Justice Mosk began Rappleyea with a succinct statement of the question before the Supreme Court and its answer: The question is whether a default must be set aside and a default judgment reversed on the ground of abuse of discretion. We conclude that they must be.
Rappleyea v. Campbell(1994) 8 Cal.4th 975, 980 The question before us
is the same. And so is our answer. (8 Cal.4th at p. 978)
I am 69 years old, a heart patient, and homeless after being illegally evicted for complaining about unsafe living conditions, and criminal behavior on our low income property. That case is now in the Appellant Court of Appeal, No. ACIAS 900001 and Superior Ct. No. UDRS802820. It comes on calendar in November. However, I am considering filing a Motion to Vacate the Eviction As Void, I have been sleeping in my car since February 27, 2009: A void order is "a dead limb on the judicial tree," which has no provisional or interim effect. Hence, even though an appeal there from is pending in an appellate court, the trial court which rendered it may vacate it at any time. Svistunoff v. Svistunoff (1952) 108 C.A. 2d 638, 641, 239 P.2d 650.
I took on a big Corporate Bully known as Ameriland Group, and their managers Logan Property Management, and a very unethical attorney, Linda Hollenbeck. When I began to complain I didn’t realize that they were in a million dollar lawsuit in Los Angeles with a property named The Alexandria Hotel where there were 36 criminal counts against the Ameriland Group related to fire code violations, and five people died. Many of the elderly who complained were “forced out of the hotel,” and consequently made homeless. [© Los Angeles Downtown News, page 6,
2/9/2009: and, AMERILAND GROUP
The unethical and dirty tricks this company pulled on me to get me out before the actually eviction were beyond belief: elder abuse, perjured documents, false police reports, and then when I approached the Appellant Court with a Writ to be able to stay until the Appeal was heard, they went into court on an ex parte and charged me with “Work Place Violence” – with no credible proof. Great or irreparable harm must be proven. Nebel v Sulach (1999 4th Dist) 73 Cal App 4th 1363, 1369, 87 Cal Rptr 2d 3851 They weren’t happy with one; they took out two identical TROs. However, one judge saw through their scheme and dismissed it immediately as “void” because they “did not make their case.”
This second one is also void, and that is where I am at today trying to fight this in court with a judge, and District Attorney who either don’t know the law, or ignore that law.
Unfortunately, Judge Rex Victor made it clear he did not know the law of CCP 527.8, and he ignored the criteria to issue such an order. It is a void order.
I have been falsely arrested four times for “constitutionally protected or legitimate business” on this void order, and now I am in criminal court and trying to be heard: “Protected and/or legitimate
activity, is not “harassment.” Byers v. Cathcart, 57 Cal. App. 4th 805 (1997) – but The District Attorney’s Office seems bound to “get me” and refuses to listen, or to research the law.
The District Attorney and Model Rule of Professional Conduct Rule 1.1, 5 (1983) (amended 1998): … competent handling of a particular matter involves inquiry into analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioners.
An attorney's professional responsibilities, whether prosecutor, or defense are set forth in, Strickland v. Washington (1984) 466 U.S. 2668; People v. Pope(1979) 23 Cal.3d 412; as In re Alvernaz (1992) 2 Cal 4th 924.)
It’s hard to say what is more disturbing – the fact that despite being a Deputy District Attorney, Marbi Laverne Burnette #119595 ignores the law or in the alternative that she is ignorant of the law, or, she just makes up the law. Certainly, today, September 24, 2009 in Court Room R7, Rancho Cucamonga, CA, where I was challenging this void order, she influenced the court by making up the law, stating that “A void judgment must be appealed in order to be recognized as void.”
No such law exists! This is just downright untrue and a deception on the court on the part of Ms. Burnett. CAL STATE BAR Rule 5-200 Trial Conduct In presenting a matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the causes confided to the
member such means only as are consistent with truth; (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law. This is NOT “harmless error” on the part of Attorney Burnette; rather it is unethical, blatant, deliberate and willful misconduct .
It is acknowledged that certain constitutional rights are "so basic to a fair trial that their infraction can never be treated as ‘harmless error’." Chapman v. California, 386 U.S. 18 (1967).
I have served three Formal Complaints regarding Attorney Burnette misconduct to the Rancho Cucamonga District Attorney’s Office. I can only presume they are being ignored as Ms. Burnette is still on this case with what can only be described as an egregious case of prosecutorial zealotry.
Therefore I am calling a Grand Jury, and making a Cal State Bar Complaint against her. Attorney Burnette has lied in court, and even to the Public Defender, Michael Camber without any fear of the consequence of discipline for violation of civil liberties and statutes. With this lack of conscience I am wondering if she may suffer from the disorder known as "pseudologia fantastica.''
The American justice system is designed to err on the side of allowing the guilty to go free rather than incarcerate the innocent. But when an innocent defendant enters the criminal justice system, grievous mistakes can occur, if the prosecutor suffers no long-term repercussions from convicting an innocent person. It has been said, “The one most likely to abuse power is the one who thinks they are above doing so.”
Judges have the option to hold those responsible in prosecutorial misconduct in contempt of court -- and to impose upon them fines, or even temporary imprisonment.
Too harsh?: If you think so, consider that these prosecutors who are so willing to send me to jail, or prison for crimes I did not commit, based on evidence from police reports that are untrue and tainted, and grossly incomplete, witnesses who provably lied, and an attorney who committed fraud on the court to get a bogus restraining order - and then to not to give me due process in a fair and impartial manner, refusing to do their job of “due diligence” to make sure the Defendant receives a fair trial -- “Too harsh?”
Would it really be so unfair for them to have a small taste of the confinement they have been willing to subject me to? Real punishments are needed for those who employ false claims, and turn our judicial system into a series of Kangaroo Courts.
Judge Christopher B. MARSHALL won’t be a judge to do that as he made it clear he did not even research on the law presented in my motion, and was influenced by, and went along with Attorney Burnett, adding insult to injury he ignored the law, and denied my motion; one does
expect a judge to follow the law. When a judge does not follow the law, they are a trespasser of the law and the judge loses subject-matter jurisdiction and the judges’ orders are void, of no legal force or effect. The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974); Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980 ; Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821); When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law, and are engaged in treason The Court in Yates v. Village of Hoffman
Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) I am filing a lawsuit against Judge Marshall, and reporting him to The Judicial Commission.
A judge is mandated to report attorneys for misconduct . (Cal. Bus. & Prof. Code § 6086.7(a)(2)). The State Bar sends out a letter each year reminding judges of the statutory requirements. California Code of Judicial Ethics: Currently, the code directs a judicial officer to "take appropriate corrective action whenever information surfaces that a lawyer has violated ethical duties." (Cal. Canons of Jud. Ethics, Canon 3D(2).) ABA Model Rule 3.8, covers the conduct of prosecutors.
I realize that Judge Marshall will not do his job on this point either, so I shall report Attorney Burnette to the Cal State Bar, and report him for not complying with the law.
It is quite obvious that the real sanction that keeps most lower-court judges from following precedent is professional pride. Everyone within the legal community knows when a trial or intermediate judge gets smacked down; some judges have thicker skins than others, but most
don't want to appear unlearned and unprofessional, and not following the law. Judge Marshall’s attitude is, “I don’t need to follow any stinken law!” This is a dead giveaway that he knows he has lost.
Judges are not supposed to set aside the law and use their own judgment, or the judgment of the District Attorney’s Office--and in the few cases where they do, they make a real effort to show how their decision was forced because the law in question was in conflict with some other law. That is not the case here.
Please take Notice: As stated in the Defendant’s, June 19, 2009, and September 24, 2009 Motion[s] To Dismiss, presented to this court, the evidence clearly shows that the burden of the law of Civil Code of Procedure [CCP] 527.8, “Work Place Violence” was not met by the plaintiffs in Case #CIVRS 900198 and, Judge Rex A. Victor did not follow the law, and though there are several reasons the case is void, Judge Victor lost subject matter jurisdiction for not following the
law and the TRO and the Restraining Order he issued are void on the face. Judge Victor ignored the law of work place violence that states there must be violent acts and/ or credible threats of physical violence – there were never any such threats made by the defendant, and no evidence of such presented to the court ;there are no affidavits filed by the plaintiff’s against the defendant, nor any police reports of violent behavior.
Judge Rex A. Victor and Judge Marshall have committed treason: When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law, and are engaged in treason. The Court:
Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of
treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980 ); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5
L.Ed 257 (1821)
AND: “Any judge or attorney [Ms. Burnette and/or Hollenbeck] who does not report a judge for treason, as required by law, may themselves be guilty of misprision of treason…” 18 U.S.C. Section 2382.
THE LAW OF VOID JUDGMENTS CANNOT BE IGNORED
be attacked in any forum, state or federal, where its validity may be
drawn in issue. Pennoyer v. Neff, 95 U.S. 714 [24 L. Ed. 565 ] (1878).
NO APPEAL IS NEEDED TO CHALLENGE A VOID ORDER! I CAN CHALLENGE THIS
VOID ORDER IN ANY COURT WHERE IT IS AN ISSUE, and IN THIS CASE IT IS
CERTAINLY AN ISSUE. THE DISTRICT ATTORNEY IS FILING A FRIVOLOUS CASE
AGAINST ME. (I would ask: If the trial court may ignore or vacate its own void order at its pleasure, by what judicial whim does that order bind a party to obedience? )
Deputy District Attorney Marbi Burnett’s credibility is strained beyond tolerance and this case is just another example of why the confidence of most Americans in our Country's legal and judicial
systems has been and is being shattered. We cannot tolerate a District Attorney and/or Deputy District Attorney who refuse to do their job of “due diligence” to know the law and the cases they are prosecuting.
Rules of Professional Conduct - 5-200 Business and Profession Code Section 6068 - Attorney's Duty to Investigate Case -- Butler v State Bar (1986) 42 Cal3rd 323 (329) -- Paul Oil Company v- Fed. Mutual Insurance (1998) 154 Fed 3rd 1049
DISTRICT ATTORNEY MUST NOT ABUSE THEIR DISC RETION
The role of the prosecutor differs significantly from that of others who practice law: A Prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. ... the prosecutor represents “a sovereignty whose obligation to govern impartially is as compelling as
its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
trial… United States v. Escalante (9th Cir. 1980) 637 F.2d 1197, 1203.
Deputy District Attorney Marbi Burnett has in her possession “proof” that plaintiff’s, Logan Property et al, and their Attorney Linda Hollenbeck #145048 through provable conspiracy did seek a bogus and sham TRO on February 14, 2009 after I served them with reports February 7 through 13, 2009 for their conspiracy, elder abuse and other crimes. Their sham TRO was a totally retaliatory order, it never met the burden of the law, and was misused and abused – and now The District Attorney’s Office is refusing to follow the law, or to seek justice, and District Attorney Burnette is suppressing this evidence, which she has a duty to reveal: Cal State Bar, Rule 5-220
No one can be punished for disobedience of a void order. Mitchell v. Superior Court (1972) 28 Cal. App. 3d 759, 764, citing Fortenbury v. Superior Court (1940) 16 Cal. 2d 405, 408-09; see In re Berry (1968) 68 Cal. 2d 137, 147.
Sherar v. Cullen, 481 F. 2d 946 (1973) "There can be no sanction or penalty imposed upon one because of their exercise of Constitutional Rights."
It most certainly does appear that The District Attorney’s Office, and Deputy District Attorney Marbi Burnett in particular has an interest in protecting the large corporate entity of [Ameriland Group] Logan Property and her fellow attorney, Linda Hollenbeck rather than seeking justice in this case, and have ignored not only the law, but also the evidence that I am the victim: and its agents making it unlikely that the Defendant can receive a fair trial.
A conflict under Penal Code1424 "exists whenever the circumstances of a case evidence a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner. Thus, there is no need to determine whether a conflict is 'actual,' only
that it gives an 'appearance' of conflict." People v. Conner (1983) 34 Cal.3d 141, 148.
1. The District Attorney has assigned three Deputy District Attorneys, HINSON, BURNETT and HILDALGO to this criminal case ALL of whom have ignored the law in Case #CIVRS 900198 and in this, therefore the void criminal case, and, ignored other reports that show the malicious and vindictive behavior of the plaintiffs and their attorney, and then, even presented false law to the court. [SEE: Formal Complaint; Marbi Burnett]
2. Plaintiff’s Attorney Linda Hollenbeck did commit a Battery on the defendant, in front of a witness in the hall outside the court room and a report was filed with the San Bernardino Sheriff’s Office, Case # 89090068, (This is moral turpitude, malum in se State v.Stiffler, 788 P.2d 2205 (1990); Bus & Professional Code 6107-6109) The District Attorney has ignored the report.
3. Attorney Linda Hollenbeck and her secretary, Ms. Brenda Eiden did provably deceive, commit perjury, and commit fraud on the court in filing for the Temporary Restraining Order, and the San Bernardino Sheriff’s Office: Case # 800900150 has taken the case to the District
Attorney. The District Attorney has ignored the report.
4. ADULT PROTECTIVE SERVICES provided the District Attorney’s Office with an “Elder Abuse Report.“ re: Logan Property Management.The District Attorney has ignored the report.
5. A “Conspiracy Report” re: Logan Property Management was provided to Deputy District Attorneys, Hildalgo and Burnett. The District Attorney has ignored the report.
6. In accepting the police reports as valid in the case where the Defendant was falsely arrested while pursuing constitutionally protected activity, and/or legitimate business; [Schraer v. Berkley
Property Owners Ass'n, 207 Cal. App. 3d 719.] the District Attorney has ignored the law of all restraining orders on these two points. The acts she was charged with were not “crimes.” EXAMPLE: The Plaintiff’s had the Defendant arrested after she was locked out of her apartment,
for complaining to the office that she needed to have her heart medication; legitimate business. They refused to give it to her and she went into angina. Martha Enrique of Logan Property Management had her arrested in the ambulance. AGAIN, The District Attorney has ignored the law.
The Defendant has committed no wrong doing. Particularly she has committed no criminal acts. This case has been an exercise in injustice from the beginning.
It follows that if there is no crime, the court lacks subject matter jurisdiction. This conclusion is compelled not only by the statutes and cases interpreting those statutes, this conclusion comports with fundamental principles of justice. The notion that a person can be punished under the criminal law for committing an act that is not a crime is entirely outside our system of jurisprudence. The District Attorney has ignored the law.
SHOULD IT NOW BE STATED: We in the District Attorney's Office are committed to seek justice and accountability for all who violate the law in our county except unless it be for politically powerful friends, and fellow attorneys.
In the State of California we have a Constitution that is akin to the federal constitution that guarantees ALL be allowed “justice,” and many of the individual rights clauses in the state constitution have been construed as providing rights broader than the Bill of Rights in
the federal constitution, e.g., Article 1… defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy, and in Section 7:(a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; I have clearly been a victim, yet I am have not been afforded equal protection from The District Attorney, or the court. Section 28 (a) (2) [ALL] Victims
of crime are entitled to have the criminal justice system view criminal acts as serious threats to the safety and welfare of the people of California. (3) The rights of victims pervade the criminal
justice system. These rights include personally held and enforceable rights described in paragraphs (1) through (17) of subdivision (b).
Article I, Section 28 (b) mirrors the similarly enacted provision(s) of California Penal Code 679-679.02 (also known as Marsy's Law -Mandatory Rights of Victims and Witnesses of Crimes) --- however, the Constitutional origins of Article I, Section 28 (b) may have more teeth since all of the purported immunities invoked by public employee(s) and the like appear and are believed to be inapplicable and moot if "unconstitutional" mischief has transpired.
Sherar v. Cullen, 481 F. 2d 946 (1973) "There can be no sanction or penalty imposed upon one because of their exercise of Constitutional Rights.
The status quo has left Citizens with a justice system that is not affordable, confusing, hostile and indifferent to the cause of justice. The status quo has left many thinking they are powerless to
do anything about an abuse of discretion and power they experience.
Justice has become a process of back room deals, manipulations and closed door sessions with Citizens being shut out of the process. Misconduct often occurs out of sight, especially in cases that never go to trial. Those cases by definition do not generate appellate opinions However it is not a safe assumption that cases ending with guilty pleas are absent prosecutorial misconduct.
Because exposure of rotten judicial apples offends and embarrasses the entire judiciary and when any lawyer, or pro per in diligent pursuit of a fair disposition of a case dares to stand up to Bad Judges, the "system" locks arms, and seeks to punish or suppress the iconoclastic lawyer, or pro per for bucking the “Lawyer’s Club.” The system's remarkable resistance to admitting the existence of a bad judge can be astounding.
Where does one go when they are not being provided with justice by the very people we elect, or appoint, and/or hire to assure justice -- the judges and the district attorneys?
I DO DECLARE UNDER PENALTY OF PERJURY OF THE LAWS OF THE STATE OF CALIFORNIA THAT THE ABOVE STATEMENTS ARE THE TRUTH TO THE BEST OF MY KNOWLEDGE.
NOVEMBER 9, 2009 ______________________________
PO Box 9475; Rancho Cucamonga, CA 91701