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 [email protected]ATTORNEYS FOR PETITIONER MARK EDWARD MESITI 1
40
Embed
COURT OF APPEAL OF THE STATE OF CALIFORNIA · PDF filePETITION FOR WRIT OF MANDATE AND/OR PROHIBITION DEATH PENALTY CASE ... demonstrated within the designated Exhibits filed under
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
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)
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
Jamye
Typewritten Text
Jamye
Typewritten Text
Jamye
Typewritten Text
TABLE OF CONTENTS
TABLE OF AUTHORITIES...............................................................8-10
PETITION FOR WRIT OF MANDATE/PROHIBITION,
OR OTHER APPROPRIATE RELIEF..............................................11
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