20 26 objection, you can't testify. You can't say. You got to 1057 11:12:22 1 be quiet, let the judge make a determination on the
11:12:26 2 objection. So please don't do this. 11:12:29 3 THE COURT: All right. Let's approach here. 11:13:27 4 (Discussion held at the bench not reported.) 11:13:27 5 THE COURT: All right. Now, with regard to the 11:13:29 6 last portion of the answer, it will be stricken and 11:13:31 7 disregarded. 11:13:32 8 Now, Mr. Boustred, you were here when we 11:13:36 9 discussed issues as to what would be covered in the 11:13:40 10 testimony and what wouldn't, and you understood, hopefully 11:13:44 11 clearly, the Court's rulings. And so I wish you to adhere 11:13:49 12 to those. All right. I know you're doing your best. Just 11:13:53 13 listen to Mr. Guy-Smith's question and answer accordingly. 11:13:58 14 All right. Go ahead. 11:14:05 15 THE WITNESS: Very interesting. 11:14:06 16 THE COURT: Excuse me? 11:14:08 17 THE WITNESS: My attorney said interesting. I 11:14:10 18 said very interesting. 11:14:11 19 THE COURT: I don't want any comments from either 11:14:13 20 counsel. 11:14:15 21 THE WITNESS: Terribly sorry.
Defense counsel in the following transcript example is prevented from bringing fact that Appellant had just filed a TRO to prevent Appellant’s ex-wife from making false police calls, which significantly influenced Appellant’s intent and reason for first going to put his children out of harms way in their home: Vol 5 P1064: Defense prohibited from questioning Appellant regarding TRO: 11:21:13 13 Q Now, after -- after that occurred, what did you 11:21:18 14 do? 11:21:20 15 A I rolled down the window and I spoke to Sergeant 11:21:21 16 Christey. I said, listen all I want -- 11:21:23 17 Q Excuse me. 11:21:25 18 A I rolled down the window and I spoke to Sergeant 11:21:27 19 Christey. 11:21:28 20 Q Okay. 11:21:36 21 If we can approach sidebar? I don't want to 11:21:38 22 violate the Court's ruling. 11:21:39 23 THE COURT: All right. 11:21:39 24 (Discussion held at the bench not reported.) 11:21:39 25 BY MR. GUY-SMITH: 11:22:47 26 Q After you had an initial conversation with 1064 11:22:54 1 Sergeant Christey, where did you go?
Vol 5 P1006: Defense cannot address relevant fact of Appellant filing TRO, which specifically addresses intent: 11:23:37 18 Q Okay. When you had the conversation with Deputy 11:23:41 19 Pool, where was that conversation? 11:23:43 20 A It was also in the garage. I put a whole lot of 11:23:48 21 papers on my -- 11:23:49 22 Q Enough. Please. 11:23:55 23 A Okay. 11:23:56 24 Q Ruling here. We want to abide by the Court's 11:23:59 25 ruling.
Vol 4 P 939: The Court however allows Prosecution to submit their ‘state of mind’ and draw legal conclusions before the jury: 25 Q With the information that you had that the 15:35:58 26 defendant was presently committing a crime -- 15:35:59 940 1 MR. GUY-SMITH: Object, Your Honor. 15:36:03 2 MR. DROTTAR: -- Deputy Pool -- 15:36:04 3 MR. GUY-SMITH: Objection, Your Honor. 15:36:07 4 THE COURT: Just a minute. Let him finish the 15:36:07 5 question, Mr. Guy-Smith. I've already -- I think we 15:36:07 6 already got this one. I'm going to overrule this 15:36:09 7 objection. 15:36:12 8 MR. GUY-SMITH: The only dealing with the 15:36:14 9 characterization of a crime. He can say what Deputy Pool 15:36:14 10 said he was dealing with which is failing to yeild; that's 15:36:17 11 fine with me, but now he's calling for legal conclusion. 15:36:21 12 THE COURT: Mr. Guy-Smith, I already said that to 15:36:24 13 the jury. In other words, what this officer's state of 15:36:26 14 mind is and you pressed him on this, you know. What he was 15:36:31 15 doing at the time. What his actions were. What impact 15:36:33 16 these things had on him. And Mr. Drottar's entitled at 15:36:37 17 this point to ask him about that. If he thinks there's a 15:36:41 18 crime being committed, then that is a factor in terms of 15:36:43 19 his decision-making. 15:36:46 20 MR. GUY-SMITH: That is true but that's not the 15:36:49 21 question that's being asked. A different question's being 15:36:50 22 asked. 15:36:53 23 THE COURT: I think it's fair. I think the 15:36:54 24 question's fair. All right. Ask it again. Objection's 15:36:56 25 overruled. 15:37:00
Vol 5 P1066: The Court ordering Appellant to not testify to the truth but to follow the Court’s order: 11:25:15 17 Q After you finished your conversation with Deputy 11:25:18 18 Pool, where did you go? 11:25:21 19 A Well, I was in the garage and another deputy came 11:25:27 20 in, drove his knuckles into my neck cuffed my wrist with 11:25:33 21 his bloody hand then they dragged me out of my garage. 11:25:36 22 MR. DROTTAR: Objection, Your Honor. No question 11:25:37 23 pending. 11:25:37 24 BY MR. GUY-SMITH: 11:25:40 25 Q My question was after you had the discussion -- 11:25:40 26 I'll move to strike, Your Honor. 1066 11:25:44 1 After you had these discussions with Deputy Pool, 11:25:46 2 where did you go? That's my question. 11:25:49 3 A Out of the garage. 11:25:50 4 THE COURT: Okay. Ladies and gentlemen, would you 11:25:53 5 just excuse us, please, and leave the courtroom for just a 11:25:54 6 moment. All right. Thank you. 11:26:27 7 (Jurors leave the courtroom.) 11:26:30 8 THE COURT: All right. Record should show we're 11:26:31 9 outside the presence of the jurors and alternate. 11:26:40 10 Now, Mr. Boustred, we've tried here at least once 11:26:48 11 I've instructed you in front of the jury to answer your 11:26:52 12 counsel's questions specifically. You seem not to be able 11:26:59 13 to follow the Court's directions with regard to this. 11:27:01 14 Now, there is what they call a contempt of Court. 11:27:06 15 All right. Which means that at one point or another if you 11:27:11 16 are, in the Court's point of view, intentionally 11:27:13 17 disregarding the direction of the Court, that the Court 11:27:17 18 would hold you in contempt of Court. And thereafter impose 11:27:21 19 sanctions appropriately. 11:27:24 20 If you continue to do what it appears you're 11:27:28 21 doing, and I can understand that you have very strong 11:27:31 22 feelings about these things, I understand that. Okay? And 11:27:35 23 -- but you must abide by the Court's direction and rule 11:27:40 24 here. You are not helping yourself here in terms of the 11:27:44 25 case when you do that. I understand you think apparently` 11:27:48 26 that some things need to be said because you keep 1067 11:27:53 1 disregarding the direction not only of the Court but of 11:27:56 2 your own counsel. 11:27:58 3 Now, either I have your assurance here that 11:28:01 4 you're going to abide by the directions and rule of the 11:28:04 5 Court or I am going to hold you in contempt. Now, what are 11:28:13 6 you going to do, Mr. Boustred? 11:28:14 7 MR. GUY-SMITH: Before Mr. Boustred answers that 11:28:16 8 particular question, Your Honor, if I could have a moment 11:28:19 9 with him? Because -- 11:28:22 10 THE COURT: Yes, I think it's wise. It's wise. 11:28:22 11 Okay. Why don't you speak with counsel. 11:28:24 12 MR. GUY-SMITH: Thank you very much. Your Honor. 11:29:02 13 (Appellant has discussion with his counsel.) 11:30:08 14 THE COURT: Are we ready to proceed, 11:30:10 15 Mr. Guy-Smith? 11:30:11 16 MR. GUY-SMITH: I think we are ready to proceed. 11:30:14 17 I believe that Mr. Boustred will follow the Court's orders 11:30:22 18 and there will not be any slippage. It is my belief based 11:30:28 19 upon our conversation just now. I don't know if the Court 11:30:31 20 wishes to assure itself of that, but I will make that 11:30:35 21 representation based upon my brief conversation with 11:30:39 22 Mr. Boustred right now concerning what the Court's concern 11:30:42 23 is, concerning what the seriousness of the potential 11:30:45 24 sanction is as well as considering what his concerns are. 11:30:50 25 THE COURT: Mr. Boustred, you have very competent 11:30:54 26 counsel. All right. You need to rely on his advice and 1068 11:30:58 1 proceed by way of question and answer here. So that the 11:31:03 2 case can come to a conclusion. It would be very 11:31:10 3 unfortunate to interrupt the case any further here from the 11:31:14 4 standpoint of these jurors. And as it is now we must make 11:31:18 5 sure they're not in any way affected by this. So I have 11:31:24 6 your assurance that you will comply with the directions of 11:31:27 7 the Court? 11:31:28 8 THE WITNESS: Your Honor, I always try to abide 11:31:30 9 by all the directions of the law, as I'm sure you realize 11:31:36 10 these are very emotional for myself. I'm sure if you were 11:31:39 11 put in the same position you would also be affected by the 11:31:42 12 emotions of what's happened to me. 11:31:44 13 I also wish to object with respect to the Court's 11:31:46 14 direction. I believe -- 11:31:49 15 MR. GUY-SMITH: Excuse me. 11:31:49 16 THE WITNESS: -- it's not right. 11:31:56 17 MR. GUY-SMITH: I would appreciate it if you 11:31:58 18 would not become involved in legal discussion with the 11:32:07 19 Court, and I would ask you to follow my advice in that 11:32:10 20 regard. 11:32:12 21 THE COURT: Are you going follow your attorney's 11:32:14 22 advice, Mr. Boustred? 11:32:15 23 THE WITNESS: I've been, Your Honor. 11:32:16 24 THE COURT: All right. And you must understand
11:32:19 25 that in this Court, you must follow the rule and direction 11:32:22 26 of the Court; will you do that? 1069 11:32:25 1 THE WITNESS: I will follow the law, Your Honor. 11:32:26 2 THE COURT: You'll follow the what? 11:32:29 3 THE WITNESS: I will follow the law, yes, Your 11:32:31 4 Honor. 11:32:31 5 THE COURT: The direction of this Court. 11:32:32 6 THE WITNESS: I will follow the direction of the 11:32:33 7 Court in accordance with the law that I believe that is the 11:32:37 8 correct answer, is it not, Your Honor, or is that -- 11:32:38 9 THE COURT: No, Mr. Boustred. You will follow -- 11:32:39 10 you need to answer my question directly. Will you follow 11:32:42 11 the direction of this Court when this Court directs you in 11:32:45 12 terms of answering the – The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed and this Judge must be immediately removed from the bench. From a jurisprudence perspective, any case a judge who is rated as “not qualified” presides over is automatically a mistrial, regardless even of content.
J. State Witness’ And Prosecution’s Fraud Voids Trial.Let it be judicially noted that through multiple hearings dealing with the Void Kelly Order issue prior to trial, the Judge and Prosecutor are intimately familiar with the void nature of the Void Kelly Order and the fact that Appellants former Personal Assistant and wifes lover, Stefan Tichatshcke, had no right to have contact with Appellant’s children. See Void Kelly Order Page 16 for proof and details – (briefly, the Order specifically states in point # 18 that Tichatschke may have no contact with the children and that the order may only be modified by written signed agreement by both parties #19 in 1st order and #4 in 2nd order. The fact that the order was to be reviewed in May 2003, two months after this event, does not change #18. The fact that both parties were not to expose the children to any romantic relationships for six months does not change #18. In trial, the State Witness and Prosecutor make fraudulent statements contrary to the facts with the express intent of misleading the jury into believing that Tichatschke had the right to contact the children and that Appellant punched Tichatschke in the face. Let it also be judicially noted that while the Court excluded information regarding this pre-setup attempt by Appellant’s ex-wife on March 9, 2003, the Court allows the Prosecution to knowingly interject patently false information in this regard. By the Prosecution and State Witness engaging in an explicit attempt to mislead the jury, i.e. fraud, the trial is made void. The Court erred by allowing State Witnesses and the Prosecutor to commit fraud: Vol 2 P389: Deception by State Witness and DA: Re 6 no month romantic relations which does not include Tichatschke L19: THE WITNESS (McCONNEL): It appears to be a modification of a previous order regarding the children not having to not be exposed to romantic partner in the previous six months, excuse me, six months after. And it - - and that that six month period has expired. At the end of six months, may expose the children to individuals with whom the person has romantically involved, specifically the relationship with [P390L1] Steve - - I don’t know the pronunciation of his last name. MR. GUY SMITH: Stephen T. THE WITNESS: Stephen T. Would be good, yes. BY MR DROTTTAR: Q: It had been six months since the August 13th date that was listed to that document? A: Yes. The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed.
K. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Failed To Dismiss The Case For No Underlying Charge Or Probable Cause For The VC § 2800 Charge.The glaring absence of any underlying charge or probable cause for the Sheriffs to have chased Appellant in the first place, brings question to not only the entire trial, but also to the case itself. Deputy Pool, the only state witness testifying to the VC § 2800 charge, stated that he had no idea how fast Appellant was driving when appellant drove past him – i.e. Deputy Pool had no reason to chase after Appellant – the NETCOM report proves that Appellant was in fact driving slowly at 27mph or slower. The police have no right to simply chase after citizens without any probable cause then falsely charge them with evading! Vol 3 P582, 581: Questioning Deputy Pool who states: 1 Q Do you have any estimate of what the speed was? 2 A No, I didn't. 3 MR. GUY-SMITH: Objection. Speculation. I'm 4 sorry. Withdraw. 5 THE COURT: He answered. You don't really have 6 any idea how fast it was going? 7 THE WITNESS: No. 8 THE COURT: All right. The Court erred in not dismissing the VC § 2800 charge for the fact that there is no underlying charge, no reason for the sheriffs to have chased Appellant in the first place. The conviction must be reversed and the case dismissed.
L. The Court Failed To Establish Subject Matter Jurisdiction.On December 19, 2003 Appellant filed a CCP §170.1 Motion to Dismiss Judge Art Danner who was assigned to preside over the case and against Judge Samuel S. Stevens who evaluated the 995 motions to dismiss the case. In the CCP § 170.1 Motion to Dismiss Art Danner, Appellant raised the fact that Mr. Danner was rated as “Not Qualified” by the California Judicial Nominations Committee and the fact that two Grand Juries formed to indict Mr. Danner for serious alleged crimes had mysteriously dissolved. In stead of following the law, Judge Art Danner simply struck the CCP § 170.1 Motion to Dismiss. Appellant’s counsel refused to assist Appellant or in ensuring the laws were followed in this area. Judge Art Danner acted with wanton disregard to the law as clearly defined in CCP § 170.1, in fact Art Danner acted as his own judge in a cause filed against himself, by so acting, Judge Art Danner failed to establish Subject Matter Jurisdiction and in fact lost Subject Matter Jurisdiction as a matter of course. The California Judicial Nominations Committee’s rating of Mr. Art Danner as “not qualified” automatically disqualifies Mr. Danner from acting as a judge in California’s courts. It is impossible for Mr. Danner to obtain subject matter jurisdiction as the State and Federal Constitution dictate that only qualified judges may preside over cases. It should be judicially noted that while Mr. Danner worked tirelessly in this case to convict an innocent man, murderers are literally being released from Santa Cruz’s Jail by Mr. Danner’s incompetence or his premeditated criminal intent. The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed and Mr. Art Danner and Samuel S. Stevens removed from the bench. This serves as a Formal Notice and Complaint to the California and U.S. Attorney Generals in this regard.
M. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Created A Situation Where Appellant Was Forced Into An Unacceptable Compromise.The Court Santa Cruz Superior Court, without probable cause and in blatant violation of the law ordered that Appellant not communicate with his children (CLETS Order March 13, 2003). Prior to the Santa Cruz Sheriffs shooting at Appellant and his children, the children lived with Appellant. The Court took appellants children and handed them to Appellants ex-wife and Appellants former personal assistant Stafan Tichatschke despite the stipulated res judicata order specifically ordering that Tichatschke have no contact with Appellants children. By consistently delaying the case then tampering with the jury, the Santa Cruz Superior Court put Appellant in a precarious position where Appellant who is desperate to get his children back is forced to accept what is clearly a mistrial: Vol 4 P760: Mistrial: 8 THE COURT: So you would understand all the other 09:47:24 9 issues with regard to jury selection are preserved should 09:47:26 10 there be a conviction here but on this one you're in 09:47:30 11 agreement that the juror number five would be replaced with 09:47:34 12 the alternate number one, Mr. [Redacted]; is that correct? 09:47:36 13 THE DEFENDANT: Reluctantly in the interest of 09:47:40 14 time, Your Honor. 09:47:42
Appellant having been subject to extraordinary malicious prosecution and having his children literally unlawfully taken from him as a consequence of the malicious prosecution, is forced against his will to continue the trial, further prejudicing the jury against Appellant. The standby juror, interestingly, became the jury foreman. No further information was heard regarding the jury member who disappeared during the trial. The jury member that disappeared was repeatedly shaking his head during the testimony of the state witnesses. The Santa Cruz Superior Court, as the transcript illustrates, is in blatant violation of the law and the most rudimentary ethical process. The Court’s consistent pattern of practice in delaying the proper adjudication and dismissal of this blatant malicious and false prosecution is clearly evident in the record. The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed. N. The Court Erred In Denying Defense Jury Instructions And Allowed Misleading Jury Instructions By Prosecution.Vol 5 P 1174: Court erred in disallowing Defense’s jury instructions: 15:57:52 10 THE COURT: All right. That's fine. They'll be 15:57:53 11 released back to counsel. The contested ones will be 15:57:58 12 retained by the clerk for any kind of review should there 15:58:01 13 be convictions. 15:58:09 14 All right. So now anything else that we can do 15:58:09 15 now? What about, oh, instructions; right. Do you want to 15:58:10 16 put those on the record as far as ones proffered by 15:58:12 17 yourself, Mr. Guy-Smith? 15:58:13 18 MR. GUY-SMITH: Yes, I believe that I proffered 15:58:15 19 -- I'm not sure if we did this before or not in the 15:58:18 20 event -- 15:58:19 21 THE COURT: I don't think we got it on the record. 15:58:21 22 MR. GUY-SMITH: I think we went through them. 15:58:24 23 MR. GUY-SMITH: I believe we did and I proffered 15:58:24 24 instructions. They are, I believe the Court has a copy of 15:58:27 25 those instructions. 15:58:29 26 THE COURT: Yes. 1175 15:58:29 1 MR. GUY-SMITH: Those are entitled starting with 15:58:32 2 user A. 15:58:33 3 THE COURT: Correct. 15:58:36 4 MR. GUY-SMITH: Then user A1, A2, and I believe 15:58:40 5 I'm sorry. I don't have that. 15:58:43 6 THE COURT: Let's see A1, A2, I think there was 15:58:47 7 another. 15:58:48 8 MR. GUY-SMITH: There was, Your Honor. Yes. I 15:58:49 9 believe A4 and A5. 15:58:53 10 THE COURT: Yes. A4 and A5; that's correct. 15:58:56 11 MR. GUY-SMITH: Correct. I ask those 15:58:57 12 instructions be given. I understand that the Court was 15:59:00 13 considering giving one of those instructions and I'm just 15:59:04 14 going to submit it. 15:59:06 15 THE COURT: All right. Then the Court is going to 15:59:11 16 lodge those as "exhibits requested by" refused by the 15:59:18 17 Court. 15:59:19 18 MR. GUY-SMITH: I believe the Court was 15:59:20 19 considering refused all except for A2 which is the one the 15:59:26 20 Court was considering. 15:59:28 21 THE COURT: I did consider A2. On balance I 15:59:30 22 believe that it has been covered with the other 15:59:33 23 instructions that we just read to the jury. 15:59:35 24 Now there was one other. 15:59:37 25 MR. GUY-SMITH: In that regard. 15:59:38 26 THE COURT: Caljic. 1176 15:59:39 1 MR. GUY-SMITH: In that regard then I ask the 15:59:43 2 instructions also be given and I submit it. 15:59:45 3 THE COURT: Correct. 15:59:46 4 MR. GUY-SMITH: There was one other instruction I 15:59:47 5 believe before we get to the Caljic issue there was an
15:59:52 6 instruction that was requested by the People which the 15:59:53 7 Court did give which I objected to which was the emergency 15:59:56 8 vehicle instruction. 16:00:00 9 THE COURT: Failure to yield? 16:00:01 10 MR. GUY-SMITH: Yes, failure to yield to an 16:00:03 11 emergency vehicle instruction, which I believe is 16:00:06 12 inappropriate for the purposes of this case. I believe it 16:00:10 13 is misleading and it does not deal with specific facts as 16:00:14 14 it relates to this case. 16:00:17 15 THE COURT: All right. And now. 16:00:20 16 MR. GUY-SMITH: It also does -- it does talk 16:00:22 17 about letting the emergency vehicle go past, past the car 16:00:28 18 to be stopped. So I object to that instruction for the 16:00:34 19 grounds stated. And I believe it will unduly confuse the 16:00:40 20 jury, necessarily prejudice the Appellant as a result. 16:00:42 21 THE COURT: All right. Now, I think we're doing 16:00:45 22 well except for one point here. So that your instructions 16:00:53 23 may be preserved, and I don't know, maybe I do have them up 16:00:56 24 here still. I'm sure I do somewhere. But I want to make 16:00:59 25 sure that we cover that since they should be lodged in with 16:01:04 26 the Court's notation that they were requested to be given 1177 16:01:07 1 and refused. And I have A, A1 and A2. But for some reason 16:01:17 2 I'm missing 3, A3, A4 and A5; right. 16:01:25 3 MR. GUY-SMITH: There was not an instruction 16:01:26 4 submitted which was A3 that I am sure 16:01:29 5 THE COURT: That you're sure of four? 16:01:32 6 MR. GUY-SMITH: A4 and A5 I had copy of both of 16:01:34 7 those instructions. I apologize. 16:01:36 8 THE COURT: Do you? 16:01:37 9 MR. GUY-SMITH: I make it so the Court knows and 16:01:40 10 I apologize. I have put an 'N' in blue pen on this 16:01:43 11 instruction based upon the discussions that we had this is 16:01:48 12 something I've done. So it's not coming through in its 16:01:53 13 pristine form. 16:01:55 14 THE COURT: No need for apologies. I don't know 16:01:58 15 what I did with those. They must be here somewhere. 16:02:02 16 There's A5. I think I just put them in with others here. 16:02:16 17 So I did. I do have A5. 16:02:20 18 MR. GUY-SMITH: There's copy of A4 there for you, 16:02:22 19 Your Honor. 16:02:23 20 THE COURT: But A4 I cannot put my hand on now so 16:02:27 21 I'll utilize your copy. Thank you very much. 16:02:31 22 MR. GUY-SMITH: Sure. 16:02:31 23 THE COURT: And then I'll note on those. 16:02:48 24 MR. GUY-SMITH: Since we're cleaning up matters 16:02:48 25 and I really by this I'm not intending to beating on dead 16:02:55 26 horse. 1178 16:02:56 1 THE COURT: All right.
Vol 5 P1143: Jury instructed to disregard stricken testimony: 15:10:35 13 A question is not evidence and may be considered 15:10:39 14 only as it helps you to understand the answer. Do not 15:10:42 15 consider for any purpose any offer of evidence that was 15:10:43 16 rejected or any evidence that was stricken by the Court. 15:10:46 17 Treat it as though you had never heard of it. The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed. O. Ineffective Counsel.While Appellant clearly faced a patently criminal court, prosecution and sheriffs departments, Appellant’s counsel has been ineffective in ensuring that Appellant is treated in accordance with the law. Appellants counsel litigated persistently and did place objections on the record, only to be waylaid by the “not qualified” and clearly biased judge. Many of the most rudimentary and powerful defenses were ignored by Appellant’s counsel who failed to: 1. Have case dismissed for failures in Due Process. Appellant files a TRO and Verified Criminal Complaint prior to being shot at or any of the events in this case. The TRO and complaint Appellant filed directly relate to the events of this case. Due Process dictates that Appellant’s TRO and complaint needed to be heard first. Had the TRO been heard first the charges in this case would disappear. The sheriffs failed to obtain warrants before entering Appellant’s property. Had the sheriffs followed the law and obtained warrants none of the events of this case would have occurred as Appellant was in fact following the law and acting in the interests of the children. From a long history of false calls made by Appellants ex-wife, which the sheriffs were aware of, and a history that showed the children were in no danger from their father, there was clearly no emergency that could not be addressed in court, in fact the sheriffs were fully aware that Appellant was in fact at the courthouse – there is absolutely no excuse for the sheriffs to not have followed due process and the law and to have first obtained a warrant. Without probable cause to chase Appellant and no warrant to enter Appellant’s private roads and property, the investigation and arrest were all unlawful – the entire case is without any basis at law. 2. Address critical issue regarding the Void Kelly Order The Void Kelly Order is critical in that it forms the underlying basis of Appellant’s ex-wife’s continued attempts to setup Appellant. It also voids the Placer County case where Appellant was also maliciously prosecuted and given another sham trial. 3. No argument on speed During the August 20, 2004 hearing, outside of the presence of the jury Counsel stipulate: “The People will not be asking questions with regards to speed.” (CT 505). Speed is a necessary and critical element of a VC § 2800 charge. The lack of argument by Defense counsel regarding the speed issue brings serious questions to the fore relating to Defense Counsel’s intent. In fact Defense counsel threatened Appellant that the sheriffs would kill Appellant if Appellant did not accept the plea-bargain. These are matters that will be addressed in Federal Court. 4. Address critical legal flaw of no underlying charge to the VC 2800.2(a) charge. The sheriffs needed a reason to chase Appellant in the first place, a VC § 2800.2(a) charge requires an underlying charge – a reason to chase Appellant – there is no underlying charge nor any probable cause for the sheriffs to have chased Appellant in the first place. Without this probable cause or underlying charge the VC § 2800.2(a) charge is baseless. 5. Have the absurd Child Abuse charge dismissed. When considering that the Santa Cruz Sheriffs literally shot at the children without any probable cause, one of the most ridiculous charges brought against Appellant is the Child Abuse Charge. During the trial there is confusion as to what exactly this charge is, Defense counsel questions whether Appellant is being charged with Child abuse because the sheriffs shot at his children. However, Defense counsel makes no argument eliminating or even ridiculing this absurd charge. Were this charge meant to relate to the VC 2800.2(a) charge, all the arguments that eliminate that charge were not properly made. 6. Insist on discovery and questioning of Deputy Brzozowski who assaulted Appellant during the false arrest. Appellant was accused of and found guilty of resisting arrest, however, Defense counsel did not insist on obtaining discovery on Deputy Brzozowski who violently assaulted Appellant during the false arrest. Defense counsel did not even question Deputy Brzozowski on the stand. 7. Brining forward witnesses. Six defense witnesses all testified that Defendant drove slowly. Why did Defense counsel not bring forward any of these witnesses? 8. Argue sentence reduction In fact Defense Counsel abandoned Appellant before appellant even got to sentence reduction hearings. 9. Dismiss Not Qualified and biased judges Clearly Mr. Art Danner, the judge assigned to the case is not qualified and patently biased. With such simple proof as the California Judicial Counsel’s rating as Mr. Danner being “not qualified”, why did Defense counsel not assist Appellant in dismissing Mr. Danner? Blatant evidence of Judge Samuel S. Steven’s biases against Appellant are also readily available, why did Defense Counsel allow S.S. Stevens to preside over the 995 Motion? 10. Exposure of malicious prosecution Why did Defense counsel not expose the malicious prosecution? With such a plethora of examples, two felonies, nine misdemeanors and six separate malicious prosecution cases filed against Appellant after the Sheriffs shot at Appellant and his children, why die defense counsel not enlighten the jury to these obviously relevant issues which expose the intent and lies of the Prosecution and State Witnesses. One could ask why defense counsel did not initiate or bring Child Abuse charges against Santa Cruz Sheriffs and District Attorney. By definition, Appellants counsel has not been effective appellant’s conviction must be reversed. P. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Dismissed One Juror For Cause And Refused To Dismiss A Second Juror For Cause, Irreparably Harming His Right To A Fair And Impartial Jury.The trial court abused its discretion when it dismissed one juror and then failed to dismiss a juror despite appellant’s objection. During jury voir dire, the court granted the prosecutor’s challenge for cause of one juror, Ms. Michelle Roark, because the court and the prosecutor believed that she could not follow the law despite Ms Roark having not said anything other than that she would follow the law. Ms. Roark indicated that based on her experience as a juror she did not appreciate sentencing she had seen in the court, however, that this would not affect her objectivity. Defense counsel objected to this dismissal, but was overruled. (RT 254-257.) Contrary to this, the court refused appellant’s dismissal for cause of a male juror, Mr. Albert Fu, who stated that he would favor police testimony over all other testimony and evidence. In Mr. Fu’s case, there was a showing of bias and prejudice in favor of the prosecution’s case. Defense counsel argued that the court’s rulings on Mr. Fu were inconsistent from Ms. Roark. The court committed error when it improperly dismissed Ms. Roark without foundation and then failed to dismiss Mr. Fu for clear foundation of stated bias. At the time appellant made his challenge for cause, he needed to use his few remaining peremptory challenges to dismiss other jurors and had no other way to challenge this juror. Mr. Fu subsequently sat on appellant’s jury. Thus, the dismissal of Ms. Roark and the failure to dismiss Mr. Fu was error and appellant’s conviction must be reversed. Facts Related To The Two Challenged Jurors.During voir dire, Mr. Fu informed the court that his brother-in-law was a police officer in another county. He had many positive experiences with local police in Santa Cruz County. As a result, Mr. Fu had a “very high impression of Santa Cruz police.” (RT Aug 8/18/04 at 69.) When questioned by the court, Mr. Fu admitted that he did not spend a lot of time with his brother-in-law nor did they discuss his cases. (RT Aug 8/18/04 at 70.) The court asked if he would give officer testimony “more credibility simply on the basis of your positive experiences with the Santa Cruz Police Department[.]” (Ibid.) Mr. Fu responded, “I think it would be an emotional bias that I would have to deliberately try to exclude but I would do my best to exclude it.” Ms. Roark told the court that she had two uncles and a brother-in-law who worked in law enforcement. (RT Aug 8/18/04 at 89.) She told the court that she did not discuss their jobs with them. She agreed that she would not automatically give the officers’ testimony more or less credibility. (RT Aug 8/18/04 at 89-90.) But Ms. Roark then voiced her concern over the possible sentence appellant would receive if he was found guilty. Evidently, Ms. Roark had a personal experience where someone she knew received a sentence which was excessive given the facts of that case. (RT Aug 8/18/04 at 90-91.) In compliance with the law, she strongly felt that the punishment appellant could receive should fit the facts of his crime. In response, the court discussed the fact that the jurors had to follow the law as it was given to them. And the law requires that they not consider the question of penalty or punishment when reaching a verdict. Ms. Roark agreed that she understood this requirement. (RT Aug 8/18/04 at 91.) Initially, she equivocated as to whether she could emotionally set aside the issue of the potential punishment in this case. But the court then bluntly asked her if she could “commit to a process that says that you’re going to get an instruction just like I told you [that they cannot consider punishment or penalty] and commit to a process whereby then you have to follow that instruction intellectually or otherwise?” To this Ms. Roark responded, “Yeah, I believe I could.” (RT Aug 8/18/04 at 92.) Ms. Roark then unequivocally told the prosecutor that she would not allow sympathy or pity for appellant or any prejudice to affect her decision of guilt or innocence in this case. She specifically said that while everyone has sympathies, she would not allow hers to affect her decision if she believed someone was guilty or innocent. (RT Aug 8/18/04 at 116.) At this point in the proceedings, the court asked the prosecutor if he passed for cause and there was an unreported bench conference. No decision was announced and defense counsel began his questioning of the potential jurors. (RT Aug 8/18/04 at 117.) Upon questioning by defense counsel, Mr. Fu told the court that based on his overwhelmingly positive experiences with police officers, he would consider police testimony more favorably than a normal citizen’s testimony. (RT Aug 8/18/04 at 120.) In other words, his tendency was to view police testimony more favorably and with greater credibility then that of an ordinary, non-police witness. Finally, defense counsel questioned Ms. Roark if she could follow the law or if her concern with a potential sentence would prejudice her ability to reach a decision. (RT Aug 8/18/04 at 126-127.) Ms. Roark told counsel that she would follow the law. (RT Aug 8/18/04 at 127.) Ms. Roark clearly stated that if the prosecution proved his case beyond reasonable doubt, she would vote accordingly. (RT Aug 8/18/04 at 127-128.) While defense counsel does not specifically name the juror, given the context of the next exchange regarding police testimony, it seems logical to assume it involved Mr. Fu. Counsel again asked Mr. Fu which side he would choose if the police testified to one thing and the civilian witnesses testified to something else. Mr. Fu responded that he had endured “an enormous amount of prejudice in his life” and understood its effects. (RT Aug 8/18/04 at 129-130.) While Mr. Fu “committed” himself to trying to exclude his prejudice in favor of police, he could not “guarantee that it wouldn’t enter into” his decision in appellant’s case. (RT Aug 8/18/04 at 130.) Defense counsel then directly asked, “As you sit here right now, you’re leaning toward the police, are you not?” Mr. Fu responded, “To be honest, yes.” (Ibid.) During the next round of peremptory challenges, defense counsel excused four jurors, but not Mr. Fu. (RT Aug 8/18/05 at 140-142.) Several potential jurors were then called to the jury box to replace the excused jurors. These jurors were questioned by the court and both sides. During the very next round of peremptory challenges, defense counsel approached the bench to discuss a specific challenge for cause. While the discussion was not reported, it seems clear from the subsequent on-record discussions that the parties discussed Mr. Fu and counsel’s desire to strike him for cause. (RT Aug 8/18/05 at 173-174.) After the bench discussion, both parties resumed their peremptory challenges. Defense counsel exercised his remaining three challenges and excused Mr. Fu. (RT Aug 8/18/05 at 173-174.) The prosecutor exercised their remaining challenges and the court empanelled the jury, which included Mr. Fu. (RT Aug 8/18/05 at 174-175.) The following day on August 19, 2004, defense counsel put on the record his objections to Ms. Roark’s dismissal for cause and the lack of dismissal for cause of Mr. Fu. (RT 254-260.) As to Ms. Roark, defense counsel argued that she was willing to follow the law and stated repeatedly during counsel’s questioning that she was would be fair and impartial. Counsel believed that Ms. Roark was thoughtful and that she would follow the law as instructed. (RT 255-256.) The prosecutor argued that the court properly dismissed Ms. Roark for cause because she said that she was concerned about the issue of punishment. During several rounds of questions, Ms. Roark did not stray from her believe that the lack of control over and knowledge of the sentence would prejudice her ability to reach a verdict. (RT 256.) The court agreed with the prosecutor. While Ms. Roark was able to intellectually determine the question of guilt or innocence and clearly stated she would vote accordingly, she was concerned about the issue of the potential sentence. (RT 256-257.) Based on these views, the court found that the dismissal for cause was appropriate. (RT 257.) As for Mr. Fu, defense counsel argued that he had an overwhelmingly favorable view of police officers and would favor their testimony over that of a normal citizen. And if all the evidence was equally balanced, he would choose the police testimony over citizen testimony and said so repeatedly. (RT 257.) Similar to Ms. Roark, Mr. Fu agreed to follow the law. But unlike Ms. Roark, he was not dismissed for cause. (RT 258.) Counsel continued that he had used all of his peremptory challenges. And the decision not to strike Mr. Fu for cause came at a point where they were just about finished with the peremptory challenges. In addition, the prosecutor was able to sequentially use a number of peremptory challenges. And they were currently faced with the dismissal of another juror for financial reasons. Counsel concluded by stating that, given these circumstances, he would have exercised his challenges differently and would have sought a jury with a different “complexion…than we presently have.” (RT 258.) The prosecutor responded that Mr. Fu told the court that he would remain impartial and follow the law as instructed. The prosecutor argued that Mr. Fu stated that he would be at an impasse if all of the evidence was balanced. But the prosecutor failed to acknowledge that Mr. Fu later stated that he would naturally favor the police and would find it difficult to not view the police testimony more favorably. (RT 259; RT Aug 8/18/04 at 130.) The court did correct the prosecutor on this point and acknowledged that Mr. Fu stated that he would favor the police testimony over all other testimony. But the court also accepted the prosecutor’s argument that Mr. Fu did say he would be at an impasse should all of the testimony and evidence be balanced. The court also emphasized that Mr. Fu stated he would try to work hard to set aside his natural bias and be a fair juror and was committed to the process (note the nature of the Court’s questions in this regard which oozed such a pseudo impression from Mr. Fu). Thus, the court concluded, “So the Court did on balance after he answered the further questions, the Court believed that he could be a fair juror and denied the motion for him being excused for cause.” (RT 260.) On August 24, 2004, Juror No. 5 was released from jury service for medical reasons, namely he had a bad back. Appellant reluctantly agreed “in the interests of time” to release him based on his medical problems. Juror No. 5 was then replaced by Alternate No. 1 who became the jury foreman. Defense counsel argued that the excusal of Juror No 5 further exacerbated his problems with the complexion of the jury panel. (RT 754-761.) Legal Principles.The appellate court must review the trial court’s decision on a challenge for cause pursuant to the abuse of discretion standard. Here, the law requires that the trial determine whether the prospective juror will be “unable to faithfully and impartially apply the law” in a given case. (People v. Boyette, supra, at p. 416; People v. Weaver, supra, at p. 909; People v. Ayala (2000) 24 Cal.4th 243 TA \l "People v. Ayala (2000) 24 Cal.4th 243" \s "People v. Ayala (2000) 24 Cal.4th 243" \c 1 , 272; People v. Rodriguez, supra, at p. 1147; People v. Crittenden (1994) 9 Cal.4th 83 TA \l "People v. Crittenden (1994) 9 cal.4th 83" \s "People v. Crittenden (1994) 9 cal.4th 83" \c 1 , 122.) The trial court must sometimes weigh conflicting or confusing answers regarding a prospective juror’s impartiality or capacity to serve and then decide whether to remove the juror for cause. But substantial evidence must support the trial court resolution of these factual matters. If such evidence is lacking, then the appellate court must reverse the trial court’s decision. (Ibid.) o Civil Procedure Code section 225 TA \l "Civil Procedure Code section 225" \s "Civil Procedure Code section 225" \c 2 discusses the various types of challenges which may be brought against potential jurors. Specifically, section 225, subdivision (a) states in pertinent part, “A challenge is an objection made to the trial jurors that may be taken by any party to the action[.]” Section 225 then defines the various types and reasons for a challenge to a trial juror, including challenges for cause. A party may challenge a juror for cause “for one of the following reasons: (A) General disqualification – that the juror is disqualified from serving in the action on trial. (B) Implied bias – as, when the existence of the facts as ascertained, in judgment of law disqualifies the juror. (C) Actual bias – the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (Civ. Pro. § 225 TA \l "Civ. Pro. § 225" \s "Civ. Pro. § 225" \c 2 , subd. (b).) In several death penalty cases, the court defined “actual bias” as ‘the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.’ [Citations.] A sitting juror’s actual bias that would have supported a challenge for cause also renders the juror unable to perform his or her duties and thus subject to discharge. [Citation.] ‘Grounds for ... discharge of a juror may be established by his statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists.’ [Citation.]’” (People v. Ayala, supra, 24 Cal.4th at p. 271-272.) In appellant’s case, the court dismissed Ms. Roark because it perceived that she had an actual bias, namely that she could not separate the issue of possible punishment from a finding of guilt or innocence despite her specifically stating that she would. But the court failed to make the same finding for Mr. Fu even though he flat out told the court that he had an actual bias, namely that he would favor police testimony over other witness testimony. Appellant has a constitutional right to a trial by unbiased, impartial jurors. (U.S. Const., 6th & 14th Amends TA \l "U.S. Const., 6th & 14th Amends" \s "U.S. Const., 6th & 14th Amends" \c 7 .; CA Const., art I § 16 TA \l "CA Const., art I § 16" \s "CA Const., art I § 16" \c 7 ; Irvin v. Dowd (1961) 366 U.S. 717 TA \l "Irvin v. Dowd (1961) 366 U.S. 717" \s "Irvin v. Dowd (1961) 366 U.S. 717" \c 1 , 722; People v. Nesler (1997) 16 Cal.4th 561 TA \l "People v. Nesler (1997) 16 Cal.4th 561" \s "People v. Nesler (1997) 16 Cal.4th 561" \c 1 ; People v. Johnson (1992) 3 Cal.4th 1183 TA \l "People v. Johnson (1992) 3 Cal.4th 1183" \s "People v. Johnson (1992) 3 Cal.4th 1183" \c 1 , 1210.) In a criminal trial, “a Appellant is ‘entitled to be tried by 12, not 11, impartial and unprejudiced jurors. ‘Because a Appellant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.’ [Citations.]’” (People v. Nesler, supra, 16 Cal.4th at p. 577-578; People v. Holloway (1990) 50 Cal.3d 1098 TA \l "People v. Holloway (1990) 50 Cal.3d 1098" \s "People v. Holloway (1990) 50 Cal.3d 1098" \c 1 , 1112, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824 TA \l "People v. Stansbury (1995) 9 Cal.4th 824" \s "People v. Stansbury (1995) 9 Cal.4th 824" \c 1 , 830, fn. 1.) Before appellant can claim relief on appeal for a denial of a fair and impartial jury, he must show that the court’s denial of a challenge for cause affected his right to a fair and impartial jury. (People v. Johnson, supra, 3 Cal.4th at p. 1210-1211; People v. Bittaker (1989) 48 Cal.3d 1046 TA \l "People v. Bittaker (1989) 48 Cal.3d 1046" \s "People v. Bittaker (1989) 48 Cal.3d 1046" \c 1 , 1087.) On appeal, appellant must show: “(1) he used a peremptory challenge to remove the juror in question; (2) he exhausted his peremptory challenges or can justify his failure to do so; and (3) he was dissatisfied with the jury as selected.” (People v. Morris (1991) 53 Cal.3d 152 TA \l "People v. Morris (1991) 53 Cal.3d 152" \s "People v. Morris (1991) 53 Cal.3d 152" \c 1 , 184; People v. Weaver, supra, 26 Cal.4th at p. 910-911; People v. Bittaker, supra, 48 Cal.3d at p. 1087; People v. Coleman (1988) 46 Cal.3d 749 TA \l "People v. Coleman (1988) 46 Cal.3d 749" \s "People v. Coleman (1988) 46 Cal.3d 749" \c 1 , 770‑771; Ross v. Oklahoma (1988) 487 U.S. 81 TA \l "Ross v. Oklahoma (1988) 487 U.S. 81" \s "Ross v. Oklahoma (1988) 487 U.S. 81" \c 1 .) AS IS THE CASE IN THIS TRIAL. If appellant can actually show that the court’s refusal to grant his challenge for cause affected his right to an impartial jury, he is entitled to reversal and does not have to show that the outcome of the case itself would have been different. (See People v. Bittaker, supra, 48 Cal.3d at p. 1088; People v. Crittenden, supra, 9 Cal.4th at p. 121-122; People v. Helm (1907) 152 Cal. 532 TA \l "People v. Helm (1907) 152 Cal. 532" \s "People v. Helm (1907) 152 Cal. 532" \c 1 , 535, 93 P. 99; People v. Diaz (1951) 105 Cal.App.2d 690 TA \l "People v. Diaz (1951) 105 Cal.App.2d 690" \s "People v. Diaz (1951) 105 Cal.App.2d 690" \c 1 , 696-699.) In appellant’s case, the trial court’s denial of his challenge for cause of Mr. Fu affected his right to a fair and impartial jury. Appellant used all his preemptory challenges, including one of his peremptory challenge to excuse Mr. Fu. When the court denied his challenge for cause, counsel was forced to use his limited peremptory challenges to counterbalance the prosecutor’s challenges. Next, appellant used all of his remaining peremptory challenges. In fact, appellant had no peremptories remaining even though the prosecutor still had several yet to exercise. (Ibid.) Most importantly, defense counsel voiced his concern over the complexion of the seated jury. He told the court that he was not satisfied with the empanelled jury. Counsel told the court that had he known the jury would be of the current composition, he would have exercised his peremptory challenges differently. (Ibid.) And once Juror No. 5 was released for medical reasons, defense counsel again complained of the juror’s then-current composition. He argued that this dismissal further exacerbated his dissatisfaction with the panel. (RT 754-761.) While the court refused to dismiss Mr. Fu for his bias in favor of police witnesses, it did excuse Ms. Roark because she was concerned about the possible punishment if appellant was convicted. During jury voir dire, the court granted the prosecutor’s challenge for cause of Ms. Roark because the court and the prosecutor believed that she could not follow the law and objectively reach a verdict. (RT Aug 8/18/04 at 131.) Defense counsel objected to this dismissal, but was overruled. (RT 254-257.) Contrary to this, the court refused appellant’s dismissal for cause of Mr. Fu who stated that he would favor police testimony over all other testimony and evidence. Mr. Fu began by telling the court that he had an overwhelmingly positive opinion of Santa Cruz County police officers because he had many positive interactions with them. He also had a brother-in-law who was a police officer in another county. (RT Aug 8/18/05 at 69-70.) When asked, Mr. Fu said that his “emotional bias” would be with the officers’ testimony. (RT Aug 8/18/05 at 70.) During subsequent questioning, Mr. Fu told the court that he found police testimony more credible than testimony from other witnesses. At first, Mr. Fu stated that if the evidence and testimony was equally balanced, then he would be at an impasse. (RT Aug 8/18/04 at 120.) But Mr. Fu later contradicted this statement. He told the court that, should the testimony be equally balance, he would favor the police testimony and it would predominate over all other testimony. (RT Aug 8/18/04 at 129-130.) In other words, his tendency was to view police testimony more favorably and with greater credibility then that of an ordinary, non-police witness. (RT Aug 8/18/05 at 120.) When defense counsel questioned Mr. Fu, it became clear that Mr. Fu was not impartial and would give greater weight to police testimony. While Mr. Fu “committed” himself to trying to exclude his prejudice in favor of police, he could not “guarantee that it wouldn’t enter into” his decision in appellant’s case. (RT Aug 8/18/04 at 130.) Defense counsel then directly asked, “As you sit here right now, you’re leaning toward the police, are you not?” Mr. Fu responded, “To be honest, yes.” (Ibid.) o Defense counsel argued that the court’s rulings for Mr. Fu were inconsistent from those of Ms. Roark. In Mr. Fu’s case, there was a showing of bias and prejudice in favor of the prosecution’s case. As a result, defense counsel argued that Mr. Fu should have been excused for cause for the same reasons given for Ms. Roark. At the time appellant made his challenge for cause, he had a few peremptory challenges left, but used them to excuse other jurors based on the prosecutor’s use of his peremptory challenges. (RT 255-260.) As such, appellant was tried by 11 or less, and not 12, impartial and unprejudiced jurors. (People v. Nesler, supra, 16 Cal.4th at p. 577-578; People v. Holloway, supra, 50 Cal.3d at p. 1112, disapproved on other grounds in People v. Stansbury, supra, 9 Cal.4th at p. 830, fn. 1.) And appellant’s “conviction cannot stand if even a single juror has been improperly influenced.” (Ibid.) o Appellant has shown that the court’s refusal to grant his challenge for cause affected his right to an impartial jury. Therefore, he is entitled to reversal and does not have to show that the outcome of the case itself would have been different. (See People v. Bittaker, supra, 48 Cal.3d at p. 1088; People v. Crittenden, supra, 9 Cal.4th at p. 121-122; People v. Helm (1907) 152 Cal. 532 TA \s "People v. Helm (1907) 152 Cal. 532" , 535, 93 P. 99; People v. Diaz (1951) 105 Cal.App.2d 690 TA \s "People v. Diaz (1951) 105 Cal.App.2d 690" , 696-699.) Appellant moved to dismiss Mr. Fu for more blatant reasons the court had excused Ms. Roark for cause. The court denied appellant’s challenge. As a direct result, the court seated an impartial juror, Mr. Fu, on appellant’s jury. That jury subsequently found appellant guilty on counts 2 through 4. Mr. Fu was a biased and impartial juror and his influence on other jurors and the subsequent verdict cannot be known. Thus, appellant’s convictions must be reversed. Q. The Trial Court Committed Error When It Denied Appellant’s Penal Code Section 1118.1 Motion To Reduce Count 2, Felony Vehicle Code Section 2800.2, To The Misdemeanor Vehicle Code Section 2800.1 Because The Evidence Was Insufficient To Support The Felony Charge.In appellant’s case, the prosecution’s evidence did not support the felony evading charge. Here, the evidence showed that appellant failed to stop for Deputy Pool’s patrol car and then failed to yield to Sergeant Christey and Deputy MacDonald outside of his residence. However the fact remains that Deputy Pool never had probable cause to chase Appellant in the first place: Vol 3 P581: Pool state he had no idea how fast Appellant was driving when Appellant passed him. 1 Q Do you have any estimate of what the speed was? 2 A No, I didn't. 3 MR. GUY-SMITH: Objection. Speculation. I'm 4 sorry. Withdraw. 5 THE COURT: He answered. You don't really have 6 any idea how fast it was going? 7 THE WITNESS: No. 8 THE COURT: All right. The entire event occurred on Appellants private property and private roads and the Sheriffs failed to obtain any warrants: Vol 3 P511: Christey admits to no warrant L13 Q: You did not have a warrant, did you? A: I did not Q: You did not have consent by anybody who lived on the property to go on the property, did you? A: I did not. Evidence did provide sufficient proof to show that appellant initially failed to yield to Deputy MacDonald, the deputy who shot at Appellant and the children. However, the alleged chase by Deputy Pool in the patrol car, according to Deputy Pool, had already ended before Appellant failed to yield to Deputy Pool, so the VC § 2800 charges did not apply to MacDonald. Vol 3 P594: Pool indicating end of chase: 26 Q When you get out of your car, were the emergency 595 1 lights running? What do you do? 2 A At that point I -- the car was starting to roll 3 through the gate. So I started running behind the car on 4 foot. 5 Q Your car or -- 6 A The Montero. 7 Q And that was as you were getting out of the car? 8 MR. GUY-SMITH: Well, that's -- 9 THE COURT: No, he said he's running toward the 10 car already. So –
The evidence was insufficient to sustain a conviction for a felony charge or a misdemeanor charge as evidence the Court would not allow proved Appellant drove around 27mph. Upon appellant’s Penal Code section 1118.1 motion, the court should at least have reduced the felony count to the lesser included misdemeanor and should have outright dismissed the case. “The right of a person to retreat into his own home and there be free from unreasonable government intrusion is at the very core of the Fourth Amendment.” Payton v New York (1980) 445 US 573, 63 L Ed 2d 639, 100 S Ct 1371, on remand 51 NY2d 169, 433 NYS2d 61, 412 NE2d 1288. Since the court failed to reduce the charge or dismiss the case, it committed error and appellant’s conviction must be reversed. Facts Related To The Penal Code Section 1118.1 Motion.On August 24, 2004, defense counsel moved the court pursuant to Penal Code section 1118.1 TA \s "Penal Code section 1118.1" for a judgment of acquittal as to two counts in particular – count 1, the assault on Sergeant Christey and Deputy MacDonald, and count 2, evading a police officer. Defense counsel argued that the “Distinction between something being charged as a felony and misdemeanor is really contained within the very last part of the language which is on line 17 [of the information] which [states “]it’s further alleged Appellant drove with a willful, wanton disregard for the safety of persons and property[.]” (RT 980.) The evidence which supported the evading charge began and ended with Deputy Pool’s pursuit of appellant from Hidden Valley Road to Suncrest Drive. Based on this, there was insufficient evidence to show that appellant drove with a “willful, wanton disregard for the safety of persons and property.” Furthermore Deputy MacDonald and Sgt. Christey described Appellants speed as a ‘roll’ when Appellant drove slowly and carefully past them. As a result, counsel asked that the court reduce this charge to the lesser included misdemeanor offense. (Ibid.) In response, the prosecutor argued that the evidence supported the felony charge. Here, the prosecutor cited the unfounded allegation that appellant drove 40 miles per hour in a 25 mile an hour zone on a mountainous road. The prosecutor then tried to argued that the pursuit did not end until appellant reached his driveway, after driving past Deputy MacDonald and Christey and through the gate to his residence. (RT 980-981.). Defense counsel countered that there was some disagreement regarding appellant’s actual speed during Pool’s pursuit. And the prosecutor was relying on an assumption that the officer’s actions formed the basis of the child endangerment charge. Here, the prosecutor believed that appellant should have taken the deputies’ actions into account – i.e., that an officer would shoot at him if he failed to stop. (RT 982.) – Perhaps the prosecutor received training while working for the Nazi SS or Gestapo. The court stated, “I think so, you know, the [sic] Deputy Pool testified it was around 40 miles per hour. I mean, given the circumstances of the road, point is that Mr. Drotter just made in his other argument here, you could make out a case that that’s, I think, enough for the child endangerment allegation if they have irrespective of your advocacy here with regard to the officers’ actions.” (RT 983.) It seems the court was saying that merely driving over the speed limit on that specific road constituted child endangerment even without the fact MacDonald shoot at appellant and his children. But the court put its decision on the Penal Code section 1118.1 TA \s "Penal Code section 1118.1" motion over to the following day. (RT 984-985.). The Court also specifically excluded the NETCOM evidence which proved Appellant drove at 27 mph or slower, while the prosecutor failed to provide any facts or information what so ever relating to the average speed local residents travel on that road, which is often around 40 mph indicating that Appellant, a local resident, was factually driving slowly during the alleged chase. On August 25, 2004, the court granted appellant’s Penal Code section 1118.1 TA \s "Penal Code section 1118.1" motion as to Sergeant Christey and count 1 after a lengthy discussion of the evidence. (RT 1028-1034.) However, the court failed to discuss the facts which supported a felony charge of evading a police officer. The court merely stated, “with regard to the other matters [the section 1118.1 motions] are denied based on the Court’s review of the evidence at this point.” (RT 1034.) Standard of Review.o On review, the substantial evidence test applies to a trial’s court’s decision on a motion for acquittal pursuant to Penal Code section 1118.1 TA \s "Penal Code section 1118.1" . (People v. Cuevas (1995) 12 Cal.4th 252 TA \l "People v. Cuevas (1995) 12 Cal.4th 252" \s "People v. Cuevas (1995) 12 Cal.4th 252" \c 1 , 261; People v. Augborne (2002) 104 Cal.App.4th 362 TA \l "People v. Augborne (2002) 104 Cal.App.4th 362" \s "People v. Augborne (2002) 104 Cal.App.4th 362" \c 1 ; see also People v. Crittenden (1994) 9 Cal.4th 83 TA \l "People v. Crittenden (1994) 9 Cal.4th 83" \s "People v. Crittenden (1994) 9 Cal.4th 83" \c 1 , 139, fn. 13 [evidence includes all reasonable inferences that may be drawn]; People v. Trevino (1985) 39 Cal.3d 667 TA \l "People v. Trevino (1985) 39 Cal.3d 667" \s "People v. Trevino (1985) 39 Cal.3d 667" \c 1 , 695, overruled on another ground in People v. Johnson (1989) 47 Cal.3d 1194 TA \l "People v. Johnson (1989) 47 Cal.3d 1194" \s "People v. Johnson (1989) 47 Cal.3d 1194" \c 1 , 1221.) o An appellate court must determine whether, when viewing the evidence in a light most favorable to the prosecution, a reasonable trier of fact could have found that the prosecution sustained its burden beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307 TA \l "Jackson v. Virginia (1979) 443 U.S. 307" \s "Jackson v. Virginia (1979) 443 U.S. 307" \c 1 , 318-319; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907 TA \l "Taylor v. Stainer (9th Cir.1994) 31 F.3d 907" \s "Taylor v. Stainer (9th Cir.1994) 31 F.3d 907" \c 1 , 908-909; People v. Osband (1996) 13 Cal.4th 622 TA \l "People v. Osband (1996) 13 Cal.4th 622" \s "People v. Osband (1996) 13 Cal.4th 622" \c 1 , 690; People v. Morris (1988) 46 Cal.3d 1 TA \l "People v. Morris (1988) 46 Cal.3d 1" \s "People v. Morris (1988) 46 Cal.3d 1" \c 1 , 19; People v. Shakhvaladyan (2004) 117 Cal.App.4th 232 TA \l "People v. Shakhvaladyan (2004) 117 Cal.App.4th 232" \s "People v. Shakhvaladyan (2004) 117 Cal.App.4th 232" \c 1 , 236; People v. Nguyen (1993) 21 Cal.App.4th 518 TA \l "People v. Nguyen (1993) 21 Cal.App.4th 518" \s "People v. Nguyen (1993) 21 Cal.App.4th 518" \c 1 , 528.) The court’s conclusions must be supported by “substantial evidence,” which is defined as evidence that “reasonably inspires confidence and is of solid value.” (People v. Morris, supra, 46 Cal.3d at p. 19; People v. Superior Court (Jones) (1998) 18 Cal.4th 667 TA \l "People v. Superior Court (Jones) (1998) 18 Cal.4th 667" \s "People v. Superior Court (Jones) (1998) 18 Cal.4th 667" \c 1 , 681; People v. Osband, supra, 13 Cal.4th at p. 690.) “The critical word in this test is substantial…[S]uch evidence must be of ponderable legal significance. Obviously, the word cannot be deemed synonymous with any evidence. It must be reasonable in nature, credible, and of solid value; it must be substantial proof of the essentials which the law requires in a particular case.” (People v. Basset (1968) 69 Cal.2d 122 TA \l "People v. Basset (1968) 69 Cal.2d 122" \s "People v. Basset (1968) 69 Cal.2d 122" \c 1 , 138-139, italics added.) The respondent may not simply point to “some evidence” supporting the lower court’s findings. (People v. Johnson (1980) 26 Cal.3d 557 TA \l "People v. Johnson (1980) 26 Cal.3d 557" \s "People v. Johnson (1980) 26 Cal.3d 557" \c 1 , 577.) The question is whether any rational trier of fact could have found that the prosecution sustained its burden of proving each and every element of the offense beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. 307, 318; People v. Johnson, supra, 26 Cal.3d at 576; People v. Nguyen, supra, 21 Cal.App.4th at p. 528-529.) It is well settled that speculation is not a substitute for substantial evidence. “A finding of fact must be an inference drawn from evidence rather than…a mere speculation as to probabilities without evidence.” (People v. Morris, supra, 46 Cal.3d at p. 21.) Deputy Pools speed estimates were entirely speculative and contradicted the NTECOM evidence. Put another way, “the inference must be a reasonable conclusion from the evidence and cannot be based upon suspicion, imagination, speculation, surmise, conjecture, or guesswork.” (People v. Morris, supra, 46 Cal.3d at p. 21; Beck Development Co., Inc., v. Southern Pacific Transportation Company (1996) 44 Cal.App.4th 1160 TA \l "Beck Development Co., Inc., v. Southern Pacific Transportation Company (1996) 44 Cal.App.4th 1160" \s "Beck Development Co., Inc., v. Southern Pacific Transportation Company (1996) 44 Cal.App.4th 1160" \c 1 , 1203; Brautigan v. Brooks (1964) 227 Cal.App.2d 547 TA \l "Brautigan v. Brooks (1964) 227 Cal.App.2d 547" \s "Brautigan v. Brooks (1964) 227 Cal.App.2d 547" \c 1 , 556-557.) Here, the court deprived appellant of his federal right to due process when he was convicted less than constitutionally sufficient evidence. R. The Trial Court Committed Error When Found Substantial Evidence Contradicted The Felony Evading An Officer Charge And Should Have Reduced The Charge To A Misdemeanor.Vehicle Code section 2800.1 TA \l "Vehicle Code section 2800.1" \s "Vehicle Code section 2800.1" \c 2 sets forth the elements of flight from a pursuing peace officer. This statute states, “(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor if all of the following conditions exist: [¶] (1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer’s motor vehicle is distinctively marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace officer ... and that peace officer is wearing a distinctive uniform....”[3] This offense is elevated to a felony by section 2800.2, subdivision (a), if “the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property....” ( TA \l "§ 2800.2" \s "§ 2800.2" \c 2 § 2800.2, subd. (a); People v. Shakhvaladyan (2004) 117 Cal.App.4th 232 TA \s "People v. Shakhvaladyan (2004) 117 Cal.App.4th 232" , 236; People v. Pinkston (2003) 112 Cal.App.4th 387 TA \l "People v. Pinkston (2003) 112 Cal.App.4th 387" \s "People v. Pinkston (2003) 112 Cal.App.4th 387" \c 1 , 390.)[4] Thus, section 2800.1 is a lesser included offense of section 2800.2. (People v. Springfield (1993) 13 Cal.App.4th 1674 TA \l "People v. Springfield (1993) 13 Cal.App.4th 1674" \s "People v. Springfield (1993) 13 Cal.App.4th 1674" \c 1 , 1679-1680.) In order for a crime to be a lesser included offense of a greater offense, the lesser included offense must be necessarily committed every time the great offense is committed. “Facially, it could not be more clear that Vehicle Code section 2800.1 TA \s "Vehicle Code section 2800.1" is a lesser included offense of Vehicle Code section 2800.2 TA \l "Vehicle Code section 2800.2" \s "Vehicle Code section 2800.2" \c 2 . The only distinction between the two crimes is that in committing the greater offense the Appellant drives the pursued vehicle ‘in a willful or wanton disregard for the safety of persons or property.’ (Veh. Code, § 2800.2 TA \l "Veh.Code, § 2800.2" \s "Veh.Code, § 2800.2" \c 2 .)” (People v. Springfield, supra, 13 Cal.App.4th at p. 1679-1680.) In recognition of this fact, the court instructed appellant’s jury on both section 2800.1 and section 2800.2. (CT 540-541; RT 1161-1163.)[5] While the prosecution’s evidence showed that appellant failed to yield, the evidence failed to show that he violated section 2800.2. In this case, the evidence which showed that Deputy Pool was in his sheriff’s uniform and drove a marked patrol car however, Deputy Pool failed to indicate to Appellant that he intended to stop Appellant when Appellant drove past Deputy Pool, while Deputy Pool had no probable cause to chase Appellant in the first place. In addition, there was also evidence to support the finding that both Sergeant Christey and Deputy MacDonald wore their uniforms and drove marked patrol cars. (RT 409, 412, 415, 426-428, 575, 809-810.) As for the use of emergency lights and sirens, Deputy Pool testified that he turned on both his siren and emergency lights when he was behind appellant’s SUV. (RT 583-586.) And Christey and MacDonald testified that they heard Pool’s patrol car sirens and saw the emergency lights on his car flashing. (RT 430-431, 844-845, 855.) The evidence on these elements is not in doubt. However, the prosecutor failed to prove by substantial evidence that appellant drove with a “willful or wanton disregard for the safety of persons or property....” (§ 2800.2 TA \s "§ 2800.2" , subd. (a).) While section 2800.2 does not define “willful or wanton,” CALJIC No. 12.85 TA \s "CALJIC No. 12.85" defines these terms as “an act or acts intentionally performed with a conscious disregard for the safety of persons or property. It does not necessarily include an intent to injure.”[6] Appellate courts have found that neither “willful or wanton disregard” have a technical legal meaning. (People v. Richie (1994) 28 Cal.App.4th 1347 TA \l "People v. Richie (1994) 28 Cal.App.4th 1347" \s "People v. Richie (1994) 28 Cal.App.4th 1347" \c 2 , 1361.) In People v. Schumacher (1961) 194 Cal.App.2d 335 TA \l "People v. Schumacher (1961) 194 Cal.App.2d 335" \s "People v. Schumacher (1961) 194 Cal.App.2d 335" \c 2 , 339, the court defined these terms as follows. “The term ‘wantonness’ is thus defined: ‘Wantonness includes the elements of consciousness of one’s conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of consequences.’ [Citation.] ... The word ‘willful’ in this connection means ‘intentional’ [citations]. The intention here referred to relates to the disregard of safety, etc., not merely to he act done in disregard thereof. [Citation.]” (Ibid.; People v. Richie, supra, 28 Cal.App.4th at p. 1361.) In People v. Richie, supra, 28 Cal.App.4th at p. 1361, the court discussed the dictionary definitions of the words “willful or wanton.” The court stated that, “Webster’s dictionary defines ‘willful’ as: ‘1: obstinately and often perversely self-willed 2: done deliberately: Intentional.’ (Webster’s New Collegiate Dict. (1977) p. 1341.)” As for the term “wanton,” Webster’s defined the term as “‘3a: Merciless, Inhumane ... b: having no just foundation or provocation: Malicious.’ (Id., at p. 1318.)” (People v. Richie, supra, at p.1361.) The jury received the CALJIC No. 12.85 definition “willful or wanton.” (CT 540-541; RT 1161-1163.) But the jury had some difficulty with this instruction. After some deliberation and on August 26, 2004, the jury asked the court several questions related to the evading charge. Specifically, the jury asked “For Veh. Code §§ 2800 TA \l "Veh. Code §§ 2800" \s "Veh. Code §§ 2800" \c 2 [sic] Count 2[,] 1) when does the pursuit end? [and] 2) must all 8 elements must each be proven to have occurred concurrently? That is, must the siren (5) and lights (3) be on at the same time as element (8)[, namely that “The driver of the pursued vehicle drove the vehicle in a willful or wanton disregard for the safety of persons or property.” (CT Aug at 1 (Exhibit No. 1.)) Once in the courtroom, the court responded to the jury’s questions. As to the first question, the court told the jury that the determination of when the pursuit ended was a factual question which they had to decide based on the evidence presented at trial. (RT 1331.) For the second question, the court told the jury “The best I can do for you there is to tell you that the instruction again has to be read as a whole and the elements with regard to 2800.2 since those three elements are all involved with 2800.2 verses 2800.1, which contains two of those elements[.]” The court again read the required elements for section 2800.2 from CALJIC No. 12.85 TA \s "CALJIC No. 12.85" . (RT 1331-1332.) After hearing CALJIC No. 12.85 TA \s "CALJIC No. 12.85" , Juror No. 5 asked for a “Definition of ‘wanton?’” (RT 1332.) The juror wanted the court to explain to them “what the word ‘wanton’ means.” (Ibid.) The court held a sidebar with both counsel. After the sidebar, the court read CALJIC No. 12.85 TA \s "CALJIC No. 12.85" ’s definition of the terms “willful or wanton.” The court asked if there were any further questions and the juror responded in the negative. (RT 1333.) However, these questions and exchanges show, at the very least, that the jury was having some difficulty with count 2 and whether the prosecution had sustained its burden of proof for this specific element of the felony charge. Indeed, the evidence to show appellant drove with a “willful or wanton disregard” was lacking in this case. At best, the prosecution’s evidence on this element was not clear and often in conflict. For example, Deputy Pool testified that he did not check the speed at which appellant traveled until about 20 seconds into the pursuit. At this point, Pool noted that they were traveling at about 40 miles an hour in a 25 mile per hour zone, at a point when clearly Pool was engaged in catching up with Appellant. But Pool failed to consistently monitor appellant’s speed on Hidden Valley Road. (RT 581-587, 772, 803.) Both Hidden Valley Road and Suncrest Drive were private, residential streets. (RT 581-587, 772, 803.) Pool described Hidden Valley Road as windy with small embankments on the sides. There were also trees and houses throughout the drive. In addition, there was no center line down Hidden Valley Road and it was narrow. But there were several “pullouts” on the road. (RT 587-589.) Similarly, Officer Michael Lindsey testified that there were 29 driveways from the start of Hidden Valley Road to appellant’s front gate. He also testified that there were six intersections and three blind corners which required mirrors. (RT 955.) Once appellant turned onto Suncrest Drive, he slowed to 20 miles per hour. (RT 590-591.) Pool testified that once appellant’s SUV reached Christey and MacDonald, they were standing in front of a van parked on the side of the road and in the street (Note contradictory and confusing testimony by Christey and MacDonald as to where they were standing). As appellant’s SUV approached them, the two officers stepped back and allowed the SUV to pass them. (RT 592-593.) At this point, the SUV was not traveling at 40 or even 20 miles per hour. Pool testified that appellant’s SUV slowed to a “roll” as it past Christey and MacDonald. Appellant then slowly maneuvered around the two patrol cars and approached the gate to his residence where he waited for the gate to open. (RT 594-595.) Christey’s testimony on this point supports Pool’s testimony. (RT 435-438.) Deputy Pool parked his car behind another patrol car near the gate, exited his car, and followed on foot before Appellant reached his gate. (RT 595-596, 783.) In other words, appellant was still waiting for the gate to open and had not driven though it when Pool parked and exited his car. The three sheriffs followed behind appellant’s car, but were able to keep up with the SUV without running. (RT 783.) Pool testified that in total, the pursuit itself covered 1.4 miles and lasted about 2 to 3 minutes. (RT 764, 769, 780-781.) There was some controversy as to when the pursuit began and ended. Here, Pool’s pursuit report stated that the pursuit began at 2:39 p.m. and ended at 2:41 p.m. However, he thought that the pursuit began at 2:38 p.m. (RT 787-788, 797.) The NETCOM report, which was recorded at the time of the pursuit, supported Pool’s memory that the pursuit began at 2:38 p.m. and ended at 2:41 p.m., making the pursuit a total of three minutes. Specifically, the NETCOM report recorded that the pursuit began at 2:38 p.m.; it reached the 700 block of Hidden Valley at 2:39 p.m. and then the 1100 block of Suncrest Drive at 2:41p.m. (RT 797, 799.) Appellant testified that he drove with great care and was very concerned about his children’s safety. (RT 1041-1043.) Appellant saw Pool’s patrol car parked on Hidden Valley Road, but did not think anything of it. (RT 1051, 1092.) He continued down Hidden Valley Road and Suncrest Drive, but did not see Pool’s patrol car or hear its sirens. Appellant kept his eyes on the road in front of him at all times and did not look in his rearview mirror because the roads are windy and required his attention. (RT 1093-1099, 1119.) And he did not hear the patrol car’s sirens because his son’s favorite song was playing on the radio and he had turned up the volume for him. (RT 1096-1097, 1099.) Appellant testified that his speed varied from 20 to 35 miles per hour on the roads. The NETCOM evidence proves Appellant drove at around 27mph on the Hidden Valley portion of the alleged chase. (RT 1075, 1119.) Finally, appellant testified that he did not see any other traffic driving in the opposite direct during his drive from Hidden Valley Road to his front gate. (RT 1075.) While appellant and Deputy Pool’s testimony diverges at some points, several things are clear in both men’s testimony. First, neither appellant nor Deputy Pool came close to striking any other vehicle during the pursuit. And it is clear that they never drove past or saw other traffic on the road during the pursuit. Appellant’s driving did not force another car off the road nor did it force any other vehicle to stop, brake hard, or take evasive action to avoid a collision. In addition the risk of the danger to others was minimized by the patrol car’s lights and sirens. While there were three intersections on the drive to appellant’s house, there was no evidence which showed appellant failed to yield at those intersections or ran any stop signs or traffic lights. While Deputy Pool testified appellant drove over the speed limit on Hidden Valley Road, he never testified appellant lost control of his car or drove erratically. In fact Deputy Pool never testified that Appellant drove with a willful wanton disregard to the safety of people or property. Further proof of this was the fact that appellant did not come close to colliding with anything during the actual pursuit up Hidden Valley Road to his residence. Appellant slowed to 20 miles per hour or slower once on Suncrest Drive and slowed to a “roll” as he approached and drove past Christey and MacDonald. So, appellant was not speeding for the entire pursuit. Further, appellant drove down a private, residential road, out of the mainstream traffic and used only by the private residents and a road that Appellant drove every day and was intimately familiar with. Finally, the pursuit lasted about 3 minutes and covered only 1.4 miles. Pool, Christey, and MacDonald all testified that appellant managed to maneuver between their patrol cars at his front gate. However, appellant did not hit either car nor was he traveling at a high rate of speed when he drove past them he was driving at a “roll”. In the final analysis, this evidence taken in its totality did not support a finding that appellant drove with a “willful or wanton disregard” and the felony conviction cannot be sustained. Based on the jury’s questions, it seems that they believed the pursuit ended once appellant drove up to his front gate. The evidence supports this conclusion because Pool testified that before appellant stopped to let his automatic gate open, he parked and exited his car. At this point, the pursuit had ended for all practical purposes. The prosecutor’s argument also supports the conclusion that the evading charge ended once appellant reached Christey and MacDonald and drove toward his front gate. In his closing argument, the prosecutor first argued that the evidence support the felony conviction. (RT 1265-1266.) The prosecutor cited several factors, all of which occurred before appellant drove though the front gate. First, he cited appellant’s unsubstantiated speed while driving from Hidden Valley Road with his children in the backseat. But as discussed above, the testimony regarding appellant’s driving does not support a finding that he drove with a “willful or wanton” disregard for others, namely his children and other residents. Next the prosecutor argued that appellant forced Sergeant Christey and Deputy MacDonald off the road with his SUV. (Ibid.) Here, again the evidence does not support this argument. While appellant drove down the road in their direction, he was driving very slowly, and according to Pool, just fast enough to “roll” past them. In his rebuttal argument, the prosecutor revisited the evading charge. During that argument, the prosecutor discussed the timing for each of the charges. The prosecutor argued that the evading charge occurred at the point Pool turned on his emergency lights and ended when appellant approached Christey and MacDonald just before the gate to his residence. Once appellant reached the gate the evading charge had ended. (RT 1281-1282.) So, based on the prosecutor’s argument, once appellant past the officers and drove to his gate, the evading charge no longer applied. As a direct result, the evasion charge did not encompassed appellant’s actions once he slowed for and proceeded through his gate. And the evidence offered by Deputy Pool is insufficient to show that appellant’s behavior during the short pursuit supported the felony evading a police officer conviction. Based on the evidence offered during the prosecutor’s case-in-chief, the trial court should have reduced the felony section 2800.2 charge to the lesser included misdemeanor 2800.1 pursuant to Penal Code section 1118.1 TA \s "Penal Code section 1118.1" . Since the court failed to reduce the evading an officer charge, it committed error and abused its discretion. Therefore, this court must reverse appellant’s conviction for evading a police officer. LEGAL AUTHORITIESI. DUE PROCESS DICTATES A FAIR TRIAL BY JURY AND A RIGHT TO BE HEARD:
8A Cal D 2d-576. Cal.App. 1977. It is the failure to have an appropriate adjudication of a defense that reduces trial to a farce or a sham, and which thus renders Petitioner's trial fundamentally unfair, in violation of constitutional due process rights guaranteed to Petitioner. U.S.C.A.Const. Amends. 6, 14. People v. Rodrigez, 141 Cal.Rptr. 118, 73 C.A.3d 1023.
Cal. 1979. A trial procedure in which the trier of fact can only find against the accused, even if only advisory, is a blatant violation of constitutional standards; all triers of fact must be free to find for or against the party appearing before them. West's Ann.Const. art. 1, Sec. 7(a); art. 6, Sec. 22; U.S.C.A.Const.Amend. 14. In re Perrone C., 603 P.2d 1300, 160 Cal.Rptr. 704, 26, C.3d 49. - 8A Cal D 2d-572
Ca. 1963. A judgment of conviction based on testimony known by representatives of the state to be perjured deprives Petitioner of due process of law and may be attacked on habeas corpus. In re Imbler, 387 P.2d 6, 35 Cal.Rptr. 293, 60 C.2d 554, certiorari denied 85 S.Ct. 196, 379 U.S. 908, 13 L.Ed.2d 181.
C.A.Cal 1983. Central meaning of procedural due process is that parties whose rights are to be affected are entitled to be heard at a meaningful time and in a meaningful manner. U.S.C.A. Const.Amends. 5, 14. Orloff v. Cleland, 708 F.2d 372.
II. FAVORABLE EVIDENCE MAY NOT BE WITHELD
C.A.Cal. 1970. Suppression of evidence favorable to accused violates due process where evidence is material either as to guilt or punishment irrespective of good faith or bad faith of prosecution. Loraine v. U.S., F.2d 335, certiorari denied 89 S.Ct. 292, 393 U.S. 933, 21 L.Ed.2d 270
C.A. Cal. 1968. Deliberate concealment by government of evidence which might clearly operate in favor of a Petitioner would constitution a violation of due process, entitling Petitioner to a new trial. Lee. v. U.S., 388 F.2d 737.
Cal.A. 1969. A criminal action presented to a trier of fact on partial evidence which by reason of false inferences created becomes false evidence is an unfair trial which denies accused due process. People. v. Stuart, 77 Cal.Rptr. 531, 272 C.A.2d 653.
Cal. 1960. Where prosecution is allowed to control course of proceedings in manner which would prevent accused from presenting material evidence, accused is denied a fair trial and due process. People v. Kiihoa, 349 P.2d 673, 3 Cal.Rptr. 1, 53 C.2d 748.
P U.S.Cal. 1984. Due process clause of the Fourteenth Amendment requires state to disclose to criminal Petitioner favorable evidence that is material either to guilt or to punishment. U.S.C.A.Const. Amend. 14. Califonria v. Trombetta, 104 S.Ct 2528, 467 U.S. 479, 81 L.Ed.2d 413 S.Ct. 2528, 467 U.S. 479, 81 L.Ed.2d 413, on remand People v. Trombetta, 219 Ca.Rptr. 637. 173 C.A.3d 1093, review denied.
C.A.Cal. 1973. Whether a Petitioner's right to due process is violated by failure to disclose exculpatory evidence is determined by whether the undisclosed evidence is so critical that its absence prevents Petitioner from receiving a fair trial under the Constitution. U.S. v. Diaz-Rodrigez, 478 F.2d 1005, certiorari denied 93 S.Ct. 3024, 412 U.S. 964, 37 L.Ed.2d 1013.
Cal. 1974. Intentional suppression of material evidence favorable to Petitioner who has requested it constitutes violation of due process, irrespective of good or bad faith of prosecution. People v. Hitch. 527 P.2d 361, 117 Cal.Rptr. 9 , 12 C.3d 641.
C.A.Cal. 1972. Whether accused's right to due process was violated by failure to disclose evidence in determined by whether the undisclosed evidence was so important that its absence prevented the accused from receiving his constitutionally guaranteed fair trial. U.S. v. Hiber, 463 F.2d 455.
Cal.App. 1969. It is always permissible for Petitioner to show his trial was being unfairly conducted, and by establishing that prosecution is suppressing material witness, Petitioner demonstrates he has been denied fair trial and due process. People v. Singletary, 81 Cal.Rptr. 79, 276 C.A.2d 601.
Cal. 1960. Intentional suppression of material evidence by state is a denial of a fair trial and due process, and this can, in some circumstances, be manifested by failure of prosecution to call certain witnesses. People v. Kiihoa, 349 P.2d 673, 3 Cal.Rptr. 1, 53 C.2d 748.
III. DUE PROCESS DICTATES IMPARTIAL JUDGE , FAIR JURY & RIGHT TO BE HEARD:
C.A.9 (Cal.) 1986. Due process clause guarantees aggrieved party opportunity to present case and have its merits fairly judged. U.S.C.A. Const.Amend. 14. Jackson Water Works, Inc. v. Public Utilities Com'n of State of Cal., 793 F.2d 1090, certiorari denied 107 S.Ct. 1334, 479 U.S. 1102, 94 L.E.2d 184.
Cal.A. 1968. Due process requires that accused receive a trial by impartial jury free from outside influences. U.S.C.A.Cosnt. Amend. 14. People v. McKee, 71 Cal.Rptr. 26, 265 C.A.2d 53.
C.A.Cal. 1980. A hearing by a biased judge does not comport with fundamental concepts of due process of law. U.S.C.A.Const.Amend. 5. U.S. v. Navarro-Flores, 628 F.2d 1178.
U.S.Cal. 1982. Due process demands impartiality on the part of those who function in judicial of auasi-judicial capacities. U.S.C.A. Const.Amend. 5. Schweiker v. McClure, 102 S.Ct. 1665, 456 U.S. 188, 72 L.Ed.2d 1. -8A Cal D 2d-385
Under due process clause, every party is entitled to impartial tribunal. Jackson Water Works, Inc. v. Public Utilities Com'n of State of Cal., 793 F.2d 1090, certiorari denied 107 S.Ct. 1334, 479 U.S. 1102, 94 L.E.2d 184.
D.C.Cal. 1971. Due process requires that government abide by basic principles of fairness when dispensing, or revoking, a privilege. U.S.C.A.Const. Amend. 14. Hester v. Craven, 322 F.Supp. 1256.
D.D.Cal 1975. At heart of any due process hearing is requirement of an impartial decision maker. U.S.C.A.Const.Amend 5. Ponce v Housing Authority of Tulare County, 389 F.Supp. 635. -8A Cal D 2d-386
Cal.App. 1954. Under constitutional guaranties, no right of an individual, valuable to him pecunirily or otherwise, can be justly taken away without its being done conformably to principle of justice which afford due process of law unless the law constitutionally otherwise provides, and due process of law does not mean according to the whim, caprice, or will of the judge but according to the law. In re Buchman's Estate, 267 P.2d 73, 123 C.A.2d 546, 47 A.L.R.2d 291. -8A Cal D 2d-377
8A Cal D 2d-377. Judicial absolutism is not a part of the American way of life, and the odious doctrine that the end justifies the means does not prevail in our system for the administration of justice. In re Buchman's Estate, 267 P.2d 73, 123 C.A.2d 546, 47 A.L.R.2d 291.
8A Cal D 2d-572. Cal. 1985. Prosecution is obligated to respect Petitioner's right to a fair trial and an impartial trial in compliance with due process of law. U.S.C.A.Const.Amends. 6, 14. People v. Trevino, 704 P.2d 719, 217 Cal.Rptr. 652, 39 C.3d 667.
8A Cal D 2d-572. Cal.App. 1982. It is obligation of prosecution, as well as of court, to respect mandate that fair and impartial trial is fundamental aspect of right of accused persons not to be deprived of liberty without due process of law. U.S.C.A.Const.Amend. 14. People v. Fuller, 186 Cal.Rptr. 283, 136 C.A.3d 403.
Cal.Ap. 1982. Fundamental fairness, i.e. due process, includes right to present legal and factual issues in deliberate and orderly manner. U.S.C.A.Const.Amend. 14. White v. Division of Medical Quality, Bd. of Medical Quality Assur., 180 Cal.Rptr. 516, 128 C.A.3d 699.
Cal.A. 1966. The essentials of due process are regular and orderly procedure in court of competent jurisdiction, notice to Petitioner, opportunity for Petitioner to be heard, and fair hearing. State Acting By and Through Dept. of Water Resources v. Natomas Co., 49 Cal.Rptr 64, 239 C.A.2d 547.
Cal.A. 5 Dist. 1984. Dignitary requirements of procedural due process dictate that not just bias in fact but the appearance of bias and impropriety are due process considerations; goals of the guarantee of due process are the individual's reasonable belief that proceedings are fair and maintenance of confidence in the honesty and integrity of the judge and his proper performance of his judicial function. West's Ann.Cal. Const. Art. 1, Sec. 15; U.S.C.A.Const. Amends. 5, 14. People v. Hernandez, 206 Cal.Rptr. 843, 160 C.A.3d 725,
Accused's due process right to offer testimony of witness is violated whenever government conduct, whether by state statute, judicial misconduct, or prosecutorial misconduct, interferes with such right. U.S.C.A.Const. Amends. 5, 14. People v. Bryant, 203 Cal.Rptr. 733, 157 C.A.3d 582
D.C.Cal. 1980. In order to satisfy fair hearing requirement of due process clause, a tribunal, whether administrative or judicial, must be impartial; adjudicator may neither have pecuniary interest in outcome nor have been target of personal abuse or criticism from party before him. U.S.C.A.Const Amend. 14. McClure v. Harris, 503
IV. DUE PROCESS DICTATES COMPETENT JURISDICTION & SUBJECT MATTER JURISDICTION:
Cal.App. 1966. The essentials of due process are regular and orderly procedure in court of competent jurisdiction, notice to Petitioner, opportunity for Petitioner to be heard, and fair hearing. State Acting By and Through Dept. of Water Resources v. Natomas Co., 49 Cal.Rptr 64, 239 C.A.2d 547.
Cal.App. 1859. There are two essentials to due process in a judicial proceeding: (1) that the court have jurisdiction over the parties and the subject matter of the action, and (2) that the parties have reasonable notice and an opportunity for hearing. West's Ann.Const.art. 1, Sec.Sec. 2, 13. Datta v. Staab, 343 P.2d 977, 173 C.A.2d 613.
D.C.Cal 1975. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact laws which will deprive individuals of their liberty without due process. U.S.C.A.Const.Amend. 14; 42 U.S.C.A. Sec. 1983. Lipp v. Procunier, 395 F.Supp 871, supplemented 402 F.Supp. 623.
8A Cal D 2d-572. Cal.App. 2 Dist. 1984. Fair hearing is requisite of due process in both civil and criminal cases, and its denial is act in excess of jurisdiction and reversible error per se. U.S.C.A.Const.Amends. 5, 14. In re Hector R., 200 Cal.Rptr. 110, 152 C.A.3d 1146.
V. DUE PROCESS DICTATES GOOD CAUSE & FACTS:
Cal.Super. 1982. To be proper in criminal prosecution, underlying fact giving rise to presumption must be provided beyond reasonable doubt, and due process requires that there be rational connection between proven fact and that presumed. West's Ann.Cal.Evid.Code Sec. 607; U.S.C.A.Const.Amend. 14. People v. Campos, 188 Cal.Rptr. 366, 138 C.A.3d Su. 1.
C.A.Cal. 1981. State must ultimately justify depriving person of protected liberty interest by determining that good cause exists for deprivation. U.S.C.A.Const. Amend. 14. Doe v. Gallinot, 657 F.2d 1017. -8A Cal D 2d-399
Cal. 1971. In order that presumption satisfy due process clause of Fourteenth Amendment there must be a rational connection between the facts provided and the facts presumed. U.S.C.A.Const. Amend. 14. People v. Montalvo, 482 P.2d 205, 93 Cal. Rptr. 581, 4 C.3d 328, 49 A.L.R.3d 518.
Due process does not tolerate prosecutor's selective inattention to significant facts but requires that he exercise good faith, a requirement not fulfilled where he allows witness to give false testimony of which he has advance knowledge and accuracy of which he has reason to suspect good faith imposes affirmative duty to avoid even unintentional deception and misrepresentation, and prosecutor must undertake careful study of case and exercise diligence in its preparation, particularly where confronted with fact tending to cast doubt upon his witness's testimony. Imbler v. Craven, 298 F.Su. 795, affirmed 424 F.2d 631, certiorari denied California v. Imbler, 91 S.Ct. 100, 400 U.S.865, 27 L.Ed.2d 104.
Atty.Gen. 1950. Conviction by court lacking jurisdiction can be contended to be in violation of due process clause of Fourteenth Amendment (U.S.C.A.Const.) 50-10, 15 Op.Atty.Gen 69.
Cal.A. 1962. Due process requires fair trial before impartial tribunal, and such trial requires that person or body who decides cases must known, consider, and appraise evidence. Le Strange v. City of Berkley, 26 Cal.Rptr. 550, 210 C.A.2d 313.
Cal.App. 1977. If individual is condemned to suffer grievous loss of liberty, he must first be accorded due process of law, irrespective of burden imposed upon government agency. ... Fundamental mandate of Fourteenth Amendment is that person be afforded notice and opportunity to be heard prior to deprivation of significant liberty or property interest U.S.C.A.Const. Amend. 14. In re Anderson, 140 Cal.Rptr. 546, 73 C.A.3d 38. -8A Cal D 2d-424
Cal.App. 4 Dist. 1985. Where one's liberty is at stake, application of strict-scrutiny test is required and it becomes government's burden to justify procedure by showing it has compelling interest which is furthered by procedure in question. Conservatorship of Waltz, 213 Cal.Rptr. 529, 167 C.A.3d 835.
Cal.App. 4 Dist 1984. "Procedural due process" rules exist to minimize risk of substantively unfair or mistaken deprivation of life, liberty or property by enabling persons to contest basis on which government proposes to deprive them of their protected interests. U.S.C.A.Const.Amend. 5. McCaffrey v. Preston, 201 Cal.Rptr. 252, 154 C.A.3d 422. -8A Cal D 2d-424
Cal. 1977. When state participates in deprivation of person's right to personal liberty, even conditional liberty, due process requires that facts justifying that action be reliably established and, to that end, person must receive hearing after adequate written notice of basis for proposed action and an opportunity to appear in person and to present evidence in his own behalf, and he has right to confrontation by , and opportunity to cross-examine, adverse witnesses, a neutral and detached decision maker, findings by preponderance of evidence and record of proceeding adequate to permit meaningful judicial or appellate review. U.S.C.S.Const. Amend. 14; West's Ann.Const. art. 1, Sec. 7(a). In re Roger S., 569 P.2d 1286, 141 Cal.Rptr. 298, 19 C.3d 921. -8A Cal D 2d-423
Cal. 1980. Identification of dictates of due process generally requires consideration of (1) private interest that will be affected by the official action, (2) risk of an erroneous deprivation of such interest through procedures used, and probable value, if any, of additional or substitute procedural safeguards, (3) dignitary interest in informing individuals of nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) governmental interest, including function involved and fiscal and administrative burdens that additional or substitute procedural requirement would entail. U.S.C.A.Const. Amend. 14; West's Ann.Const. Art. 1, Sec. 7. Van Atta v. Scott, 613 P.2d 210, 166 Cal. Rptr. 149, 27 C.3d 424. -8A Cal D 2d-398
Cal.App. 5 Dist. 1984. Deprivation of freedom falls within prohibition against deprivation of liberty expressed in State and Federal Constitutions. .... Implicit in concept that freedom from arbitrary adjudicative processes is substantive element of one's liberty is that court will require sufficient information to make a reasoned decision that reflects and exercise of discretion; which must be given to important due process value of promoting accuracy and reasonable predictability in governmental decision making when individuals are subject to deprivatory action. West's Ann.Cal. Const. Art. 1, Sec. 7(a). People v. Davis, 207 Cal.Rptr. 18, 160 C.A.3d 970. -8A Cal D 2d-424
Cal.App. 1977. Juvenile proceedings which may result in substantial loss of freedom are regarded as quasi criminal in nature and, as a consequence, fundamental notions of due process and fairness must be strictly observed. Wets's Ann.Welfare & Inst.Code, Sec. 702.5. In Matter of Aaron N., 139 Cal.Rptr. 258, 70 C.A.3d 931.
Cal.App. 1 Dist. 1985. Due process requires that parents be afforded notice and opportunity to be heard at jurisdictional hearings in juvenile court dependency proceedings. U.S.C.A.Const.Amend. 14; West's Ann.Cal. Welf. & Inst.Code Sec. 300. In re C.P., 230 Cal.Rptr. 864, 165 C.A.3d 270.
Cal. 1979. Minors have a liberty interest that entitles them to due process whenever a state initiates action to deprive them of liberty. U.S.C.A.Const.Amend. 14. In re Scott K., 595 P.2d 105, 155 Cal.Rptr. 671, 24 C.3d 395, certiorari denied Fare v. Scott K., 100 S.Ct. 468, 444 U.S. 973, 62 L.Ed.2d 388.
Cal. 1977. Minor is entitled to protection of due process whenever state itself initiates action, whether civil or quasi criminal, to deprive minor of his liberty. U.S.C.A.Const. Amend. 14; West's Ann.Const. art. 1, Sec. 7(a). In re Roger S., 569 P.2d 1286, 141 Cal.Rptr. 298, 19 C.3d 921.
Even conditional liberty interest, such as that of minor, is entitled to protections of due process when state is involved to any significant degree in its diminution. U.S.C.A.Const. Amend. 14; West's Ann.Const. art. 1, Sec. 7(a). In re Roger S., 569 P.2d 1286, 141 Cal.Rptr. 298, 19 C.3d 921.
Cal.App. 1954. Under constitutional guaranties, no right of an individual, valuable to him peculiarly or otherwise, can be justly taken away without its being done conformably to principle of justice which afford due process of law unless the law constitutionally otherwise provides, and due process of law does not mean according to the whim, caprice, or will of the judge but according to the law. In re Buchman's Estate, 267 P.2d 73, 123 C.A.2d 546, 47 A.L.R.2d 291. -8A Cal D 2d-377
Judicial absolutism is not a part of the American way of life, and the odious doctrine that the end justifies the means does not prevail in our system for the administration of justice. In re Buchman's Estate, 267 P.2d 73, 123 C.A.2d 546, 47 A.L.R.2d 291
VI. WITNESSES MAY NOT BE WITHELD & FALSE WITNESSES MUST BE CORRECTED
Cal.A. 2 Dist. 1990. Constitutional guarantee of due process includes right of criminal Petitioner to compel presence of witness in his behalf. U.S.C.A.Const.Amend. 14. People v. Fernandez, 269 Cal.Rptr. 116, 219 C.A.3d 1379, opinion mondified.
Cal. A. 1982. Right to confront and cross-examine witnesses and to call witnesses in one's own behalf are essential to due process. U.S.C.A.Const.Amends. 6, 14. People v. Claxton, 181 Cal.Rptr. 281, 129 C.A.3d 638.
C.A. Cal. 1978. Failure of prosecutor to correct testimony of witness known to be false may deny Petitioner due process and allow reversal of a conviction. U.S. v. Vargas-Martinez, 569 F.2d 1102.
C.A.Cal. 1965. Conviction obtained through use of false evidence, known to be such by prosecution, must fall under Fourteenth Amendment to Federal Constitution, and rule allied when prosecution, though not soliciting false evidence, knowingly allows it to go uncorrected when it appears in evidence. U.S.C.A.Const. Amend. 14. U.S. v. Marchese, 341 F.2d 782, certiorari denied 86 S.Ct. 41, 382 U.S. 817, 15 L.Ed.2d 64, aeal after remend 378 F.2d 16, certirorari denied 88 S.Ct. 294, 389 U.S. 930, 19 L.Ed.2d 283, rehearing denied 88 S.Ct. 585, 389 U.S. 1025, 19 L.Ed.2d 674.
A denial of due process can result if the prosecution, although not soliciting false evidence, allows a misleading and false impression to go uncorrected when it appears; it matters little that the false impression goes only to the credibility of a prosecution witness or that the prosecutor's silence was not the result of guile or a desire to prejudice. Peple v. Westmoreland, 129 Cal.Rptr. 554, 58 C.A.3d 32.
D.C.Cal. 1969. Criminal conviction obtained through prosecution's knowing use of perjured or false evidence violates Petitioner's right to due process. U.S.C.A.Const. Amend. 14. Imbler v. Craven, 298 F.Su. 795, affirmed 424 F.2d 631, certiorari denied California v. Imbler, 91 S.Ct. 100, 400 U.S.865, 27 L.Ed.2d 104.
Cal.A. 1982. Testimony as to prior inconsistent statements of material witness for prosecution is relevant testimony tending in reason to disprove disputed fact of Petitioner's guilt and is admissible when otherwise not barred by law, and right to produce legally admissible relevant evidence in defense is basic ingredient of due process of law, and Petitioner was denied such right when defense counsel was not allowed to give testimony tending to impeach testimony of prosecution witness, defense counsel having been previously denied permission to withdraw on ground that he was prospective witness. West's Ann.Evid.Code Sec.Sec. 210, 351; U.S.C.A.Const.Amends. 5, 14. People v. Goldstein, 182 Cal.Reptr. 207, 130 C.A.3d 1024.
VII. ASSISTANCE OF EFFECTIVE COUNSEL IS A RIGHT
U.S.Cal. 1975. Sixth and Fourteenth Amendments of Federal Constitution guarantee that person brought to trial in any state of federal court be afforded right to assistance of counsel before he can be validly convicted and punished by imprisonment. U.S.C.A.Const.Amends. 6, 14. Faretta v. California, 95 S.Ct. 2525, 422 U.S. 806, 45 L.Ed.2d 562.
U.S.Cal. 1967. Sixth Amendment's requirement that accused have right to assistance of counsel was made obligatory on states by Fourteenth Amendment. U.S.C.A.Const.Amends. 6, 140. Anderes v. State of Cal., 87 S.Ct. 1396, 386 U.S. 738, 18 L.Ed.2d 493, rehearing denied 87 S.Ct. 2094, 388 U.S. 924, 18 L.Ed.2d 1377.
U.S.Cal. 1967. Constitutional requirements of substantial equality and fair process can only be attained where counsel acts in role of active advocate in behalf of client, as opposed to that of amicus curae. U.S.C.A.Const.Amends. 6, 14. Anders v. State of Cal., 87 S.Ct. 1396, 386 U.S. 738, 18 L.Ed.2d 493, rehearing denied 87 S.Ct. 2094, 388 U.S. 924, 18 L.Ed.2d 1377.
C.A.Cal. 1980. Government interference with Petitioner's relationship with his attorney may render counsel's assistance so ineffective as to violate his Sixth Amendment right to counsel as his Fifth Amendment right to due process U.S.C.A.Cosnt. Amends. 5, 6. U.S. v. Irwin, 612 F.2d 1182.
C.A.Cal. 1971. Assistance of counsel required by Sixth and Fourteenth Amendments must be effective assistance. U.S.C.A.Const.Amends. 6, 14. Barber v. Nelson, 451 F.2d 1017.
Ca. 1970. Constitutional right to assistance of counsel in a criminal case includes guarantee that such assistance is effective, and effective counsel required by due process is counsel reasonably likely to render and rendering reasonably effective assistance. U.S.C.A.Const.Amend. 6. In re Saunders, 472 P.2d 921, 88 Cal.Rptr. 633, 2 C.3d 1033.
Cal.A. 1953. Denying the right to counsel in criminal proceedings is denial of due process. People v. Mora, 262 P.2d 594, 120 C.A.2d 896.
Cal.A. 1966. If Petitioner in criminal case has been deprived of procedural due process because deprived of services of counsel, due process is not satisfied if Petitioner is penalized because he does not in some manner and from some source seasonably ascertain nuances of the law so as to make timely allocation for relief. People v. Campbell, 48 Cal.Rptr. 603, 239 C.A.2d 252.
Cal.A. 1976. Due process is no yardstick of definite value, but rather is embodiment of traditional notions of fair |
