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

Manerlawfirm@gmail.com

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]

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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

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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

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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