superior court of california - badger flats gazette · superior court of california of merced ......

People v. Forte, CRL001412, CRL003409 1 NOTICE OF MOTION AND MOTION FOR

RECONSIDERATION OF PRIOR ORDERS;

MEMORANDUM OF POINTS, [CCP §1008 (a)]

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Gene Forte 1312 Sierra Creek Ct Patterson, California, 95363 Telephone: (209) 894-5040 Email: [email protected] In pro per/Defendant

SUPERIOR COURT OF CALIFORNIA

COUNTY OF MERCED

THE PEOPLE OF THE STATE OF Case No. CRL001412 & CRL003409 CALIFORNIA Plaintiff, vs. EUGENE FORTE Defendants.

TO THE MERCED COUNT DISTRICT ATTORNEY LARRY MORSE, III AND MERCED

COUNTY ACTING PUBLIC DEFENDER ERIC DUMARS:

PLEASE TAKE NOTICE that pursuant to CCP§1008 (a) on February 22nd

, 2013, at

8:30AM,. or as soon thereafter as the matter may be heard in Department [________] of the above-

NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF PRIOR ORDERS; MEMORANDUM OF POINTS, [CCP §1008 (a)]

[Declaration of Eugene Forte filed

separately]

Courtroom: TBA

Hearing Date: February 22nd

, 2013

Time: 8:30AM

Judge: Judge James Cadle

Complaint Filed: September 10, 2009




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entitled court, located at 627 W 21st Street, Merced, California 95340, Defendant will move the

court for an order granting reconsideration of the Order denying Motion for Rescheduling for New

Trial [Notice of Intention to Move for a New Trial] , and Order granting payment of attorney fees

and costs against defendant in the amount of $9,333.02 issued on February 11th

, 2013 said Motion

on the grounds manifest error of law, and different facts, circumstances which were not able to be

presented at the time of the original hearing on the motion.

A movant may prevail on a motion for reconsideration by establishing a manifest error of

law. Koepsell’s, 275 Wis. 2d 397, ¶44. A manifest error “is the ‘wholesale disregard,

misapplication, or failure to recognize controlling precedent.’” Id. In the subject trial of January

28th

, 2013, defendant was not given any notice of the trial, or given the opportunity to call

witnesses, or present argument in his defense. It was for all intents and purposes a sham trial

orchestrated by his defense counsel who was adverse to defendant’s interests to conceal the

prosecutorial misconduct of DA Larry Morse.

Attached as Exhibit 1 is a true and correct copy of the court transcript of January 28th

, 2013

referenced in this motion. Attached as Exhibit 2 is a true and correct transcription of the

conversation of January 25th

, 2013, between me (Forte) and Eric Dumars. Attached as Exhibit 3, is

a true and correct copy of my (Forte’s) declaration of January 28th, 2013 which was received but

not filed by the court on January 28th, 2013.

PREFACE

Forte realizes that he doesn’t have a snowball’s chance in hell of having the Kangaroo court

orchestrated by DA Larry Morse and Acting public defender Eric Dumars, presided over by head

Kangaroo Cadle actually grant a hearing for a new trial, or overturn the ruling where Forte (an

indigent defendant) was essentially sanctioned and punished with $9.333.00 of attorneys fee which




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was accumulated over four years for the legal services of opposing one motion (Motion to

Consolidate cases) and one motion filed (Pitchness Motion).

Any self-respecting judge seeing the evidence in the court transcript alone would realize

immediately the outrageous manifest errors in law and procedures, and the prejudicial treatment of

Forte by Cadle. There is no reason why Forte should pay one iota of respect to Cadle because in

doing so Forte would be disrespecting every judge that actually does uphold to his canon of ethics.

Cadle should be grateful that Persian King Cambyses II isn’t around to enact the punishment

he did on Judge Sisamnes. Forte can only wish he were.

THERE WAS NO NOTICE OF THE TRIAL GIVEN TO DEFENDANT FORTE

The manifest errors in law are too numerous to list. Defendant points to the written

transcript attached and put’s quotes around it as evidence that that this was nothing more than a

kangaroo court and sham trial from beginning to end. There was no notice given to Forte which

would have permitted him to retain counsel, call witnesses on his behalf, and present a defense. A

Declaration of Forte that he had submitted to the court, and served upon Dumars and DDA Turner

on the morning of January 28th

, 2013 was refused to be accepted for filing, but Dumars referenced

material from it during the trial to attack defendant. Cadle read the document and knew that at any

and all costs he had to keep that from being part of the record of the trial because it would not

permit him to declare Forte mentally incompetent.

Transcript: Pg 33, ln 3 –Pg. 34, ln 5 (Ex: “1”)

Q (DUMARS): Okay. You in your declaration today that you filed with the Court

have indicated that you believe that I am a cocaine addict?

A: That is incorrect, misstates my statement inside of the letter. What I stated was,

was that when I was incarcerated --details --when I was incarcerated on December




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the 3rd, 2012 an individual, who wishes to go ahead and remain anonymous at the

prison, said that he had gone and had Mr. Dumars as his attorney, and that Mr.

Dumars was a cocaine addict and had gone ahead and made improper sexual

advances to a daughter of one of his clients. As to how true that is, I do not know.

However, I will state that according to my own personal observations and Mr.

Dumars' slurred speeches and antics in what he is doing in this proceeding, I have no

reason to go ahead and— (doubt it) (Added by Forte for clarification)

Q: Now, so you --it's fair to say this is an allegation you made the first time today;

isn't that fair to say?

A: Pardon me?

Q: These are comments that you're repeating for the first time today? This is the first

time you're repeating those comments in a public setting; is that true?

A: Yes, it is. I haven't had any opportunity otherwise. Well, actually, I had plenty of

opportunities to go ahead and post things on the Badger Flats Gazette, but I've not

made any postings to the Badger Flats Gazette since essentially, I believe, September

of 2012. I'm not sure on that, but I have not made any postings regarding what's

taking place here, because I did not want to clue Mr. Dumars or anyone else as far as

the evidence has building up upon them. So, no, I have not.

The entire line of questioning was improper, called for facts not in the record, and misstated

what was in the declaration of Forte that Cadle refused to have filed, that Dumars fully knew were

not reflected in his (Forte’s) declaration. Therefore, Dumars was able to lie at will to color the

record….and Cadle didn’t give a rat’s ass because he was in on the fix to get Forte declared

mentally incompetent. Dumars, with the court’s blessing was harassing, insulting and attempting to




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infuriate Forte to the point of exploding on the stand under such questioning which did not

work…and now reveals the prejudice of Cadle against Forte.

Transcript: Pg. 15, lns-24 – Pg. 19, ln 6 (Ex: “1”)

MR. TURNER: Your Honor, my understanding is the Court simply reiterated the

prima facie finding that the defendant may not be competent, and that a trial would

be necessary. We were noticed of the trial today. There are witnesses present on

behalf of the defendant subpoenaed by Mr. Dumars. We're ready to go.

MR. DUMARS: I’ m in agreement with Mr. Turner on that matter, Your Honor.

THE COURT: The Court is going to accept through counsel the defendant's waiver

of a jury trial on this issue of competency. And the Court has reviewed the trial brief

submitted by Mr. Dumars, and has heard comments from both counsel as well as the

defendant, Mr. Forte, and is prepared to proceed at this time to grant a request to

waive the jury trial and have this matter heard by court bench. Mr. Dumars, are you

ready to proceed?

MR. DUMARS: I am, Your Honor. And Mr. Forte has a right to testify on these

matters, and that's the first thing I would like to do this morning. The Court and

counsel both have been made aware and reviewed the report of Dr. Blak. And Dr.

Blak is here to testify, to supplement the report. But first, I would like to give Mr.

Forte the opportunity to be sworn and take the stand, because I do believe he has the

right to be heard on this matter under oath as to --with regards to his competency. 50

I'd like to voir dire Mr. Forte. If you'd like the opportunity to testify, Mr. Forte, now

is the time.




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MR. FORTE: I'd like to speak to the hearing as a witness after Dr. Blak goes ahead

and speaks.

MR. DUMARS: I would say, Your Honor, that I'm offering Mr. Forte as a witness

now. If he's declining that opportunity, I'd like the Court to take notice of that.

THE COURT: Mr. Forte, you had an opportunity to review Dr. Blak's report,

haven't you?

MR. FORTE: Your Honor, just in the last few minutes since I got here, yes, I had

the opportunity to look at something that was given to me this morning --at this

minute. Does this Court really think that it's ample opportunity for me to view an

evaluation?

THE COURT: It's about a five-page report, sir. You've been here for over an hour.

MR. FORTE: So what?

THE COURT: I'm just asking if you had a chance to review it.

MR. FORTE: I've looked at it, but I do not-I do not have the recordings of my

conversations with Dr. Blak present with me. I cannot go ahead and compare those

recordings specifically to his statements of the evaluation. And I'm unprepared to go

ahead and address that issue of Dr. Blak and his evaluation, because I haven't had the

opportunity to prepare a defense of this matter. And even though on the record it

appears Mr. Dumars is my counsel making these statements on my behalf, he

certainly is not. He is in an adversarial position with me on this. And quite frankly,

when I got here this morning, he smiled at me and said "well, I'm going to be getting

lout of this case today." He's mocking, and he infuriating to any rational person, sir.




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So what would you like me to say? Of course, I'm willing to testify in my own

defense. But I object to it on the basis I feel a m being put into the chair of a Star

Chamber right at this time with no other choice given me, because you, sir, are just

proceeding full speed ahead without any conscionable reason to do so.

So I'll go ahead and take the stand, but I would want you to go ahead and tell

on the record that you think that I had ample time to review this evaluation by Dr.

Blak by sitting here for the few minutes I did, and it was handed to me in the

morning when Mr. Dumars refused to give it to me on January the 24th. He said

"You'll see it when you get there at the court." How crass, inappropriate and, Your

Honor, are you really, you know, absorbing this, sir, of what is taking place?

So the statement, do you really think that I, if I am incompetent as this Court is about

ready to declare, should be able to put the burden on a speaking -addressing

this in five minutes? It appears if you had made that statement and tell me

"Hey, have you reviewed this in the last five minutes, Mr. Forte? You got it all

together?" My God, that speaks to me being a highly intelligent individual that can

think on the fly, far better than these two attorneys sitting on the left hand side of

me.

THE COURT: Do you wish to testify, sir, on your own behalf?

MR. FORTE: And you make no comments to my statements, did you?

THE COURT: Do you wish to testify: Yes or no?

MR. FORTE: Of course, sir.

THE COURT: Raise your right hand and be sworn in, please.




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Therefore, over Forte’s rational pleas for the court to follow procedures Forte was slammed

into a Star Chamber chair by mad man Cadle. It only got worse from there. The transcript will

show that Dumars was asking leading questions on direct, questions loaded with personal opinions,

questions not supported by the evidence and record, misstated the record, used hearsay of third

party witnesses, etc. . Cadle like a dead and dumb monkey sat there and let the travesty of justice

take place in his courtroom which was under his control in order to reach the foregone conclusion

that he wanted from the start which was to declare Forte mentally incompetent, and thereafter

dismiss the criminal proceeding to conceal the prosecutorial misconduct of Morse, and the defense

misconduct by Dumars.

CADLE CONDUCTED A SHAM TRIAL AND STAR CHAMBER

The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to

present newly discovered evidence. See Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.

1985). A judgment may be altered or amended if the party seeking reconsideration establishes at

least one of the following: “(1) an intervening change in controlling law; (2) the availability of new

evidence that was not available when the court granted the motion for summary judgment; or (3)

the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood

Café, by Lou-ann, Inc., v. Quinteros, 176 F.3d669, 677 (3d Cir. 1999).

Defendant asserts that for the reasons discussed below, the Order(s) constituted “A manifest

failure to consider material facts, dispositive legal arguments which were presented by defendant

during his testimony on January 28th

, 2013. See Hopkins v. Bonvicino, 2011 WL 995961 *1 (N.D.

Cal. Mar. 21, 2011) (White, J.) (unpublished).

It was clear to Cadle that Dumars was not advocating Forte’s position, but at every juncture

trying to undermine it, not for the defendant’s benefit, but in order to have the case dismissed




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without trial of the criminal proceedings to let the gross prosecutorial misconduct of Morse stay

concealed. It was evident during the Motion to Dismiss that is missing from the files of the court,

when Dumars actually asks the court to penalize Forte by having Forte pay his own attorney fees,

while being an indigent defendant.

Transcript: Pg. 67, ln.11-16 (Ex: “1”)

Dumars…And that this has been going on for so long, I would ask the Court to

dismiss it. I would also the Court to impose attorney's fees. I think the Court could

justify imposing substantial attorney fees. And I have a number, if the Court's

inclined to go that way, I have a number that I would submit to the Court. That's my

argument on this matter. Thank you.

There was gross judicial error in interpreting the law and the disregarding of material facts

which would have affected the outcome of the trial. “A fact is “material” if the fact may affect the

outcome of the case” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-

49 (1986)).

There was a gross judicial misunderstanding of the facts of the case, and errors in law by the

court.

CADLE ALLOWED FORTE TO BE ATTACKED ON THE WITNESS STAND

PICINICH VS. PISSANICH

Cadle’s prejudice is repeated throughout the questioning of Forte by Dumars who had no

problem with blowing through every procedure of law with Cadle’s agreement, and Forte trying to

bring it to the court’s attention to no avail.

One line of questioning evidencing the personal attack upon Forte and the improper

prejudicial reporting of it by Court reporter Maria Valdez, personal friend of Deputy Chris Picinich,

brings the point home clearly.




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Dumars inanely attacks Forte by accusing him that Forte is intentionally insulting Picinich

by calling him Piss-anich. Valdez, who knows Picinich, throughout the transcript, spells Picinich,

Pissanich each time that Forte says it in order to go along with the theme that Dumars had painted.

Transcript: Pg. 31, ln. 14 – 32, ln 19. (Ex: “1”)

Q: (DUMARS) You also --you also are very talented at insulting people; isn't that also true?

A: (FORTE) At what?

Q: Insulting people.

A: At what?

Q: Insulting people.

A: I do not believe so.

Q: Deputy Picinich, you constantly refer to him by the name of "Pissinich." Isn't

that true?

A: Are you referring to Deputy Chris Pissinich, who is a member of your baseball

team that you played on that you did not disclose to me that it would be a conflict

and you have not disclosed or told me fully when you were members of a baseball

team with Deputy Pissinich or not?

Q: when you -

A : And do you believe that --excuse me. Do you believe that referring to a person

by their last name instead of using the formal name of "Mr." or "deputy" is

something that is derogatory and insulting?

Q: You can say --you can say the word "pick" as in ice pick, can't you?

A: pardon me?

Q: As an ice pick. You can say the word "pick," can't you?




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A: I imagine so. It's a short term of --what, I'm sorry. I don't understand that

question.

THE COURT: okay.

THE WITNESS: It's okay, what?

THE COURT: I understand that you don't understand it. It's simple enough.

THE WITNESS: I'm going to ask him to rephrase the question, please.

THE COURT: I think he's going to ask you another question, sir.

Forte upon receiving the certified transcript brought it to the attention of Valdez, who says

that she was spelling it phonetically as Forte was saying. Such is a bald face, disingenuous lie, due

to the fact that Valdez knows the correct spelling of Picinich. Forte submitted to Valdez a link to

Text-to-Speech [http://www.oddcast.com/home/demos/tts/tts_example.php?sitepal] which shows

that virtually in every language, including of course the English language, Picinich is correctly

pronounced with an –s- sound. Therefore, everyone, including Dumars, Valdez, the court and even

Picinich himself that pronounces the name with a “Pick” is pronouncing it incorrectly according to

the English language. Ergo, Forte was the only person pronouncing it correctly and then being

attacked for it, and having the certified court transcript improperly reflect that Forte was being

insulting, when he was not.

The string of email between Valdez and Forte have been attached and Forte will be taking

this up with the Certified Court reporters board to have Ms. Valdez chastised for doing such a

prejudicial favor for her friend “Chris” as she refers to him in her email to Forte.

Additionally, the line of prejudicial questioning was totally irrelevant to if Forte was

incompetent to aid in his defense. It is part and parcel and the same prejudicial irrelevant smut that

Dumars asserted that Forte should be punished because he annoys people, and speak badly of




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people of stature. What frick’in country does Dumars and this court live in any way? What a

bunch of heinous lying un-American mutts!

FORTE NEVER WAIVED HIS RIGHT TO BE EXAMINED, NOR DID HE NOT

COOPERATE WITH THE MENTAL EVALUATORS ASSIGNED

Again, as in every part of the trial, Cadle was trying to touch upon the “legal parameters”

which would cover for his ludicrous finding as being clued to by Dumars and Turner. Forte never

refused to meet with any evaluator, nor was in uncooperative with them. If Forte was given the

opportunity to cross examine Dr. Richard Blak, who he most certainly refers to as “Dr. Quack

Blak” Blaks’s testimony would have been torn to shreds, i.e., there were never two dozen faxes

sent to Blak. There were no more than four at the most.

The statements made by Blak on the stand could be impeached by the recorded

conversations that Forte had with Blak and with the fax transmission sheets of Forte. Forte was not

given the opportunity to do such, nor was he given the opportunity to have called as a witnesses

(individuals) that know him, such as his wife, or private investigator Warren Yates, or a myriad of

other citizens that would attest to his competency.

Transcript Pg 48, ln 3-13 (Ex: “1”)

Q by Dumars: Did you --you said you received some faxes. Can you estimate how

many faxes you received?

Dr. Blak A: Oh, yes, about two dozen.

Q Two dozen, is that what you said?

A: Yes, two dozen.

Q Is there a page count, do you know, more or less?

A No, I didn't count the pages. All I can tell you is




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that many of them are here ln this box. There's some duplicates. Some he faxed to

my office in Fresno, California and others he emailed to my transcriptionist, who's

also in Fresno, California. Some of those are duplicates.

Forte explained clearly at trial that he never refused to meet with the Dr. Neufeld, or Dr.

Hamm, nor was in uncooperative. He explained rationally as to what had prevented the meetings to

take place.

Transcript Pg. 2, ln 2 – Pg 6, ln 5 (Ex: “1”)

THE COURT: well, first let me start by saying that I reviewed a report submitted by

Dr. Blak with respect to this competency hearing request. I also received a trial brief

from Mr. Dumars, and have reviewed that. There's been a number of pleadings filed

by Mr. Forte in interim periods since our last court date, and I have reviewed those. I

note that the Court so long as they're competency proceedings in effect, which we

have, that the Court is without authority to hear or to rule on any of those motions

that are made by the defendant.

MR. DUMARS: Does the Court also have the notice of motion for dismissal

pursuant to penal Code section 1370.2? It's a -

THE COURT: Yes, that also is included. I have a copy of that in the Court's file.

And my understanding is that Dr. Newman was not able to prepare a report. We

have a very brief letter from the doctor indicating that he was unable to meet with

Mr. Forte.

MR. FORTE: Pardon me, Your Honor. Eugene Forte. I requested, and I want to

make sure I inform the court, that what I filed this morning was requesting a stay of

these proceedings and that it was not in the form of a motion, sir, but as a disclosure




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that I intend to go ahead and take up to the District Court a writ that was denied on

Friday, January 28th, to go ahead and stay these proceedings also until further results

from the writ. And the docket that was filed this morning, which is a request of stay

of proceedings of this trial, includes several exhibits and a recorded conversation

between Mr. Dumars and I on January 25th

, 2013. And documents and statements

inside of this document I gave to the Court this morning certainly contradict and

conflict the statements of Mr. Dumars and his what is a trial brief that I was not a

provided a copy of, I was not served a copy of, and did not go and obtain simply

because I happened to be in court on this January, the 25th. So in good conscience I

do not believe that this Court can proceed with this proceeding, and certainly this

Court cannot go ahead and go forward without going ahead and looking thoroughly

first of the documentation that's been presented to me, and that if this is going to be,

which it should not be, a competency trial, I certainly have the ability to go ahead

and to call witnesses and testify on my own defense. I’m not saying that I wish to do

so at this very moment, because I'm first asking for a stay of these proceedings.

There's not going to be any prejudice done to anyone inside this matter, except to

me, if this matter should take place by having a motion done by Mr. Dumars to have

this case dismissed based upon my incompetency, and that inside of the

documentation I refer directly to California superior Court Guide for Judges, Rule

63. I request, Your Honor, prior --before it goes any further, if you're planning to go

ahead and grant this matter of Mr. Dumars, to closely look at Bench Warrant 63

where it clearly shows, that I will also state, that I was only given this purported

evaluation done by Dr. Blak this morning by Mr. Dumars, who refused to go ahead




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and provide it to me on Thursday, and who the filing clerk said they would not

provide to me on Friday, January the 25th. So --but just briefly, looking at his

purported evaluation, he had never met with me, that a person cannot be declared

mentally incompetent if he was going to go ahead and be delusional and paranoid as

Mr. Dumars is trying to go ahead and have Dr. Blak go ahead and state. And I never

refused to meet with Dr. Neufeld. You can see by the letter, and it's inside the

recorded conversation and email that Mr. Dumars contacted me, I believe, on

January the 17th, a Thursday, by email telling me that Mr. Neufeld would like to see

me on Sunday, January 20th at 2 o'clock in Merced. I responded back to Mr. Dumars

I would not meet with Dr. Neufeld that day, and I elucidated on that further inside of

an email to him stating that Sunday is my day of worship. And there's no reason as to

why I consciously think why I should go ahead and run down to a doctor's office out

of normal business hours on a Sunday afternoon simply because Mr. Dumars had

wanted it. never had any of the contact from doctor --from Mr. Dumars about this

matter or Dr. Neufeld, even though I requested that Dumars present me Dr. Neufeld's

contact information. The same matter took place similar to with Dr. Hamm, who

there was no appointment scheduled with and no appointment cancelled by me with

Dr. Hamm. Dr. Hamm had said that he decided not to continue with the evaluation

only because he had felt that I had gone ahead, that he had become overreacted to

my initial contact with him. He apologized to that for me. And in one closing

statement I’ m going to address very briefly the evaluation of Dr. Blak is that I

recorded all the conversations with Dr. Blak with his knowledge, and those

statements of Dr. Blak's, in those conversations, those statements made to him, in




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those conversations are contradicted by his report. I have never gone ahead and said

that I was going to put my hands on anyone in an aggressive manner. I state that

under penalty of perjury right now.

So anyway, Your Honor, thank you for allowing me to go ahead and address

this Court and try to stop this Court from annoyingly, I believe, going forward with

something that could only be reminiscent of the days of Stalin, the days of Hitler or

an individual who has a --could be considered a political dissident is sent away to

gulags under the guise of being insane. I am not insane. I am competent to stand

trial. I am aware of fully of my time, place and responsibilities. And with Dr. Blak

sitting there, he would have to make this observation that I continue to be of

consciousness and logic. Thank you, Your Honor. I wanted to input that, please.

POINTS AND AUTHORITIES

Judge Cadle is senile, mentally handicapped or crooked as a dogs’ hind leg in trying to

conceal the prosecutorial misconduct of DA Larry Morse. Defendant’s opts for deciding that even

a blithering total idiot could tell from the testimony of Forte that Forte was not “insisting” that a

“vast conspiracy” leading to Leon Panetta (as was being eluded to by Dumars), was being

“insisted” upon by defendant as being used in his defense at trial by his attorneys.

There are reasons as to why there is no requirement that the competency hearing be held

before the same judge who declared a doubt about the defendant’s competence to stand trial. People

v Hill (1967) 67 C2d 105, 113, 60 CR 234. In fact, competency proceedings are commonly assigned

to another department and judge for hearing. See People v Lawley (2002) 27 C4th 102, 133–134,

115 CR2d 614.




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The following excerpts indicate that the court was clearly biased against defendants’

interests and totally disregarded the testimony of defendant wherein he emphatically stated

repeatedly that he never insisted upon his defense counsel presenting a defense of a wide spread

conspiracy.

FORTE NEVER INSISTED THAT HIS ATTORNEYS PRESENT EVIDENCE OF A

GRAND CONSPIRACY AS HIS DEFENSE---ONLY THE EVIDENCE OF

THE SPECIOUS PROSECUTORIAL MISCONDUCT OF DA MORSE

Forte repeatedly testified that each attorney he had said that after listening to the recorded

conversations between himself and DA Morse of July 31st, 2009 that Motion to Dismiss should be

filed. Forte never insisted that a grand conspiracy need be presented as his defense.

Transcript PG. 39, ln. 8 – PG. 40, ln 6 (Ex: “1”)

MR. DUMARS: Q If your attorney --if your attorney does not present a defense that

explains and thoroughly vets this conspiracy, if he does not present a defense that in

your mind will prove your innocence and show that this conspiracy exists, that's not

an acceptable defense to you, correct?

FORTE: That is incorrect.

Q: You understand –

FORTE: -- excuse me, I am not finished with --answering my question.

THE COURT: Let him finish as long as he's ongoing.

MR. DUMARS: okay.

THE WITNESS: I have never required my attorneys to go ahead and expose a quote,

"vast conspiracy.” All I have directed my attorneys ever to go ahead and do was to

make a motion to dismiss based upon the evidence of the prosecutorial misconduct




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of DA Larry Morse not being able to file the charges or investigate the charges in

this case as evidenced by his own recorded statements of a conversation with me of

July 31st, 2009.

Transcript PG. 40, lns. 8 – 14 (Ex: “1”)

Q: If your attorneys disagree with your assessment that a motion for --motion to

dismiss based upon prosecutorial misconduct should occur, you don't agree with

that, correct?

A: As you said on January 25th, 2013, Mr. Dumars, you had not yet decided if you

were going to file the motion to go ahead and dismiss based upon prosecutorial

misconduct until you found if this matter was going to have me declared mentally

incompetent.

Transcript PG. 40, lns. 15 – Pg. 41, Ln.25 (Ex: “1”)

Q Mr. Forte, assuming that a motion was never filed –assuming a motion like that

would not be filed by your defense counsel—

A: Pardon me?

Q: --you at trial want --you at trial would like to have the defense presented about

the conspiracy against you?

A: Well, I want to have defense presented at trial is the evidence as to why, and for

the jury to decide, why would District Attorney Larry Morse file a prosecution that

he invents (Corrected by Forte to INSISTS for clarification) that he could not file,

could not investigate and that we also have recorded evidence that DA Larry Morse

told me on April the 1st, 2009 --I believe 10, nine, at the sportsmen's Lodge in Los

Banos, which is also recorded, that he would be willing --he would not go ahead and




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file charges in these cases as they would go away provided I did not file a civil

litigation against the Merced county District Attorney's office. That is what I wanted

to have be brought out at trial, and not for anything else to be slipped away to

another prosecutor that would not be able to have --to be in that same precarious

position as DA Larry Morse. When Morse went ahead and decided to do what he did

and he stated unequivocally that he could not, according to statute and code, I

wanted Mr. Morse to be able to be subpoenaed, to be put on the witness stand and to

be asked specifically those questions as to why he did so in the presence of a jury.

And that, Mr. Dumars, is what you had said continuously, that you had not listened

to the recorded conversation with Mr. Larry Morse, and basically you did not want

to address it. And in a videotaped interview in the presence of Mr. Yates you said

that essentially this type of thing happens all the time, and that you were, not going

to want to address this and that was in the presence of Mr. Yates. The attorneys fear

reprisal to their careers and their income for doing so. I've got to quite frankly tell

you that even though I like Mr. DDA Alan Turner on a personal level we've always

been cordial to each other at any time we've met, and I think he would concur with

that, and I think he would concur with that, and he's nodded his head in the

affirmative, but I'm sadly disappointed that he's gone and taken this to this level.

THE COURT’S FINDING FORTE MENTALLY INCOMPETENT

CONTRADICTED BY THE RECORD

The court did not expressly state on record why defendant was mentally incompetent but

only made sweeping generalities to the record which in fact contradicted the evidence and record.




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When the issue of competence is decided by the trial court, the court must expressly state on

the record, either orally or in writing, its determination whether the defendant is mentally competent

to stand trial, as well as the evidence considered and the reasoning in support of its finding. Cal

Rules of Ct 4.130(e)(4)(B); People v Marks (1988) 45 C3d 1335, 1343, 248 CR 874.

Transcript PG. 62, lns. 14-25 (Ex: “1”)

THE COURT: Very well. This matter being submitted for the Court's decision,

following a court trial, the Court finds first that the defendant is presently able

clearly to understand the nature and purpose of the proceedings that have been taken

against him in this matter. However, the Court also finds based upon the evidence

that he suffers from a delusional disorder based on his firm belief of a wide spread

conspiracy against him, that the defendant's insistence on presenting that evidence

causes him to be presently unable to cooperate in a rational manner with counsel in

presenting a defense. On that basis, the Court does find --the Court does find the

defendant not competent to proceed in this matter.

FORTE WAS NOT GIVEN NOTICE OF THE MOTION TO DISMISS OR THE MOVING

OF THE HEARING FOR ATTORNEY FEES

As par for the course, Forte was not given any notice of the motion to Dismiss which was

heard on January 28th

, 2013, or was he given notice that the haring on attorney’s fees was moved

from February 13th

, 2013 to February 11th

, 2013, which was stipulated to by his no longer counsel

Dumars. Both hearings were abnormal proceedings. There was no Motion being heard to be

denied by Cadle concerning the Notice of Intent to Move for New Trial. It was irregular court

proceedings held by the court to prejudice the interests of Forte.




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CONCLUSION

It is clear from the court transcript attached (Ex: “1”) that Cadle, Dunars and Turner made a

mockery of the justice system. The transcript script of the recorded conversation (Ex: “3”) of

Dumars and Forte of January 25th

, 2013, where Dumars states such things as:

Selected Excerpts from (Ex: “3”) transcription of January 25th

, 2013 recorded

conversation between Forte and Dumars.

Eric: This is Eric.

Gene: Eric Dumars, the recorder’s on. This is Gene Forte calling. It’s 9:24 on Friday the

25th. I would ask you why you haven’t called me back, but it’s obvious you’re avoiding my

phone calls, Eric, so..

Eric: I’m not avoiding your phone calls, I just answered your phone calls.

Gene: Unconscionable, Eric. Next, why are you not filing a motion to dismiss based on

prosecutorial misconduct as I requested you to?

Eric: Gene, I don’t think that’s strategically wise at this time.

Gene: Why, Eric?

Eric: That’s my decision.

Gene: No, that’s not, no, that is not a decision; you’re not giving me a reason as to why.

Why are you not….

Eric: That’s my decision.

Gene: Why, no it is not a decision, it could be a decision of yours, but it is not an

explanation or reason to tell me as to why you’re not filing a motion to dismiss the case

based on gross prosecutorial misconduct.

Eric: Well, at this point, at this point, procedurally, that’s not even, that’s not even

would probably not even be heard until the competency issue is settled.

Gene: Eric, I’m asking you why you are not filing, or why you did not file, a motion to

dismiss the case based upon prosecutorial misconduct by Morse.

Eric: At this point, Gene, I’ll tell you again, at this point, I don’t think the court would

hear it until the competency issue is settled.




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Gene: I’m not asking for your reason at this point in time, I’m asking you as to why, prior

to you requesting me to be declared..

Eric: Okay..Gene…

Gene: I do have questions, so please do not hang up the phone on me, Eric, because this

conversation and this recording is going to be submitted to the appellate court. So, I’m

asking you again, why did you not file a motion to dismiss this case based on prosecutorial

misconduct by Morse.

Eric: I haven’t decided that it was warranted yet.

Gene: Excuse me, you said you decided it is not warranted as of yet? But why did you file

a motion to declare me incompetent based upon no evidence whatsoever? The court

made no observations inside its record on its own, at any point in time, stating that it

observed that I had any reasons for it to suspect that I was mentally incompetent.

Eric: That’s the court’s issue, that not my issue.

Gene: No, it is the court’s issue, Eric, when you’re saying that you are basing your….

Eric: I’ve already told you, that’s the court’s issue.

Gene: No,

Eric: …and so…

Gene: Excuse me, it is not Eric, when you are saying that you are basing your

competency…

Eric: ..but I told the court last time….now look, you want some answers, you’re not

listening to me, you berate me for how I handle your case….

Gene: Eric, it is well established that a person cannot be declared mentally incompetent

even if he has delusions that his public defender is working in league with the prosecutor.

That is specifically according to…that is specifically according to Bench Guide 63 of the

California Superior Court Guidelines. So no, what you are saying is totally incorrect. And

I’m asking….

Eric: ….(unintelligible)..

Gene: Pardon me?

Eric: I don’t agree with you.




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Gene: I don’t care if you agree with me or not, Eric, that’s not the point. I’m telling you

that according to California Bench Guide 63, you can look and find as to the reasons as to

why an individual cannot be declared mentally incompetent specifically because he has

delusions or is paranoid that his public defender is selling him out or is in league with the

prosecutor. So,….

Eric: Yeah but it goes beyond that Gene, it goes to whether or not you have a mental

disease or defects that prevents you from participating in the preparation of you defense.

Gene: So, so now you’re saying, I have a mental disease, that has been, what, affirmed

and categorized by a Dr. Blak without him meeting me? What happened…

Eric: I’m going to ask the judge to make that finding. That’s the judge’s role, that’s not

my role, that’s not Dr. Blak’s role. That’s the judge’s role.

Gene: Well, what happened, what happened to Dr. Neufeld? I had never gone…

Eric: Dr. Neufeld, Dr. Neufeld called me one day and said he wanted an appointment, I

said I will tell you. I let you know when Dr. Neufeld wanted to meet you, and you emailed

me back and said no, you’re not going to meet him on that day.

Gene: I would not meet on a Sunday. You gave me…

Eric: I have not, not Dr. Neufeld after that…and so that’s what Dr. Neufeld, that’s

the…it…that’s what Dr. Neufeld..

Gene: You requested on a Thursday if I would be available for an appointment with Dr.

Neufeld on a Sunday. I don’t know if you go to church, Eric or not, but I do, and I certainly

am prohibited from having to attend a mental evaluation with Dr. Neufeld on a Sunday

afternoon, only because you ask it to be done?

Eric: That’s fine, Gene…

Gene: No, it’s….

Eric: That’s fine. That’s your decision.

Gene: No, it, no, it’s not only my decision, it’s my right, Eric. So you’re now saying..

Eric: You’re right, it’s your decision, that’s fine.

Gene: No, Eric, what I’m asking again, is that you have not told me, except in vague

generality term, that you’re going to ask the court to declare me mentally incompetent

without a jury trial over my objection based upon some nebulous matters that you say are

contained within the files that have been filed with the court, where nowhere at any point

in time, did Judge Cadle himself say, or make any address, to “hey, gee, this challenge for




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cause by Mr. Forte says that Mr. Leon Panetta is involved in manipulating this thing. Gee,

Mr. Dumars, that’s kind of strange, do you think he’s mentally incompetent?” He didn’t ask

me that question. He never made any…

Eric: He didn’t have to.

Gene: Of course, of course he is required to, Eric.

Eric: But that doesn’t, that doesn’t, that doesn’t, that doesn’t alleviate the totality of the

record, Gene. You’ve gone through thirty attorneys!

Gene: I’ve gone to what? I’ve gone through how many attorneys, Eric?

Eric: I don’t know Gene.

Gene: You said, you said, I’ve…

Eric: I don’t know the number, you’ve gone through every attorney, you’ve gone

through every attorney in the three county region. Nobody will take your case except for

me!

Gene: You said that I went through thirty attorneys. You said that no attorney will take

my case in thirty counties, or, or, or

Eric: That’s not what I said, in three counties!

Gene: In three counties, Eric. You said no one will take my case, and therefore, I should

not have legal representation and it’s because I’m mentally incompetent that they are not

taking these cases? That’s not, that’s not.

Eric: That’s true, that’s exactly right!

Gene: That is, that is.

Eric: Gene, can’t get a lawyer to handle your case because you can’t prepare for the

defense rationally and in a reasonable and rational manner.

Gene: So now you’re saying that…

Eric: You’re delusional.

Gene: So now you’re saying that this whole matter is being made because you think I’m

delusional and you’re saying I can’t get an attorney to represent me which really in the

facts of the matter, it’s the Merced County Superior Court is required to go ahead and get

me an attorney.

Eric: I am your attorney, I am your attorney, Gene.




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Gene: Over my objection which….what is Berger’s first name?

Eric: Right.

Eric: What is, what does that have to do with anything.

Gene: What is Berger’s first name?

Eric: I’m not going to share with you any information like that. It’s irrelevant.

Gene: I need to ….it is relevant, Eric, because I’m including Berger’s name inside of the

writ as being the attorney that was the conflict with your offices. What is his first name?

Eric: By all means, go do that. Go post it on the internet. Go ahead, Gene.

Gene: What is his….what is his first name?

Eric: You know, I’m giving you, I’m telling you, I’m giving you like two more minutes

because I got stuff to do.

Gene: Eric, and you understand that this recording is going to be represented in its

entirety to the Fifth Appellate Court in this Writ. Do you understand that?

Eric: Send it to the Fifth Appellate Court, send it to the State Bar, send it to the presiding

judge, send it to Leon Panetta, send it to whoever you want.

Gene: What is out of the normal, Eric? I have never gone ahead and requested dismissal

of any attorney that represented me except for, Larry Cole. Every other attorney has gone

ahead and, due to a conflicted out, unbeknownst, with, without any declaration stating as

to the reason why they did.

Eric: Okay.

Gene: So, where will, where is it that I should be declared mentally incompetent based

upon the attorneys going ahead and conflicting themselves out without saying well, I’m

doing this because Mr. Forte is crazy.

Eric: Okay, you figure that one out.

Gene: No, I’m not asking... Don’t be sarcastic by telling me to figure that one out,

counsel. I’m asking specifically for that answer because I’m sure the Appellate Court would

like to hear the answer to that question.

Eric: I’m sure, I’m sure that they’ll look at it Gene.

Gene: You’re sure they’re going to look at what, Eric? You’re counting on the fact….




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Eric: They’re going to look at your case. I’m sure they’re gonna look at your case.

Gene: Yeah, so, Eric, so there is, you’re planning on actually having a competency trial on

Monday.

Eric: That would be my preference, yes.

Gene: Okay, and I am, based upon that, I am permitted to subpoena people on my behalf

and testify myself, and you, by the way, my little fine feathered friend, are prevented from

giving testimony at that trial.

Eric: I’ve not intended to give testimony. And you, perfectly, you absolutely have a right

to testify, by whatever manner you are able to.

Gene: I object. I object to the matter of this competency trial being sprung on me on a

Monday.

Eric: It’s not being sprung on you, Gene. It’s not being sprung.

Gene: Of course it is. When did you give me notice of this?

Eric: You’ve known about this for months. I gave notice this, I gave notice of of this to

you the day I got Dr. Blak’s report, the day I got it.

Gene: The day…., okay, forward to me the doctor’s report by Dr. Blak.

Eric: I’m not in the office today, Gene.

Gene: Then have your secretary forward that document to me, Eric, immediately.

Eric: You’ll see it on Monday.

Gene: No, no, telling me that you’re going to have a trial on Monday and that at that time

you’re going to simply present to me the evidence that you’re going to be requesting the

court of to declare me mentally incompetent is certainly not any type of notice of the trial

or adequate notice for me to prepare a defense of that, Eric. Do you understand that?

Eric: Gene, I’m preparing for the defense of it. You can do whatever you’re gonna do.

These are only a few of the excerpts of the conversation January 25th

, 2013 that indicates

that Dumars is not advocating Fortes’ position did not give Forte notice of the trial, or give him a

trial brief.




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The court should reverse its rulings, not dismiss the case, order a new trial, and not assess

legal fees to Forte.

Dated: February 19th

, 2013

Respectfully submitted,

________________________________

By: Eugene E. Forte

In pro per defendant




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PROOF OF SERVICE

STATE OF CALIFORNIA )

) ss.

COUNTY OF STANISLAUS)

I, the undersigned, declare that I am employed in the County of Stanislaus, State of

California; I am over the age of 18 years and not a party to the within action; my business address

is 1312 Sierra Creek Court, Patterson, CA, 95363.

On February 19th, 2013, I served the following document:

NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF PRIOR ORDERS; MEMORANDUM OF POINTS, [CCP §1008 (a)]

on the interested parties in this action by:

__x__ Fax service 209-725-3669

Mr. Alan Turner

Office of the District Attorney

445 “I” Street

Los Banos, CA 93635

I declare under penalty of perjury under the laws of the State of California that the foregoing is true

and correct and that this declaration was executed on February 19th, 2013 at Patterson, California.

_______________________________________

Eileen Forte

superior court of california - badger flats gazette · superior court of california of merced ......

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