COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MARK EDWARD MESITI,
Petitioner,
Vs.
STANISLAUS COUNTY SUPERIOR
COURT, THE HONORABLE JUDGE
JOHN FREELAND,
Respondent,
STANISLAUS COUNTY SHERIFF'S
DEPARTMENT AND SHERIFF-
CORONER, ADAM CHRISTIANSON
Real Party in Interest.
Case No.: PETITION FOR WRIT OF MANDATE AND/OR PROHIBITION DEATH PENALTY CASE (No. 1403298/1457251)
MARTIN BAKER, BAR NO. 229863
PERRY & ASSOCIATES
948 11TH STREET, SUITE NO. 16
MODESTO, CA 95354
TELE: (209) 554-5727
DOUGLAS D. MANER, BAR NO. 107648
1500 J STREET
MODESTO, CA 95354
TELE: (209) 581-2985
ATTORNEYS FOR PETITIONER
MARK EDWARD MESITI
1
APPELLATE COURT WRIT PETITION INFORMATION SHEET Petitioner: MARK EDWARD MESITI Respondent: STANISLAUS COUNTY SUPERIOR
COURT
JUDGE JOHN FREELAND
Case Number: STANISLAUS CNTY SUPERIOR COURT:
CASE NO. 1403298
Case No. 1457251
1. [ ] Trial is set for: 2. The trial court order asserted to be erroneous was entered as follows:
a. Title and location of the court: STANISLAUS CNTY SUPERIOR COURT, 800 11TH
STREET, MODESTO, CA 95354
b. Date of each order: MAY 5, 2015; JULY 22, 2015
3. [ ] Reason for delay in filing this petition: 4. The record filed or lodged in support of this petition includes a copy of the lower court
a. [x] order. b. [x] pleadings. c. [x] motion with supporting and opposition papers. d. [x] reporter’s transcripts. e. [ ] other:
5. The following record was not filed or lodged in support of this petition:
a. Record: b. Reason: c. Will be filed or lodged on:
6. [ ] A petition concerning the subject of this petition was previously filed as follows:
a. Title and location of Court: b. Case number: c. Disposition:
7. [] A temporary stay order is requested pending the determination of the petition, and a court reporter’s transcript will not be filed or lodged with the court before the stay order is decided.
a. Real parties in interest [ ] have received [ ] have not received actual notice of the request for a stay-order.
b. A summary of all evidence concerning the matter of this petition and in support of the stay order is set forth in attachment [ ] 7b. [ ] as follows: 8. [ ] This petition seeks review of an order denying a motion to:
a. [ ] Suppress evidence b. [ ] set aside the information AND c. Defendant was arraigned on: d. The trial court motion was
2
[ ] made within 60 days following the date of arraignment. [ ] not made within 60 days of the arraignment for the reason set forth [ ] in
attachment 8d. [ ] as follows: 9. [x] This petition seeks review of an order: COURT'S RECONSIDERATION OF
PREVIOUSLY GRANTED MOTION RE DEFENDANT'S REQUEST FOR UNSHACKLING
WHEN IN CONFERENCE WITH DEFENSE TEAM a. [ ] granting or denying a motion for change of venue.
b. [ ] denying a motion to quash service of summons. c. [ ] granting or denying a motion to expunge notice of lis pendens. AND d. [ ] written notice of the lower court order was served on: e. [ ] the lower court extended time to file this petition and a copy of the order is
attached. f. [ ] other:
10. I understand that the court must be advised of any matter affecting this petition which happen after the filing of this petition.
I declare under penalty of perjury under the laws of the State of California that the forgoing is true and correct.
Date: AUGUST 12, 2015 ___________/S/____________________ DOUGLAS D. MANER
3
4
CERTIFICATE OF WORD COUNT
I, DOUGLAS D. MANER, do hereby certify that the attached
Petition for Writ of Mandate/Prohibition consists of 5,994 words,
including footnotes. I have relied on the Word Count feature of Microsoft
Word 10 software in preparing this document for filing.
August 12, 2015
_______/S/____________
DOUGLAS D. MANER Attorney for Petitioner
5
TABLE OF CONTENTS
TABLE OF AUTHORITIES...............................................................8-10
PETITION FOR WRIT OF MANDATE/PROHIBITION,
OR OTHER APPROPRIATE RELIEF..............................................11
PRAYER.................................................................................................16
VERIFICATION....................................................................................17
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF FACTS.........................................................18
II. RESPONDENT COURT INCORRECTLY APPLIED
THE "REASONABLENESS TEST" FACTORS
UNDER TURNER V. SAFLEY TO THE EVIDENCE
PRESENTED IN ITS "RECONSIDERATION"...................20
A. STANDARD OF REVIEW AND
APPLICABLE LAW ......................................................20
B. PROPER APPLICATION OF TURNER V.
SAFLEY TO THE INSTANT CASE .............................21
1. The First Turner Factor.............................................22
2. The Second Turner Factor.........................................25
3. The Third Turner Factor...........................................26
4. The Fourth Turner Factor.........................................27
III. RESPONDENT COURT IMPROPERLY VACATED
THE APRIL 1, 2015 ORDER TO REMOVE THE
HANDCUFF ON PETITIONER'S WRITING HAND
AND THEN IMPROPERLY RECONSIDERED ITS
ORDER TO VACATE ..............................................................29
A. SPECIAL PROCEEDINGS............................................31
6
B. THE APRIL 1, 2015 ORDER WAS FINAL AND
RESPONDENT COURT'S PURPORTED
RECONSIDERATIONS ARE VOID.............................33
IV. JUDGE FREELAND'S SUMMARY SELF-RECUSAL
RAISES THE QUESTION OF THE VALIDITY
OF THE RULINGS AGAINST PETITIONER
AT ISSUE IN THIS CASE.........................................................35
CONCLUSION ......................................................................................37
PROOF OF SERVICE
EXHIBITS (UNDER SEPARATE COVER)
7
TABLE OF AUTHORITIES
CASES
Page(s) Avelar v. Superior Court (1992) 7 Cal. App. 4th 1270 32 Bell v. Wolfish (1979) 441 U.S. 520 21 Campbell v. McGruder (D.C.Cir. 1978) 580 F.2d 521 24 Christie v. City of El Centro (2006) 135 Cal.App.4th 767 35 County of Nevada v. Superior Court (2015) 236 Cal. App. 4th 1001 21, 24, 26 Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1 34 In re Collins (2001) 86 Cal.App.4th 1176 20 In re Roark (1996) 48 Cal.App.4th 1946 24 In re Sutter-Butte By-Pass (1923) 190 Cal. 532, 538 32 In re Wimbs (1966) 65 Cal. 2d 490, 498 34 Johnson v. Avery (1969) 393 U.S. 483, 89 S.Ct. 747 33 Johnson-El v. Schoemel (8th Cir. 1989) 878 F.2d 1043 24
8
Page(s)
Lyons v. Goss (1942) 19 Cal.2d 659 34 People v. Bhakta (2008) 162 Cal.App.4th 973 34 People v. Fierro (1991) 1 Cal.4th 173 23 People v. McGee (1991) 232 Cal. App.3d 620 34 Rhoden v. Rowland (9th Cir.1993) 10 F.3d 1457 24 Smith v. Superior Court (1981) 115 Cal.App.3d 285 34 Snow v. Woodford (2005)128 Cal.App.4th 383 20 Spain v. Rushen (9th Cir. 1986) 883 F.2d 712 24 Stevens v. Superior Court (1936) 7 Cal.2d 110 34 Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d 815; 279 P.2d 35 32 Turner v. Safley (Turner) (1987) 482 U.S. 78 20-22, 25-29 Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415 35 White v. Roper (9th Cir.1990) 901 F.2d 1501 21 Wickoff v. James (1958) 159 Cal.App.2d 664 35
9
Page(s)
STATUTES Code of Civil Procedure § 170.1(a)(6)(A)(ii) 35 Code of Civil Procedure § 170.1(a)(6)(A)(iii) 35 Code of Civil Procedure § 1064 29 Penal Code §688 32 Penal Code §2600 31
OTHER AUTHORITIES
Sixth Amendment, U.S. Constitution 19, 32, 37
10
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MARK EDWARD MESITI,
Petitioner,
vs.
STANISLAUS COUNTY SUPERIOR
COURT, THE HONORABLE JUDGE
JOHN D. FREELAND
Respondent,
STANISLAUS COUNTY SHERIFF'S
DEPARTMENT AND SHERIFF-
CORONER, ADAM CHRISTIANSON
Real Party in Interest.
Case No.: PETITION FOR WRIT OF MANDATE
AND/OR PROHIBITION
DEATH PENALTY CASE [People v. Mark Edward Mesiti Case No. 1403298/1457251]
TO THE HONORABLE BRAD R. HILL, PRESIDING
JUSTICE OF THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA, FIFTH APPELLATE DISTRICT, AND TO THE
HONORABLE ASSOCIATE JUSTICES:
Petitioner, MARK EDWARD MESITI by and through his attorneys,
Martin Baker and Douglas D. Maner, attorneys at law, petitions this court
for a Writ of Mandate and/or Prohibition, directed to the Superior Court,
County of Stanislaus, State of California, and by this verified petition
represents the following:
11
I
This petition raises three issues:
1. Did Respondent court correctly apply the ‘reasonableness
test’ under Turner v. Safley [(1987) 482 U.S. 78] in ruling that the recently
imposed restriction on Petitioner, a pretrial detainee, was merely an
encumbrance, not rising to an actual infringement of his Sixth Amendment
rights to counsel and to assist in his own defense, and therefore Real Parties
were not required to justify the policy?
2. In a special proceeding, collaterally related to a criminal
action, does the trial court have the power/authority to reconsider its order
where the result substantially modifies the original judgment/order and
materially alters the rights of a party?
3. Does Judge Freeland's recusal of himself under Code of Civil
Procedure §§ 170.1(a)(6)(A)(ii) and 170.1(a)(6)(A)(iii) entered less than 48
hours after ruling against Petitioner render the ruling void or voidable?
II
The relevant procedural history giving rise to these issues, as
demonstrated within the designated Exhibits filed under separate cover and
incorporated by reference are as follows:
1. On April 1, 2015, following a full evidentiary hearing,
Respondent court ordered that Petitioner's right hand be unshackled during
12
conferences with counsel in the multipurpose room after Petitioner is seated
and chained to the floor. [Exhibit D]
2. On April 20, 2015, the Stanislaus County Sheriff's
Department and the Sheriff-Coroner, Adam Christianson, Real Parties
herein filed an appeal/writ of prohibition/ mandate with this Court, Case
No. F071392 and requested a stay of Respondent court's order of April 1,
2015. [Exhibit M] .
3. On May 5, 2015, Respondent court issued a Minute Order
entitled "Nature of Hearing: Vacating Orders of April 1, 2015 and October
17, 2014," indicating that Respondent court had reconsider its prior rulings
on its own motion and vacated the prior orders allowing for the unshackling
of Petitioner's right hand. [Exhibit C].
4. On May 12, 2015, this Court [Fifth Appellate District Court]
summarily denied Real Parties' writ petition challenging Respondent court's
April 1 order. Petitioner requests that this Court take judicial notice of its
own case file pursuant to Evidence Code § 452(d).
5. On May 21, 2015, Petitioner filed a motion to vacate
Respondent court's extrajudicial order of May 5 and to reinstate the prior
order of April 1, 2015, nunc pro tunc. [Exhibit E].
6. Respondent court refused to consider further evidence but
continued the matter to June 24, directing Real Parties to file any
13
response/opposition by June 9 2015. A transcript of that hearing is attached
as Exhibit F.
7. Counsel for Petitioner filed Supplemental Points &
Authorities with a Declaration of Counsel on June 22, 2015 reporting, inter
alia, that Real Parties had refused to comply with Respondent court's April
1 order even before the May 5, 2015 purported reconsideration. [Exhibit
G]
8. On June 24, Real Parties provided Petitioner's counsel with
their opposition purportedly mailed on June 9, 2015. [Exhibit H].
Respondent court continued the matter to July 22 to enable Petitioner's
counsel to file their response. [Exhibit I]
9. On July 22, 2015, after hearing argument but accepting no
further evidence, Respondent Court issued a ruling, denying Petitioner's
Motions and adopting the entirety of its minute order of May 5th, 2015 as
part of its ruling. [Exhibit A]
10. Less than 48 hours later, on July 24, 2015, Judge Freeland
issued a Minute Order recusing himself, simply citing Code of Civil
Procedure §§ 170.1(a)(6)(A)(ii) and (iii).
III
No other petition for extraordinary relief has been filed by or on
behalf of Petitioner relating to the issues presented herein.
IV
14
Petitioner has no plain, speedy, or adequate remedy at law. While
Petitioner believes he can appeal Respondent court's ruling, a petition for
writ of mandate and/or prohibition is the proper remedy to seek immediate
relief. Petitioner's case has yet to be set for trial and his Sixth Amendment
right to effectively assist in his own defense continues to be violated by
Real Parties. Petitioner's only means of obtaining expedient and
meaningful relief from Respondent court's erroneous order is by means of
this petition for writ of mandate.
V
Petitioner is particularly aggrieved by Respondent court's order in
that, unless restrained and prohibited by order of this Court, Petitioner will
continue to be trussed up and unable to meaningfully exercise his Sixth
Amendment right to participate in the preparation of his own defense which
denies him due process of law and threatens his ability to obtain a fair trial.
Respondent court should be mandated to vacate its order denying
Petitioner’s motion to vacate the May 5 and July 22 orders and to reinstate
the order as entered on April 1, 2015.
VI
The parties directly affected by the present proceedings now pending
in respondent court are Petitioner, Mark Edward Mesiti, Respondent, the
Stanislaus County Superior Court, the Honorable John D. Freeland, Judge
Presiding. In addition, also affected are Real Party herein is the Stanislaus
15
County Sheriff's Department and Adam Christianson, Stanislaus County
Sheriff-Coroner. All of the proceedings about which this petition is
concerned have occurred within the territorial jurisdiction of Respondent
court and of the Stanislaus County Superior Court.
WHEREFORE, Petitioner prays,
(1) A peremptory Writ of Mandate issue directing and compelling
respondent court to vacate its orders of May 5, 2015 and July 22, 2015 and
reinstate the order issued April 1, 2015.
(2) An alternative writ of mandate issue immediately directing and
compelling Respondent court to show cause before this court at a specific
time and place, why respondent court should not be required to vacate its
orders of May 5 and July 22, 2015, denying Petitioner’s requests or;
(3) This Court grant such other further relief as the Court deems
proper.
DATED: August 12, 2015
/S/___________________ DOUGLAS D. MANOR MARTIN BAKER ATTORNEYS FOR PETITIONER MARK EDWARD MESITIS
16
VERIFICATION BY PARTY (446, 2015.5 C.C.P.)
STATE OF CALIFORNIA, COUNTY OF TULARE:
I am the attorney for the Petitioner in the above entitled action or
proceedings. I have read the foregoing Petition for Writ of Prohibition
and/or Mandate, and know the contents thereof, and I certify that the same
is true of my own knowledge, except as to those matters which are therein
stated upon my information or belief, and as to those matters I believe to be
true.
I declare under penalty of perjury, that the foregoing is true and
correct.
Executed on this 12th day of August 2015, at Modesto, California.
/S/ DOUGLAS D. MANOR
17
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS
AND/OR PROHIBITION
I
STATEMENT OF THE CASE
Petitioner, MARK EDWARD MESITI, is and has been a pretrial
detainee in a Stanislaus County jail facility since 2011. [Exhibit D, Bates
74]. He is currently charged with, inter alia, first degree murder and the
prosecution has given notice that it is seeking the death penalty on that
charge. After relocation to the Public Safety Center on January 5, 2015,
when meeting with his defense team in the multipurpose room, Petitioner
has been completely shackled with leg irons, handcuffs connected to a belly
chain and secured with a black box. He is then further restrained by another
chain attached from a ring bolt at the base of the stool he is seated in to his
belly chain. [Exhibit D, Bates 82-84] He is actually more restrained during
defense team visits in the jail facility than he is when sitting in the
courtroom. [Exhibit D, Bates 92] Petitioner's hands are only able to move
in a vertical plane from mid-chest to his waist. He is only able to move his
hands together a distance of four inches from his belly and the tips of his
fingers barely extended to twelve inches from his belly. [Exhibit L,
Declaration of Counsel, Bates 210-211]. There is no evidence that
Petitioner has ever been a disciplinary problem during his more than five
years in the custody of Real Parties. [Exhibit D, Bates 88-89].
18
Before Petitioner was relocated by Real Parties, there occurred a
well-publicized incident involving an attorney and her client in the
multipurpose room at the Center of which the court was well aware
[Exhibit D, Bates 92-93; Exhibit L, Bates 212-215]. Petitioner believes
this incident precipitated the sudden extension of Real Parties
"Escort/Movement Policy" to encompass all times and circumstances when
the detainee is not in their cell, including when they are leg shackled and
bolted to the floor within the jail facility while in conferences with counsel.
Petitioner formally requested reasonable relief from the onerous and
unnecessary bondage from Respondent court, asking only the release of his
writing hand during conferences with his defense team in order that he may
exercise his 6th Amendment right to fully participate in the preparation of
his own defense. [Exhibit J]. Respondent court initially granted relief
[Exhibit D, Bates 122-124]. A month later, while Real Parties writ petition
was pending with an immediate stay having been requested of this Court
[Exhibit M, Bates 216], Respondent court erroneously vacated its order of
relief without prior notice or the presence of counsel. [Exhibit C, Bates 67-
69]. Petitioner sought to have the order granting relief reinstated [Exhibit
E; Exhibit I]. Respondent court refused to allow or consider any additional
evidence [Exhibit A, Bates 59; Exhibit F, Bates 146-147; Exhibit G]. After
hearing argument, Respondent court ruled that shackling the Petitioner was
merely an encumbrance, not a constitutional infringement of his right to
19
counsel and absent proof of a constitutional infringement, Real Parties did
not have the burden of justifying their policy. [Exhibit A, Bates 57-58].
Less than 48 hours later, Judge Freeland summarily recused himself.
[Exhibit B]
II
RESPONDENT COURT INCORRECTLY APPLIED
THE "REASONABLENESS TEST" FACTORS
UNDER TURNER V. SAFLEY TO THE EVIDENCE
PRESENTED IN ITS "RECONSIDERATION"
A. STANDARD OF REVIEW AND APPLICABLE LAW
A constitutional challenge to the validity of a custody facility's
policy as a mixture of facts and law is reviewed de novo. Snow v.
Woodford (2005)128 Cal.App.4th 383, 390; In re Collins (2001) 86
Cal.App.4th 1176, 1181. In order to withstand a constitutional challenge, a
regulation or policy must be "reasonably related to legitimate penological
interests." Turner v. Safley (1987) 482 U.S. 78, 89 (Turner).) The United
States Supreme Court developed this standard of review for prison
regulations "that is responsive both to the need to protect constitutional
rights and to the policy of judicial restraint regarding prisoner complaints."
Collins, supra, at 1182.
In Turner v. Safley, supra, the Supreme Court developed a four-
pronged test to determine whether a custody facility's regulation or policy
is reasonably related to legitimate penological interests. "[T]he relevant
20
factors include (1) whether there is a valid, rational connection between the
jail restriction and the legitimate governmental interest put forward to
justify it; (2) whether there are alternative means of exercising the right; (3)
how the accommodation of the asserted right will impact guards, other
inmates and the allocation of jail resources; and (4) whether the restriction
is an exaggerated response to jail concerns." [Citations omitted] County of
Nevada v. Superior Court (5/14/15) 236 Cal. App. 4th 1001 at 1008-1009
Further, in Bell v. Wolfish (1979) 441 U.S. 520 the Supreme Court
offered additional an consideration and limitation when the challenged
regulation or restriction is imposed specifically on a pretrial detainee,
noting at footnote 20: "Retribution and deterrence are not legitimate
nonpunitive governmental objectives. Conversely, loading a detainee with
chains and shackles and throwing him in a dungeon may ensure his
presence at trial and preserve the security of the institution. But it would be
difficult to conceive of a situation where conditions so harsh, employed to
achieve objectives that could be accomplished in so many alternative and
less harsh methods, would not support a conclusion that the purpose for
which they were imposed was to punish" [Citation omitted] 441 U.S. at
539 n. 20, 99 S.Ct. 1861. See also White v. Roper (9th Cir.1990) 901 F.2d
1501, 1504–05
B. PROPER APPLICATION OF TURNER V. SAFLEY TO THE
EVIDENCE DOES NOT SUPPORT RESPONDENT COURT'S
"RECONSIDERATION"
21
1. The First Turner Factor asks whether there is a valid, rational
connection between the jail restriction and the legitimate governmental
interest put forward to justify it. Petitioner submits the answer is NO.
In both Respondent's court's July 22, 2015 ruling and May 5th three-
page Minute Order vacating the April 1, 2015 order, the Court listed this
factor without actually addressing it in terms of the specific issue before it.
The court quoted the language of the "Movement" policy, stating that the
reason for the policy to "guard against escape and to ensure the safety and
wellbeing of the inmate(s), staff, and the public." was reasonable and a
legitimate government interest. [Exhibit C; Exhibit A, Bates 58].
The evidence presented to Respondent Court regarding the "Inmate
Movement" policy was that it provides that any Maximum Security Inmate
"will be secured in leg irons, waist chains and a black box prior to
movement.” The "black box" connects the handcuffs to the waist/belly
chain and is designed to keep the hands stationary. [Exhibit D, Bates
83]. According to the testimony of Sergeant Junqueiro, "whenever an
inmate--a maximum security inmate is out of his unit, via be in court,
medical appointments, attorney visits, they are always in their full
shackles." [Exhibit D, Bates 86]. Once Petitioner arrives at the
multipurpose room to confer with counsel, no shackles or chains are
removed. [Exhibit D, Bates 86]. Petitioner is seated in a stationary steel
stool that is connected to the floor [Exhibit D, Bates 98]. An additional
22
chain is attached to Petitioner's waist chain and used to bolt him to the
floor. [Exhibit D, Bates 79; 84].
Petitioner did not challenge the "Movement" policy. [Exhibit D,
Bates 79-80]. The challenge is and was to the shackling of Petitioner's
hands after he was stationary and bolted to the floor in the multipurpose
room. [Exhibit D, Bates 86]. In that regard, it was conceded by Sergeant
Junqueiro, that nothing in the stated policies addressed or mandated
shackling of an inmate when he is stationary and bolted to the floor in the
multipurpose room. [Exhibit D, Bates 96]. Additionally, other than a
moveable trash can, once the inmate is seated and bolted to the floor,
nothing in present in the room that would serve as a potential weapon
would be within Petitioner's reach if he were uncuffed [Exhibit D, Bates
97-101] and that whether handcuffed or not while in the multipurpose
room, it was virtually impossible for Petitioner to escape [Exhibit D, Bates
105].
Petitioner submits that in its May 5th and July 22nd
"reconsiderations" Respondent court erroneously framed the issue as
whether the shackling of defendant's hands interfered with defendant's
right to counsel and failed to appreciate that encompassed in the right to
counsel is the accused's right to meaningfully participate in the preparation
of his defense. Courts have long recognized that “the unjustified use of
restraints could, in a real sense, impair the ability of the defendant to
23
communicate effectively with counsel." People v. Fierro (1991) 1 Cal.4th
173, 220. “Pre-trial detainees have a substantial due process interest in
effective communication with their counsel and in access to legal materials.
When this interest is inadequately respected during pre-trial confinement,
the ultimate fairness of their eventual trial can be compromised.” Johnson-
El v. Schoemel (8th Cir. 1989) 878 F.2d 1043, 1051 [Citing Campbell v.
McGruder (D.C.Cir. 1978) 580 F.2d 521, 531-32 [stating that conditions of
confinement, apart from the fact of confinement itself, that impede a
defendant's ability to prepare a defense or damage the defendant's mental
alertness at trial are "constitutionally suspect" and must be justified by
compelling necessity]. See also Spain v. Rushen (9th Cir. 1986) 883 F.2d
712, 721; Rhoden v. Rowland (9th Cir.1993) 10 F.3d 1457, 1459. Lastly,
"the courts cannot abdicate their responsibility to protect inmates' rights to
adequate contact with their attorneys and to disapprove of visitation
requirements that place a chilling effect on attorney visitation, especially
when the security risk in a given case is ephemeral." In re Roark (1996) 48
Cal.App.4th 1946 at 1956-1957. See also County of Nevada v. Superior
Court (5/14/15) 236 Cal. App. 4th 1001.
Therefore, Petitioner submits that by not recognizing that the
constitution right to counsel includes the right to be able to effectively
communicate and assist in his own defense, Respondent court applied an
24
incorrect analysis of the evidence related to this factor and reached an
erroneous conclusion with regard to this factor.
2. The Second Turner Factor asks whether there are alternative
means of exercising the right. Petitioner asserts that there is none that
would not continue to unreasonably encumber his ability to assist counsel
in the preparation of his defense.
In issuing the April 1, 2015 order, Respondent court recognized that
there were thousands of pages of discovery and thousands of pieces of
photographic evidence that Petitioner had to have the ability to thoroughly
review and discuss with counsel. [Exhibit D, Bates 122, 124] In
specifically addressing this factor in the May 5, 2015 Minute Order,
Respondent court asserted that rather than allow Petitioner a single free
hand to enable him to turn pages without assistance or point at portion of a
document or photograph or to make personal notes during conferences with
counsel, that it would be a reasonable alternative for counsel to take notes
for Petitioner or "counsel may bring an assistant to the meetings to do so."
Further, "Defendant can verbally direct the attorney's attention to a portion
of the document and the defendant can confirm the location." [Exhibit C,
Bates 67].
Put simply, what Respondent court proposed in the May 5 order as a
"reasonable alternative" is absurd. Petitioner has a constitutional right to
participate in preparing his defense. That right has been seriously
25
interfered with and curtailed, not by the "Movement" policy as written, but
by the unreasonable and unnecessary extension of that policy to include
when Petitioner is in fact bolted to the floor and unable to even stand erect.
The status quo has already been established as unworkable and a
frustratingly inefficient use of time and resources which is entirely
unnecessary when a more than reasonable alternative exists -- that which
was ordered by Respondent court on April 1, 2015 [Exhibit D, Bates 122-
125].
3. The Third Turner Factor asks how the accommodation of the
asserted right will impact guards, other inmates and the allocation of jail
resources. Petitioner submits that there would be no impact.
In addressing this prong in the May 5th Minute Order, Respondent
court acknowledged that there was no evidence presented that there would
be any impact. [Exhibit C, Bates 68]. Respondent court simply repeated
that shackling provides safety for staff, inmates and the public. The
testimony of Sergeant Junqueiro was that Petitioner is escorted fully
shackled by two custodial staff members to the multipurpose room to meet
with counsel. [Exhibit D, Bates 87]. They leave after securing him to the
floor. The simple fact is that having one custodial officer uncuff Petitioner's
writing hand after he is bolted to the floor has absolutely impact on jail
resources or jail staff and Real Parties presented no evidence to the
contrary. Even if there were a slight impact, " the cost of protecting
26
constitutional rights cannot justify a blanket denial." County of Nevada v.
Superior Court (2015) 236 Cal.App.4th 1001, 1008 [Review denied July 8,
2015].
4. The Fourth Turner Factor asks whether the restriction is an
exaggerated response to jail concerns. Petitioner submits the answer to this
question is clearly and absolutely YES.
Addressing this factor in the May 5th Minute Order, Respondent
court simply stated: "There is no evidence that the sheriff's policy is an
exaggerated response to security concerns. There is no evidence that some
other procedure would provide a less restrict alternative." [Exhibit C, Bates
68]. Petitioner submits that is not true.
Counsel for Petitioner in his Reply to Real Parties Opposition re
Shackling, included a declaration that the policy had changed [Exhibit L,
Bates 210-211] and also attached the Modesto Bee article on the incident
that Petitioner asserts precipitated the change. [Exhibit L, Bates 212-215].
During the April 1, 2015 hearing, counsel for Petitioner attempted to
question Real Parties' witness about their knowledge of the incident and its
impact on jail policy as it specifically affected Petitioner [Exhibit D, Bates
92-44] but Sergeant Junqueiro was only familiar with Petitioner since his
relocation on January 5, 2015, which was after the incident has occurred.
[Exhibit D, Bates 88-89]. Respondent court acknowledged that it was
27
aware of the well-publicized incident involving an attorney and her client in
the multipurpose room at the Center [Exhibit D, Bates 93]. That incident
alone as set forth in the newspaper article that Respondent court admitted it
had read, establishes 1) handcuffing of maximum security inmates during
attorney conferences in the multipurpose room was not a blanket policy and
2) in direct response to that incident, Real Party Stanislaus County Sheriff
Christianson said that it "forces us to lock down even tighter." [Exhibit L,
Bates 215].
As the Turner court explained, "the existence of obvious, easy
alternatives may be evidence that the regulation is not reasonable, but is an
“exaggerated response” to prison concerns. Turner, supra, at 90. Petitioner
submits Respondent court erred in its "Reconsideration" by failing to
consider the December incident with regard to this factor. Further, where,
as here, the April 1st order provided a reasonable alternative that in no way
impacted the "Movement policy," Respondent court's vacating that order is
unsupportable. Removing the handcuff on Petitioner's writing hand was
and is a reasonable alternative and still serves as evidence that the
regulation does not satisfy the reasonable relationship standard.
Therefore, in this case, when the evidence presented to Respondent
court is properly applied to all the factors in the Turner "reasonable test," it
is clear that court Respondent court's order of April 1, 2015 was proper.
Respondent courts act of vacating that order was not based upon a proper
28
application of the Turner factors to the facts and constitutes a clear abuse
of discretion for which Petitioner is entitled to relief.
III
RESPONDENT COURT IMPROPERLY VACATED
THE APRIL 1, 2015 ORDER TO REMOVE THE HANDCUFF
ON PETITIONER'S WRITING HAND AND THEN
IMPROPERLY RECONSIDERED ITS ORDER TO VACATE
In Respondent court's Minute Order of May 5 which was
incorporated in the court's July 22, ruling, Respondent court purported to
reconsider its ruling/order entered on April 1, 2015. Petitioner objected to
the unnoticed reconsideration and moved to vacate the May 5th order on
various grounds, including: 1) that the issue involving Real Parties was
collateral to the criminal case and thus a special proceeding under Code of
Civil Procedure § 1064; 2) the April 1st order was final in that no issue is
left for future consideration except the fact of compliance or non-
compliance; and 3) Respondent court's attempt to vacate or modify a valid
order is void where it materially altered the rights of a party the record
does not demonstrate that any alleged error was NOT the result of the
exercise of judicial discretion. [Exhibit E; Exhibit G]
On May 21, 2015, when Respondent court acknowledged that it had
not provided prior notice to counsel of its intent to reconsider and set the
hearing for June 24, 2015, Petitioner sought to provide further evidence to
the Respondent court but was denied. [Exhibit F, Bates 146-147]
29
Petitioner filed Supplemental briefing objecting to the court not allowing
counsel to make a record. [Exhibit G, Bates 155-157]. Also filed was a
declaration of counsel setting forth the fact that Real Parties had not only
refused to abide by Respondent court's order even before the
"reconsideration" of May 5 but had increased the level of restriction by
doubling up and tightening the chains. [Exhibit G, Bates 158].
In making its ruling on July 22, 2015, Respondent court heard
argument, including counsel for Real Party suggesting that this Court
dismissed Real Parties Petition for Mandate "because it was deemed moot
because the Court in this case exercised its discretion properly and
amended its order." [Exhibit A, Bates 50]. Counsel for Real Parties went a
step further and falsely represented to Respondent court, "My
understanding is that my office informed the court of appeal of this court's
action in amending its prior order, and that possibly had something to do
with why the court of appeal did what it did. [Exhibit A, Bates 52]
In issuing its ruling, Respondent Court first attempted to characterize
the April 1st order an error based upon the court applying an erroneous
legal standard. [Exhibit A, Bates 57]. As Petitioner has set forth in detail
supra, the erroneous legal standard was applied in Respondent court's May
5th "Reconsideration," not the April 1 ruling. Of note, Real Parties argued
in their Writ petition that the April 1st order was an abuse of discretion
[Exhibit M, Bates 243, 260]. Ultimately, Respondent court ruled: "the
30
hearing on April 1st, 2015 involving the defendant and the County over the
shackling issue to not be a special proceeding as defined in CCP Section
1064. The Court also finds that the Court's order on April 1st, 2015 was
not directly appealable. Relief was available only by way of a writ of
mandate. It was therefore not a final order subject to appeal. As such, the
Court was permitted to, on its own motion, reconsider its ruling which it is
doing today. The Court finds its ruling on April 1st, 2015 as well as a
previous order on October 17, 2014 should be vacated for the reasons set
forth in its minute order of May 5th, 2015." [Exhibit A, Bates 54]
Without repeating in total Petitioner's arguments previously
presented to Respondent court as set forth in Exhibits E and G. Petitioner
hereby incorporates those arguments by reference and asserts that
Respondent court's findings were incorrect as set forth below.
A. SPECIAL PROCEEDINGS.
Respondent court reasoned that special proceedings under Code of
Civil Procedure § 1064 requires that the proceeding be authorized by a
statute. The court concluded that therefore, because Petitioner did not
bring his motion pursuant to a specific statute but "brought it for an alleged
violation of a constitutional right," is was not a special proceeding.
It is unclear if Respondent court meant that Petitioner had to cite a
specific statute versus simply asserting his Constitutional rights in bringing
the issue before the court or if it was required that Petitioner rely on a
31
specific statute in order to raise the matter before the court in the first
instance. As for raising a specific statute, Petitioner did rely upon and
discuss Penal Code §688 and Real Parties relied upon Penal Code §2600 in
their opposition. Petitioner asserts that Respondent court is incorrect in its
conclusion that the April 1, 2015 was not a special proceeding.
A “special proceeding is confined to the type of case which was not,
under the common law or equity practice, either an action at law or a suit in
equity.” (Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d
815, 822, 279 P.2d 35 [emph. supp.].) Avelar v. Superior Court (1992) 7
Cal. App. 4th 1270, 1275. A "special proceeding" is a "discrete procedure,
directed to a limited end, which takes place within a primary litigation and
which is merely an ancillary or component part of that litigation as a
whole." Avelar, supra, at 1278. Put simply, a special proceeding is
"designed to constitute a remedy in itself." In re Sutter-Butte By-Pass
(1923) 190 Cal. 532, 538.
In this case, Petitioner raised the issue of shackling in the context of
his 6th Amendment right to meaningfully assist in the preparation of his
own defense, relying constitutional principles as well as Penal Code § 688
which provides “No person charged with a public offense may be
subjected, before conviction, to any more restraint than is necessary for his
detention to answer the charge.” [Exhibit J, Bates 182; Exhibit L, Bates
201-202]. The People were not involved or an interested party. It was a
32
collateral proceeding involving Real Parties who are not and were not
parties to the underlying criminal case. Petitioner's rights to meaningful
access to the courts and counsel exist regardless of the existence of a
pending criminal case. Johnson v. Avery (1969) 393 U.S. 483, 89 S.Ct.
747.
B. THE APRIL 1, 2015 ORDER WAS FINAL AND RESPONDENT
COURT'S PURPORTED RECONSIDERATIONS ARE VOID.
While Respondent court framed the purpose of the hearing on July
22, 2015 as a "reconsideration" of the May 5th ruling "on its own motion,"
[Exhibit A, Bates 54], the true facts, as borne out in the Exhibits, are that
Petitioner filed a Motion to Vacate the May 5th Order as Extrajudicial.
[Exhibits E; Exhibit F, Bates 144-145]. Further, when Petitioner requested
to present additional evidence, Respondent court responded "No, no. No,
no. No, no. We've gone to hearing. The evidence has been submitted. We're
not going to go -- that's over with. The evidentiary part of this motion is
done. So we're not going to re-open that." [Exhibit F, Bates 146].
Respondent court ruled "We are only going to look at the procedural issues
and the substantive issues based on the evidence that has already been
presented. That's final." [Exhibit F, Bates 147].
Petitioner submits that the April 1, 2015 order was a final judgment
entered pursuant properly exercised judicial discretion and therefore not
subject to reconsideration. Petitioner further submits that the purported
33
order entered on July 22, 2015, which the court termed a "reconsideration
of the May 5th order" entered without allowing Petitioner to provide any
additional evidence was also extrajudicial and void.
"'It is not the form of the decree but the substance and effect of the
adjudication which is determinative." Lyons v. Goss (1942) 19 Cal.2d 659,
670. A order is a final judgment "'when it terminates the litigation between
the parties on the merits of the case and leaves nothing to be done but to
enforce by execution what has been determined.' " [Citations omitted]
Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1
at 5. Further, “[w]hile a court has power to correct mistakes in its records
and proceedings, and to set aside judgments and orders inadvertently made,
which are not actually the result of the exercise of judgment, it has no
power, having once made its decision after regular submission, to set
aside or amend for judicial error.” [Emphasis added] Stevens v. Superior
Court (1936) 7 Cal.2d 110 at 112. Any attempt by a court to 'revise its
deliberately exercised judicial discretion' is not permitted where it
substantially affects petitioner's rights. Smith v. Superior Court (1981) 115
Cal.App.3d 285, 290-291. See also In re Wimbs (1966) 65 Cal. 2d 490;
People v. Bhakta (2008) 162 Cal.App.4th 973, 981; People v. McGee
(1991) 232 Cal. App.3d 620 [Absent presentation of new evidence, court
lacks power to re-examine original ruling].
34
Petitioner therefore submits that Respondent court was once again
wrong on the law and the May 5th and July 22, 2015 attempts to
"reconsider" the order of April 1st were improper, void as extra-judicial
acts and constituted an abuse of discretion.
IV
JUDGE FREELAND'S SUMMARY SELF-RECUSAL
RAISES THE QUESTION OF THE VALIDITY
OF THE RULINGS AGAINST PETITIONER
AT ISSUE IN THIS CASE
The Wednesday, July 22, 2015 hearing discussed supra, concluded
at 2:51 p.m. [Exhibit A, Bates 65]. On Friday morning, July 24, 2015,
Judge Freeland summarily recused himself citing only Code of Civil
Procedure §§ 170.1(a)(6)(A)(ii) and 170.1(a)(6)(A)(iii). [Exhibit B]. The
Minute order was entered less than 48-hours after his ruling. Petitioner has
attempted to obtain a detailed statement of reasons from Judge Freeland as
to when he determined or questioned his ability or inability remain
impartial but he has not responded. Thus, Petitioner only knows that Judge
Freeland is either no longer impartial or feels that there is an appearance
that he is no longer impartial.
Generally "disqualification occurs when the facts creating
disqualification arise, not when disqualification is established." Christie v.
City of El Centro (2006) 135 Cal.App.4th 767, 776. The actions of a
disqualified judge are "voidable if properly raised by an interested party.”
35
Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 424. A party who
seeks to declare a judgment void on the ground the judge was disqualified
must allege and prove facts which clearly show that such disqualification
existed. (Wickoff v. James (1958) 159 Cal.App.2d 664, 670, 324 P.2d 661.)
Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 424.
impartial.
Petitioner submits that there have been actions taken by Respondent
court which in hindsight raise questions regarding Judge Freeland's
impartiality, which include:
1) The May 5, 2015 Minute Order "reconsidering" the April 1, 2015
order which was made/issued after Real Parties had filed their writ petition
to this Court and without notice to Petitioner or opportunity to be heard.
2) The May 21, 2015 hearing where Counsel for Petitioner was
prevented from making a record [Exhibit F, Bates 146-147]
3) The July 22, 2015 hearing where the Court a) framed the hearing
as a reconsideration of its May 5, minute order; b), incorrectly applied the
facts to the law; c) improperly ruled while denying a request by Petitioner
to present additional evidence or for a stay. [Exhibit A, Bates 59-60].
Therefore, Petitioner believes that the facts demonstrate more than a
mere possibility that the disqualification existed at the time Respondent
Court entered the May 5, 2015 Minute Order and therefore that order as
well as the "order"entered following the July 22, 2015 hearing are voidable
36
on this ground as well as void on the grounds Petitioner has already set
forth, supra.
CONCLUSION
The ultimate issue in this case is Petitioner's Sixth Amendment right
to counsel which encompasses the right to meaningfully communicate and
assist in his own defense without the onerous, unnecessary and unjustified
use of the restraints that are currently imposed upon him. It was
Respondent court's duty to protect Petitioner's Constitutional right to
adequate contact with his attorneys. Respondent court was charged with
the responsibility to disapprove of visitation requirements that are
unnecessary and place a chilling effect on that visitation. The court initially
took the burden and acted appropriately ordering what was a reasonable
alternative. Unfortunately, in the end, Respondent court failed Petitioner
through its extrajudicial orders based upon erroneous applications of the
law and potentially ruling based upon personal bias. Not only did
Respondent court fail Petitioner but the court compounded that failure by
adopting its prior incorrect legal analysis and repeating it, refusing to
consider any other evidence. Respondent's court's final act in deciding
hours later that it was no longer impartial only underscores its failures
and unwillingness to act affirmatively to protect Petitioner's Constitutional
rights against what it knows are unreasonable and onerous physical restraints.
37
Therefore, Petitioner, respectfully requests that this Court intervene
by Writ of Mandate to reinstate the valid, lawful and proper order of April
1, 2015. This Court's intervention is necessary and imperative as Petitioner
has no other remedy available Petitioner prays that, in the alternative, this
Court grant such other, further relief as is deemed appropriate.
DATED: August 12, 2015 Respectfully submitted,
_______/S/___________ DOUGLAS D. MANER MARTIN BAKER
ATTORNEYS FOR PETITIONER
38
PROOF OF SERVICE
(C.C.P. 1011, 1013)
I, Ronda Swenson, declare that I am over the age of 18 years and not a
party to the above-entitled cause. My business address is 1500 J. Street, Modesto,
CA 95354 On August 17, 2015, I served the documents described as:
PETITION FOR WRIT OF MANDATE AND/OR PROHIBITION and
EXHIBITS
on the interested parties in this action, by placing a true copy as indicated below
thereof enclosed in sealed envelopes and addressed and served thereby via
personal delivery or first class mail, postage pre-paid as set forth below.
Judge John Freeland
Stanislaus Superior Court (Hand delivered)
Department 1
800 11th Street
Modesto, Ca. 95354
Linda McFadden
Presiding Judge
Stanislaus Superior Court
800 11th Street
Modesto, Ca. 95354
Kamala D. Harris
Office of the Attorney General (First Class Mail)
P.O. Box 944255
Sacramento, Ca. 94244-2550
Jones & Mayer (First Class Mail)
Martin J. Mayer
James R. Touchstone
3777 N. Harbor Blvd.
Fullerton, Ca. 92835
Attorneys for Real Parties, County of Stanislaus
Stanislaus County Sheriff’s Office
Adam Christianson, Sheriff-Coroner
Office of County Counsel (Hand Delivered)
John P. Doering
Robert J. Taro, Deputy
1010 Tenth Street, Suite #6400
Modesto, California 95354
Attorneys for County of Stanislaus
Stanislaus County District Attorney (Hand Delivered)
Annette Rees, Deputy
832 12th
Street, Room 300
Modesto, Ca. 95354
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct. Executed on August 17, 2015,
at Modesto, Stanislaus County, California.
_________/S/____________
Declarant