...COURT EXCEEDS ITS JURISDICTION
"A court must vacate any judgment entered in excess of its jurisdiction." (Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972).).
Judge Bjork did not follow prescribed procedure, and exceeded his jurisdiction to issue an excessive bail on the Defendant, on an unproven misdemeanor. Nor did he have the jurisdiction to incarcerate the Defendant, on a void order and, without due process to be heard; she was not even informed in this court of her “crime.” The U.S. Supreme Court, in Scheuer v. Rhodes, supra, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) "A court must vacate any judgment entered in excess of its jurisdiction." (Lubben v. Selective Service System Local Bd. No. 27, supra, 453 F.2d 645 (1st Cir. 1972).).
“ A judgment is void on its face if the trial court exceeded its jurisdiction by granting relief that it had no power to grant. Jurisdiction cannot be conferred on a trial court by the consent of the parties.” (Summers v. Superior Court (1959), supra, ; Roberts v. Roberts (1966) supra, ) Thus, the fact that a judgment is entered pursuant to stipulation does not insulate the judgment from attack on the ground that it is void. In People v. One 1941 Chrysler Sedan (1947) 81 Cal. App. 2d 18, 21-22 [183 P.2d 368]
To Ascertain The Truth
A Judge Must Allow for Due Process
If the Defendant had of been allowed due process to be heard on June 9, 2007, she would have brought to the attention of the court that she was lawfully in court to have a void restraining order validated -- when she was unlawfully seized -- that restraining orders were provably already void for lack of due process -- and she could not be charged, or punished with violation 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 Investigator Twiss and Judge Bjork were guilty of recklessness, oppression, fraud on the court, elder abuse, denial of due process, and malice in the their actions against the Defendant.
A judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights. Sabariego v Maverick, 124 US 261, 31 L Ed 430, 8 S Ct 461, and, is not entitled to respect in any other tribunal. ( e.g. a future preliminary hearing where more charges were filed against the Defendant.)
“Even the most rudimentary of due process procedures gives the opportunity to be heard . . . to anyone directly affected by [an] official’s action.” ( Lockyer v. City & County of San Francisco (2004) 33 Cal.4th 1055, 1108. .
The limitations inherent in the requirements of due process and equal protection of the law extend to judicial as well as political branches of government, so that a judgment may not be rendered in violation of those constitutional limitations and guarantees. Hanson v Denckla, 357 US 235, 2 L Ed 2d 1283, 78 S Ct 1228.
Judge Bjork refused to hear what the Defendant had to say.
“Defendants who have been treated with unfairness, bias and the appearance of prejudice by this Court ,and the opposing counsel, leaves open the question of how an
uninterested, lay person, would question the partiality and neutrality of this Court.“…our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchinson, 349 U.S. 133, 136 (1955).
This court had a duty to ensure fairness. This Court failed, or refused to ensure that fairness. Marshall v. Jerrico, 100 S. Ct. 1610, 446 U.S. 238
“ Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 - Klugh v. U.S., 620 F.Supp., 892 (D.S.C. 1985). Where Due Process is denied, the case is void , Johnson v. Zerbst, 304 U.S. 458 S Ct.1019; Pure Oil Co. v. City of Northlake, 10 Ill. 2D 241, 245, 140 N.E. 2D 289 (1956) Hallberg v. Goldblatt Bros., 363 Ill. 25 (1936)
FRAUD ON THE COURT!
"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 [JUDGES ARE OFFICERS OF THE COURT)] so that the judicial machinery can not 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." THE JUDGMENT IS VOID!
CONSEQUENCES FOR A JUDGE NOT FOLLOWING THE LAW
"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]. Whenever a judge acts where he/she does not have jurisdiction to act, they are warring on the constitution, i.e., the judge is engaged in
an act or acts of treason. The U.S. Supreme Court, in Scheuer v. Rhodes, supra, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980 ); Cohens v. Virgina 19 U.S. (6 Wheat) 264 (1921. See: Cooper v. Aaron, 358 U.S. 1,78 S.Ct. (1401 1958. Therefore, without authority or jurisdiction, a judge loses absolute immunity and is subject to a law suit. (See: DEMAND LETTER, [Exhibit 2])
PROSECUTORIAL MISCONDUCT
There needed to be experienced counsel from both sides and given the opportunity to discuss with a judicial officer the just resolution of the Defendant’s case. The truth of these void orders then would have been brought to light. The orders against her were easily proven void, and she could have easily helped to prepare a defense to prove that. . Instead, she was denied that ability, and suffered infliction of punishment prior to conviction. 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 (order in excess of jurisdiction).
MOST of the false, perjured accusations brought against the Defendant by the District Attorney were never prosecuted – they could not make their case.
Too often a person is jailed without any true investigation, even though ALL attorneys are held to the duty of “due diligence” All attorneys are held to the duty of “due diligence” Butler v State Bar (1986) 42 Cal3rd 323 (329) -- Paul Oil Company v- Fed. Mutual Insurance (1998) 154 Fed 3rd 1049, “
DUE DILIGENCE and FRIVOLOUS CASES:
Rules of Professional Conduct - 3-200 Prohibitive Objectives -- 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
The Defendant was stigmatized simply by being charged, and then not being able to testify or defend herself in the kangaroo-court setting such as what happened with Judge
Bjork, then again at the Preliminary Hearing, and then again with Judge Douglas only added to the impression that her silence was an indicator of guilt. Presumption of innocence, and reasonable doubt were totally ignored in these court room settings. Interestingly, the court has held that it violates due process to use a defendant's silence against him, yet that is exactly what happens in this unjust process. Doyle v. Ohio, 426 U.S. 610 (1976)
AN UNETHICAL AND OVERZEALOUS DISTRICT ATTORNEY
Under Federal law, which is applicable to all states, the U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)
An unethical, overzealous District Attorney is the most powerful and dangerous person in the court room. S/he can make, break or ruin a person's life.
At the Preliminary Hearing, Deputy District Attorney Kristi Elise Belcher allowed her witnesses to provably commit Suborned Perjury. Attorney Belcher absolutely heard them over and over contradict their own police reports, and KNEW Jose Liceaga in particular was perjuring himself, as on the Cathedral City Police Report 0507-3482 recorded in this case, where his own witness, Roger Abernathy, confirmed Liceaga was lying. Of course she never called this witness, even though she had the police report documented in this case. This is fraud on the court. Deputy District Attorney Kristi Elise Belcher was sent a thirty page document, which is documented in this case, from The Cathedral City Police Department that “closed” the case against the Defendant. Attorney Beltcher suppressed that report, and never submitted it in Discovery to the Public Defender’s Office. This again is Fraud On The Court. Deputy District Attorney, Kristi Elise Belcher used legal process for fraudulent purposes such as attempting to enforce a judgment on a fictitious claim. 1 AM J2d Abuse PSS 9-12. However, “The role of the prosecutor differs significantly from that of others who practice law, including criminal defense lawyers: 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 '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' Berger v. United States (1935) 295 U.S. 78,88 (People v. Hill (1998) 17 Cal 4th 800, 8.
Prosecutors have a special obligation to promote justice and the ascertainment of truth. ... The duty of the district attorney is not merely that of an advocate. His duty is not to obtain convictions, but to fully and fairly present... the evidence..." People v. Kasim (1997) 56 Cal.App.4th 1360, 1378
The truth and evidence was there for the District Attorney to ascertain, but the District Attorney' was so anxious to win, at all costs, that they ignored the Defendant’s right to a fair trial, and never did the required investigation of the cases they were prosecuting her for. (SEE: Model Rule of Professional Conduct Rule 1.1, cmt. 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.”
There was never anything fair about the case the District Attorney was building against the Defendant. As an officer of the court, the prosecutor has a heavy responsibility to the court and to the defendant to conduct a fair trial. (United States v. Escalante (9th Cir. 1980) 637 F.2d 1197, 1203.) “The prosecutor's job isn't just to win, but to win fairly, staying well within the rules.” (United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1323). 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. 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; seeIn re Berry (1968) 68 Cal. 2d 137, 147; County of Ventura v. Tillett, 133 Cal. App. 3d 105, 110.
The Court Has A Responsibility
To Correct a Void Judgment
The statute of limitations does not apply to a suit in equity to vacate a void judgment. (Cadenasso v. Bank of Italy, p. 569; Estate of Pusey, 180 Cal. 368, 374 [181 P. 648].) This rule holds as to all void judgments. In the other two cases cited, People v. Massengale and In re Sandel, the courts confirmed the judicial power and responsibility to correct void judgments.
NO ONE CAN PLEAD GUILTY TO A CRIME
THAT IS NOT A CRIME
The Defendant did plead guilty after a year of incarceration, in solitary confinement, and a few weeks in Patton State Hospital, and, knowing she would not be adequately defended by her public defenders due “bad lawyering.” However, the Defendant had not committed any crime, and it was a legally impossible admission to be guilty of a crime she did not commit. “In this case we hold that since a trial court’s acceptance of a negotiated plea which patently includes a legally impossible admission it constitutes an act in excess of its jurisdiction.” People v. Soriano, 4 Cal. App 4th 781—1992. “ We cannot affirm a conviction and sentence imposed for a crime that does not exist…” (People v. Soriano (1992) 4 Cal. App. 4th 781,785 [ 6 Cal. Rptr. 2d 138])
“… where fundamental jurisdiction is lacking… it follows there is no crime, the court lacks fundamental subject matter jurisdiction. This conclusion is compelled not only by the statutes and cases interpreting those statues, 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.” People v. Vasilyan 174 Cal. App. 4th 443 – Cal Court of Appeals, 2nd Dist. Div. 8, 2009. See also, People v. Dlugas, one of the leading cases on legal impossibility, also known as People v. Jaffe Court of Appeals of New York, 185 N.Y. 497, 78 N.E. 169 (1906) The Defendant could not plead guilty to the already void judgments from the time of her unlawful seizure, June 9, 2007, or to any cases filed piggy-back on those void judgment. All were void, and one cannot violate a void order.
All proceedings founded on a void judgment are themselves regarded as void. A void judgment is regarded as a nullity, and the situation is the same as it would be if there was 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 SE 2d 227.
THEREFORE, no judgment could be filed against the Defendant, and all subsequent added judgments, including the sham, felony charges, filed by the Riverside County District Attorney on this case are void, and, THEREFORE, on this point alone the Criminal Case against the Defendant needs to be validated as void, and dismissed as such, with an Award of Damages.
Under Federal law, which is applicable to all states, the U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)
CONCLUSION
The Defendant is a Pro Per
It is held that a pro-se pleading requires less stringent reading than one drafted by a lawyer. Puckett v. Cox 456 F2d 233 (1972 Sixth Circuit USCA). And, Justice Blackin in Conley v. Gibson, 355 U.S. 41 at 48 (1957)
The Federal Rules rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the
purpose of pleading is to facilitate a proper decision on the merits. According to Rule 8(f) FRCP and the State Court rule which holds that all pleadings shall be construed to do substantial justice."
“…a pro se petition cannot be held to same standard as pleadings drafted by attorneys” SEE: Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Haines v. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Haines v. Kerner,404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v.Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)
“A court faced with a motion to dismiss, a pro se complaint must read the complaint’s allegations expansively,” Haines v. Kerner 404 U.S.519, 520-21, S. Ct. 594, 596, 60 L.Ed. 2d 652 (1972)
“Court has a special obligation to construe pro se litigant’s pleadings liberally” Polling v. Hovnanian Enterprises, 99 F. Supp. 2d 502, 506-07 (D.N.J. 2000).
“We hold pro se pleadings to a less stringent standard than pleadings drafted by attorneys and construe them liberally.” Tannenbaum v.United States, 148 F.3d 1262, 1263 (11th Cir. 1998)
The California Rules express a preference for resolution of every case on the merits, even if resolution requires excusing inadvertence by a pro se litigant that would otherwise result in a dismissal. The Judicial Counsel justifies this position based on the idea that "Judges are charged with ascertaining the truth, not just playing referee... A lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits.” (John Greacen, Greacen Associates LLC, "Ethical Issues for Judges in Handling Cases with Self-Represented Litigants" <http://www.courtinfo.ca.gov/programs/equalaccess/documents/selfrep07/Ethical/May_07_Ethical_Issues.ppt.>
It suggests the court should take whatever measures may be reasonable and necessary to insure a fair trial" and says "There is only one reported case in the U.S. finding a judge's specific accommodations have gone too far"
As a matter of law, because from the beginning The District Attorney’s Office, Judge Bjork, and then all judges, and defense attorneys, through “bad lawyering” and a lack of due diligence, makes this a frivolous case and a void on the face judgment, which has violated the Defendant’s right to a fair trial, caused her great harm, pain and suffering, and has left her in a state of Post Traumatic Stress Syndrome to this day, this case needs to be dismissed as void.
All that is required to determine the original void case, on which the District Attorney did unlawfully and falsely prosecute the Defendant, is to simply review the judgment roll record in Trylson v Stephens INC057008 Riverside County Superior Court, Indio CA ), and Robbins v. Stephens, INC 040482 Riverside County Superior Court, Indio, CA. as is required to determine a void judgment. People v. American Contractors Indemnity Co., (2004) 33 Cal.4th at p.661). It is that simple.
This void criminal case against the Defendant, must be dismissed on the record, her record expunged, and an Award for Damages in the minimum amount of $100 @ day, (about $40,500). The court is also asked to award the Defendant punitive damages of $500,00 dollars, for a false and malicious prosecution that caused her much harm, from which she still suffers, and, any other damages as the court sees fit.
Respectfully Submitted.
October ___, 2010 _______________________
Sharon Dale Stephens
