Opening Brief 6Th Dist (Word)

IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

APPELLANT’S OPENING BRIEF

8A Cal D 2d-576. Cal.App. 1977. It is the failure to have an appropriate adjudication of a defense that reduces trial to a farce or a sham, and which thus renders Petitioner's trial fundamentally unfair, in violation of constitutional due process rights guaranteed to Petitioner. U.S.C.A.Const. Amends. 6, 14. People v. Rodrigez, 141 Cal.Rptr. 118, 73 C.A.3d 1023.

Cal. 1979. A trial procedure in which the trier of fact can only find against the accused, even if only advisory, is a blatant violation of constitutional standards; all triers of fact must be free to find for or against the party appearing before them. West's Ann.Const. art. 1, Sec. 7(a); art. 6, Sec. 22; U.S.C.A.Const.Amend. 14. In re Perrone C., 603 P.2d 1300, 160 Cal.Rptr. 704, 26, C.3d 49. - 8A Cal D 2d-572

STATEMENT OF APPEALABILITY

This appeal from a final judgment of conviction that disposes of all the issues between the parties is authorized by Penal Code section 1237.

INDEX

EXECUTIVE SUMMARY STATEMENT OF FACTS

JUDICIAL NOTICE

TEN DAY JUDICIAL NOTICE & CONTRACT - TIME IS OF THE ESSENCE:

STATEMENT OF THE CASE

STATEMENT OF FACTS - CASE BACKGROUND

CASE TIMELINE

DEFENSE & PROSECUTIONS ARGUMENT

A. The Defense’s Case

B. The Prosecution’s Case

ARGUMENT

A. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Convicted Appellant When Irrefutable Evidence Proved Appellants Innocence:

B. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When No Evidence Was Put Forward Proving Any Of The Alleged Crimes.

C. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Disallowed Relevant Evidence:

D. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Refused To First Hear Appellants TRO Filed Before The Events Of This Case.

E. Court Erred In Disallowing Relevant Discovery Information On Officer Who Assaulted Appellant During The False Arrest.

F. Court Acted With Extreme Bias Allowing Hearsay And Irrelevant Evidence By Prosecutions Witnesses And Ignored Valid Objections By Defense. The Court Even Litigated For The Prosecution.

G. The Court And Prosecution Erred When They Failed To Correct And In Fact Conspired To Cover Up Perjury By State Witnesses.

H. Court Erred In Preventing Evidence Of State Witness Changing Testimony Between Preliminary Examination and Trial – Affecting Believability Of Witness And Outcome Of Trial.

I. Court Erred In Limiting And Striking Appellant’s Relevant Testimony Relating to 6 month anniversary 4 False Misdemeanors and the related false arrest in Mill Valley.

J. State Witness’ And Prosecution’s Fraud Voids Trial.

K. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Failed To Dismiss The Case For No Underlying Charge Or Probable Cause For The VC § 2800 Charge.

L. The Court Failed To Establish Subject Matter Jurisdiction.

M. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Created A Situation Where Appellant Was Forced Into An Unacceptable Compromise.

N. The Court Erred In Denying Defense Jury Instructions And Allowed Misleading Jury Instructions By Prosecution.

O. Ineffective Counsel.

P. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Dismissed One Juror For Cause And Refused To Dismiss A Second Juror For Cause, Irreparably Harming His Right To A Fair And Impartial Jury.

Q. The Trial Court Committed Error When It Denied Appellant’s Penal Code Section 1118.1 Motion To Reduce Count 2, Felony Vehicle Code Section 2800.2, To The Misdemeanor Vehicle Code Section 2800.1 Because The Evidence Was Insufficient To Support The Felony Charge.

R. The Trial Court Committed Error When Found Substantial Evidence Contradicted The Felony Evading An Officer Charge And Should Have Reduced The Charge To A Misdemeanor.

LEGAL AUTHORITIES

CONCLUSION

Note regarding structure and form of Opening Brief:

Appellant, in Propria Persona, Sui Juris, submits this Opening Brief under duress.

Instead of simply referencing the transcript, transcript has been inserted directly into the Opening Brief. While this makes the brief significantly longer in form, it makes reading the brief substantially more efficient and captures some essence of the sham trial and outrageously biased and out of control Court and Prosecution.

This case can be dismissed based on the simple fact that evidence denied in trial proves beyond any reasonable level of doubt that it is impossible for Appellant to be guilty of the charges, this evidence is summarized in EXECUTIVE SUMMARY STATEMENT OF FACTS Page 4. While only matters relating to the false charges and violations of legal standard by the Court and Prosecution need be addressed in this Opening Brief, as a consequence of the State Counsel incorporating libelous and false information from the Prosecution as Case Background, a reasonably comprehensive Case Background section titled “STATEMENT OF FACTS - CASE BACKGROUND” starting on Page 14 has been included to set the record straight.

Legal Authorities have been incorporated in a section titled as such (Page 154) and have not been included in each and every argument so as to prevent repeated duplication.

EXECUTIVE SUMMARY STATEMENT OF FACTS

This Santa Cruz Superior Court Case F 06858 is not complicated. Irrefutable evidence proves well beyond any reasonable doubt that it is impossible for Appellant to be guilty of the charges.

Brief Background: March 10, 2003, without probable cause, a Santa Cruz Deputy Sheriff shot at Appellant and his children. To cover up the extreme malpractice, false charges were filed against Appellant:Appellant was also ordered to not communicate with his children for three years; two felonies and nine misdemeanors, all false, were filed against Appellant who is an outstanding member of the local and international community without any criminal record; three times Appellant has been falsely arrested and imprisoned, twice without any right to bail.

In a blatantly sham trial in the Santa Cruz Superior Court, Appellant was found guilty of a VC § 2800.2(a) charge (Driving with a willful wanton disregard to the safety of public and property with the intent to evade). However, a police NETCOM recording of the event which the judge improperly refused to allow into evidence proves the duration of the alleged chase. When the duration is applied to the known distance, the speed of the alleged chase is proven at 27 mph and slower, making it impossible for Appellant to be guilty of the VC § 2800.2(a) chargeor any lesser charge or any of the other two dependant false charges Appellant was fraudulently found guilty of: “Child Endangerment!” and Resisting Arrest. Furthermore, there never was any probable cause or reason to chase Appellant in the first place and therefore no underlying charge to make the VC § 2800.2(a) charge valid in the first place.

The purpose of this case continues to be to maliciously prosecute Appellant so as to cover up crimes committed against Appellant and his children and to bankrupt Appellant.

JUDICIAL NOTICE

Appellant, submits this Opening Brief under extraordinary duress. The State having appointed Counsel to represent Appellant, and said Counsel having submitted an Opening Brief after the appointed Counsel refused to meet with or discuss the case or her Opening Brief with Appellant despite Appellant having specifically requested such on numerous occasions and having specifically instructed his Counsel to not file any Opening Brief without his preview and approval.

The Opening Brief the State Appointed Counsel filed in Appellant’s name, against Appellants express instruction, totally misstates important facts, ignores an abundance of critical errors by the Court and Prosecution, is completely misleading and has been written according to Appellants Counsel by the Prosecutionwhere Appellants Counsel obtained the false information.

For example, State Counsel ignores the glaring fact that critical evidence which proved Appellant innocent, the NETCOM report and the TRO Appellant filed just before the event, was repeatedly and specifically improperly prevented from coming into evidence by the Court and Prosecution – the NETCOM recording proved Appellant drove a slow speed and could not be guilty of a 2800 charge – The TRO proved that Appellant was the one following the law and had absolutely no reason to evade, eliminating the specific intent necessary for a VC § 2800 charge (While Appellant was doing the right thing going to put his children in their home out of harms way, the Sheriffs neither followed the law nor the most rudimentary ethical process, the sheriffs literally ambushed appellant and shot at appellant and his children, then again assaulted appellant when placing appellant under false arrest).

The State appointed Counsel states that Defense did not use one of all the available preemptory challenges on the juror, Mr. Fu, who said flat out that he would be biased towards the police yet the Court refused to dismiss Mr. Fu for cause, however Defense did use a preemptory challenge against Mr. Fu. State Counsel actually goes as far as sanitizing the State Witnesses testimony, not drawing light to the fact that the key State Witness was caught out with lying blatantly on the stand, which went uncorrected by both the Prosecution and the Court. The state witnesses testimony is so contradictory and convoluted that the Prosecutor uses this fact to try to claim that his key witness’ lie could not be a lie (RT P996 L5).

From a strategic analysis of the State Counsel’s Opening Brief, it would appear that there has been cooperation with Prosecution in an attempt to file an Opening Brief in which the Appellant is found guilty of something,thereby somehow justifying the false arrest in this caseor alternatively that the case be remanded for a retrial and thereby continue the malicious prosecution of Appellant. Clearly the State Counsel cooperated with the Santa Cruz Court and Prosecutions consistent delaying of this case. See the letter from the 6th District threatening to take the case from the State Counsel unless she file an opening brief.

This case is not complex and can be quickly and fairly adjudicated due to the irrefutable evidence erroneously excluded by the Court, the NETCOM recording which proves that it is impossible for Appellant to be guilty of the crimes and the TRO with removed specific intent. No such argument was made by the State appointed Counsel and the Court clearly erred in preventing such evidence from coming before the jury, let alone the fact that a Public Prosecutor, who is commissioned to act in the interests of justice, has a duty to bring such evidence forward.

As earlier stated and submitted before the Court, the Opening Brief submitted by the State appointed counsel does not represent Appellant and must be disregarded. From the submission of this Opening Brief by the Appellant, it should be blatantly obvious the extent of the ineffective representation by the State Appointed counsel.

May it also be Judicially Noted that Appellant has been attempting to enforce a lawful Court Order to pay off his wife on his homestead and thus allow Appellant to refinance and raise capital to hire competent counsel, however, the Santa Cruz Superior Court, in insolence to the Constitution of the United States and California and lawful orders, has been preventing such. The Santa Cruz Superior Court in fact went as far as sanctioning Appellant for simply seeking his lawful rights in this regard. Consequentially, Appellant has been prevented though unlawful actions by the Santa Cruz Superior Court, and as a consequence of the duress of ongoing malicious prosecution, from submitting this Opening Brief earlier. Appellant begs the courts patience in this regard and seeks the courts protection and expedient and fair adjudication in this matter.

Appellant would have made this Opening Brief shorter, however, Prosecution and the State Appointed Counsel injected so much unnecessary and false information that it is necessary for Appellant to set the record straight.

TEN DAY JUDICIAL NOTICE & CONTRACT - TIME IS OF THE ESSENCE:

Appellant, the Founder, Key Man, Chairman and CEO of a number of National and International corporations has been outrageously and shamefully denied any justice or due process in California’s Courts. The extremely malicious nature of the assault against Appellant has severely impacted Appellant and the corporations Appellant runs. Appellants name has even bee reported to California’s Central Child Abuse Index and Felons Index when Appellant is totally innocent. Some of the customers Appellant in the course of business has provided high level strategic advice to in the banking, business, communications and computer fields are: Sun Micro Systems; Microsoft; Motorola; Sequent Computer Systems; Teknekron Software Systems; Intuit; Boeing; Hitachi Data Systems;General Electric; StorageTek; Bank Of America; Lucent Technologies / Octel; Lockheed Missiles & Space; NCR; Open Software Foundation; US Defense Force U.S. Satellite Command Center in Colorado; TCI; Washington Legislative Commission; Intelsat; IDC; amongst many other banking and fortune 500 clients. The impact of this case and the unlawful actions of agents of the State of California against Appellant is extreme to say the least.

Under the highest laws of the land Appellant is entitled to speedy and fair trial. The California Courts and the Attorney General have totally failed again and again. The California Courts and the Attorney General have a duty to act fairly and expediently. By filing this Opening Brief California Attorney General and California Courts agree to dismiss this ridiculous case, reverse all the charges and exonerate Appellants good name within ten days of the filing of this Opening Brief, should this not occur within ten days as contracted, the State of California agrees to immediately pay out Appellant, Appellants Children and the Corporations Appellant runs for full damages as listed in Appellants Complaint filed in the San Jose United States District Court Case Number C05 00996 JF RS multiplied by at least three times for racketeering and at a rate of 12% interest per month for any delay in payment – this contract does not exclude any other remedies or claims. Time is of the essence. Californian authorities have no excuse to not immediately dismiss this case. Appellant has more than adequately proven his innocence.

STATEMENT OF THE CASE

On March 10, 2003, without a warrant and without probable cause, from a range of five to seven feet, on Appellant’s private estate, a Santa Cruz Deputy Sheriff shot at Appellant and Appellant’s children. Appellant and his children were returning home from court where Appellant filed a Temporary Restraining Order and Verified Criminal Complaint against his ex-wife in an attempt to stop his ex-wife continuing to make false police calls. The police recording and report indicates that Appellant’s ex-wife had made yet another police call laced with false information, such as her claim that Appellant was a former Elite Forces Militant, heavily armed, had just assaulted her boyfriend, was very dangerous and likely to harm both herself and his own children.

Appellant was in fact following the law and had no reason or any of the necessary intent to evade the police. The sheriffs however, neither followed the law or standard practice. The Sheriffs failed to obtain a warrant and ignored glaring evidence such as:

• The Sheriffs were aware that Appellant was returning home from the Courthouse – obviously Appellant must have been doing something with regard to the law if he was at the Courthouse – Appellant was in fact filing a TRO to prevent his ex-wife from continuing false police calls. Appellant showed the sheriffs the TRO after they shot at him and his children before Appellant was again assaulted by the sheriffs and placed under flase arrest.
• The Sheriffs were aware that Appellant’s ex-wife has a track record of making false police calls and that she was ordered out of the family home on July 12, 2002 for false calls she madeto CPS and 911 on July 2 and 9, 2002, respectively.
• The Sheriffs were aware that Appellant is an outstanding member of the community who followed the law and had no criminal record what so ever.
• Only five and a half hours after the children would have been in school the sheriffs literally shot at the father and children, before any formal custody depravation for the mother between 3:00 pm and 6:00 pm. Custody Orders which left open custody between 9:00 am and 3:00 pm, only placing ‘responsibility’ for the children who would normally be at school with the mother.
• The Sheriffs were aware that Appellants children were with Appellant in the car when they shot at Appellant and the children.
• Appellants ex-wife had a stolen million dollar life insurance policy on Appellants life and had threatened Appellants life as reported to the very Sheriffs office who responded to the call -Soquel Sheriffs’ Department Case# 02-06194.

Perhaps it was the tweed jacket Appellant was wearing on March 10, 2003, or Appellants nice family home that triggered the Sheriff Deputy to shoot at Appellant and his children – forgive the sarcasm. The same absurd ignorance and refusal to consider the most obvious facts by Santa CruzCounty officials can be found throughout Appellants trial transcript and the case in general. The abuse of Californian authorities against Appellant is extreme and outrageous.