Sharon Stephens
PO Box 9475
Rancho Cucamonga, CA 91701
760.835.8210
August 2010
SAN BERNARDINO SUPERIOR COURT
County of San Bernardino
8303 North Haven Avenue
Rancho Cucamonga, CA 91730
CASE NO.: MWV903720
PEOPLE v. STEPHENS
PEOPLE v. STEPHENS
NOTICE OF MOTION AND
DEFENDANT'S MOTION
TO RECUSE JUDGE SHALA S. SABET
TO RECUSE JUDGE SHALA S. SABET
___________________________________/
Defendant, Sharon Stephens respectfully requests Judge Shala S, Sabet recuse herself under the California Code of Civil Procedures (CCP) Section (§)170.1 (a)(6)(C): “For any reason . . . A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
Defendant believes that any reasonable person aware of the facts and circumstances would believe that Judge Sabit is biased and prejudiced, and has ignored the law.
“The standard for disqualification provided in Code Civ. Proc., 170.1, subd. (a)(6)(C), providing for disqualification for bias or prejudice where a person aware of the facts might reasonably entertain a doubt that the judge is able to be impartial, is fundamentally an objective one. It represents a legislative judgment that,due to the sensitivity of the question and inherent difficulties of proof, as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable person would entertain doubts concerning the judge's impartiality, disqualification is mandated. To insure that proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person. This standard indicates that the decision is not based on the judge's personal view of his own impartiality, and also suggests that the litigants' necessarily partisan views do not provide the applicable frame of reference. Rather, the judge ought to consider how his participation in a given case looks to the average person on the street. (emphasis added)”
“The standard for disqualification provided in Code Civ. Proc., 170.1, subd. (a)(6)(C), providing for disqualification for bias or prejudice where a person aware of the facts might reasonably entertain a doubt that the judge is able to be impartial, is fundamentally an objective one. It represents a legislative judgment that,due to the sensitivity of the question and inherent difficulties of proof, as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable person would entertain doubts concerning the judge's impartiality, disqualification is mandated. To insure that proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person. This standard indicates that the decision is not based on the judge's personal view of his own impartiality, and also suggests that the litigants' necessarily partisan views do not provide the applicable frame of reference. Rather, the judge ought to consider how his participation in a given case looks to the average person on the street. (emphasis added)”
INTRODUCTION
Judge Sabet has been sitting on this case as filed by the plaintiff, THE STATE and the case is active and ongoing and it has become apparent that she is bias and already believes I am guilty and acts accordingly, even ignoring my civil rights and the very law she is ruling on, even oindicating I am being untruful in my Marsdon Motion. She can not be objective in her decisions. The defendant requests that a new judge be assigned from outside of this judges’ influence.
May 7, 2010: Judge Sabet was assigned to hear a 402 Hearing. At this hearing she stated she did "not know the law on void judgments" but proceeded to retry the void restraining order issued by Judge Rex Victor. Not only did Judge Victor issue the order without the needed legal criteria to make the order valid, but Attorney Hollenbeck missed the filing date for the hearing by three [3] days making the order also invalid, and the TRO void.
May 25, 2010 After a retalitory eviction for complaining about fire safety and crime on Logan Management Property, year of false arrests, harassment by Amerland Group/Logan Property Management and their resident management staff, on this void Workplace Restraining Order, Judge Sabet, after stating she "did not know the law," had to seek a legal research team to make a finding on this void judgment and then on their findings had to legally declare the restraining order void and dismiss all counts. (The TRO was still undecided but I address that void order here as it is at issue.)
However, Judge Sabet had already listened to several hours of subrogated perjury on May 7th by "witnesses," that was instigated by Deputy District Attorney Jack Liu, and Attorney Linda T. Hollenbeck, When hearing a motion to dismiss a void judgement, the court may only consider the judgement roll of the origianal hearing. But Judge Sabet's attitude toward me indicated she had already been influenced by the subrogated perjury.
As set forth in this motion and attached Declaration, Judge Sabet's ignoring of the law, and illegally taking away my constitutional rights in order to show favor to the plaintiff the bias and prejudice is clearly revealed here by (a) particular findings that are set forth in Judge Sabet’s decision, filed May 25, 2010 in which she had me incarcerated on the void judgment, makes rude, hostile and accusatory remarks to the defendant with no factual evidence to support her remarks, (b) Judge Sabet’s unjustifiable decision to step outside of, and ignore the law to the hurt and harm of the defendant.
May 7, 2010: Judge Sabet was assigned to hear a 402 Hearing. At this hearing she stated she did "not know the law on void judgments" but proceeded to retry the void restraining order issued by Judge Rex Victor. Not only did Judge Victor issue the order without the needed legal criteria to make the order valid, but Attorney Hollenbeck missed the filing date for the hearing by three [3] days making the order also invalid, and the TRO void.
May 25, 2010 After a retalitory eviction for complaining about fire safety and crime on Logan Management Property, year of false arrests, harassment by Amerland Group/Logan Property Management and their resident management staff, on this void Workplace Restraining Order, Judge Sabet, after stating she "did not know the law," had to seek a legal research team to make a finding on this void judgment and then on their findings had to legally declare the restraining order void and dismiss all counts. (The TRO was still undecided but I address that void order here as it is at issue.)
However, Judge Sabet had already listened to several hours of subrogated perjury on May 7th by "witnesses," that was instigated by Deputy District Attorney Jack Liu, and Attorney Linda T. Hollenbeck, When hearing a motion to dismiss a void judgement, the court may only consider the judgement roll of the origianal hearing. But Judge Sabet's attitude toward me indicated she had already been influenced by the subrogated perjury.
As set forth in this motion and attached Declaration, Judge Sabet's ignoring of the law, and illegally taking away my constitutional rights in order to show favor to the plaintiff the bias and prejudice is clearly revealed here by (a) particular findings that are set forth in Judge Sabet’s decision, filed May 25, 2010 in which she had me incarcerated on the void judgment, makes rude, hostile and accusatory remarks to the defendant with no factual evidence to support her remarks, (b) Judge Sabet’s unjustifiable decision to step outside of, and ignore the law to the hurt and harm of the defendant.
POINTS AND AUTHORITIES
IN SUPPORT OF SHARON STEPHENS’
IN SUPPORT OF SHARON STEPHENS’
MOTION TO RECUSE JUDGE SABET
“The facts and circumstances prompting the challenge must be evaluated as of the time the motion is brought and the evaluation of the challenge must not isolate facts or comments out of context. The challenge must be to the effect that the judge would not be able to be impartial toward a particular party.” Flier v Superior Court (1994, 1st Dist) 23 Cal App 4th 165, 28 Cal Rptr 2d 383.
VIOLATION OF CIVIL RIGHTS
A claim under the civil rights act expressly gives the District Court Jurisdiction,no matter how imperfectly the claim is stated." Harmon v. Superior Ct of the State of California, 307 F 2d 796, CA 9(1962)
The original intent of the Equal Protection Clause in the Civil Rights Act was to give the humblest and poorest the same civil rights as the most powerful and wealthy.
Judge Sabet entered an order on my "new" probation that I must give up my constitutional rights of due process to sue the opposing side, making it a crime if I do so. This suggest some collusion on her part with Attorney Hollenbeck, Amerland, Logan Property, and Briarwood Manor. "The claim and exercise of a Constitutional right cannot be converted to a crime." Miller v.U. S., 230 F 486 at 489
"There can be no sanction or penalty imposed upon one because of his exercise of Constitutional rights." Sherar v. Cullen, 481 F 2d 946(1973)
The original intent of the Equal Protection Clause in the Civil Rights Act was to give the humblest and poorest the same civil rights as the most powerful and wealthy.
Judge Sabet entered an order on my "new" probation that I must give up my constitutional rights of due process to sue the opposing side, making it a crime if I do so. This suggest some collusion on her part with Attorney Hollenbeck, Amerland, Logan Property, and Briarwood Manor. "The claim and exercise of a Constitutional right cannot be converted to a crime." Miller v.U. S., 230 F 486 at 489
"There can be no sanction or penalty imposed upon one because of his exercise of Constitutional rights." Sherar v. Cullen, 481 F 2d 946(1973)
"It is the duty of the courts to be watchful for the CONSTITUTIONAL RIGHTS of the citizen, against any stealthy encroachments thereon." Boyd v. U.S., 116 US 616, 635, (1885)
Judge Sabet has an overt bias attitude toward me in her demeanor and language, and then her excessive Bail of $150,000 that may have been "retaliation under color of law." It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the"Color of law" simply means that the person doing the act is using power given to him or her by a governmental agency (local, State, or Federal).Enforcement of these provisions does not require that any racial, religious, or other discriminatory motive existed. Constitution or laws of the United States. (18 U.S.C. §§ 241, 242).
U.S.C. 42 §12203 The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." “Prohibition against retaliation and coercion” (a) Retaliation No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. (b) Interference, coercion, or intimidation. It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.
The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that "when a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." [Emphasis supplied in original].
The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that "when a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." [Emphasis supplied in original].
"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed.,p. 512, 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final." It is void.
"Judicial immunity is no defense to a judge acting in the clear absence of jurisdiction." Bradley v. Fisher, US 13 Wall 335 (1871)
"Judges may be punished criminally for willful deprivation of...rights on the strength of 18 U.S.C. 242." Imbler v. Pachtman, US 47 L Ed 2d 128, 96 S Ct 37.
"Judges have no immunity from prosecution for their judicial acts." Bradley v. Fisher, US 13 Wall 335(1871)
"Judges have no immunity from prosecution for their judicial acts." Bradley v. Fisher, US 13 Wall 335(1871)
THE RIGHT TO A FAIR AND IMPARTIAL JUDGE
IS THE GROUNDS OF DUE PROCESS
IS THE GROUNDS OF DUE PROCESS
At this time Defendant does not argue that the fact of Judge Sabet’s rulings disqualify her. She argues that particular statements, particular findings, and particular rulings of Judge Sabin reveal a biased and prejudiced mindset, and along with an ignoring of the law. Judge Sabet’s biased and prejudiced mindset may be clearly discerned by any reasonable person who has knowledge of the facts, and the law. Any objective person can see the prejudice will be directed towards the defendant thus: “In order to disqualify a judge, his/her prejudice must be against a party [Sharon Stephens] to the action; . . .” Evans v Superior Court (1930) 107 CA 372, 290 P 662; Kreling v Superior Court (1944) 63 CA2d 353, 146 P2d 935.
It is well stated in CCP 170.1 (a) (6) (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. Bias or prejudice towards a lawyer [a pro per is acting as a lawyer] in the proceeding may be grounds for disqualification. The previous corresponding statute--Sec. 170, subdivision (a)(5)--which was repealed in 1984, had been construed to require bias in fact, with the enactment of Sec. 170.1, however, a party seeking to disqualify a California judge for cause was no longer required to prove that the judge was actually biased. The test to be applied in evaluating recusal and disqualification of judges was clearly stated many years ago in Berger v United States (1921) 255 U.S. 22:
Does the [Declaration] of Prejudice [executed defendant] give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment (225 U.S.) In the case United Farm Workers of America v Superior Court (1985, 4th Dist) 170 Cal App 3d 97, 216 Cal Rptr 4.
The average person looking at this situation would see a bias by Judge Sabet toward the defendant based on unsupported fabricated and provable subordinated perjury by witnesses brought to the 402 Hearing by Deputy District Attorney Jack Liu and Attorney, Linda Hollenbeck, of which Judge Sabet did willingly listen to, accepted as true , and allowed to influence her as was apparent in her bias demeaner and attitute when incarcerating the defendant.
Code Civ. Proc., § 170.1, subd. (a)(6)(C) (Judge disqualified if person aware of facts might reasonably entertain doubt that judge would be impartial) makes the disqualification standard fundamentally an objective one. It represents a legislative judgment that due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable man or woman would entertain doubts concerning the judge's impartiality, disqualification is mandated. To ensure that the proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person. The reason for the objective standard of proof is the difficulty in showing that a judge is biased unless the judge so admits. In addition, public perceptions of justice are not furthered when a judge who is reasonably thought to be biased in a matter hears the case. (emphasis added)” Catchpole v Brannon (1995, 1st Dist) 36 Cal App 4th 237, 42 Cal Rptr 2d 440.
The charges being brought by the Plaintiff, THE PEOPLE are unproven, and more often than not in perjurious, and unverified statements, and appear to include civil and federal criminal charges for conspiracy pursuant to Penal Code 142, and 18 USC §§ 241 and 242, which indicate serious criminal implications. No reasonable person could think that a commissioner, judge or anyone working under them could possibly conduct themselves in a fair and impartial manner considering they are facing possible criminal charges which would bring jail time or a long probation period with these charges originating from the plaintiff.
There can be no doubt that the conduct of Judge Sabet demonstrates, both objectively and subjectively, that Judge Sabet is biased and prejudiced against the defendant in this case, to the point she ignored the law of a void judgments, and that any reasonable person would believe that to be the case. She has listened to the subrogated perjury (PENAL CODE SECTION 118-131) of Karen Brooks, Cassandra Oseth-Ochsner, Frank Reyes (a convicted felon), and Judy Hyden, a woman on the cusp of Alzheimer's, all brought into the court by Attorney Linda Hollenbeck and Deputy District Attorney Jack Liu. None of their fabricated and couched testimony was in the original record of the original trial, and two of the witnesses were not in the original hearing. But Judge Sabet allowed it, and it most certainly impressed Judge Sabet, and now she can obviously have no valid, unbiased ability to be impartial, or discern fact from fiction.
JUDGE SABET AND VOID JUDGMENT
When deciding a void judgement challenge a judge may only look at the judgment roll record; she may not retry the case and allow for any "new testimony, or witnesses, etc." Federal decisions addressing void state court judgments include Kalb v. Feuerstein (1940) 308 US 433, 60 S Ct 343, 84 L ed 370; Ex parte Rowland (1882) 104 U.S. 604, 26 L.Ed. 861:
"A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its wants of vitality is a dead limb upon the judicial tree, which should be lopped off..." People v. Greene, 71 Cal. 100 [16 Pac. 197, 5 Am. St. Rep. 448].
When a statute authorizes a prescribed procedure and the court acts contrary to the authority conferred, the court exceeds its jurisdiction. (People v. American Contractors Indemnity Co., (2004), 33 Cal.4th at p. 661.)
"A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its wants of vitality is a dead limb upon the judicial tree, which should be lopped off..." People v. Greene, 71 Cal. 100 [16 Pac. 197, 5 Am. St. Rep. 448].
When a statute authorizes a prescribed procedure and the court acts contrary to the authority conferred, the court exceeds its jurisdiction. (People v. American Contractors Indemnity Co., (2004), 33 Cal.4th at p. 661.)
JUDGE SABET ILLEGALLY INCARCERATED ME
In the May 26, 2010 order to incarcerate me on a void Stay Away Order that had been piggy-backed on a void order in June 2009 by judge Lubutti. All proceedings founded on the void judgment are themselves regarded as invalid. A void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. It is attended by none of the consequences of a valid adjudication. It has no legal or binding force or efficacy for any purpose or at any place. ... It is not entitled to enforcement. 30A Am Jur Judgments '' 43, 44, 45. Henderson v. Henderson, 232 NC 380, 100 SE2d 227. See Restatement, Judgments, ' 8.
Judge Sabet set Bail at $150,000 (Excessive Bail: Stack v. Boyle 342 U.S. (1951) the U.S. Supreme Court: A judge or justice may be censured for "setting 'grossly excessive' bail and [thus] showing a 'severe attitude' toward witnesses and litigants," as the Michigan Supreme Court did to a trial judge recently: Debra Cassens Weiss, writes, "Judge Censured for Excessive Bail, Severe Attitude", (ABA Journal, February 8, 2008).
Judge Sabet then became quite rude, not hiding her bias toward me when she said with a curled lip and venomous implications in her tone, "Read my lips, IF YOU SHOULD MAKE BAIL...'" In this ruling she made a number of fact findings and mixed fact and law findings that were simply contrary to the evidence, or, the lack of evidence, presented by Deputy Jack Liu and Attorney, Linda Hollenbeck in unsubstantiated, corrupted and incompetent testimony to alleged facts heard in subrogated perjury that were never a part of the original trial.
When a judge does not follow the law, i.e., they are a trespasser of the law, 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)
JUDGE SABET’S ORDER IS VOID
Void judgments lack jurisdiction and can legally be ignored as they neither bind, nor bar anyone. Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. 7 Witkin, Cal. Procedure, Judgment, 286, p. 828.)
CCP Section 473 permits a trial court, on noticed motion, to set aside void judgments and orders. Courts also possess inherent power to grant such relief. Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.
CCP Section 473 permits a trial court, on noticed motion, to set aside void judgments and orders. Courts also possess inherent power to grant such relief. Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.
PRO PER PLEADINGS
"Pleadings in this case are being filed by Plaintiff In Propria Persona, wherein pleadings are Propria, pleadings are not to be held to the same high standards of perfection as practicing lawyers. Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In Re: HALL v. BELLMON 935 F.2d 1106 (10th Cir. 1991)."
CONCLUSION
Any reasonable person looking at the current bench in the defendant’s case would see bias and prejudice against the defendant, and, the ignoring of the law by Judge Sabet.
Therefore, the defendant respectfully requests that Judge Sabet and anyone under her supervision be disqualified under CCP 170.1(a)(6)(C) et seq. Defendant requests that the Presiding Judge of the Superior Court of California, Rancho Cucamonga, San Bernardino County, the Honorable Raymond Haight III, assign the defendant’s case to another department within his court, or in the alternative ask the Judicial Counsel to assign an independent Judge to this case.
In the best interest and for respect of the court this request for disqualification must be granted. The California legislature made reasonable decisions in these rules for disqualification and the rules must be followed.
DECLARATION OF BIAS AND PREJUDICE
AND IGNORING OF THE LAW
I, Sharon Stephens and declare I am a resident in California and I am the defendant in this matter and declare that the foregoing is true and correct under penalty of perjury under the laws of the state of California, and can and will testify to such in any court or hearing. Executed in the state of California, in the County of San Bernardino, California.
August 2010 __________________________________
Sharon Stephens
Sharon Stephens
