Letter to Superior Court Judges

Appellant's Petition For Rehearing

APPELLANT’S PETITION FOR REHEARING

            Appellant Gary Allen Johnson hereby petitions the Appellant Division for a rehearing of his case, pursuant to CRC Rule 8.889.

            This petition is supported by the Declaration of Ed Frey and Memorandum of Points and Authorities attached hereto, and all other papers on file herein.

Dated: April 1, 2013                                        

_________________________________

                                                                        Ed Frey, Attorney for Gary Allen Johnson

DECLARATION OF ED FREY

            I, Ed Frey, declare

            1. I am the attorney for appellant Gary Allen Johnson.  I appeared on his behalf at oral argument March 21, 2013.

            2. At the outset of the hearing only two judges appeared at the bench, the Hon. Ariadne Symons and the Hon. Paul Burdick. I immediately raised the issue of the three-judge requirement. Judge Symons, who assumed the role of presiding judge, rejected the contention. She stated that the law was clear that two judges were sufficient so long as they were both agreed to a particular resolution. Judge Symons said that was true here, that she and Judge Burdick had already agreed to a decision, and therefore the three-judge requirement does not apply. She then instructed me to move on to whatever other matters I wished to argue.

            3. I then asked Judge Symons to tell me what decision she and Judge Burdick had agreed upon. She told me that the court was unwilling to share that information until the conclusion of the hearing.

            4. Next I asked Judge Symons to tell me if there were any particular areas of concern the court wished me to focus my argument on, and she said the court was unwilling to do that. In my professional opinion, these latter two rulings made it more difficult than it otherwise would be to mount an effective oral argument.

            5. At the conclusion of the hearing, Judge Symons announced that the judgment below was affirmed. There had been no discussion or other interaction between the two judges during the entire course of the hearing.

            I declare the above to be true under penalty of perjury.

Executed this first day of April, 2013 at Soquel, California.

                                                                                    ______________________________

                                                                                    Ed Frey

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPELLANT’S PETITION FOR REHEARING

I. INTRODUCTION

            As indicated in the attached Frey declaration, Appellant’s hearing was conducted by only two judges of the Appellate Division, both of whom attended the hearing having decided beforehand in favor of affirming the judgment below.

            Appellant raised the issue of his right to a three-judge panel at the outset of the hearing. The rationale presented by the presiding judge for the participation of only two judges was that there was no need for a third judge because (1) the law requires that any decision be supported by at least two judges, and (2) the decision by the two attending judges, having already been taken, would not be changed even if a third judge were present and disagreed with that decision. Declaration of Ed Frey, paras. 2 and 3.

            That rationale appears to defeat the purpose of holding a hearing; if the necessary two votes are already committed to a particular result, there seems to be no point of conducting any further proceedings. If the response to that proposition is: “Well, you might be able to change one judge’s mind at the hearing”, then two questions arise. First, by what authority can the Appellant be deprived of the opportunity to address his arguments to three judges instead of two? Having at least one judge of an appellate panel persuaded of or leaning toward the merits of the appellant’s side renders the hearing and decision dynamics more susceptible than otherwise to a reversal. Having one judge of a three-judge panel leaning toward appellant’s side would make it more likely than otherwise that one (or both) of the other judges would question his/her earlier thinking, or even change his/her mind. A two-judge panel deprives the Appellant of even the possibility of a third judge who is inclined to favor the Appellant’s arguments.

            Secondly, if one member of a two-judge panel changes his/her mind at oral argument, the result is an evenly divided panel, thus requiring a second hearing. Does that process not waste judicial and party resources?

            As Appellant shows below, the law contains several statutes, rules of court and case authorities which, taken as a whole, define due process as applied to misdemeanor appeals, and justify the granting of rehearing before a three-judge panel.

II. LEGAL DISCUSSION: APPELLANT IS ENTITLED TO A REHEARING CONDUCTED BY A THREE-JUDGE APPELLATE PANEL

A. A Person Convicted Of A Misdemeanor Has A Right To Appeal To A Three-Judge Panel Of The Appellate Division Of The Superior Court

            A misdemeanor appeal, as provided under Penal Code Section 1466, is taken to the Appellate Division of the Superior Court. Id.; CRC Rules 8.850 ff. The statute creating appellate divisions provides that, as to each appeal, the presiding judge of the appellate division “shall designate the three judges who shall participate.” CCP Sec. 77(a) and (b). (Emphasis added.)

            There is no provision in the law which requires or permits participation (as opposed to decision) by only two judges of a Court of Appeal or the appellate division of the Superior Court. Indeed, in the Court of Appeal participation in the hearing by only two judges is, per se, grounds for granting a rehearing. Kelliher v. Kelliher (1950) 101 Cal.App.2d 226, 227.

            There is no authority for participation by only two judges in Superior Court appellate divisions, nor is there any rationale justifying any deviation from the requirement of three participating judges. On the contrary, all reasoning on the matter supports the right to a three-judge panel.

B. The Right To A Hearing Is A Crucial Element Of The Appeal

            The right to a hearing on appeal to the appellate division is established. CCP Sec. 77(b); CRC Rule 8.885.

            Oral argument on appeal is not a mere formality. The California Supreme Court states that “oral argument provides the only opportunity for a dialogue between the litigant and the bench.” Moles v. Regents of University of California (1982) 30 Cal.3d 867, 872. The court there goes on to quote various authorities approvingly:

• Oral argument “promotes understanding in ways that cannot be matched by written communication.” Id. at 872.
• Oral argument “provides a fluid and rapidly moving method of getting at essential issues.” Id. at 872.
• “Mistakes, errors, fallacies and flaws elude us in spite of ourselves unless the case is pounded and hammered at the bar.” Id. at 872.
• “No proof of the value of oral argument is more compelling, however, ‘than the fact that many judges find that the opportunity for a personal exchange with counsel makes a difference in result.’” Id. at 872. (Emphasis added.)
• “This aspect of oral argument – the chance to make a difference in result – is extremely valuable to litigants. If oral argument is to be more than an empty ritual, it must provide the litigants with an opportunity to persuade those who will actually decide an appeal.” Id. at 872.
• “The whole reason for there being more than one judge…is that the different perceptions, premises, logic, and values of three or more judges ensure a better judgment. In these differences and in the process of criticism, response, and resolution lies the virtue of the appellate process. The heart of collegiality is unremitting criticism.” Id. at 873.
• “Roscoe Pound once wrote ‘Good oral argument before a bench not too large is excellent insurance against one-judge decisions.’” Id. at 874.

C. Conducting The Hearing With Only Two Judges Robs The Appellate Process Of Both The Appearance And The Reality Of Fairness And Legitimacy

            When only two judges appear for oral argument and, as here, announce to the appellant that the two judges have agreed to a particular decision already, it is inescapable that the judges are less susceptible to persuasion by oral argument than they would otherwise be.

            In effect, the two appearing judges have made a pact between the two of them before the hearing even begins, whether that pact is stated or unstated, that they will at least hesitate to be persuaded by anything said at the hearing to change the pre-hearing decision they have already agreed to. The potential pain and embarrassment involved in undermining the pre-hearing decision would be substantial if one of the two judges is inclined to change his/her mind during or after the hearing, particularly if that change of mind results in a one-to-one split, thus requiring a new hearing.

            Each of the two judges is thus not without bias. Each is prejudiced more than would otherwise be true in favor of a particular decision because of the natural desire to avoid the possibility of offending a judicial peer, or requiring a further hearing with three judges instead of two.

            Canon 3-B (5) of the California Code of Judicial Ethics provides that “A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, engage in… conduct that would reasonably be perceived as …bias or prejudice…”

            An objective observer, hearing the presiding judge announce at the outset that three judges are not necessary because the two judges present have already agreed to a particular decision, would readily conclude that the oral argument will be of no consequence.

            All litigating parties are entitled to independent judges. As defined in the Terminology section of the Code of Judicial Ethics “ ‘Independence’ means a judge’s freedom from influence or controls other than those established by law.” (Emphasis added).

            Further, “‘Impartiality’ …means maintenance of an open mind in considering issues that may come before a judge.” (Emphasis added).

            Presumably that open mind must be sustained at least until the matter has been submitted. Under CRC Rule 8.886, in misdemeanor appeals “A cause is submitted when the court has heard oral argument…” unless the parties stipulate otherwise.  There is no such stipulation present here.

            Canon 3-B (7) states that “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, full right to be heard according to law.” (Emphasis added). Arriving at the hearing having made a prior commitment to a fellow judge to arrive at a particular result clearly deprives the appellant of a “full right to be heard”.

            Judges are specifically authorized to take certain decisions and issue certain orders in chambers. CCP sec. 166. Making an agreement with a fellow judge to arrive at a particular resolution of a matter prior to the hearing on that matter is not included on that list in CCP sec. 166.

III. CONCLUSION

There is no justification in law or reason for deviating from the holding in Kelliher supra p.5, that participation of only two judges in the appellate hearing, in and of itself, is grounds for granting a rehearing. The fact that the Kelliher hearing was in the court of appeal instead of in the appellate division of the superior court is a distinction without a difference.

            As the authorities cited above amply demonstrate, a two-judge hearing violates the Appellant’s right to due process of law. For all the reasons set out above, this court should grant a rehearing before a full three-judge panel.

Dated: April 1, 2013

Respectfully submitted,

                                                                        __________________________________

                                                                        Ed Frey, Attorney for Gary Allen Johnson

Appellate Closing Brief

I. THE DISTRICT ATTORNEY’S RESPONSE TO VAGUENESS CLAIM SUPPORTS

    APPELLANT’S CHALLENGE

            A. The District Attorney Erroneously Denies The Existence Of An As-Applied

                 Challenge

            Appellant seeks a holding that the “lodging statute is invalid, both on its face and as applied…” (Opening Brief, p. 20: emphasis added).

            Without offering any explanation, however, the District Attorney contends that there is no “as applied” challenge here.  (Resp. Brief, p. 5) First, that ignores appellant’s overbreadth argument supported by the decision in Snatchko v. Westfield (2010) 187 Cal.App.4^th 469 (Opening Brief, p. 9).

            In Tobe v. City of Santa Ana (1995) 9Cal 4^th 1069, 1083-1089, the court makes it clear that, as here, an as-applied challenge ripens once the facts of the particular case have been litigated.  In Tobe there had been no trial.  Here, a full trial was conducted, and all relevant facts are a matter of record. The case is thus ripe for decision on the as-applied challenge.        

           

            B. The District Attorney Fails To Explain The Stark Inconsistency Of The Trial

     Court’s Actions On Vagueness Issue

            Appellant pointed out that the trial court denied the appellant’s pretrial motion challenging the statute on its face based on vagueness of the term “lodging”, but later, over appellant’s objection, invented its own jury instruction definition of lodging as “sleeping”.  (Opening Brief, pp. 8-9).

            Although the court’s action can fairly be described as intellectually dishonest, logically inconsistent, grossly hypocritical, legally erroneous, transparently result-oriented and clearly prejudicial, the District Attorney offers no justification for this about-face, nor makes any reference to it at all.

            Citizens who are subject to arrest were apparently held to be intelligent and clearly on notice about what the statute prohibits, but the jurors were looked upon, correctly, as being unable to figure it out. The actions of the court and the arguments of the District Attorney are erroneous. In United States v. Resnick (1936) 299 U.S. 207, 210 the court states that “statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to extend to cases not covered by the words used.” Similarly, in People v. Anderson (1987) 43 Cal.3^rd 1104, 1146, the court states that the “statute must be realistically susceptible of two interpretations and the interpretation to be rejected must raise grave and doubtful constitutional issues.” In People v. Davis (1981) 29 Cal.3^rd 814, 829 the court states that “We must, in applying the provision, adopt an interpretation that, consistent with the statutory language and purpose, eliminates doubt as to the provision’s constitutionality.” Further, the defendant is entitled to the benefit of every reasonable doubt.  Id. at 828

           

            C. The District Attorney’s Case Authorities Support Appellant’s Challenge

            The District Attorney cites People v. Scott (1993) 20Cal.App.4^th Supp.5.  Any honest reading of that case shows that the only factor that saved the ordinance from a holding of vagueness was the definition contained in the ordinance itself; that definition provided the citizen and police officer with guidance as to the meaning of the term “camping”. The instant statute (Penal Code Sec. 647(e)) provides no such guidance.

            In Joyce v. City and County of San Francisco (1994) 846 F.Supp.843 the court rejected the vagueness claim on the ground that the police were guided not only by the anti-lodging statute but also by a very explicit supplemental guideline which made it clear that mere sleeping (the instant appellant’s only act) was not to be considered to be lodging.

            The District Attorney fails to respond at all to appellant’s contentions that, based on California Supreme Court definitions, lodging cannot occur unless the defendant is seen to be in occupancy of the property.  (Opening Brief, p.9-10). Mere overnight sleeping, with no trace of the defendant left in the morning, cannot meet the occupancy standard. The tourist industry in Santa Cruz will be unsettled by the trial court’s holding that mere sleeping (e.g., on the beach) is a criminal act.

II. THE DISTRICT ATTORNEY FAILS TO DEMONSTRATE THAT THE LODGING STATUTE SETS REASONABLE STANDARD AS TO TIME, PLACE AND MANNER

           

Appellant argued that the lodging statute as applied here prohibits demonstrative sleeping anywhere outside at any time of the day or night, anywhere in the entire state of California. (Opening Brief, p. 7). How can these restrictions upon a sleep-in demonstrator (or even a person who merely wants to fall asleep) be considered “reasonable” when they preclude such activity altogether? A demonstrator may not sleep anywhere outside at any time.  It is not tenable that such severely broad limitations are reasonable. They are patently unreasonable as to time, as to place, and as to manner.

The District Attorney fails to address the issue of reasonableness, except to argue (without the benefit of any evidence in support) that appellant’s activity interfered with the county’s need to maintain the grounds. (Resp. Brief, p. 4). There is no evidence that any maintenance employees worked in the middle of the night, and even if they did they would not have been hampered by appellant sleeping on a bench. The statute’s categorical prohibition, on its face and as applied, destroys the freedom to protest the sleeping ban in the obviously, demonstrative manner appellant employed.

Further, insofar as the District Attorney implies that the 7p.m.-7a.m. time limitation applied to appellant, that is invalid.  Those hours were what the “no trespassing” signs prohibited, but for reasons discussed in the Opening Brief, the appellant was not charged with trespassing.

III. FUNDAMENTAL RIGHTS CONTINUE TO BE IGNORED

            An objective observer could readily conclude that the lack of appellate court precedents on the right of homeless people to sleep outside suggests the existence of a judicial gentlemen’s agreement to suppress the issue. It is not mere speculation to say that at least hundreds of thousands of police roustings of homeless out-of-doors sleepers occur every year in California, and yet there is but one California Supreme Court case dealing with the issue. Tobe v. City of Santa Ana (1995) 9 Cal.4^th1069. That case involved one of the weakest claims conceivable on behalf of the homeless, procedurally as well as substantively.  The observer might readily conclude that what is happening here is judicial cherry picking in support of the status quo. Each branch of government, including the judicial system, appears to be captured by the forces of commerce and finance, for whom the mere sight of a homeless person is anathema. How else can one understand this on-going governmental deprivation of sleep? On paper everyone in California has all the broad and fundamental rights enumerated in Article I, Sec. 1 of the California Constitution, as well as the unenumerated rights “retained by the people” under the Ninth Amendment of the United States Constitution (and the California Constitution), and yet the courts continue (in silence) to treat homeless people like dirt. The District Attorney appears so confident as to the prevailing judicial attitude that he can peremptorily dismiss these constitutional statements of fundamental principles with one short paragraph, stating merely that “counsel has not identified” which protections apply here. (Resp. Brief, p. 12). The problem for the District Attorney is that he would be hard-pressed to name one of those protections that would not apply in protecting a person’s right to sleep.

            Furthermore, the District Attorney argues that there is no “right to sleep on public property…”. (Resp. Brief, p. 12). Here, ironically, the prosecutor appears to have fallen into a trap created by the Tobe court. When the homeless litigants in Tobe argue that the City of Santa Ana “may not deny homeless persons the right to live on public property anywhere in the city unless it provides alternative accommodations”, the court in a footnote clearly indicated that cities might get away with such cruelty, but the counties of California appear to be required to make such provisions, pursuant to Welfare and Institutions Code Sections 17000-17001.5. Id., 9 Cal.4^th at 1104 fn.18.

            Here we have a clear indication that, instead of spending public resources to send out peace officers in the middle of the night to breach the peace, the county is obligated to face up to the realities that Professor Waldron so eloquently points up (Opening Brief, p. 16) by setting aside a piece of county real property for people to get a night’s sleep. Appellant pointed out this statutory duty in the Opening Brief at page 19, but the District Attorney makes no response to it. Tobe’s reference to it seems to have been studiously ignored over the past eighteen years, consistent with the above-mentioned gentleman’s agreement.

IV. THE TWO-YEAR JAIL SENTENCE IS CRUEL AND/OR UNUSUAL PUNISHMENT

            The District Attorney presents four standards by which the question of cruel/unusual punishment issue can be determined. All four of these standards require a holding in appellant’s favor:

            (1) Punishment must not be degrading to human dignity;

            (2) It must not be a severe punishment that is inflicted in a wholly arbitrary fashion;

            (3) The punishment must not be so severe as to be clearly and totally rejected throughout society; and

            (4) The punishment must not be so severe that it is patently unnecessary.

            The fact that the two-year sentence was stayed after appellant had served 84 days does not mitigate the fact that appellant is unable to get a night’s sleep in this county or anywhere in the state of California without taking the chance that he will end up spending the full two years in jail.

            It is helpful to recall that the California Constitution requires only that the punishment be cruel or unusual.

V. CONCLUSION

            The judgment below, and particularly the way it was obtained through cynical manipulation of the jury and the statutory language, perpetuates the governmental tradition of rendering the mere status of poverty itself a crime.

            One day this oppressive corruption of the law will be lifted from the shoulders of society. Such reform, however, will require that the judicial system overcome the ethical blockage that now largely prevents the courts from processing and applying considerations of human decency in the treatment of the homeless. Until that time the courts can claim the greatest proportion of responsibility for injecting poison into the social atmosphere that wreaks the ongoing degradation under which we all suffer.

Dated: February 4, 2013

Respectfully submitted,

                                                                                    ______________________________

                                                                                    Ed Frey, Attorney for Appellant

                                                                                    Gary Allen Johnson

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