This petition for writ of habeas corpus illustrates how the Santa Clara County Office of the District Attorney and Santa Clara County Adult Probation Department Officer Eric Salas conspired to unlawfully incarcerate a plaintiff in a pending civil suit against them.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PETITION PAGE 1 OF 14 I. INTRODUCTION 1. On December 21st, 2006, Petitioner entered a plea of nolo contendere to a violation of Penal Code § 475(a) and to a violation of Penal Code § 496(a) in the Superior Court of California, County of Santa Clara, under docket number EE605073, in consideration of, and reliance upon, a specified plea agreement, in which a six-month jail sentence was suspended and probation was granted. On April 5th, 2007, the trial court modified a condition of that agreement without notice to, and without the consent of, the petitioner, and imposed the sentence suspended in the absence of legal justification or a new set of facts. James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San Jose, California 95110 Plaintiff in pro per TO THE SUPREME COURT FOR THE STATE OF CALIFORNIA In re James Alan Bush, On Habeus Corpus Case No. PETITION FOR WRIT OF HABEUS CORPUS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
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PETITION PAGE 1 OF 14
I.
INTRODUCTION
1. On December 21st, 2006, Petitioner entered a plea of nolo contendere
to a violation of Penal Code § 475(a) and to a violation of Penal Code
§ 496(a) in the Superior Court of California, County of Santa Clara,
under docket number EE605073, in consideration of, and reliance upon,
a specified plea agreement, in which a six-month jail sentence was
suspended and probation was granted. On April 5th, 2007, the trial
court modified a condition of that agreement without notice to, and
without the consent of, the petitioner, and imposed the sentence
suspended in the absence of legal justification or a new set of facts.
James Alan Bush (DWF967-08086698)885 North San Pedro AvenueSan Jose, California 95110
Plaintiff in pro per
TO THE SUPREME COURT
FOR THE STATE OF CALIFORNIA
In re
James Alan Bush,
On Habeus Corpus
Case No.
PETITION FOR WRIT OF HABEUS CORPUS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
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PETITION PAGE 2 OF 14
This petition will be made on the grounds that the modification was
unlawful, in that 1) the petitioner was entitled to the specific
performance of the plea bargain; 2) no new facts or circumstances
existed or were presented to justify the imposition of the sentence
suspended, and the imposition of the sentence suspended cannot
be based on the same set of facts as the original order granting
probation; 3) the petitioner neither consented to the modification nor
authorized any legal counsel to consent to the modification on his
behalf, in writing or otherwise; 4) the petitioner did not waive his
right to a personal appearance at the modification hearing, and neither
did he personally appear at the aforesaid hearing nor authorize any
legal counsel to appear on his behalf; 5) the petitioner did not
receive any notice of the hearing prior to it being held, and did not
receive any notice of the modification afterwards; and, in any case,
6) the petitioner cannot be sentenced to a punishment that differs
significantly from that which was originally agreed upon by the parties
under the circumstances of this case, and the punishment that was not
agreed upon is significant.
II.
PROCEDURAL BACKGROUND
2. On March 4th, 2009, Petitioner filed a habeus corpus petition in the
United States District Court for the Northern District of California,
San Jose Division, under docket number C 09-000946, which raised the
same issues as presented herein; however, the aforementioned court
denied the petition on the ground that the petitioner is required to
bring his petition first to a state court, and, then, if denied, to a
district court.
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PETITION PAGE 3 OF 14
3. Accordingly, on August 4th, 2009, Petitioner filed the same petition
in the Superior Court of California, County of Santa Clara, under
docket number EE605073; however, on September 24th, 2009, because
the petitioner failed to include copies of conflicting court records,
the aforementioned court denied the petition on the ground that,
contrary to the petitioner’s claim, “court records indicate that [the
petitioner] was present [at the hearing in Sunnyvale, which was held]
on April 5, 2007,” at 1:31 PM. [See Exhibit “A”.]
4. In an amended petition, filed on April 13th, 2010, Petitioner included
a certified copy of court records from the Hall of Justice in San
Jose, which indicate that the petitioner was present at a hearing
in San Jose that was held on the same day and at the same time as
the hearing held in Sunnyvale. [See Exhibits “B” and “C”.] Insodoing,
Petitioner demonstrated that he did not attend, nor could he have
attended, the hearing in Sunnyvale, and, on this basis, requested that
the court reconsider his petition.
5. On May 17th, 2010, the court again denied the petition, this time on
the ground that “it was possible for the petitioner to be present” at
both hearings due to the fact that “the minute orders are not meant to
show that his appearance was at exactly” the time shown. [See Exhibit
“D”.]
6. On June 24th, 2010, Petitioner filed the petition in the Court of
Appeal for the State of California, Sixth Appellate District, under
case number H035731, on the ground that, the issue of the petitioner’s
appearance notwithstanding, the court did not consider all relevant
factors in determining whether the modification was lawful; however,
on July 20th, 2010, the petitioner was denied without explanation. [See
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PETITION PAGE 4 OF 14
Exhibit “E”.]
7. On December 3rd, 2010, Petitioner filed the petition, again, in the
United States District Court for the Northern District Court of
California, San Jose Division, under docket number C 10-05493 (PR) JF,
and requested that the court issue an order to the respondents and/
or the custodian of the transcripts from the Sunnyvale hearing in
question to produce such transcripts, so that the petitioner could
demonstrate the veracity of his claims, and, in particular, that:
a) the petitioner’s right to be present was violated when the trial
court proceeded in his absence in the modification proceedings,
in that he did not authorize his appearance by counsel and he did
not knowingly or intentionally absent himself;
b) the petitioner did not effectively waive his right to be present
at the modification proceedings, in that he did not consent to
such a waiver, verbally or in writing; and,
c) the trial court did not ascertain whether the petitioner was
advised of the right to be present and that consequences would
flow from a waiver of that right.
8. On January 26th, 2011, however, Petitioner obtained a copy of the
aforedescribed transcripts in the criminal proceeding that is the
subject of this petition, namely, The People of the State of California
v. James Alan Bush, docket number EE605073, and then amended the
petition on March 11th, 2011.
9. In the amended petition, Petitioner attached a copy of the transcripts
of the April 5th, 2007, modification proceedings [see Exhibit “F”],
which he obtained during discovery in the related criminal matter,
and in which the prosecution alleges that the petitioner failed to
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PETITION PAGE 5 OF 14
commence a six-month county jail sentence, and, therefore, violated
the terms of his probation [see Exhibit “G”]. The transcripts support
each and every claim made herein this petition, and also reveal a new
fact, specifically, that counsel for the defendant failed to advise
the trial court that no alternative to the discontinued work furlough
program was offered to the petitioner, and that the defendant was
deemed at sentencing to be ineligible for any other programs.
10. On June 13th, 2011, the court denied the petition without prejudice
on the ground that the petitioner failed to exhaust all available
remedies, and directed the petitioner to file this petition in the
Supreme Court for the State of California.
11. Accordingly, on July 14th, 2011, Petitioner filed the petition in the
Supreme Court for the State of California, which raises the same
issues as presented in the petition filed in the district court.
III.
PARTIES
12. Petitioner, James Alan Bush (DWF967-08086698), is a pretrial detainee
at the Santa Clara County Mail Jail. On December 21st, 2006,
Petitioner plead nolo contendere to possessing, receiving, uttering,
or passing forged paper, knowing same to be forged, i.e., Penal Code
§ 475(A), and to selling, or aiding in selling, stolen property, i.e.,
Penal Code § 496(A), and was granted probation for three years and was
ordered to serve six months in a work furlough program, in lieu of a
six-month county jail term. Petitioner enrolled in the work furlough
program; however, before he was scheduled to begin the program, it was
terminated due to budget cuts.
13. Respondent, Probation Officer Eric Salas, who was assigned as the
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PETITION PAGE 6 OF 14
probation officer for the petitioner by the Santa Clara County Adult
Probation Department, was notified by the petitioner on or around March
7th, 2007, of the termination of the work furlough program. At that
time, Respondent Salas advised the petitioner that another program,
such as PSP, would be offered; however, Respondent Salas instead
requested the Santa Clara County District Attorney to petition the
trial court to impose the sentence suspended, yet failed to notify the
petitioner before or after his request.
14. Respondent, Santa Clara County District Attorney, petitioned the trial
court on April 5th, 2007, to modify a condition of the probation
granted the petitioner; specifically, the respondent sought the
imposition of the sentence suspended (i.e., a six-month county jail
term) on the ground that the petitioner had yet to apply for the
work furlough program. On that same day, the trial court, without
having been advised by the respondent or counsel for the defendant
of the termination of the work furlough program, imposed the sentence
suspended. [See Exhibits “C”, “F”, and “G”.]
15. Respondent, Allen C. Speare, appeared on behalf of the petitioner
at the April 5th, 2007, hearing without his knowledge or consent,
and without having first obtained, in writing, the consent of the
petitioner to the modification or a waiver of his right to a personal
appearance; moreover, Respondent Speare was neither retained by the
petitioner nor did he notify the petitioner of the hearing before or
afterwards. Consequently, Petitioner did not consult with Respondent
Speare or any other legal counsel prior to the aforesaid hearing.
16. Respondent, Donna Stichter, a clerk for the Superior Court in
Sunnyvale, erroneously indicated in an official court record that the
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PETITION PAGE 7 OF 14
petitioner appeared personally at the April 5th, 2007, modification
proceeding [see Exhibit “C”], when, in fact, the petitioner appeared
at a hearing held in the Hall of Justice in San Jose on that same day
and at that same time, as shown in another official court record [see
Exhibit “B”], committing clerical misprision thereby. [See also Exhibit
“F”.]
IV.
STATEMENT OF FACTS
17. On April 5th, 2007, Respondents Santa Clara County District Attorney
and Probation Officer Eric Salas petitioned the trial court to modify
a condition of the probation granted the petitioner on December
21st, 2006. The modification sought was the imposition of the sentence
suspended, i.e., a six-month county jail term.
18. A hearing on the petition was held on that day, in which the trial
court granted the request for the modification. [See Exhibit “C”.]
19. Petitioner did not attend, and could not have attended, the hearing
on the day it was held because, not only did the respondents fail to
notify the petitioner of the hearing before or afterwards, reasonable
time was not given to secure the petitioner’s presence, as the
petitioner was required to appear at, and did appear at, another
hearing in San Jose on the same day and at the same time. [Compare
Exhibits “B” and “C”.] Had the petitioner been notified of the hearing
and of the respondents’ intent to modify the conditions of his
probation, Petitioner would have requested that a new hearing be set;
moreover, had the petitioner been present, he would have objected to
the proposed modification, as so entitled by law. [See the attached
memoranda.]
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PETITION PAGE 8 OF 14
20. Petitioner did not authorize or retain counsel to appear in his
stead, as implied by court records, which indicate that Respondent
Speare appeared on behalf of the petitioner at the April 5th, 2007,
hearing. [See Exhibit “C”.] Petitioner, having had no notice of the
hearing, would not have directed any counsel to appear on his behalf,
and, having previously filed a lawsuit against Respondent Speare,
would certainly not have directed the aforementioned respondent to
appear on his behalf, either. In fact, as stated in his answer to the
petitioner’s civil complaint, which was filed in the Superior Court of
California, County of Santa Clara, Civil Division, under case number
1-07-CV-089560 [Bush v. Pinto, et al.], Respondent Speare terminated his
representation of the petitioner on December 21st, 2006; Respondent
Speare also stated that he no longer represented the petitioner at the
hearing, without effectively having provided any legal services to the
petitioner. [See Exhibit “F”.]
21. Petitioner contends that he would not have consented to the imposition
of the sentence suspended absent the advice of legal counsel and a
lawful requirement, and only then with due process afforded him, e.g.,
the exercise of his right to be present at the hearing.
22. Respondents, whose duty it was to notify the petitioner of the
modification subsequent to the April 5th, 2007, hearing, failed to
perform this duty , which the petitioner believes was a willful and
deliberate act on the part of the respondents, in retaliation for
the petitioner having filed a lawsuit against Respondents Speare and
Salas, the Santa Clara County Office of the District Attorney, and
the arresting agency in the related criminal matter, namely, the
Sunnyvale Department of Public Safety, and several of its employees.
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PETITION PAGE 9 OF 14
[See Bush v. Sunnyvale Department of Public Safety, et al., filed
in the United States District Court for the Northern District of
California, San Jose Division, under docket number C 08-01354 (PR)
JF.] Rather than notify the petitioner of the modification, and of
the existing requirement to commence a six-month county jail term
(however erroneous), Respondents caused to be filed surreptitiously an
affidavit on June 21st, 2007, declaring the petitioner in contempt of
an order to commence a jail sentence; however, a warrant was never
issued for the arrest of the petitioner, and no attempts were made by
any of the respondents to notify the petitioner of the filing of the
affidavit prior to his inadvertent discovery on January 23rd, 2009,
when probation was revoked for failure to commence said jail sentence.
[See Exhibit “G”.]
V.
CONTENTIONS
23. PETITIONER NEITHER CONSENTED TO THE MODIFICATION OF PROBATION IN
WRITING NOR WAIVED HIS RIGHT TO A PERSONAL APPEARANCE AT THE
MODIFICATION PROCEEDING, NOR DID PETITIONER CONSULT WITH COUNSEL
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