SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
PEOPLE OF THE STATE OF CALIFORNIA
v
SHARON STEPHENS
CASE NO: MWV903720
NOTICE OF MOTION, AND MOTION
TO RECUSE THE ENTIRE SAN
BERNARDINO COUNTY DISTRICT
ATTORNEY OFFICE; POINTS AND
AUTHORITIES; AFFIDAVIT, and
DECLARATION OF
SHARON STEPHENS
Date: October 13, 2009
Time: 8:30 a.m.
Dept: 20
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TO: THE DISTRICT ATTORNEY OF SAN BERNARDINO COUNTY, THE STATE ATTORNEY GENERAL, AND TO THE CLERK OF THE ABOVE-ENTITLED COURT:
NOTICE IS HEREBY GIVEN that Sharon Stephens defendant in the above-entitled action and hereinafter "Defendant" will on October 13, 2009 at 8:30 am, in Department Dept. 20 of the San Bernardino County Superior Courts, Rancho Cucamonga Branch located at 8303 North Haven Ave. in Rancho Cucamonga, California move the Court to recuse the San Bernardino Deputy District Attorneys, entirely, from prosecuting the Defendant's case herein.
The Defendant asserts that this motion is necessary because an apparent conflict of interest exist that would render it unlikely that the Defendant would receive a fair trial as set forth in Penal Code section 1424, and the cases that have applied this statute.
This motion is based on this notice of motion, the evidence attached to the motion, the court herein and such matters as may be presented at the hearing on this motion. Since this motion must be supported by an affidavit the Defendant has provided one, which is to be used for the purpose of supporting this motion.
October 1, 2009 Sharon Stephens ,pro per
BACKGROUND
The Defendant is a 69 year old disabled woman with a heart condition and sleep apnea, and was illegally evicted by Briarwood Manor/Logan Management through their Attorney, Linda Hollenbeck for complaining about unsafe living conditions, criminal behavior at Briarwood Manor, and, for writing a newsletter then revealing that one of their friends was not a doctor all of which are constitutionally protected activities. Consequently that Case # ACIAS 900001 is in the Appellant Court and due to be heard on calendar in November, 2009.
When the Appellant Court said it would be a severe hardship if the Defendant was to be evicted, before appeal, Logan Property Management and Attorney Hollenbeck went after her with a vengeance to the point of perjury, fraud and deception to the court, battery, tampering with the US Mail, and finally a provable conspiracy where they filedagainst her with bogus restraining orders, which allowed for false arrests even for constitutionally protected andlegitimate activity. (The District Attorney has a copy of the Conspiracy Report, and an Elder Abuse Report but refuses to act on them.)
FAQ: Restraining Orders are the most misused and abused court documents, often just handed out like candy canes on Christmas morning by judges who have no regard for the required statutory and case laws that regulate them, and how they can ruin a person's life. The Defendant is still fighting such void orders by her homeowners association in Riverside County, and, suing the judge for not following the law, and she is considering such legal action in this case against the judges involved.
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 jurisdiction for not following the law and the TRO and the Restraining Order he issued are void on the face.
However, on January 14, 2009 Judge Victor told Attorney Hollenbeck he "Did not think [Defendant's behavior] was sufficient to not give her notice of the hearing, i.e., She had NOT committed any violence and there was no "Credible threat of violence."
First and foremost, for there to be a valid order the plaintiffs had to meet the criteria and case law of CCP 527.8 which clearly states there must have been clear and convincing evidence of a threat of great bodily harm. No such threat was ever made by the Defendant to the plaintiffs Karen Brooks, and Cassandra Oseth, and in fact a quick perusal of Case CIVRS 900198 will show that both plaintiffs provided provably perjured declarations and documents, as did their Attorney Linda Hollenbeck, who deceived the court and signed declarations that she claimed were written by her clients.
FACTUAL BASIS FOR RECUSAL OF PROSECUTORIAL STAFF
OF THE SAN BERNARDINO COUNTY DISTRICT ATTORNEY
The Defendant submits the following facts to support her motion.
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 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 ALLrestraining 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.
Please take Judicial Notice: Motion to Dismiss June 19, 2009, and Addendum to Motion to Dismiss, September 24, 2009.
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.
It appears to the Defendant that the San Bernardino County District Attorney, and particularly Deputy District Attorneys HINSON, M. BURNETTE, and HILDALGO has given and continues to give preferential treatment to the politically powerful Logan Property Management [ Ameriland Group], and its agents thereby resulting in a conflict of interest which makes it unlikely that the Defendant can receive a fair trial.
POINTS AND AUTHORITIES
PLEASE TAKE JUDICIAL NOTICE: [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. 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 complaints 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)
Penal Code section I 424(a)(1) provides in part that the notice of motion to disqualify the district attorney shall contain a statement of the facts setting forth the grounds for the claimed disqualification, the legal authorities relied upon by the moving party, and be supported by affidavits of witnesses who are competent to testify to the facts set forth in the affidavits.
The standard for granting the motion is stated in Penal Code section 1424(a)( 1) as follows: "The motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial"
A conflict under section 1424 "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
Defendant has demonstrated that fair treatment by the office is unlikely. People v. Snow (2003) 30 Cal.4th 43, 86. The standard is "likelihood of unfairness."
In People v. Merrit, 19 Cal.App 4th 1573, 24 Cal Rptr 2d 177(1993), the court confirmed that the term "conflict" within the meaning of Penal Code section 1424 as "evidence of a reasonable possibility the district attorney's office may not be able to exercise its discretionary function in an evenhanded manner." the Merritt case also states that when it appears that misconduct has been committed by the district attorney, then the burden shifts to the district attorney to show that sanctions are not warranted because the defendant has not been prejudiced by the misconduct.
Although recusal of an entire prosecutorial office is a serious case, there is a showing that such a step is necessary to assure fair treatment of the Defendant. People v. Hamilton (1989)48 Ca.3d 1142 1156 259 Cal Rptr, 701
The California Supreme Court stated in People v. Superior Court (Greer) 19 Cal. 3d 255, 269 that a trial judge may exercise its power to disqualify a district attorney from participating in the prosecution of a criminal charge when the judge determines that the attorney suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform discretionary functions of his office.
Defendant believes that there is ample evidence in this case for the court to recuse the entire prosecutorial staff in light of the standards set forth above, and she believes that it is unlikely that she can receive a fair trial.
CONCLUSION
Deputy District Attorney HINSON suggested at our first meeting that the Defendant has no right to be considered a victim or to be given protection in this case? Deputies HILDALGO and BURNETTE have in their behavior, in and out of court reiterated this belief. And, the entire District Attorney's has turned a blind eye to Defendant's complaints regarding their misconduct.
In effect, The District Attorney is saying it is not relevant whether the People's witnesses are lying or have a motive to lie because they are involved in an appeal that will result in a lawsuit for a great deal of money, that also involves crimes of perjury, false arrest, conspiracy and more. This is a deliberate attempt to convict the Defendant without a fair trial and shows the length that the DA will go to in order to "win."
However, the Defendant and the public have a right to demand the highest ethical standards for its public servants, particularly those acting on our behalf in the legal system. Unfortunately, today's courts fall short of ensuring accountability for attorneys who commit ethics violations and ensuring public transparency of the process. Both areas are critical in maintaining integrity and public confidence in a self-regulating profession.
"Without any question, the legal system has become a tool for bullying in this country," said Philip Howard, chair of the legal reform group Common Good. "And if you're a lawyer, [Linda Hollenbeck] and you don't have to go out and spend money for another lawyer, [because the District Attorney is protecting you from prosecution] you can use it as a hammer."
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 willing to send the Defendant to jail, or prison for crimes she did not commit, based on evidence from police reports that is 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 the Defendant due process in a fair and impartial manner, refusing to 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 the Defendant to?
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.
America needs judges willing to say "NO!" to the lawyer bullies.
The system as a whole doesn't do what we count on it to do, which is to sort out the guilty people from the innocent people. It doesn't do that because the guilty people and the innocent people are ALL faced with the same pressure to plead guilty.
If the San Bernardino County District Attorney's Office is allowed to remain on this case it is likely that the Defendant will not get a fair trial.
October 1, 2009
Respectfully Submitted, Sharon Stephens ,
pro per
pro per
ADDENDUM
TO: THE DISTRICT ATTORNEY OF SAN BERNARDINO COUNTY, THE STATE ATTORNEY GENERAL, AND TO THE CLERK OF THE ABOVE-ENTITLED COURT:
NOTICE IS HEREBY GIVEN that Sharon Stephens defendant in the above-entitled action and hereinafter Defendant will on October 13, 2009 at 8:30 am, in Department Dept. 20 of the San Bernardino County Superior Courts, Rancho Cucamonga Branch located at 8303 North Haven Ave. in Rancho Cucamonga, California move the Court to recuse the San Bernardino Deputy District Attorneys, entirely, from prosecuting the Defendant's case herein, and present this Addendum to Motion.
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 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; no affidavits filed by the plaintiffs against the defendant, nor any police reports or violent behavior.
The court and the Office of the District Attorney have insisted that the restraining order was valid at the time of my arrests for allegedly violating the order, even though the Defendant showed Deputy District Attorney HINSON the law of void orders, as follows, he obviously ignored the law.
Quod initio vitiosum est non potest tractu temporis convaescere -- That which is void from the beginning cannot become valid by lapse of time.Black's Law Dictionary, 6th Ed., page 1253
Such void on the face judgments lack jurisdiction and can legally be ignored [by defendant] 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. [Citations.]" 7 Witkin, Cal. Procedure, Judgment,§ 286, p. 828.).
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.
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
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"
CONCLUSION
It is really not the Defendant's desire that anyone be incarcerated in this case; not anyone from the District Attorneys Office, nor her declared and obvious enemies in this case: Logan Property Management [Ameriland Group], Briarwood Management: Karen Brooks, and Cassandra Oseth; nor even the worst of them all, because she knows, or should know the law, Attorney, Linda Hollenbeck. [Though it is apparent she ought to lose her California State Bar License, and, the Defendant is filing a complaint against her next week, and believes the court needs to do its duty.] 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.
The Defendant spent a year of hellish [and recently 44 days] incarceration in solitary confinement in Riverside County Jail because of an unethical District Attorney, [She is seeking to recuse that office]; Inadequate Public Defenders [She will never rely on a public defender again!], and, Judges who ignored or did not know the law of void judgments [They lose their immunity when they don't follow the law, and, are open to a lawsuit]. She is still fighting that case. She expects to win, but all of this has taken its toll on her health, and financial standing. As a 69 year old woman in poor health she ought not to have to fight for justice because she stood up tocorporate bullies who retaliated on her with an illegal eviction and sham restraining orders when she did the right thing in her community in reporting unsafe living conditions and crime. [However, not even for my worst enemies do I wish to see them in jail or prison.]
FAQ: The United States has the highest documented incarceration rate, and total documented prison population in the world. "Every 1 out of 100 Americans are incarcerated. As of year-end 2007, a record 7.2 million people were behind bars, on probation or on parole. Of the total, 2.3 million were incarcerated." -- "New High In U.S. Prison Numbers". By, N.C. Aizenman. February 29, 2008. Washington Post. In 2005, the average cost of incarceration per prisoner in the United States was $23,876. That comes out to $65.41 per day. At least 10% of those incarcerated are believed to be innocent. Department of Justice statistics [1999].
Something in very wrong with the judicial system in America.
In this case the Defendant is looking for justice from the court, and, for the District Attorney's Office, and their agents to do their job of seeking justice.
October 7, 2009 Sharon Stephens, pro per
MORE LAW ON VOID JUDGMENTS
"The law is well-settled that a void order or judgment is void even before reversal" Valley v Northern Fire & Marine Ins. Co. 254 u.s. 348, 41 S. Ct. 116 ( 1920 )
"Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities ; they are not voidable, but simply void, and this even prior to reversal."Williamson v. Berry, 8 How 945, 540 12 L. Ed. 1170, 1189 ( 1850 ).
"Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but rather should dismiss the action." Melo v. U.S. 505 F 2d 1026
"There is no discretion to ignore lack of jurisdiction." Joyce v. U.S. 474 2D 215.
"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469 F 2d 416
"Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted."
Latana v. Hopper, 102 F. 2d 188; Chicago v. New York 37 F Supp. 150
DECLARATION
Defendant
SHARON STEPHENS
I Sharon Stephens the defendant in this case declares as follows:
1. I have personal knowledge of the facts stated herein, unless stated on information and belief, and if called upon to testify to those facts I could and would competently do so.
2. I am 69 years old, a heart patient having undergone open heart surgery, suffer from ongoing angina, sleep apnea for which I am suppose to sleep with a breathing machine at night, and Post Traumatic Stress and suffer from severe stress and anxiety for which I am under the care of a physician. I am sleeping in my car due to the void eviction and this void restraining order.
3. I am making this Motion to Dismiss the entire San Bernardino District Attorney Office based on prosecutorial misconduct against me as they refuse to do their job to make sure I will receive a fair trial, as stated in the motion. The judgment they seek is void for subject matter jurisdiction, fraud, lack of due process, lack of due diligence, and prosecutorial misconduct, and is based on a judgment that is void. CIVRS 900198, in which I was illegally arrested, and charged with crimes that did not exist.
4 I will not receive a fair and impartial trial with this District Attorney's Office, and, in the interest of justice they need to be recused from this case.
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE ABOVE IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE.
October, 7 2009
SHARON STEPHENS, pro per
