sixth appellate district people of the state of california

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, ) Case No. H030980
Plaintiff and Respondent )
)
v. ) Santa Clara County
) Case No. CC461523
SALEE AMINA MOHAMMED, )
Defendant and Appellant )
APPELLANT’S OPENING BRIEF
ON APPEAL FROM THE SUPERIOR COURT OF
SANTA CLARA COUNTY
THE HONORABLE JOYCE ALLEGRO,
JUDGE PRESIDING
JILL A. FORDYCE, ESQ. (SBN 144517)
P.O. BOX 2058
Los Gatos, CA 95031
(408) 354-0737
in association with:
SIXTH DISTRICT APPELLATE PROGRAM
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241-6171
Attorneys for Appellant
Salee Amina Barnes-Mohammed
1

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, ) Case No. H030980
Plaintiff and Respondent )
)
v. ) Santa Clara County
) Case No. CC461523
SALEE AMINA MOHAMMED, )
Defendant and Appellant )
INTRODUCTION
Appellant Salee Amina Barnes-Mohammed was prosecuted for willfully
failing to appear at the Master Trial Calendar on an underlying perjury case while
released on her own recognizance (“O.R.”). She was prosecuted for failing to
appear even though the underlying perjury case had been dismissed in the interest
of justice prior to trial of that matter.
It must be noted at the outset that the interaction between the pro per
defendant and the trial court judge in this case was extremely hostile, contentious,
unusual, and ultimately, precluded a fair trial. From the first day of motions in
limine, there was a caustic, derogatory tone used by the trial court toward
appellant. This continued in front of the jury. The trial is rife with examples of
the trial court interfering on behalf of the prosecution, often making its own
objections when the prosecutor failed to do so. The appellant was called “rude,” a
“master” at playing games, and told she was acting like a “two-year old.” She was
2

told to be quiet more than fifty times. The trial transcript is quoted at length
herein due to the multiple instances of derogatory remarks made to the defendant
by the trial court and the interference by the trial court on behalf of the
prosecution.
When appellant requested a continuance due to a medical condition, the
trial court ordered her transported to a local hospital to be examined. When
appellant requested time to retain counsel, the trial court denied her request. After
threatening multiple times to physically gag appellant, the trial court put her in a
holding cell in the middle of her examination of a defense witness. The trial court
then appointed counsel to represent appellant.
When appointed counsel appeared on appellant’s behalf, she immediately
asked for more time to prepare for a trial that was already more than halfway
finished. The trial court refused to grant a continuance, expressing concern that it
would lose the jury.
The trial court also precluded a fair trial by virtually eliminating an entire
defense and by allowing the prosecution to introduce evidence relating to an L.A.
arrest. Appellant advanced two main defenses at trial. The first was that, to prove
a violation of Penal Code 1 section 1320, the prosecution had to introduce evidence
that appellant was out on O.R. Although a signed promise to appear is a
prerequisite to an O.R. release pursuant to section 1320, the prosecutor readily
admitted that there was none in this case. Based on this failure of proof, appellant
1 All references herein are to the Penal Code unless otherwise noted.
3

asked that the trial court dismiss the charges against her. The trial court refused
and, instead, concluded that the prosecution could prove that there was
“substantial compliance” with the requirements of the statute. The trial court then
allowed the prosecution to reopen its case to prove that there was “substantial
compliance” with the statute. After the defense rested, the trial court concluded
that there was “substantial compliance” as a matter of law and refused to let the
issue of whether or not appellant was out on O.R. to go to the jury.
The second defense advanced at trial was that appellant did not willfully
evade the process of the court. The only evidence that the prosecutor had as to
appellant’s intent, had to do with her failure to appear at a court date in L.A. (on a
case that was also dismissed). The prosecutor put on testimony from a bounty
hunter hired to apprehend appellant in Utah on the charges in L.A. This evidence,
coupled wit the trial court’s inappropriate commentary on it, left the jury with the
impression that appellant was “captured” and returned to Santa Clara County to
face trial. Appellant attempted to put on evidence that she failed to appear due to
a medical condition that required that she remain in L.A. for mandatory testing.
The trial court refused to allow this evidence to be admitted.
These factors combined, detailed in the legal arguments below, made it
impossible for appellant to receive a fair trial.
4

STATEMENT OF APPEALABILITY
This appeal is taken from a conviction in case number CC461523 pursuant
to a jury verdict entered on July 13, 2006. (1 CT 260). As such, it is appealable
pursuant to Penal Code section 1237.
STATEMENT OF THE CASE
On June 1, 2006, an amended information was filed, alleging that Salee
Amina Barnes-Mohammed, appellant herein, committed a felony, in that she
willfully failed to appear while released on O.R. in order to evade the process of
the court, in violation of Penal Code Section 1320(b), with an enhancement for
committing this offense after release on O.R. had been granted for commission on
a felony charge of perjury. (1 CT 182).
Appellant represented herself until June 9, 2006 (the ninth day of trial). (1
CT 213). On that day, the trial court concluded that appellant could no longer
represent herself, appointed Yoyi Franco to represent her, and continued the trial
until July 5, 2006, because several jurors could not be available until that date. (1
CT 213, 7 RT 1143). After discovering a conflict with Ms. Franco, the trial court
appointed Carleen Arlidge to represent appellant. (8 RT 1151). Arlidge appeared
at trial on appellant’s behalf on July 5, 2006. (8 RT 1151).
On July 13, 2006, after a fifteen-day jury trial, appellant was found guilty
of failing to appear and the enhancement allegation was found to be true. (1 CT
260, 10 RT 1584). On December 6, 2006, appellant was given a suspended
5

sentence of one year in jail with credit for time served and three years formal
probation. (10 RT 1619, 1623). Credits were granted to appellant in the amount
of 684 days. (10 RT 1264). Appellant received fines in excess of $2000.00. (10
RT 1624-1626). A Notice of Appeal was timely filed by appellant, in pro per, on
December 6, 2006. (2 CT 379).
STATEMENT OF FACTS
A. The Case Against Appellant
1. Failure to Appear in Santa Clara County
Appellant was scheduled on the Master Trial Calendar in Santa Clara
County Superior Court on a perjury case on December 22, 2003. (3 RT 441). On
that date, Frank Cole (“Cole”), appellant’s trial counsel on the perjury case,
appeared at the Master Trial Calendar and stated that he had “received a fax
Saturday that [appellant], due to medical reasons, is not able to be here.” (3 RT
443). The trial court revoked appellant’s release on O.R. and issued a no bail
warrant for her arrest. (3 RT 443).
2. Apprehension in Utah for a Separate Perjury Charge in L.A.
County
6

Sean Clark, a bail agent from American Surety Company, testified that his
company had posted bond for appellant on April 23, 2003 for her Los Angeles
arrest for perjury. (3 RT 453). Appellant gave bail collateral of title to an auto,
jewelry and cash. (Exhibits B, C, I). No payments were made between April and
November 2003, and Sean Clark received notice of appellant’s failure to appear on
November 10, 2003. (3 RT 453). Sean Clark testified that he had been in contact
with appellant’s guarantor, Vasco de Sena. (4 RT 635-36, 718). Bail was
forfeited on November 10, 2003. (4 RT 603). Sean Clark testified that if
appellant did not return to court, he would have had to pay the full $25,000. (4 RT
628). Bail was not reinstated because Sean Clark could not locate appellant. (4
RT 629). Appellant telephoned Sean Clark in February 2004, asking to get her
bond reinstated and to pay his fee. (3 RT 455-56). Clark refused to reinstate bail.
(4 RT 629).
In February 2004, Sean Clark hired Zeke Unger (“Unger”), a fugitive
recovery agent, to locate appellant so that he would not have to pay the full
amount of the bond. (3 RT 457, 459; 5 RT 865). Unger was an employee of the
World Executive Protection Group in the Fugitive Apprehension Division. (5 RT
863). His job was to apprehend people who have absconded on their bail,
commonly known as a “bounty hunter.” (5 RT 863). Unger had nothing to do
with the case against appellant in Santa Clara County. (5 RT 944). He was hired
because of the case in L.A. (5 RT 945).
7

Unger determined that appellant was out of custody, that a bench warrant
had issued, and that bail had been forfeited. (5 RT 867). Unger contacted
appellant via her website publicizing a speaking tour. (5 RT 875). He emailed
appellant, asking if she would be part of a television program and heard back from
her two days later. (5 RT 875). Unger had a female agent make contact by
telephone with appellant and traced the call to Spanish Fork, Utah. (5 RT 876-78).
He then had an agent from a satellite office place appellant under surveillance,
arrest her, and transport her to Las Vegas, where Unger took appellant into
custody. (5 RT 879-882). He handcuffed her and drove her directly to the L.A.
inmate reception center. (5 RT 883).
In July 2004, appellant leased a rental unit in Spanish Fork, Utah from
Chad Christensen (“Christensen”). (4 RT 749, 752). According to Christensen,
when appellant filled out her rental application, she identified herself as “Sally
Barns.” (4 RT 752-53, 755). Appellant signed a 12-month lease. (4 RT 762).
After appellant was apprehended, Christensen was advised that she had been taken
to California. (4 RT 763). She left her belongings in the apartment and
Christensen took possession of them. (4 RT 764).
B. The Defense Case
1. Appellant’s Argument That She Did Not Willfully Evade the
Process of the Court
8

Appellant, while in pro per, advanced as her primary defense that her
failure to appear was not willful, nor was it for the purpose of intentionally
evading the process of the court. Appellant provided evidence of the following:
that she was very ill in December 2003; that she had a legitimate medical excuse
that had been communicated to her defense counsel in advance; and that she had
previously cooperated with the court, as demonstrated by her consistent court
appearances both before and after her period of medical incapacity. (9 RT 1346,
1353-54).
Mertze Dahlin (“Dahlin”), a friend of appellant for approximately 15 years,
testified that appellant is a truthful person and that he had witnessed her health
deteriorate. (6 RT 972-73, 981). Appellant was wheelchair-bound and Dahlin
observed that her muscles were “like jello.” (6 RT 981-82). He had accompanied
appellant to court approximately twelve times and believed that appellant always
wanted to make her appearances. (6 RT 990). Dahlin testified that appellant is a
person who keeps her word and that she is very honest. (6 RT 974, 979). When
asked if, after years of knowing her, he believed that appellant would run away or
avoid facing things or break her promise, he replied that he had never seen
appellant behave this way. (7 RT 989-91).
Jeremy Rainey (“Rainey”), a friend of appellant since 2002, testified that
appellant had been in good health until late fall 2003. (6 RT 1015). At that time,
9

she could barely move. (6 RT 1015). Rainey observed her disoriented, falling,
having trouble getting up, stuttering, suffering from memory loss, and requiring
the use of a wheelchair. (6 RT 1016). She was on “a lot of medication.” (6 RT
1016). Her condition worsened and, in December 2003, she was bedridden and
Rainey stated that he thought she might die. (6 RT 1017). Rainey took appellant
to the hospital around Christmastime 2003. (6 RT 1017). Appellant did not want
to go. (6 RT 1018). Appellant’s condition was worse through the spring; then she
started to improve and by summer, she was out of her wheelchair. (6 RT 1020-
21). According to Rainey, appellant often stated to him that she did not want to
miss her court dates and he never observed her to be uncooperative with the court.
(6 RT 1024, 1026).
Sam Radi testified that he was the resident manager at the Beverly Hills
Reeves Hotel and that appellant was a tenant there. (8 RT 1195). He observed
appellant having health issues and difficulty walking. (8 RT 1196). He testified
that during the period following her missed court date, he observed her condition
continue to worsen. (8 RT 1196, 1202). He testified that she lived at the same
hotel in Beverly Hills presently, as well as from January-March 2004. (8 RT
1195). He testified that she uses a wheelchair and that he observed her recently
starting to improve. (8 RT 1203).
Reverend David Clark is an ordained minister who had known appellant for
approximately 12 years. (7 RT 1105, 1107). Appellant asked him to protect her
10

family members and property in Utah so she could go to L.A. for court. (7 RT
1113). He testified that appellant had a minor son and a disabled son. (7 RT
1113). Reverend Clark testified that he tried to make the agreed-upon
arrangements, but repeatedly was let down by people who he expected to care for
appellant’s family and property. (9 RT 1443). Finally, in June or July, after
multiple people turned him down, he told appellant that he would move to Utah to
care of her younger son until her older son could arrive. (9 RT 1443). Reverend
Clark never made it to Utah because appellant was apprehended before he could
get there, and appellant’s son was taken by social services and placed in foster
care. (9 RT 1445-46).
Elizabeth Mohler, a clinical social worker at the Didi Hirsch Community
Health Center, testified that she met appellant in October 2003 and had recurrent
appointments with her through November 25, 2003. (8 RT 1284). Ms. Mohler
testified that appellant was known to her by both Salee Mohammed and Sally
Barns. (8 RT 1284).
2. Appellant’s Argument That Her O.R. Release Did Not
Comply With Section 1320
When attorney Arlidge took over as appellant’s trial counsel, she
immediately asked the court to dismiss the case against appellant, based on the
fact that the prosecution had failed to prove each element of section 1320, which
11

sets forth the requirements for O.R. release. Specifically, she argued that there
was no proof that appellant ever signed a written promise to appear.
Frank Cole, who represented appellant in the underlying perjury case in
Santa Clara County, testified that neither the court, nor the prosecutor asked him
to have appellant sign any sort of written promise to appear. (9 RT 1329-30,
1343). It was his understanding that appellant was just released without bail. (9
RT 1330). Frank Berry, the prosecutor in this case, was also the prosecutor on the
underlying case, and he did not ask the court to have appellant sign a written
promise to appear. (9 RT 1330). Appellant was not present at a mandatory trial
setting conference on July 23, 2003 and no action was taken with regard to her
nonappearance. (9 RT 1335). No bench warrant was issued and the minute order
indicated the matter was set for trial July 3 with Judge Murphy. (9 RT 1336).
After meeting with counsel and Judge Murphy in chambers on July 3, Cole
advised appellant that he thought the case would be dismissed. (9 RT 1339-40).
Cole did not advise appellant that if she failed to attend court on December 22,
2003, she could be charged with a crime. (9 RT 1342). A readiness calendar was
held on December 19, 2003. (9 RT 1343-44). Typically, Stephen Avilla,
executive director of the Legal Aid Conflict Program, would tell appointed
counsel whether they were going out to trial the following Monday. (9 RT 1344).
Cole was not told whether he was going to trial on December 22, 2003 and he did
12

not tell appellant that she was going to trial on December 22, 2003. (9 RT 1344,
1371).
On December 22, 2003, Cole received a fax from appellant that said she
had an appointment with Dr. Rosabel Young of California Neuromedical Services
on December 22, 2003. (9 RT 1346). Appellant told Cole that she was concerned
that she had no one to watch her son if she were incarcerated. (9 RT 1352). When
appellant failed to appear on December 22, 2003, a bench warrant issued. (9 RT
1355-56). The court took no action when appellant was not present at previous
court dates – only for the appearance on December 22, 2003. (9 RT 1357).
Appellant was present at approximately fourteen court dates in the
underlying perjury action from April 2002 to July 2003. (9 RT 1353-54). The
November 16, 2005 order says that appellant was released without bail. (9 RT
1356). There was no signature or indication that appellant signed a promise to
appear. (9 RT 1356). Appellant appeared in court on November 30, 2005 and
December 5, 2005. (9 RT 1356). The underlying case was dismissed on
December 12, 2005. (Augmented Exhibit 5). Therefore, no further appearances
were required of appellant on the underlying charge after December 5, 2005. (9
RT 1357). No documents indicated that appellant signed a written promise to
appear or was advised that a failure to appear would result in the filing of a
criminal charge. (9 RT 1355).
13

Cole testified that appellant was very persistent in wanting to take care of
the underlying case. (9 RT 1404). She faxed, called, and emailed regularly and
was the only client Cole ever had who failed to appear and then consistently kept
calling him. (9 RT 1404, 1407). He reiterated that a promise to appear was not
signed in the underlying case. (9 RT 1420). Cole testified that, often, defendants
do not show without a waiver and the court and counsel “turn a blind eye” to the
fact that defendant is not present, and that appellant is aware of this fact. (9 RT
1421).
Cole testified that there are two types of O.R. in Santa Clara County. (9 RT
1375). For the first type, a defendant signs a promise to appear; for the second
type, a defendant is required to report to pretrial services regularly. (9 RT 1375).
Appellant was released on O.R. on November 3, 2005 in the present case (not the
underlying perjury case) and signed a promise to appear. (9 RT 1386).
C. The Prosecution Re-Open
Subsequent to appellant’s motion to dismiss because the People failed to
prove each element of section 1320, and over appellant’s objection, the trial court
allowed the prosecutor to reopen his case to provide testimony of “substantial
compliance” with the requirements of that section. The prosecutor called Stephen
Avilla, the same attorney who appointed both Cole in the underlying case and
Arlidge in this case, to testify as an expert in practices and procedures locally and
responsibilities of defense counsel. (8 RT 1250, 1253). His testimony was over
14

the objection of appellant, who objected on the basis of conflict, as well as due to
his lack of qualification on the subject. (8 RT 1247-48).
Avilla testified that, if a defendant’s status of release is changed from
release on bail to release on O.R., the attorney would be required to make sure that
the client understood that they still had to follow up with the responsibility being
imposed, including following an order to appear. (8 RT 1253-54). He testified
that the statutory scheme requires a written promise by defendant and defendant is
required to be advised of five specific points pursuant to Penal Code section 1318.
(8 RT 1255). He further stated that, if a defendant is released on O.R., it is
typically noted on the minute order. (8 RT 1258).
D. Stricken Testimony of Mark Arnold
Appellant offered expert testimony on the subject of O.R. release from
Mark Arnold (“Arnold”), a criminal defense attorney in San Jose for over 25 years
and a criminal law specialist for 15 years. (9 RT 1425).
Arnold testified that, for “strict O.R. release,” there are specific
requirements that need to be set forth in the agreement pursuant to section 1318.
(9 RT 1427). Those are: (1) the defendant signs a statement promising to appear;
(2) the statement is signed before a magistrate; (3) within the statement, there is a
promise to obey all reasonable conditions of release and a promise not to leave the
state unless specifically authorized by a magistrate or judge; (4) the defendant
agrees that if he fails to appear and is apprehended in another state, he will waive
15

extradition and be immediately transported back to California; (5) an
acknowledgement that specific penalties and consequences for failure to appear
were explained to the defendant. (9 RT 1428). The agreement must be in writing
and be signed. (9 RT 1428). The Penal Code and case law define O.R. release as
having to be a document in writing containing all the elements of section 1318. (9
RT 1428).
Arnold testified that, in Santa Clara County, there is very rarely strict O.R.
because the form used does not specify the requirements of section 1318. (9 RT
1429). Sometimes, but very rarely, someone is ordered to be released on their
own recognizance without a written promise to appear. (9 RT 1429). More often,
it is a form signed in open court. (9 RT 1429). Usually, the bottom of the minute
order contains a defendant’s promise to appear and refers to conditions, which are
contained on the back of the same form. (9 RT 1429).
Exhibit 25 is captioned a “Written Agreement to Appear,” but does not
contain the requirements of section 1318. (9 RT 1429). Arnold testified that, if a
defendant is just ordered back without a written promise to appear, it is not an
O.R. release. (9 RT 1430).
On December 22, 2003, when appellant failed to appear at trial, the court
stated: “O.R. release is revoked. A no bail warrant shall issue for her arrest.” (9
RT 1435, Exhibit 5). Arnold testified that, when appellant was released on her
own recognizance by Judge Murphy, without having to sign the document that
16

contains the specific language of section 1318, “you can call it whatever you want,
but it’s not an own recognizance release.” (9 RT 1436).
At the conclusion of evidence in the case, the trial court concluded that
whether the terms of section 1318 were substantially complied with and whether
an unenforceable contract existed was a question of law. (9 RT 2464). The trial
court, therefore, struck the testimony of Mark Arnold in its entirety. (9 RT 2464-
65).
ARGUMENT
I. THE TRIAL COURT COMMITTED JUDICIAL MISCONDUCT IN
VIOLATION OF APPELLANT’S FOURTEENTH AMENDMENT
RIGHT TO DUE PROCESS AND SIXTH AMENDMENT RIGHT TO
COUNSEL BY CREATING AN ATMOSPHERE OF PERVASIVE
UNFAIRNESS
A. Procedural Background
Prior to and during the course of this trial, the trial court committed
prejudicial misconduct by the following actions:
(1) Making caustic, derogatory remarks to the pro per defendant, telling her
to “be quiet” more than fifty times, cutting off her opening statement and nearly
every examination of a witness, threatening to gag her multiple times, questioning
her credibility, accusing her of “playing games” and behaving like a “two-year
17

old”, calling her “rude”, ordering her removed to a hospital for an exam, and
finally, removing her to a holding cell;
(2) Repeatedly interfering and intervening on behalf of the prosecution,
including making its own objections when the prosecution failed to do so, inviting
the prosecution to reopen to prove an element of the crime charged without the
request of the prosecution, setting forth a legal theory invented by the trial court
and not advanced by the prosecution to allow the element to be proven, and
procuring its own evidence;
(3) Allowing the prosecution to use Stephen Avilla to testify as an expert
witness for the prosecution even though the jury was aware of his role in
the defense.
Derogatory Remarks to Defendant
During the course of trial, and even prior to trial, the judge expressed great
frustration with appellant’s demeanor in the courtroom. The transcript is filled
with negative remarks, derogatory tone, and a failure to maintain impartiality. The
following are examples throughout the trial. During motions in limine, the trial
court (for the first time) threatened to place appellant in a holding cell. The
following exchange occurred:
“Ms. Mohammed: Your Honor, may I pose a request to the court that I be
allowed time to provide the information which I have prepared but (sic) not with
me today that will counter the lies that are in that discovery material?
18

The Court: You are going to have to stop making statements like “lies”.
I’m not going to allow that, ma’am. I’m not going to allow that at all –
Ms. Mohammed: Your Honor nearly everything I say is a prevarication
and I’d like to corroborate, Your Honor –
The Court: You’re not going to call names in this courtroom.
Ms. Mohammed: Well, Your Honor, ma’am, with all due respect –
The Court: Ms. Mohammed, I’m going to have you taken – held in the
holding cell if you can’t behave yourself. You don’t talk when I’m talking.” (1
RT 67-68).
When appellant asked for a read-back of certain testimony, the following
exchange occurred:
The Court: Okay. Please understand that it is not the court reporter’s job to
continually read back answers so that an attorney or party can then formulate a
question. You –
Ms. Mohammed: I understand –
The Court:
You are really incredibly rude, and I won’t stand for it.
Ms. Mohammed: I certainly do not wish to be rude in any way your Honor.
The Court: Then you need to not talk all the time. You cut everybody off,
and it’s not only rude, it’s very unprofessional, and you’re being held to
professional standards here.” (1 RT 134).
19

Again, prior to trial even beginning, during discussion of a discovery
dispute, the judge voiced her frustration with appellant after she accused the
district attorney of being fraudulent.
“Ms. Mohammed: And I do apologize. I know I’m an absolute wreck, and
I would dare anybody to go through the five and a half years I have without that.
The Court: Will you please stop that. I am not going to allow you to
conduct yourself like this. You do not get to make a speech every time you want
to make a point, and you certainly don’t get to talk about the five and a half years
that you’ve been persecuted every time you want to make a point. It’s not going
to happen. It’s not going to happen in front of me, and it’s not going to happen in
front of a jury.” (1 RT 155).
Just prior to the end of the first day of in limine motions, the following
exchange occurred:
The Court: Ms. Mohammed, you are talking about things that have
absolutely no relevance to this trial.
Ms. Mohammed: The prosecutor said it. He said it. He’s bringing it in in
this trial. Those were his responses to your direct question, what he intends to
bring in this trial, and I want to prepare to respond to what –
The Court: Ms. Mohammed, you’re interrupting me again.
Ms. Mohammed: You weren’t speaking, your Honor.
20

The Court: Well, I have to breathe sometime.
Ms. Mohammed: I’m sorry if I interrupted your breathing, Your Honor. I
didn’t mean to.
The Court: Well, I wish I could believe that. Unfortunately, based upon
your behavior today, and it’s now five minutes after four, and we’ve been going
since approximately nine o-clock this morning with an hour and a half for lunch, I
don’t find that very credible. You have consistently interrupted me and it is
inappropriate. Whether you like what I’m saying or not, it’s inappropriate. I give
you an opportunity to speak. I have let you say way more than I need to, and it is
important for me that there be justice in this court, whether you believe it or not –
Ms. Mohammed: Thank you.
The Court: -- and it is also important for me to make a proper record,
which I am going to do. Now –
Ms. Mohammed: Thank you, your honor. In order to contribute –
The Court: Excuse me.
Ms. Mohammed: I’m sorry, ma’am. I had no idea that you were going to
say something else.
The Court: That’s simply not a credible statement. I am going to say
something else, so please just hold your tongue until I have a chance. All right?”
(1 RT 163-64).
21

After a heated discussion as to whether or not appellant would be granted a
medical continuance and whether, in fact, she required the use of a wheelchair, the
following exchange occurred:
“Ms. Mohammed: So I’m begging the Court’s indulgence and mercy, and
I realize I’ve been a bumbling fool in not being fully prepared for anything that
might happen today. I was actually praying and hoping for fairness and justice
and compassion. I was tricked, I believe, in today will only be a motion hearing.
Don’t worry; it’s not going to go to trial.
I beg you do not believe me. Just put that man Mertze Dahlin on the stand
and ask him what he has heard this prosecutor say so many different times. This
has been – you talk about me playing games? Oh, please.
The Court: Oh, yes, and indeed you are a master.
Ms. Mohammed: I need a 170.6 motion, ma’am.
The Court: Untimely.
Ms. Mohammed: I’m sorry, ma’am. With the comment like that, it’s very
obvious you are biased against me in this case, and I want another judge. I stand
firmly on my constitutional rights are being violated with you as a judge.
The Court: It is untimely and denied.” (1 RT 169-70)
22

Appellant again reiterated her 170.6 2 motion and the trial court again
denied it. (1 RT 173). A few moments later, the judge told defendant: “Just don’t
open your mouth until I tell you it’s your turn.” (1 RT 176).
On June 2, still before a jury had even been selected, after defendant
advised the court that she could not attend trial the next day because she had to be
in the hospital, the trial court stated that she wanted to speak to the doctor to verify
this fact. (2 RT 253). The following exchange then occurred:
“Ms. Mohammed: I served this on you yesterday in open court.
Mr. Berry: Oh, all right.
Ms. Mohammed: And, Your Honor --
The Court: No; please. It’s not your turn. You know, you’re making me
feel like a mother with a two-year old. What is the matter with you?
Ms. Mohammed: May I resubmit this 170.6 motion?
The Court: No, it’s not timely.” (2 RT 253).
Defendant continued to argue that the motion was timely because she made
it the first day she was assigned to Judge Allegro’s courtroom. The court then
again advised defendant: “You do not get to do it. That is it. Your motion is
denied. It is untimely.” (2 RT 263). The following exchange then occurred:
“Ms. Mohammed: I asked it yesterday in open court and you denied it.
2 On July 10, 2006, appellant filed a Petition for Writ of Mandate in this court on the basis of the denial of
her multiple requests for recusal pursuant to 170.6. The Petition was denied. (Case Number H030377).
23

The Court: You have to do it on master trial.
Ms. Mohammed: You’re intending for me to be run off, railroaded to a
kangaroo court –
The Court: I am not going to listen to this.
Ms. Mohammed: -- before now—
The Court: I am not going to listen to this.
Ms. Mohammed: -- which is Wednesdays –
The Court: Do you want to be gagged?
Ms. Mohammed: Well, you’ve already done that.
The Court: Do you want to be physically gagged? I can do that if I have to
and I will if I have to. You’re trying to make a circus out of this courtroom, and it
is not a circus. You don’t have any – you do not appear to have respect for this
Court -- ” (2 RT 263-64).
Later that same day, defendant had gone on at length with regard to various
character witnesses she wanted to call. The trial court advised her that it would be
cumulative and that she should look up Evidence Code section 352. The
following exchange then occurred:
“Ms. Mohammed: Can’t do that, Your Honor, because I have that home.
24

The Court: --failure to comply or argue about that – are you ever going to
let me finish talking without interrupting me, ma’am?
Ms. Mohammed: I thought you were finished, ma’am. I thought you were
finished, your Honor.
The Court: Because I stopped to breathe?
Ms. Mohammed: I just wanted to ask permission.
The Court: No.
Ms. Mohammed: I’m sorry.
The Court: My turn. I can’t believe this, Ms. Mohammed. You are so
rude.” (2 RT 335).
A few moments later, the court made the following statement: “I want the
record to reflect that Ms. Mohammed has continually interrupted me and Mr.
Berry throughout the proceedings today and yesterday, in spite of the fact that I
have old her numerous times that she is not to do that. It is clear that Ms.
Mohammed thinks she is going to run this courtroom, and you’re not. I have to
tell you that you’re not and this kind of behavior is not going to be tolerated during
the trial, and its not going to be tolerated now, and I just – I have never, frankly,
been confronted with somebody as argumentative and rude as you have been in
these past two days, and I can assure you that kind of behavior is not going to go
over well with the jury.” (2 RT 336).
25

Later that day, the court reconvened after lunch, preparing to call in
potential jurors. Defendant was in the restroom when court reconvened, and when
she appeared, the court advised her of the following: “This is your last chance.
You will be here and ready to go at the time I state and by ready to go, I mean
your papers are all laid out. You spent at least ten minutes while I was talking to
the jury this morning rustling around with papers. That was very rude. It was
very distracting to the jury. You will be ready to go, and if you are not ready to
go, then I’m going to put you in custody because then you will be here and on
time. We are not going to delay this trial any longer. I will give you time to go to
the restroom and come straight back, and then we are going to start.” (3 RT 361).
After voir dire began, the trial court went to recess to admonish defendant
not to argue her case during voir dire. (3 RT 365-66). Defendant requested that
the actual Penal Code be read, as opposed to just the Information. The court then
stated: “Ms. Mohammed, you are way out of line. Don’t try to tell me what the
law is, because I’m way ahead of you on that. The Information is the statement of
the charges. It is a proper statement of the charges against you. The Penal Code is
not the statement of the charges.” (3 RT 367). The court then advised defendant
that she will give instructions on the law at the conclusion of the case and the
following exchange occurred:
“Ms. Mohammed: So they could have a complete misunderstanding going
into the case? That’s what I’m trying to avoid. He made them --
26

The Court: I’m going to have you gagged; I swear I am. You have to stop
talking at some point and listen. I told you I would pre-instruct the jury about the
elements of the charge. I’ve already said that.” (3 RT 368).
When the jury returned to the courtroom, the People passed for cause.
Defendant stated that she failed to accurately fill out her chart and asked if there
was “a chance we could run through the names and numbers of the people so I
know who I’m talking about.” (3 RT 371). In the presence of the proposed jurors,
the court responded as follows: “I noticed that you were not bothering to fill out
the chart as the people were taking their seats, and so that’s why you don’t have
them there.” (3 RT 371).
As appellant gave her opening statement, the trial court interrupted her
approximately seven times, before dismissing the jury for five minutes to
admonish appellant. (3 RT 415-431). The following is the context of comments
that occurred in front of the jury:
“Ms. Mohammed: …. Do you remember when the judge said that the
defendant doesn’t have to put on witnesses, exhibits, etc.? Well, what you may
not know is that the judge can rule that none of her exhibits are allowed, that none
of her witnesses are allowed.
The Court: All right. This is improper.
Ms. Mohammed: I’m educating them as to what is possible –
27

The Court: You will stick to –
Ms. Mohammed: -- and it’s pertinent.
The Court: -- an appropriate opening statement. We have already
discussed this.
Ms. Mohammed: Your Honor, it’s pertinent to what the prosecutor said.
The Court: No, Ms. Mohammed, it is not. You will stick to the directions I
gave you. It is not a concern of this jury what legal rulings I might have made at
any point.
Ms. Mohammed: Okay. What I want you to keep in mind vitally, vitally,
vitally, vitally is this is a felony criminal prosecution, and although the prosecutor
keeps calling it intentional failure to appear, read the full charge because that is
misleading. There is no period between the words “failure to appear” and “with
the intention to evade the process of the Court” and “willfully”, etc.
This is more important part of the charge because, as the prosecutor himself
already told you in his own words right here, and I quote, that would not have
been a problem if she just failed to appear. That would not have been a problem.
What’s going to go on in this courtroom is that what he is going to show you was
what would not have been a problem. He will not show you what specifically
proves – and in fact, he will hide from you what specifically proves –
The Court: All right. That’s enough.
28

Ms. Mohammed: Your Honor, bird’s eye view of what what’s (sic) going
to happen in the court.
The Court: You will not address the jury in this fashion. You are only to
present a bird’s eye view of what you believe the evidence will show. You may
not use these kinds of comments.
Ms. Mohammed: Your Honor –
The Court: You can talk about what you think witnesses will testify to or
what evidence that will be admitted will show. You may not argue the case at this
time. We’ve already discussed this.
Ms. Mohammed: Your Honor, may we have the transcriber read back what
I said, and I think Your Honor will see that I am specifically inferring to what the
evidence will show and not show.
The Court: No, I will not have her read it back. Make your comments
appropriate.” (3 RT 417).
Appellant continued to make her opening statement, with the prosecutor
making, and the judge sustaining several objections due to the fact she was
arguing her case. (3 RT 417-21). The judge also interrupted appellant on her own
several times, when no objection was pending, to admonish appellant about her
improper argument in her opening statement. (3 RT 416, 423, 424, 428, 432).
Finally, after the court’s multiple warnings to refrain from making argument in her
29

opening statement, and appellant continuing to refer to evidence that would not be
submitted at trial, including evidence of her medical disorder, the trial court
advised the appellant that her opening statement was over. (3 RT 432). The trial
court stated: “All right. That is improper. You’re done. You are done. Have a
seat. You deliberately ignored the Court’s rulings repeatedly, and I’m sorry; you
are simply done.” (3 RT 432).
The trial court then asked the prosecutor to call his first witness. The
appellant stated that she was not able to finish her opening statement, to which the
court advised her to “be quiet.” (3 RT 433).
During the prosecution’s direct examination of witness Sean Clark,
appellant complained that she did not have copies of all of the exhibits being
admitted by the prosecutor. (3 RT 465-67). The trial court dismissed the jury and
told the appellant that she was doing her “very best to make this trial into a
circus.” (3 RT 467). The trial court referred appellant to her Bates-stamped
documents from the district attorney and appellant asked the court to “check what
I really have.” (3 RT 468). Thereafter, the following exchange occurred:
“The Court: I’m not going to do that. That’s not my role –
Ms. Mohammed: You’re welcome to. I offer it to the Court. This is all the
evidence I have. The vast majority of it is my defense evidence, none of which
Our Honor has allowed. However I have here –
The Court: You’re interrupting me again aren’t you?
30

Ms. Mohammed: Well, you – I thought it was to me –
The Court: No, no.
Ms. Mohammed: -- because you said –
The Court: I haven’t finished, and you’re interrupting me again.
Ms. Mohammed: Please allow me to – I thought you were –
The Court: Well, I think it would be very nice if you allowed me to finish
my statement. I don’t know what you brought, and I don’t know what was
brought to you, but the district attorney has testified and there’s been evidence –
I’m sorry. There’s been testimony from Ms. McCaffrey of the District Attorney’s
Office about the evidence that was released to you.
You disagree with that. Well, I’m choosing to believe the district
attorney’s witness on that. I think that witness is more credible than you are, so
that’s my ruling, and I know you disagree with it, but that is my ruling, and if you
don’t have – if you didn’t have somebody bring everything that you have, then I’m
sorry. You should have brought that.” (3 RT 468-69).
During appellant’s cross-examination of Sean Clark, the trial court
admonished appellant not to make “gestures,” not to use her voice in a “derogatory
manner,” and told her that she was “insulting and rude.” (3 RT 462-86). Next,
after telling appellant to “be quiet” three times, the court admonished “you will be
quiet or I swear I’ll have you gagged.” (3 RT 489-90, 495). The court told
31

appellant that she had “no respect” and appellant responded by making another
motion pursuant to 170.6, which the court denied. (3 RT 498).
Again, during the cross-examination of Sean Clark, appellant asked if they
could “wrap up and have an adjournment for medical reasons.” (3 RT 533).
Appellant stated that she was “severely disabled” and the trial court responded:
“All right. That’s enough. The jury – will the jury please step outside.” (3 RT
534). When the jury was escorted out, the court advised appellant that she was
“not going to act like this in this court.” (3 RT 534). Appellant reiterated that she
could not continue due to medical reasons. (3 RT 534). After argument relating
to appellant’s symptoms and evidence of medical disorder, the trial court told
appellant that she had to behave herself. Appellant responded that she had
behaved and that the jury could see that for themselves. The trial court then
stated: “I’m sure the jury can see how you’ve acted, and I don’t think it’s helped
you a bit.” (3 RT 537-38). The district attorney then asked the court to order a
medical examination of appellant. (3 RT 538). The trial court ordered appellant
transported to Valley Medical Center 3 for an examination. (3 RT 538). When
appellant tried to respond, the trial court told her: “Don’t you say another word.”
(3 RT 538).
On June 5, court resumed without appellant present. (3 RT 546). The
judge stated on the record that appellant had telephoned and that she stated she
3 Although the judge stated that appellant was ordered to Valley Medical Center, she was actually
transported to Regional Medical Center. (3 RT 546).
32

was still in the hospital. She had received a fax from the hospital stating that
appellant would need to remain in the hospital on June 5 pending further
evaluation. (3 RT 547). The next day, after receiving and reciting what it
believed were relevant portions of medical records relating to appellant’s
condition, and hearing argument, the court stated that she believed appellant was
medically capable to proceed with trial, stating: “I believe that you have been
manipulating this court, and I believe that you attempted to manipulate the
hospital personnel. Apparently, they weren’t buying it.” (4 RT 579) Appellant
again raised her 170.6 motion, which was denied as untimely and improper. (4 RT
581). During this heated exchange, which occurred during the testimony of Sean
Clark, the trial court told appellant to “be quiet” approximately 22 times. (4 RT
565, 578, 581, 588, 609-611, 617, 649, 669, 678, 692, 693, 697, 713, 715, 716,
747). The trial court told appellant she was “completely out of order” and “so
incredibly rude.” (4 RT 692-93).
During re-direct examination of Sean Clark, appellant attempted to
interpose objections to a line of questioning by the prosecutor relating to whether
or not anyone contacted him about appellant’s possessions or the situation with her
son. (4 RT 831-32). After she was overruled, appellant attempted to state further
grounds for her objection and the trial court told her: “I am going to have you
removed from the courtroom.” (4 RT 832).
33

At the end of trial on this particularly contentious day, the trial court’s
parting words to the jury were: “record will show it’s 4:30 -- … and the defendant
has been out of control throughout most of this afternoon” and then she released
the jury for the day. (4 RT 843).
When the defense case began, appellant called Mertze Dahlin as her first
witness. During cross-examination by the prosecutor, appellant made multiple
objections, and the trial court again warned her that she would be removed to a
holding cell. (6 RT 995).
On June 9, appellant claimed that she had been defrauded by the prosecutor
when he failed to produce witnesses on his witness list, and therefore, they were
unavailable for her to cross-examine. (7 RT 1118).
The following exchange
then occurred:
“The Court: Yesterday you said you were going to cooperate; that you
wanted to stay in the courtroom. If that is not the case, then we will take other
action.
Ms. Mohammed: Your Honor, I’ve experienced your other actions of
sitting in a cell and being in custody, and I comprehend that, and I am willing to
face any consequence to get justice and ethics, which I have not seen in this
courtroom.
34

The Court: You are either going to behave yourself and represent yourself
as well as you can by following the rules, or I will either gag you or I will put you
in the holding cell.
Oh, I’m glad you find it amusing. I don’t find it amusing. You have been
so insulting and rude throughout this case. It is just astonishing, and 30 years as a
-- in the legal business, I’ve never seen anything like it.
Now, what are you going to do?
Ms. Mohammed: I am going to cooperate with the court, ma’am.
The Court: Fine, bring in the jury.” (7 RT 1118-19).
Interference and Intervention on Behalf of the Prosecution/ Cutting off
Appellant’s Opening Statement and Examination of Witnesses
Several times during the trial, including during appellant’s opening
statement, the trial court cut appellant off and terminated her questioning without
an objection from the prosecutor. Admittedly, this often occurred after multiple
warnings to comply with a certain directive. Nonetheless, the prosecutor had not
asked for the questioning to be terminated; the judge did it on her own initiative.
During continued cross-examination of Sean Clark, in the presence of the jury, the
following exchange occurred:
“The Court: Do you have anything further? Do not make a speech.
Ms. Mohammed: I’ve got many things further, Your Honor, please.
35

The Court: Then I suggest you get to them.
Ms. Mohammed: Your Honor –
The Court: I suggest you get to them.
medical dis –
Ms. Mohammed: Thank you, Your Honor. However, I’m having some
The Court: No, you’re not. No, you’re not. You get going, Ms.
Mohammed, or this witness is going to be excused.” (4 RT 707).
When appellant attempted to ask questions of Sean Clark relating to page 7
of Exhibit K, a UCLA Medical Group statement of physician services, the trial
court stopped appellant and the following exchange occurred:
“The Court: All right. Just a minute. I want to see that. All right. You’re
not going to ask any questions about page seven of ten, and you’re not going to
ask any questions about page eight of ten. You are not going to ask any questions
about page nine of ten, and you are not going to ask any questions about page ten
of ten in this fax, in K. Ask a question if you have one on an appropriate subject.
Ms. Mohammed: Can I ask whether he received them?
The Court: No.
Ms. Mohammed: Can I ask whether he read them?
The Court: It’s not relevant. It’s not relevant.
Ms. Mohammed: Your Honor –
36

The Court: It’s not relevant.
Ms. Mohammed: This is so relevant to this case, Your Honor.
The Court: It’s not relevant.
please?
Ms. Mohammed: This case is – may I address the Court, Your Honor,
The Court: This case is about – Ms. Mohammed, it’s about whether you
failed to appear in this court on this case and this man is only here –
Ms. Mohammed: To willfully evade the process of the court. That’s the
important part of this that keeps getting dropped out by you, Your Honor, and by
the prosecutor.
The Court: Thank you for that correction, Ms. Mohammed.
Ms. Mohammed: Willful. May I address the court, Your Honor?
The Court: No, you may not.
Ms. Mohammed: This goes to the crux of this case, Your Honor.
The Court: Ms. Mohammed –
Ms. Mohammed: If I had –
The Court: Ms. Mohammed, you will be quiet. The issue that involves this
case, this gentleman has very limited information. Just so happens, apparently,
that his bounty hunter found you someplace else. He has testified extensively
37

about placing you on bail in a case in Los Angeles where apparently you did not
appear, and that’s why a bounty hunter went after you, and that’s why you’re here.
Now, anything else that he has to say is frankly irrelevant, and how many
pieces of paper he got from you is also irrelevant, or from somebody else. That’s
not the issue. We’re not dealing with the case in Los Angeles; we’re dealing with
the case up here, and too many of your questions have tried to make an issue out
of the case in Los Angeles, so I am –
Ms. Mohammed: Your Honor –
The Court: I am telling you, Ms. Mohammed, you must ask him a relevant
question or you will be through.” (4 RT 712-14).
Ultimately, the court told appellant that she was not allowed to ask any
more questions. (4 RT 715). Appellant objected, alleging that her constitutional
rights to effective counsel and due process were being violated. (4 RT 715). Then
the following exchange occurred, again in the presence of the jury.
“The Court: We will not go further with this tirade.
Ms. Mohammed: Then I’ll repeat it.
The Court: You are through.
Ms. Mohammed: I would like to pose an objection. My Constitutional
rights are being denied.
The Court: Overruled. You are to be quiet, Ms. Mohammed.
38

Ms. Mohammed: Your Honor, I have a right to –
The Court: Ms. – no, you don’t have –
a fair trial.
Ms. Mohammed: Yes, I do. I’m am American citizen and I have a right to
The Court: All right. Deputy – do you want me to have you gagged,
because that’s the next step.
Ms. Mohammed: How would I be able to defend myself if I were gagged?
The Court: Well, that’s going to be something you have to work out. You
will be quiet. Mr. Berry, go ahead.
Ms. Mohammed: I wasn’t finished. For the record, I was not finished
cross-examining.
The Court: That doesn’t matter. As far as I’m concerned, you’re finished.”
(4 RT 715-16)
Thereafter, the prosecutor began his redirect. (4 RT 716).
On June 6, during the re-cross examination of Sean Clark, appellant
persisted in asking for clarification of something said by the prosecutor. The
judge asked her to be quiet and pay attention and eventually said “I swear I will
gag you.” (4 RT 804). Finally, after stating that appellant’s whole line of
questioning of the witness was irrelevant, the trial court terminated her re-crossexamination
of him. (4 RT 825).
39

During further re-cross examination of Sean Clark, the judge told appellant
that she was through, that she’d give her “one chance to ask a proper question,”
and then stated: “You blow it and you’re done.” (4 RT 837). Appellant
responded that she had several questions. The court stated: “Well, ask your
question. One improper one and that’s it.” (4 RT 837). The court then, after
several more questions, terminated appellant’s questioning of the witness. (4 RT
841). At the end of the day, the judge said that appellant had “given up all her
rights to examine the witness further.” (4 RT 843).
In addition to terminating questioning by appellant, several times during
appellant’s examination or cross-examination of witnesses, the trial court judge
interposed her own objections and opinions, although the prosecutor had failed to
do so. During further cross-examination of Sean Clark, the court interrupted
appellant, telling her: “That’s absolutely a misstatement of the evidence.” (4 RT
727). The trial court stopped appellant from reading from an exhibit, even though
there had been no objection. (4 RT 733). When the appellant attempted to ask
questions relating to that exhibit, the court then made its own objection, stating:
“Objection. Totally irrelevant. All right.” (4 RT 734).
During the cross-examination of Chad Christensen, appellant stated that the
witness gave a “narrative response” and failed to answer a question. The trial
court responded: “Objection – I mean – I’m sorry. Your comments are
completely inappropriate.” (4 RT 773).
40

During appellant’s examination of Mertze Dahlin, appellant asked the
witness what made him think anything was wrong with her other than just not
being mobile. (6 RT 982). Dahlin responded: “Your muscles were just like jello
practically. They couldn’t even flex at first.” The court then stated: “All right.
This is getting way beyond his individual expertise. And he is not a doctor and he
is not going to be allowed to offer medical testimony. Ask another question.” (6
RT 982).
During the direct examination of Jeremy Rainey, the following exchange
occurred after appellant asked the witness if he observed a difference in her health
and what his observations were.
“Q.
Okay. And can you tell me your observations?
A. Yeah. You were like rubbing your muscles a lot, headaches, barely
could move. You – jittery.
The Court: He cannot give –
Ms. Mohammed: Excuse me. You are interrupting the witness, Your
Honor. He is just giving observations.
The Court: No, he said you were –
Ms. Mohammed: Rubbing my muscles a lot.
41

The Court: Right. You barely could move. You have headaches. He can’t
see headaches. He can’t see – and barely could move. I think that’s a very
subjective thing.” (6 RT 1015-16).
When appellant asked Rainey if he observed her trying to arrange for care
of her child from December 2003 through the summer of 2004, the following
exchange occurred:
“A. Yes, I had. You were calling all sorts of people trying to see if –
The Court: Just a minute.
The Witness: Yes.
The Court: You don’t get to talk about what she was calling and what she
was saying to other people.
The Witness: Okay.
Ms. Mohammed: Your Honor, the witness didn’t say –
The Court: It’s hearsay. He started to say what you were doing, what you
were calling people for, and that was hearsay.” (6 RT 1023-24).
When appellant asked Rainey if she told him why she had to return to
California after getting her son taken care of, the witness began to answer: “That
you had these --” and the court cut him off, stating: “You can’t testify to that.” (6
RT 1025). Later, appellant questioned Rainey about bail collateral, and the
following exchange occurred:
42

“Q. And you stated that Mr. De Sena went over and got a bunch of
diamond rings and gave more collateral?
A. Yes. In fact, from what I understand –
The Court: Just a minute. There is no question.” (6 RT 1071). Shortly
thereafter, the judge interposed her own hearsay objection again. (6 RT 1072).
During re-direct of Rainey, the court stopped the witness in the middle of a
response to say: “Okay. No, there’s no question. You know, you’re not going to
just repeat all your direct examination of this witness. It’s been asked and
answered. You’re limited to covering areas covered by Mr. Berry that have not
been sufficiently covered, but you’re not gong to redo his entire direct testimony.”
(7 RT 1092). Later, the judge interrupted appellant when she told Rainey not to
feel rushed in responding, stating “He’s not going to give a narrative answer.” (7
RT 1095).
During the direct examination of Reverend Clark, he testified that it was his
plan to travel to Utah to assist appellant with her family so that she could return to
Los Angeles for court procedures. The trial court interrupted and stated: “Okay.
The last statement will be stricken from the record because that would be
hearsay.” (7 RT 1113-14). Later, during appellant’s questioning of Reverend
Clark, the trial court judge took over questioning the witness. (7 RT 1124). The
following exchange then occurred:
43

“Ms. Mohammed: Your Honor, I’m sorry. Are you the prosecutor here?
I’m just wondering.
failed to.
The Court: I’m trying to ask questions that you should be asking but have
Ms. Mohammed: Your Honor, you’re totally leading the witness to say
exactly what you want him to say –
The Court: I’m not leading him to say anything.
Ms. Mohammed: -- and stop him from saying what is –
The Court: Ms. Mohammed, stop it. I am not leading him to say anything.
I’m asking him questions that he can understand –
Ms. Mohammed: He’s –
The Court: -- so he can understand it.
Ms. Mohammed: He’s got degrees –
The Court: Apparently, he’s having trouble. Ms. Mohammed –
the record.
Ms. Mohammed: -- and you stopped him from putting any of that truth on
The Court: Ms. Mohammed –
Ms. Mohammed: He said –
The Court: Stop it. Okay?
44

Ms. Mohammed: -- it was his –
The Court: The jury will please step outside.
[Whereupon, the jury recessed and departed from the courtroom.]
The Court: The jury is out of the courtroom. You know, I guess I’ve just
run out of options with you, Ms. Mohammed. I’m going to ask the deputy to put
you in a holding cell. You will be able to listen to the hearing, but I can’t let you
stay here because you just won’t cooperate. You won’t follow the rules of
procedure.
You chose to represent yourself. You were told you would have to behave
as an attorney. All you’ve done is behave as an insulting child, and, you know,
it’s truly amazing. It’s truly amazing.” (7 RT 1126).
Appellant was removed from the courtroom and placed in a holding cell. (7
RT 1126). The trial court advised the deputy to tell appellant that she could
submit questions in writing and the court would ask them of the witness. (7 RT
1127). The prosecutor then asked to proceed with “the briefest crossexamination.”
(7 RT 1127-28). The witness, apparently alarmed by what was
going on around him asked: “Is he saying that he wants to ask me questions if
she’s not present? Is that -- isn’t that important that she be present?” (7 RT
1128). The judge answered the witness by stating that appellant had been
extremely disrespectful and uncooperative, that she’d never seen anything like it,
45

and that appellant could not be in the courtroom, and that, therefore, she will have
to appoint counsel for her. (7 RT 1128).
After counsel was appointed for appellant, the trial court continued its
unusual interference on behalf of the prosecution when it came up with a legal
theory that would allow the prosecution to prove a missing element in its case in
chief, procured evidence on that element, and invited the prosecution to reopen to
prove the element. After the defense countered that evidence, the trial court then
struck the testimony of the defense expert, without request from prosecution. (See
infra pp. 61-66).
Allowing Testimony of Stephen Avilla for the Prosecution
The prosecutor was allowed to call Stephen Avilla, the same attorney who
appointed both Cole in the underlying case and Arlidge in this case, to testify as an
expert for the prosecution in practices and procedures locally and responsibilities
of defense counsel. (8 RT 1250, 1253). The jury was aware of Avilla’s role in the
defense because Cole testified that it was Avilla who would have told him whether
or not he was going to trial on the underlying case. (9 RT 1344).
B. Applicable Law
1. The Trial Court Must Be Fair and Impartial
The due process clause of the Fourteenth Amendment requires a “fair trial
in a fair tribunal.” (Withrow v. Larkin (1975) 421 U.S. 35, 46). The right to an
impartial judge appears designed to protect two distinct interests: first, to assure
46

the defendant receives a trial that is in fact fair; and second, to protect the broader
societal interest in promoting confidence in the judicial process by providing trials
untainted by an appearance of unfairness. (Cf. Pacific etc. Conference of United
Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 87-88 [“The trial of
a case should not only be fair in fact, but it also should appear to be fair.”]
"The object of a trial is to ascertain the facts and apply thereto the
appropriate rules of law, in order that justice within the law shall be truly
administered." (People v. Mendez (1924) 193 Cal. 39, 46). To this end, "the court
has a duty to see that justice is done and to bring out facts relevant to the jury's
determination." (People v. Santana (2000) 80 Cal.App.4th 1194, 1206.) "[A] judge
should be careful not to throw the weight of his judicial position into a case, either
for or against the defendant." (People v. Mahoney, supra, 201 Cal. at p. 627).
Trial judges "should be exceedingly discreet in what they say and do in the
presence of a jury lest they seem to lean toward or lend their influence to one side
or the other." (People v. Zammora (1944) 66 Cal.App.2d 166, 210). A trial court
commits misconduct if it "'persists in making discourteous and disparaging
remarks to a defendant's counsel and witnesses and utters frequent comment from
which the jury may plainly perceive that the testimony of the witnesses is not
believed by the judge.'”(People v. Boyette (2002) 29 Cal.4th 381, 460 quoting
People v. Mahoney, supra, 201 Cal. at p. 627).
47

2. The Trial Court Must Not Convey a Negative Attitude
Toward a Litigant
Reversal is appropriate if the record reveals the judge's animus against the
litigant manifested itself in such a manner as to actually have created such “ ‘a
pervasive climate of partiality and unfairness' “ that it “rendered the trial so
fundamentally unfair as to violate federal due process under the United States
Constitution.” ( Duckett v. Godinez (9th Cir.1995) 67 F.3d 734, 740.)
In People v. Perkins (2003) 109 Cal. App. 4 th 1542, appellant argued that
he was deprived of his rights to a fair trial and to due process under the federal and
state constitutions (U.S. Const. 6 th & 14 th Amends; Cal. Cons. Art I sections 7, 15,
24), because “the trial court engaged in a systematic ‘pattern of judicial hostility,’”
which consisted of continual interference with defense witnesses, disparaging
comments regarding defense counsel, and erroneous exclusion of crucial defense
evidence.” (Perkins, supra at 1565). The court, finding that the trial court was
“intemperate in his examination of appellant during the presentation of his defense
and that in four specific instances, the judge prejudicially interfered with such
defense and conducted himself as though he sided with the people,” reversed the
judgment. (Perkins, supra at 1567).
A "trial court commits misconduct if it persistently makes discourteous and
disparaging remarks to defense counsel so as to discredit the defense or create the
impression that it is allying itself with the prosecution." (People v. Carpenter
48

(1997) 15 Cal.4th 312, 353; see also People v. Fudge (1994) 7 Cal.4th 1075, 1107;
People v. Clark (1992) 3 Cal.4th 41, 143.) Jurors rely with great confidence on the
fairness of judges, and upon the correctness of their views expressed during trials.
(People v. Mahoney (1927) 201 Cal. 618, 626-627). When "the trial court persists
in making discourteous and disparaging remarks to a defendant's counsel and
witnesses and utters frequent comment from which the jury may plainly perceive
that the testimony of the witnesses is not believed by the judge ... it has
transcended so far beyond the pale of judicial fairness as to render a new trial
necessary." (Id. at p. 627).
In People v. Sturm ((2006) 37 Cal. 4 th 1218), appellant argued that the trial
judge belittled crucial defense expert witnesses, hamstrung their testimony, and
repeatedly disparaged defense counsel, to the extent that the trial judge gave the
impression that he was aligned with the prosecution. The California Supreme
Court concluded that:
“Throughout defendant's second penalty phase trial,
beginning with voir dire, and continuing through defense counsel's
presentation of mitigating evidence, the trial court interjected itself
unnecessarily and inappropriately into the adversary process. Many
of the trial judge's comments should have been made at sidebar, and
not in front of the jury; in commenting in front of the jury, the trial
judge often made comments unnecessary to explain his rulings from
the bench, and also substantively undermined the defense theory of
the case.” (Sturm, supra at 1243).
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The court found further, that:
“the trial court's numerous impatient comments during
defendant’s expert testimony, his characterization of her testimony
as "embellished," and his interjections during her testimony to
answer the questions himself, indicated that the judge discounted her
testimony. Such behavior, especially considered in the aggregate,
conveyed to the jury the unfortunate message that the trial judge did
not take seriously the testimony of the defense experts.
The trial judge exacerbated his mistreatment of defense
witnesses by repeatedly and improperly disparaging defense counsel,
which conveyed to the jury the message that the court was allied
with the prosecution. Understandably frustrated by defense counsel's
persistent attempts to push the boundaries of the trial court's
evidentiary rulings, the trial judge repeatedly reprimanded defense
counsel in front of the jury. By accusing defense counsel of
purposely trying to "sneak" in improper evidence by rephrasing his
questions, and by admonishing the jury that defense counsel's
questions were not evidence "as much as he would like them to be
evidence," the trial court implied to the jury that defense counsel was
deliberately asking improper questions in order to place inadmissible
evidence in front of the jury. This suggestion was reinforced by the
admonition given to the jury, in which the trial court remarked that
defense counsel wanted his questions to be considered as evidence.”
(Sturm, supra at 1240).
“It is completely improper for a judge to advise the jury of negative
personal views concerning the competence, honesty, or ethics of the attorneys in a
50

trial.... When the court embarks on a personal attack on an attorney, it is not the
lawyer who pays the price, but the client." (People v. Fatone (1985) 165
Cal.App.3d 1164, 1174-1175). This principle holds true in instances involving a
trial judge's negative reaction to a particular question asked by defense counsel,
regardless of whether the judge's ruling on the prosecutor's objection was correct;
even if an evidentiary ruling is correct, "that would not justify reprimanding
defense counsel before the jury." (Ibid.; see also People v. Black (1957) 150
Cal.App.2d 494, 499, [Though counsel's line of inquiry was objectionable, and
the evidentiary ruling essentially proper, the judge's remarks accusing counsel of
unfairness constituted misconduct.].) Where the trial court makes comments that
imply that defense counsel is behaving unethically or in an underhanded fashion,
such behavior constitutes misconduct.” (Sturm, supra at 1240-41).
3. The Trial Court Must Not Interfere and/or Advocate on
Behalf of a Party
“A trial judge may examine witnesses to elicit or clarify testimony [but he
or she] must not become an advocate for either party or under the gui[s]e of
examining witnesses[,] comment on the evidence or cast aspersions or ridicule on
a witness.” ( People v. Rigney (1961) 55 Cal.2d 236, 241).
A trial court may comment on the evidence (Cal. Const., art. VI, § 10), but
such comments "must be accurate, temperate, nonargumentative, and scrupulously
fair." (People v. Rodriguez (1986) 42 Cal.3d 730, 766).
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The Sturm court also discussed judicial interference as follows:
“The trial judge's negative remarks about defense counsel are
also troubling in light of the unequal treatment by the court of the
prosecutor and defense counsel. The trial judge objected sua sponte
or otherwise interrupted and disallowed numerous questions asked
by defense counsel; such interruptions or objections are certainly
permissible under section 1044, which outlines the duty of the judge
to control trial proceedings and to limit the introduction of evidence
"to relevant and material matters." In this case, however, the trial
court intervened in a way that created the impression that the trial
judge was allied with the prosecution.” (Sturm, supra at 1241).
Where the trial judge intervenes from the bench much more frequently on
one side than he does on the other, such criticism may gain credibility among the
jury. (Sturm, supra at 1241).
The Sturm court also pointed out instances of the judge apparently acting
on behalf of the prosecutor, noting that such behavior was inappropriate because it
communicated to the jury the message that the trial judge was collaborating with
the prosecutor. Pointing out that, although a numerical disparity between sua
sponte interventions by the trial court during the prosecution case and defense case
does not on its own constitute misconduct, in light of the trial judge's improper
comments disparaging defense counsel and his comments implying an alliance
with the prosecutor, such uneven intervention strengthens the impression that the
trial judge was allied with the prosecution. A trial judge who creates the
52

impression that he is allied with the prosecution has engaged in improper conduct.
(See, e.g., People v. Carpenter, supra, 15 Cal.4th at p. 353). The Sturm court held
that the trial judge's behavior, in creating such an impression by intervening in a
significantly uneven fashion and making comments that implied that such
interventions were made in the prosecutor's stead, constituted misconduct.” (Id. at
1241-42).
4. The Cumulative Effect of a Trial Judge’s Actions Can
Warrant Reversal
Sturm concluded that, although no one instance of misconduct appeared to,
in itself, require reversal, the cumulative effect of the trial judge's conduct required
reversal. “Considered in the aggregate, the inappropriate comments made by the
trial judge spanned the entire penalty phase trial, from voir dire through the
defense case in mitigation. ‘Perhaps no one of them is important in itself but when
added together their influence increases as does the size of a snowball rolling
downhill.’(People v. Burns (1952) 109 Cal.App.2d 524, 543). The numerous
instances of misconduct created an atmosphere of unfairness and were likely to
have led the jury to conclude that ‘the trial court found the People's case against
[defendant] to be strong and [defendant]' s evidence to be questionable, at best.’”
(People v. Santana, supra, 80 Cal.App.4th at p. 1207, 96 Cal.Rptr.2d 158.)” (Id.
at 1243).
53

C. The Trial Judge Committed Judicial Misconduct Requiring Reversal
As detailed above, the trial court herein overstepped proper judicial
boundaries by making derogatory remarks to appellant, improperly interfering on
behalf of the prosecution, and by allowing the administrator who appointed
defense counsel to testify on behalf of the prosecution. These actions were
pervasive throughout the trial and created an atmosphere of hostility and
unfairness.
Derogatory Remarks to Appellant
From the first day of motions in limine, there was a contentious,
derogatory, hostile tone used by the trial court toward appellant. Admittedly,
appellant was in pro per and quite often challenged the authority of the court,
would not abide by court orders, interrupted the court, and acted without the
appropriate decorum. The trial court, however, was required to maintain that
decorum and give the appropriate respect to the defendant, and that did not occur.
The trial court’s lack of appropriate judicial decorum when faced with a difficult
defendant made it appear from the first day that the trial court was co-prosecuting
the defendant. It is difficult to imagine how this could not have influenced the
jury, who witnessed the judge’s attitude toward the defendant, heard the judge call
her names, challenge her credibility, and repeatedly tell her to be quiet.
The trial court repeatedly told appellant to “behave” and repeatedly called
her “rude.” (1 RT 67-68, 134; 2 RT 335, 336, 361; 3 RT 462-86, 537-38; 4 RT
54

692-93, 7 RT 1118-19). The trial court told appellant that she was not “credible”
(1 RT 163-64; 3 RT 468-69). The trial court told appellant to “hold her tongue”
and “be quiet” and “just don’t open your mouth” multiple times. (1 RT 163-64,
176; 3 RT 432, 489-90, 495, 538; 4 RT 565, 578, 581, 588, 609-11, 617, 649, 669,
678, 692, 693, 697, 713, 715, 716, 747). Appellant was threatened repeatedly with
being gagged physically. (2 RT 363-64, 368; 3 RT 495; 4 RT 715-16, 804; 6 RT
1000; 7 RT 1118-19).
Immediately after voir dire, the trial court, in the presence of the jury,
admonished appellant for “not bothering to fill out” her jury chart. (3 RT 371).
During her opening statement, the trial court interrupted appellant to admonish her
approximately seven times, often without objection from the prosecutor and
eventually terminated her statement completely. (3 RT 416, 423, 424, 428, 432).
The trial court summarized incorrectly and inappropriately harmful
evidence against appellant, stating: “just so happens, apparently that his bounty
hunter found you someplace else. He has testified extensively about placing you
on bail in a case in Los Angeles where apparently you did not appear and that why
a bounty hunter went after you, and that’s why you’re here.” (4 RT 714). This
said, in the presence of the jury, implied not only that the prosecution witness
testimony was to be believed, but erroneously stated that “that’s why you’re here.”
As is clear from the record, the L.A. case had nothing to do with the Santa Clara
County case, yet the judge’s recitation of the testimony makes it appear that she
55

was apprehended for the purposes of trial in Santa Clara County. In addition, it
calls more attention to testimony that was, arguably, inadmissible as more
prejudicial than probative.
The trial court told appellant she believed appellant had been “manipulating
the court” and that she was a “master” at “playing games.” (4 RT 579, 1 RT 169-
70). The trial court told appellant: “…you’re making me feel like a mother with a
two-year old. What is the matter with you?” (2 RT 253).
The trial court told the jury that “the defendant has been out of control
throughout most of the afternoon” just before releasing them for the day. (4 RT
843).
The trial court repeatedly threatened to place appellant in a holding cell,
and then, ultimately, did so. (1 RT 67-68, 2 RT 361, 6 RT 995; 7 RT 1126).
When this occurred Reverend Clark asked: “isn’t it important that she be present?”
and the trial court responded that appellant was extremely disrespectful and
uncooperative and that she’d “never seen anything like it.” (7 RT 1128).
As the trial court, itself, said during a hearing to appoint counsel for
appellant (with Avilla present): “I have repeatedly – I am sure the record will
show probably more than 100 times – remonstrated with Ms. Mohammed because
of her behavior. I have tried to assist her in knowing what the rules are and
following those rules. She has consistently spoken long, long, rambling phrases,
56

she cuts me off. She interrupts me. She does not respect my rulings. She argues
with just about every ruling. She makes faces. She sighs heavily. She rolls her
eyes, and has been incredibly disrespectful to the court. I have never had a
defendant conduct themselves in such a manner, either when I was an attorney, or
certainly as a judge. (7 RT 1130).
The trial court had an obligation to treat appellant with the appropriate
respect and decorum regardless of her behavior. The record indicates that she did
not do so. Her failure to do so was misconduct.
Interference and Intervention on Behalf of the Prosecution
The trial court made its own objections during appellant’s voir dire,
opening statement, and examination of witnesses – even exclaiming “objection”
on at least two occasions. (4 RT 734, 773). Often, the trial court cut off appellant
or questioned an item of evidence without objection by the prosecutor. Twice,
while asking questions regarding a defense exhibit, the trial court stopped her
without objection and advised that she could not question the witness regarding
the exhibit because it “was not relevant.” (4 RT 713, 733).
The trial court told appellant at one point as she examined a witness:
“That’s absolutely a misstatement of evidence,” without objection from the
prosecutor. (4 RT 727)
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The trial court stopped witnesses from testifying beyond what she believed
to be their individual expertise or within their capacity to observe without
objection from the prosecution. (6 RT 982, 1015-16). The trial court made its
own hearsay objections. (6 RT 1023, 1025, 1072; 7 RT 1113-14). The trial court
stopped witnesses from what it believed would be a narrative response. (6 RT
1071, 1095).
At one point, the trial court even took over examining a defense witness
telling appellant, “I’m trying to ask questions that you should be asking but have
failed to.” (7 RT 1124).
These interjections made it appear as if the trial court was aligned with the
prosecution. In addition, without a request from the prosecution, the trial court
allowed the prosecution to reopen its case and even provided the legal theory and
the evidence it could use to prove the element it had failed to prove it its original
case-in-chief. (See infra pp. 61-66).
The jury had to be impacted by witnessing the trial court make objections,
assist the prosecutor, stop appellant and her witnesses from speaking without
objection from the prosecutor, refer favorably to prosecution evidence, all while
continually denigrating appellant.
Allowing the Testimony of Stephen Avilla
58

The trial court allowed the prosecution to call as its own expert the attorney
who appointed appellant’s counsel and former counsel to her case. The jury heard
testimony about Avilla supervising appellant’s appointed attorney, Frank Cole, on
the underlying perjury charge. Allowing Avilla to appear as a prosecution witness
made it appear even more so that all parties were aligned against the defendant.
The trial court, with its frequent interference and admonishing of appellant,
appeared to side with the prosecutor. Allowing Avilla to testify as a prosecution
witness when he administered the program that appointed appellant’s defense
counsel made it appear even more unfair to appellant.
Cumulative Effect
Taken together, this case has all of the elements of Sturm. The numerous
instances of misconduct created an atmosphere of unfairness and were likely to
lead the jury to conclude that the trial court found the People's case against
appellant to be strong and appellant' s evidence to be questionable, at best. The
jury heard repeatedly that appellant was “rude” and “not credible.” There does not
appear to be one instance in the record where appellant admonished the prosecutor
for anything. However, appellant was admonished repeatedly. The trial court’s
continual overstepping of its role as an unbiased arbiter of facts was apparent in
the tone it used toward appellant, the constant derogatory remarks made to
appellant, and in the assistance it provided to the prosecutor without request.
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As the case law notes, it is imperative to appellant’s fundamental
constitutional rights that the trial is fair and that it appears fair. In this case,
appellant as a pro per litigant for much of the trial was, arguably, entitled to even
more deference to avoid the appearance of unfairness. From her first hour in the
trial court, however, she was belittled and threatened. The combination of all of
the instances described above deprived appellant of a fair trial in violation of her
14 th amendment and 6 th amendment rights.
D. Prejudice
The court in Sturm held that the cumulative effect of the trial judge’s
comments requires a reversal under either Chapman or Watson. (Chapman v.
California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836).
The court stated that it was “reasonably probable that the second penalty phase
jury’s verdict would have been different had the trial judge exhibited the patience
dignity, and courtesy that is expected of all judges (See Cal. Code Jud. Ethics,
canon 3B(4) [ A judge shall be patient, dignified, and courteous to litigants, jurors,
witnesses, lawyers, and others with whom the judge deals in an official
capacity…”]
In this case, it is reasonably probable that the verdict would have been
different absent the misconduct described above. Had the judge not made so
apparent her disdain for the defendant, the jury may have seen this case
60

differently. This case, factually, was quite simple. Appellant was accused of
willfully failing to appear at trial while released on O.R. in order to intentionally
evade the process of the court. She provided a medical excuse why she failed to
appear, and she argued that the prosecution did not prove she was out on O.R.
However, the simplicity of the case was lost when the jury heard the trial court
disparage the defendant and her credibility and witnessed the trial court act as
essentially a co-prosecutor.
It is difficult to see how the jury could not be influenced in a negative way
toward the defendant. Juries often take cues from judges, which is why it is so
vital that judges maintain the appearance of complete impartiality. If the judge
lets the jury know that it believes the defendant is not credible, is manipulating the
system, is faking an illness, is trying to evade court orders, the jury will likely not
look favorably on that defendant. Similarly, if the judge takes on the role as
advocate, offering objections, legal theories and evidence on behalf of the
prosecution, the jury observed that as well as an alliance with the prosecution.
These actions constitute prejudicial misconduct and a violation of appellant’s 6 th
and 14 th amendment rights. For these reasons, appellant’s conviction must be
reversed.
II. THE TRIAL COURT VIOLATED APPELLANT’S 6 TH AND
14 TH AMENDMENT RIGHTS BY DECIDING AS A MATTER OF
LAW THAT THERE WAS “SUBSTANTIAL COMPLIANCE”
WITH SECTION 1320
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The error here is five-fold: (1) There was insufficient evidence to convict
appellant of Count 1 in that the prosecution failed to prove that appellant was out
on O.R.; (2) the trial court abused its discretion by allowing the prosecution to
reopen to prove that appellant was out on O.R.; (3) the trial court abused its
discretion by taking this issue from the jury and deciding it erroneously as a matter
of law; (4) the trial court abused its discretion by striking the testimony of Mark
Arnold; and (5) the trial court failed to properly instruct the jury with regard to the
elements of O.R. release.
A. Procedural Background
One of the elements of a wilful failure to appear while out on O.R. to
intentionally evade the process of the court, is that the defendant was, in fact, out
on O.R. To prove that a defendant was out on O.R., Section 1318 requires a
written promise to appear be signed by defendant. In this case, there was no
written promise to appear signed by appellant that includes certain mandatory
terms. On July 5, 2006, appellant filed a Motion for Judgment/Acquittal, based on
the fact that the prosecution failed to prove that defendant was released on O.R. (2
CT 227).
To prepare for hearing on this motion, the trial court procured its own
evidence, asking the clerk to have a CJIC printout of the underlying perjury action
run, which showed that appellant was present at four hearings prior to the
December 22, 2003 failure to appear on the Master Trial Calendar. (8 RT 1155).
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The trial court denied appellant’s motion, concluding that, under People v.
Jenkins, there was a “possibility of substantial compliance” with the statute. She
then stated that she would “allow the People to reopen and produce further
evidence the defendant was on her own recognizance and knew that.” (8 RT 1168,
1217, 1241). The prosecutor then stated that he would be submitting the CJIC
form procured by the judge, and that he would try to contact appellant’s trial
counsel to see if there was any discussion regarding the duties or her
responsibilities of O.R. release. The prosecutor then stated: “Beyond that, quite
candidly, I hadn’t considered what additional evidence the court would permit, but
that’s about it; the additional evidence of the docket and discussion with counsel
and her client.” (8 RT 1171-72).
Appellant argued that allowing the prosecution to reopen was a violation of
her constitutional rights to due process and fair trial in that the People had rested
and it was not their suggestion to reopen. (8 RT 1218). Appellant further argued
that the People did not proffer any evidence or give any explanation as to why
evidence was not presented during the case-in-chief and that the People did not
meet any of the criteria that allows for the reopening of a case. (8 RT 1239).
Appellant argued that it was an abuse of discretion to allow the People to reopen,
noting that there was nothing to indicate that the People had the ability to prove up
the missing element and that it was the Court, based on its own investigation and
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its theory that substantial compliance with the statute was sufficient, that invited
the People to reopen. (8 RT 1239).
The prosecutor put on Stephen Avilla, who testified as to the custom and
practices relating to O.R. release in Santa Clara County. (8 RT 1245-1258). At
the conclusion of Avilla’s testimony, appellant again raised a motion under
1118.1, which was denied by the court. (8 RT 1261).
Appellant introduced testimony from Mark Arnold, who testified as an
expert witness on the issue of the requirements of O.R. release. Arnold testified
that appellant was not on O.R. release because she never signed a written promise
to appear and her release did not meet the requirements of section 1320. (9 RT
1436).
On July 12, 2006, after the close of defense testimony, the trial court stated
that it now believed the question of substantial compliance was one of law, and
therefore, it would make a ruling and the issue would not go to the jury. (9 RT
1463). The trial court stated that Jenkins left open “in the future for substantial
compliance to be shown” if “extrinsic evidence is offered by the People to prove
that a contract was actually created and existed after [appellant] was released on
her own recognizance in March of 2003.” (9 RT 1463). The trial court continued:
“And contract law states that, um, the question of whether a contract, as
interpreted by the trier of fact, is sufficiently definite and certain in its essential
terms to give rise to a legal obligation is a question of law. Whether a certain or
64

undisputed state of facts establishes a contract is one for the court.” (9 RT 1463).
The court then concluded:
“…the question of whether a valid contract exists is a question of
law. There is undisputed extrinsic evidence showing that an enforceable
contract did exist. While the defendant did not sign the O.R. agreement in
March 2003 and there is no direct record of her being advised of the
consequences and penalties for failing to appear in her other case, she was
so advised and did sign a similar agreement.
There is no factual dispute relating to this extrinsic evidence, and
since there is no factual dispute, the Court may handle this issue as a
question of law.
I think that the undisputed facts show that the terms of 1318 were
substantially complied with; that a legally unenforceable contract did exist.
Therefore, I am going to strike the testimony of Mark Arnold, because in
viewing his testimony, other than at the very beginning when he was
establishing his expertise, it was all about what the two types of release are,
bail or own recognizance, and his interpretation of the statute requirements,
which included a written promise to appear, and um, the penalties and
consequences being explained to the defendant, and my ruling is that there
is sufficient – there has been substantial compliance with the requirements
of 1318 and 1320, and um, that it is not a jury question, and Mr. Arnold’s
65

testimony doesn’t go to any other fact, and so I’m going to strike it from the
record.” (9 RT 2464-65).
Appellant’s counsel then asked if the court was “making a determination
that the manner of release that occurred on March 5, 2003 was a release on Ms.
Mohammed’s own recognizance.” The court responded: “Correct.” (9 RT 1474-
75). Appellant’s counsel then asked: “And that is not an issue going to the jury?”
and the court responded: “Correct.” (9 RT 1475).
The trial court then advised appellant that she would be instructing the jury
as to the requirements of section 1320 as follows: “the People have to prove the
defendant was charged with the commission of a felony; two, she was released
from custody on her own recognizance, her promise to appear at the date, time and
place ordered by the Court; three, she willfully failed to appear as ordered; and
four, the failure to appear was in order to evade the process of the Court and that
there was a specific intent…” (9 RT 1475).
Appellant’s counsel then renewed her motion for a mistrial, based on the
denial of her request for additional time to prepare and based on the trial court’s
interpretation of the elements of section 1320. (9 RT 1480). The court denied that
motion. (9 RT 1480).
On October 4, 2006, appellant filed a motion for new trial based on the fact
that the trial court improperly took away a jury question, that the jury was
improperly instructed in violation of the 14 th and 6 th amendments of the U.S.
66

Constitution, and the verdict was contrary to law and evidence. (2 CT 265). The
trial court denied this motion. (2 CT 378).
B. Applicable Law
Appellant relied on People v. Jenkins in arguing that her case should be
dismissed. Jenkins required evidence of a written promise to appear (as dictated
by statute) to prove that defendant was out on O.R.. The trial court relied on
People v. Jenkins to conclude that all that was needed was “substantial
compliance” with the statute, as opposed to literal compliance and that, therefore,
a written promise to appear was not necessary.
In People v. Jenkins, defendant was charged with failure to appear after
being released on his own recognizance. (Pen. Code, § 1320, subd. (b)). (People v.
Jenkins (1983) 146 Cal.App.3d 22). The record of the preliminary examination
showed that defendant had been released on his own recognizance without signing
a written agreement acknowledging that he had been informed of the
consequences and penalties of violating the conditions of his release. Citing this
failure, defendant moved the superior court to dismiss the information. The court
granted the motion and court of appeal affirmed the judgment of dismissal. (Id. at
24).
The facts of Jenkins were as follows. Jenkins was released on his own
recognizance upon a pending felony charge of receiving stolen property. At that
time, defendant signed an agreement as follows:
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“Kenneth Jenkins, defendant herein, pursuant to the provisions of section 1318.4
of the Penal Code of the State of California, does hereby agree that if released
without bail and on his own recognizance:
“(a) He will appear at all times and places as ordered by the Court or magistrate
releasing him and as ordered by any Court in which, or any magistrate before
whom, the charge is subsequently pending.
“(b) If he fails to do so [ sic] appear and is apprehended outside of the State of
California, he waives extradition.
“(c) Any court or magistrate of competent jurisdiction may revoke the order of
release and either return him to custody or require that he give bail or other
assurance of his appearance as provided by law....” (Id. at 25).
Jenkins failed to appear at a hearing on motions made by his attorney and a
bench warrant issued for his arrest. Thereafter, a felony complaint charging
defendant with violating section 1320, subdivision (b), was filed.
The Jenkins court noted that section 1318 included the requirement that:
a “defendant shall not be released from custody under an own recognizance” until
he files a signed release agreement which includes an acknowledgment that he
“has been informed of the consequences and penalties applicable to violation of
the conditions of release” and that the agreement signed by Jenkins contained no
such acknowledgment. (Id. at 26).
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In a footnote, the Jenkins court stated that: “No evidence was presented to
show defendant was ever actually informed of the consequences and penalties of
his failure to appear. On appeal, the People request this court to take judicial
notice of previous agreements signed by defendant in the justice court in the
prosecution for receiving stolen property which did so inform him.” (Id. at
footnote 3).
The trial court refused to take judicial notice because the motion to dismiss
challenged the sufficiency of the evidence before the magistrate and the prior
agreements were not in evidence. The court then stated:
“We need not decide whether substantial compliance will
excuse literal compliance or, if so, whether the offered proof
satisfactorily establishes substantial compliance with section 1318
because this proof was not introduced at the preliminary
examination.
We note that a policy of accepting proof of substantial
compliance in lieu of literal compliance in the instant context has
little to recommend it. Literal compliance with section 1318 is easily
achievable and simple to prove while resolution of recurring issues
of substantial compliance would cast a significant burden on the
judicial system.” (Id.)
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The Jenkins court concluded: “However else it might be characterized, a
release without bail which does not comply with the specific requirements of
section 1318 is not a release “under an own recognizance.” (Id. at 27). The court
continued: “Since there was a failure of proof that each of the criteria enumerated
by section 1318 was satisfied, defendant's release by the superior court pursuant to
a signed but defective agreement was not on his own recognizance within the
contemplation of section 1320, subdivision (b). Accordingly the evidence before
the magistrate was insufficient to hold defendant to answer for trial in superior
court on that charge.” (Id.). The court reasoned that: “The criminal conduct
proscribed by section 1320, subdivision (b), is grounded in the violation of a
contractual agreement between a defendant and the People; absent constitutional
constraints, the Legislature has plenary power to specify the terms and conditions
of that contract.” (Id. at 28).
C. The Trial Court Committed Multiple Errors When It Ruled
That, As a Matter of Law, There Was Substantial Compliance
With Section 1320
1. There Was Insufficient Evidence to Convict Appellant of
Failing to Appear While Released on O.R.
A court reviewing the sufficiency of the evidence supporting a criminal
conviction must review the entire record in the light most favorable to the
judgment to determine whether substantial evidence supports the determination
below. (People v. Johnson (1980) 26 Cal.3d 557, 576-78). To be substantial, the
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evidence must be " 'of ponderable legal significance ... reasonable in nature,
credible, and of solid value.' " (Id. at p. 576.)
To prove a violation of Section 1320, the prosecutor was required to put on
evidence that appellant was out on O.R. To prove that appellant was out on O.R.,
Section 1318 requires that there be a signed written agreement to appear,
containing various mandatory terms. Appellant did not sign a promise to appear.
The prosecution introduced exhibits that consisted of: the Information on
the perjury charge (Exhibit 1); a minute order dated 6/23/03 indicating that
appellant was released on O.R. (Exhibit 2); a Reporter’s Transcript date 7/03/03
referencing appellant out on O.R.; a certified copy of the court docket with
redaction (Exhibit 4). (3 RT 433-34). The prosecution did not put on any
evidence that appellant signed a written agreement to appear in the underlying
case. The prosecutor in his argument on the motion to dismiss stated: “When we
went to file several weeks ago, Ms. McCaffrey … came up with the documents
that are before the jury, and I said, ‘Where’s the promise to appear?’ She said,
‘There is none in the file,” and indeed there is not.” (8 RT 1159).
The trial court, however, refused to dismiss the case, stating: “Well, I must
admit, I think, that in this case, that Jenkins applies is elevating form over
substance. I don’t think there’s any doubt that the defendant knew that she had to
appear. She had failed to appear in the past and been picked up in some
fashion….” (8 RT 1167). The court then stated: “And the fact that she did come
to court repeatedly until she failed to appear at the trial date also shows that she
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knew she had an obligation to come to Court. I will allow the People to reopen
and produce further evidence that he defendant was on her own recognizance and
new that.” (8 RT 1168).
At this point in the trial, there had been admittedly, insufficient evidence to
convict appellant of failure to appear while on O.R. because each of the elements
required for an O.R. release were not met. There was no signed agreement to
appear and the prosecution admitted this fact. Jenkins was dismissed out of hand
as “form over substance” and the court decided that “substantial compliance” with
the statute would be enough.
The substantial compliance standard came from a footnote in Jenkins that
outlined specifically why it is not a good idea. (See Jenkins, supra at footnote 3).
Jenkins noted that literal compliance is simple to achieve, so it should be left at
that. Here, there was no literal compliance. Therefore, there was insufficient
evidence that appellant was out on O.R.
The prosecutor was allowed, however, to reopen and put on the following
evidence: expert the testimony of Stephen Avilla that, if a defendant is released
on O.R., an attorney would be required to make sure that the client understood that
they still had to follow up with the responsibility being imposed, including
following an order to appear. (8 RT 1253-54). He also confirmed that the
statutory scheme requires a written promise by defendant and that defendant was
required to be advised of five specific points pursuant to Penal Code section 1318.
(8 RT 1255). No further evidence was introduced by the prosecution and
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appellant renewed her motion to dismiss based on insufficient evidence, which
was denied. (8 RT 1261).
Even after allowing the prosecution to reopen, there was insufficient
evidence that appellant failed to appear while out on O.R. The only significant
evidence that was added by the testimony of Avilla was that, typically, an attorney
would make sure his client understood that they had to appear while out on O.R.
This is not evidence of a written agreement. It is not even evidence of substantial
compliance. We do not know that appellant’s attorney advised her of anything;
just that typically, that is what an attorney would do.
It should also be noted that, even if substantial compliance were a
permissible substitute for actual compliance with the statute, the footnote in
Jenkins does not support the theory that an agreement in another case could
substitute for an agreement in the case at bar.
The five elements required by section 1318 were not proven by the
prosecution. There was no evidence that appellant made any of the required
promises either orally or in writing; there is no evidence that appellant agreed to
waive extradition; and there is no evidence that appellant was informed of the
consequences and penalties of failing to appear. There was no written promise to
appear in the underlying perjury case. The only evidence that could support a
theory of substantial compliance -- the written agreement made in another case --
does not comply with the provisions of Section 1318 (much like the written
agreement in Jenkins that was deemed insufficient). The prosecution failed to
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prove each and every element of the crime with which appellant was charged. For
this reason, her conviction should be reversed for insufficient evidence.
2. The Trial Court Abused Its Discretion by Allowing the
Prosecution to Reopen to Prove that Appellant was Out
on O.R.
Although a trial court has broad discretion to order a case reopened and
allow the introduction of additional evidence, there are factors that are to be
considered in reviewing the exercise of the trial court’s discretion. “Factors to be
considered in reviewing the exercise of [the trial court's] discretion include the
stage the proceedings had reached when the motion was made, the diligence
shown by the moving party in discovering the new evidence, the prospect that the
jury would accord it undue emphasis, and the significance of the evidence.”
(People v. Rodriguez (1984) 152 Cal. App. 3d 289, 294 citing People v. Newton,
supra, 8 Cal.App.3d 359, 383.)
Appellant contends that it was an abuse of discretion for the trial court to
allow the prosecution to reopen for two primary reasons: (1) it was not the
prosecution’s request to reopen, but the idea of the trial court after the prosecution
admitted there was no written agreement to appear; and (2) the prosecution did not
discover or diligently pursue new evidence that would justify reopening the case.
Realizing that the discretion to allow a party to reopen a case is extremely broad,
appellant nonetheless urges this court to consider the uniqueness of the facts of
this case. The prosecution failed to prove its case, so the judge, without request,
obtained evidence, invented a legal theory to get around the lack of proof, and
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allowed the prosecution to reopen. There was no new evidence. An expert on the
subject of O.R. release could have been procured at any time. The prosecutor
admitted there was no new evidence. The trial judge attempted to find new
evidence herself.
Given these unique facts, appellant contends that it was a prejudicial abuse
of discretion for the prosecution to be allowed to reopen their case to prove up an
element they failed to prove in its case-in-chief.
3. The Trial Court Abused its Discretion by Taking the Issue
from the Jury and Deciding it (Erroneously) as a Matter
of Law
“An issue of fact is one where the evidence introduced will support a
decision on either side, that is to say, reasonable minds could fairly differ as to the
answer to the question posed. An issue of fact can become an issue of law when
reasonable minds can draw only one conclusion from the evidence. An issue of
fact cannot be taken from a jury by the trial court and treated as an issue of law
unless only one conclusion is legally deducible and any other conclusion cannot
command the support of substantial evidence that will survive appellate review.”
(People v. Severance (2006) 138 Cal. App.4 th 305 quoting Pan Asia Venture
Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th 424, 433).
The trial court herein concluded that it could find substantial compliance as
a matter of law, based on the following analysis;
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“…the question of whether a valid contract exists is a
question of law. There is undisputed extrinsic evidence showing that
an enforceable contract did exist. While the defendant did not sign
the O.R. agreement in March 2003 and there is no direct record of
her being advised of the consequences and penalties for failing to
appear in her other case, she was so advised and did sign a similar
agreement.
There is no factual dispute relating to this extrinsic evidence,
and since there is no factual dispute, the Court may handle this issue
as a question of law.
I think that the undisputed facts show that the terms of 1318
were substantially complied with; that a legally unenforceable
contract did exist.” (9 RT 2464).
Although the court continually refers to “undisputed facts” which
demonstrate “substantial compliance” with section 1320, the only truly
“undisputed fact” on the subject is that there was no signed agreement in
accordance with the statute. The trial court’s conclusion was erroneous on many
levels. First, this was not an issue of whether a valid contract existed. It was an
issue of whether or not appellant was on O.R. release, as that term is defined in the
statute. As the Jenkins court stated, in rejecting the notion of proving up the
elements of the statute via substantial compliance, “a policy of accepting proof of
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substantial compliance in lieu of literal compliance in the instant context has little
to recommend it.” (Jenkins, supra at fn 3). The rationale for this is that “literal
compliance is “easily achievable and simple to prove.” (Id.) In this case, it simply
was not proven because there was no written agreement.
As the Jenkins court concluded: “However else it might be characterized, a
release without bail which does not comply with the specific requirements of
section 1318 is not a release “under an own recognizance.” (Id. at 25). The trial
court judge erroneously cast this case into the realm of contract law when all that
had to be decided was compliance or noncompliance with the statutory
requirements. To do so was error.
In addition, the trial court’s conclusion that “there is undisputed extrinsic
evidence showing that an enforceable contract did exist” is inaccurate on the face
of the record. Evidence that a contract did not exist is found in: (1) the fact that all
parties admit that there was no written contract containing the terms necessary for
an O.R. release; and (2) the testimony of Frank Cole, which was not stricken.
Cole, who represented appellant in the underlying perjury case, testified that
neither the court nor the prosecutor asked him to have appellant sign any sort of
written promise to appear and that it was his understanding that appellant was just
released without bail. (9 RT 1329-30, 1343). This would negate any inference
that an enforceable contract existed. Cole also testified that appellant was not
present at a mandatory trial setting conference on July 23, 2003 and no action was
taken with regard to her nonappearance. (9 RT 1335). Cole further testified that
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there are no documents to indicate that appellant signed a written promise to
appear or that she was advised that a failure to appear would result in the filing of
a criminal charge. (9 RT 1355). Each of these facts offer extrinsic evidence
countering the notion that there was “undisputed extrinsic evidence” of an
enforceable contract.
Finally, it should be noted that the court’s reliance on a civil contract case,
Robinson & Wilson, Inc .v. Stone (1973) 25 Cal. App. 3d 396, does not support the
Court’s ruling to remove from the criminal jury’s consideration, the duty to
ascertain whether the prosecution proved the elements of a criminal offense. Even
if the decision was applicable in some way, it held that where the existence of a
contract is a point in issue and the evidence is conflicting or allows more than one
inference, it is for the jury to determine whether the contract did in fact exist.
(Robinson, 25 Cal. App. 3d at 407). Here, whether or not there was an agreement
to appear in the perjury case was clearly an issue in dispute. The trial court
maintained that the “undisputed extrinsic evidence” of a similar agreement signed
by appellant in a separate case is enough to conclude that a contract did exist in
this case. This is incorrect. It was but one piece of extrinsic evidence set forth to
suggest that appellant may be aware of the obligations of O.R. release. In
addition, Exhibit 25 is not particularly probative because it was signed subsequent
to the failure to appear in the underlying action.
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Other extrinsic evidence included Cole’s testimony that he though appellant
was just released without bail and that he did not advise her that failing to appear
could result in the filing of a criminal charge. There was also the fact that
appellant had not appeared on other court dates, and no action was taken. There
was also the testimony of Mark Arnold, which clearly spelled out what terms must
be present for there to be compliance with the statute, and hence, an enforceable
contract. There was sufficient contradictory evidence (if we accept contract law as
applicable in this case), that it should have gone to the jury to determine if a valid
contract existed.
Removing this case from the jury and deciding it as a matter of law was
prejudicial error. The appellant was entitled under the Sixth and Fourteenth
Amendments to have a jury decide every element of the charge based on the
evidence presented. The trial court violated this right when it decided,
erroneously, that whether there was compliance with the statute was to be decided
as a matter of law on a contract theory.
The right of an accused to due process of law “is, in essence, the right to a
fair opportunity to defend against the State's accusations.” ( Chambers v.
Mississippi (1973) 410 U.S. 284, 294). The jurors, in fulfilling their duty to
decide where the truth lies, are “entitled to have the benefit of the defense theory
before them ....” ( Davis v. Alaska (1974) 415 U.S. 308, 317). The prohibition
against directed verdicts for the prosecution extends to instruction that effectively
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prevent the jury from finding that the prosecution failed to prove a particular
element of the crime beyond a reasonable doubt. (People v. Flood (1998) 18
Cal.4 th 470, 491-92, citing Sullivan v. Louisiana (1993) 508 U.S 275, 277-78;
Carella v. California (1989) 491 U.S. 263, 265; People v. Kobrin (1995) 11 Cal.
4 th 416, 422-23 and fn. 4 and U.S. v. Gaudin (1995) 515 U.S. 506, 522-23. It
should be beyond dispute that under the due process guarantee of the California
constitution, the prosecution has the burden of proving beyond a reasonable doubt
each essential element of the crime. (People v. Figueroa (1986) 41 Cal.3d 714,
725-37.)
By taking away this issue from the jury, the court essentially engaged in a
directed verdict, which is impermissible under both the Sixth and Fourteenth
Amendments to the U.S. Constitution. Appellant was entitled to have a jury find
beyond a reasonable doubt every element of the crime charged. The trial court
improperly withdrew an element of the crime, specifically whether or not
appellant was out on O.R., by deciding this issue as a matter of law against
appellant. This was a key defense issue and a required element of the crime.
4. The Trial Court Abused Its Discretion by Striking the
Testimony of Mark Arnold
The trial court, in making its ruling as a matter of law that appellant was out
on O.R., struck as irrelevant all of the testimony of the defense expert, Mark
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Arnold. The striking of testimony by the trial court is reviewed for abuse of
discretion. (People v. Reynolds (1984) 152 Cal. App. 3d 42).
The expert testimony of Mark Arnold went to the heart of the defense: the
failure of the prosecution to prove that appellant was released on O.R. It is also
important to note that the testimony was stricken in total, and that it was stricken
without a request from the prosecution. 4
In addition, the striking of the testimony,
in conjunction with removing the issue of proving O.R. release from the jury
virtually gutted appellant’s defense.
Arnold identified the specific requirements that need to be set forth in the
agreement pursuant to section 1318. (9 RT 1427). He testified that, if a defendant
is just ordered back without a written promise to appear, it is not an O.R. release.
(9 RT 1430). Echoing Jenkins, Arnold concluded that, when appellant was
released on her own recognizance by Judge Murphy, without having to sign the
document that contains the specific language of section 1318, “you can call it
whatever you want, but it’s not an own recognizance release.” (9 RT 1436).
The trial court’s rationale in striking the testimony was that it had found
that there had been substantial compliance with the requirements of 1318 and
1320, and that it was, therefore, not a jury question. It noted that Arnold’s
testimony did not go to any other fact, and so I’m going to strike it from the
record.” (9 RT 1464-65). It should be noted that the prosecution’s expert
4 Although the trial court later says that she is “going to grant the People’s motion to strike Mr. Arnold’s
testimony,” there is no reference in the record to the People making such a motion. (9 RT 1473).
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testimony was not stricken. By taking away this issue from the jury and striking
the testimony of Arnold, which comprised the a key defense, the trial court abused
its discretion and violated appellant’s 6 th and 14 th amendment rights to a fair trial.
5. The Trial Court Failed to Properly Instruct the Jury With
Regard to the Elements of O.R. Release
Jury instructions relieving the prosecution of the burden of proving beyond
a reasonable doubt each element of the charged offense violates a defendant’s due
process rights under the federal constitution. Such erroneous instructions also
implicate Sixth Amendment principles preserving the exclusive domain of the trier
of fact. (People v. Flood, supra at 491-92).
An essential element of the offense of violating section 1320 is that the
defendant be released from custody on O.R. The definition of O.R. for the
purpose of a prosecution for violating section 1320 is set forth in section 1318 as
follows:
“The defendant shall not be released from custody under an own
recognizance until the defendant files with the clerk of the court or other
person authorized to accept bail a signed release agreement which includes:
1. The defendant’s promise to appear at all times and places, as ordered by
the court or magistrate and as ordered by any court in which, or any
magistrate before whom the charge is subsequently pending;
2. The defendant’s promise to obey all reasonable conditions imposed by
the court or magistrate.
3. The defendant’s promise not to depart this state without leave of the
court.
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4. Agreement by the defendant to waive extradition if the defendant fails to
appear as required and is apprehended outside of the State of California.
5. The acknowledgement of the defendant that he or she has been informed
of the consequences and penalties applicable to violation of the conditions
of release.”
Here, the trial court rejected appellant’s requested instruction setting forth
elements of section 1318. Appellant asked the judge to instruct the jury on the
requirements of section 1320(b), arguing that there was no definition of O.R. for
the jury to consider and whether or not appellant was out on O.R. was an element
of the crime charged. (9 RT 1544). The trial court contended that the instruction
was adequate because it defined O.R. as “her promise to appear at the date, time,
and place ordered by the court.” (9 RT 1544). Trial counsel argued that section
1318 required more than that, but the trial court stated that it was “taken directly
from the statute” and denied the request to instruct the jury according to the
specific requirements of 1318. (9 RT 1544-45). The trial court instructed the
jury as follows:
“The defendant is charged with a violation of Penal Code
section 1320(b), failure to appear when released on own
recognizance. To prove that the defendant is guilty of this crime, the
People must prove that: One, the defendant was charged with the
commission of a felony; two, the defendant was released from
custody on her own recognizance; that is, her promise to appear at
the date, time, and place ordered by the court; three, the defendant
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willfully failed to appear as ordered; and four, the failure to appear
was in order to evade the process of the court.” (9 RT 1495)
This was error because it did not allow the jury to consider each and every
element of the crime charged. The trial court’s instruction defines O.R. as
appellant’s “promise to appear at the date, time and place ordered by the court.” It
omits the entire content of section 1318, including the fact that here must be a
signed release agreement containing defendant’s promises to: appear at all times
and places, as ordered by the court; obey all reasonable conditions imposed by the
court; not to depart this state without leave of the court; waive extradition if the
defendant fails to appear as required and is apprehended outside of the State of
California. The agreement must also contain an acknowledgement of the
defendant that he or she has been informed of the consequences and penalties
applicable to violation of the conditions of release.”
Failure to instruct a jury on the statutory elements of an offense is a trial
error subject to harmless error analysis, i.e., whether it appears beyond a
reasonable doubt that the omission of an instruction on the elements of a failure to
appear while out on O.R. did not contribute to this jury's verdict. ( Flood, supra,
18 Cal.4th at pp. 504.) An instructional error is harmless where the verdict
returned by the jury demonstrates that the jury necessarily found the omitted
elements in connection with other findings required by the instructions. (See id. at
p. 506.)
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The actions of the trial court in allowing the prosecution to reopen to
prove that there was substantial compliance with the statute, deciding as a matter
of law that there was substantial compliance, striking the testimony of the defense
expert that concluded that appellant was on out on O.R, and then refusing to
instruct the jury as to the specific requirements of section 1318, all prejudiced
appellant. Appellant was entitled to present all relevant evidence in her defense
and to set forth defense theories of the case. Appellant was also entitled to have
the jury decide each element of the crime beyond a reasonable doubt. The trial
court prevented appellant from introducing relevant evidence, arguing the defense,
and then failed to properly and fully instruct the jury in violation of appellant’s
constitutional rights.
III. THE TRIAL COURT VIOLATED APPELLANT’S 6 TH AND
14 TH AMENDMENT RIGHTS TO CONFRONTATION,
EFFECTIVE COUNSEL, AND A FAIR TRIAL, BY
TERMINATING HER OPENING STATEMENT AND HER
EXAMINATION OF WITNESSES AND BY REPEATEDLY
THREATENING TO GAG HER OR PLACE HER IN A
HOLDING CELL
A. Procedural Background
As detailed in the facts above, appellant was continually silenced during her
examination of witnesses, cross-examination of witnesses, voir dire, opening
argument and while attempting to make objections. (See infra pp. 85-87). Even
after counsel was appointed for appellant, the trial court continued to attempt to
silence appellant by admonishing her to stop communicating with her counsel
during trial.
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The following are examples of the trial court silencing appellant during critical
stages of the trial: (1) Appellant was told not to speak repeatedly and threatened
with physical gagging or placement in a holding cell prior to the start of trial (2 RT
263-64; 3 RT 368); (2) The trial court terminated appellant’s opening statement
(after interrupting it at least seven times), ultimately telling appellant to “have a
seat” and that she was “simply done” (3 RT 415-432); (3) While cross-examining
Sean Clark, the trial court told appellant “be quiet or I swear I’ll have you gagged”
(3 RT 495); (4) During the re-direct examination of Sean Clark, appellant
attempted to state grounds for an objection and the trial court threatened to remove
her from the courtroom; (4 RT 832); (5) During the cross-examination of defense
witness Mertze Dahlin, appellant made multiple objections and she was warned
again that she would be removed to a holding cell (6 RT 995, 1000); (6) The trial
court terminated appellant’s cross-examination of Sean Clark (4 RT 715); (7)
During further re-cross examination of Sean Clark, appellant was given “one
chance to ask a proper question” and told “you blow it and you’re done” (4 RT
837); (8) During the examination of Reverend Clark, appellant was removed from
the courtroom and placed in a holding cell (7 RT 1126); and (9) After counsel was
appointed for appellant, she was again threatened with removal by the trial court if
she did not refrain from gesturing, making faces, and communicating loudly with
her attorney. (9 RT 1476-77).
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B. Applicable Law
Pursuant to the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to assistance of counsel
during critical stages of the proceedings. (Herring v. New York (1975) 422 U.S.
853, 857 [trial judge's order denying counsel opportunity to make summation at
close of bench trial denied defendant assistance of counsel].)
In addition, pursuant to the Sixth and Fourteenth Amendments, a defendant has
a right to cross-examine all witnesses against him or her. ( Davis v. Alaska, (1974)
415 U.S. 308, 315-316; Bruton v. U.S. (1968) 391 U.S. 123, 135-136; People v.
Aranda (1965) 63 Cal.2d 518.) “[T]he Clause envisions [] ‘a personal
examination and cross-examination of the witness, in which the accused has an
opportunity, not only of testing the recollection and sifting the conscience of the
witness, but of compelling him to stand face to face with the jury in order that they
may look at him, and judge by his demeanor upon the stand and the manner in
which he gives his testimony whether he is worthy of belief.’ ” ( Ohio v. Roberts
(1980) 448 U.S. 56, 63-64, quoting Mattox v. United States (1895) 156 U.S. 237,
242-243).
C. The Trial Court Violated Appellant’s Sixth and Fourteenth
Amendment Rights by Continually Silencing Her and by Cutting Off
Appellant’s Opening Statement, Objections, Examinations and
Communications With Counsel
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Appellant was effectively denied the assistance of counsel at a critical stage
in the proceeding when, throughout the trial, she was cut off, told to be quiet, and
threatened with being gagged or placed in a holding cell.
Although there is some dispute as to whether this sort of violation is
reversible per se, the following case law supports the proposition that it is a
structural error requiring reversal: Ferguson v. Georgia (1961) 365 U.S. 570, 593-
596 (per se reversal required when defense counsel barred from conducting direct
examination of his client); Davis v. Alaska (1974) 415 U.S. 308, 315-318 (defense
counsel's cross-examination of prosecution witness cut-off after the prosecutor
objects; per se reversal rule applied); Herring v. New York (1975) 422 U.S. 853
(no summation allowed at end of bench criminal trial); Geders v. United States
(1976) 425 U.S. 80 (no consultation allowed between defendant and his lawyer
overnight); Gomez v. United States (1989) 490 U.S. 858, 873-876 (defense
counsel not permitted to conduct voir dire of jury panel; rather a magistrate
conducted it himself; this was a “critical stage” and hence error); Curtis v. Duval
(1st Cir.1997) 124 F.3d 1, 4-5 ( Curtis ) (defense counsel absent during the court's
delivery of a sua sponte supplemental jury instruction); United States v. Russell
(5th Cir.2000) 205 F.3d 768, 771-772 (two-day absence of one defense counsel
because of illness triggers reversible per se rule); Hunt v. Mitchell (6th Cir.2001)
261 F.3d 575, 581-585 (last-minute appointment of counsel by the court did not
give that counsel adequate time to prepare); Mitchell v. Mason (6th Cir.2003) 325
F.3d 732, 741-748 (defendant not provided counsel during pre-trial stage requires
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automatic reversal); French v. Jones (6th Cir.2003) 332 F.3d 430, 436-439 (no
counsel present during court's final deadlock-breaking instruction to the jury; per
se reversal rule applied).
Other authorities have found that prejudice must be demonstrated even when
counsel or the defendant is absent in a critical stage of the proceedings. (See, e.g.,
People v. Santos (2007) 147 Cal.App.4th 965). Appellant contends that her
continual silencing during the entire course of the trial constitutes structural error
requiring reversal. In addition, the silencing was prejudicial in many distinct
ways.
First, the silencing of appellant prevented her from completing her
examination of both prosecution and defense witnesses and denied her the right to
cross-examine. One of her primary defenses in the case was that she did not
willfully fail to appear in order to evade the process of the court. She was
maintained that she was ill and had to undergo a mandatory medical procedure
that day. She was not permitted to inquire fully about this subject, nor was she
allowed to speak to the subject in her opening argument. Second, the pervasive
nature of the silencing prevented appellant from being able to fully represent
herself and fully assist her counsel, given that she was constantly threatened with
the holding cell. Third, the jury was never able to hear the full defense appellant
intended to articulate because of the continual silencing and threatening of
appellant.
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An atmosphere was created in the courtroom where appellant was not able to
fully articulate objections or fully examine witnesses. Her defense was
undermined by the limitations placed on her by the trial court. This continued
even when counsel was appointed; the trial court tried to stop appellant from
communicating with her new counsel, although it was apparent that trial counsel
was relying on appellant’s assistance. Appellant’s conviction should be reversed
in that the trial court violated appellant’s 6 th and 14 th amendment rights and
deprived her of counsel throughout the trial by repeatedly ordering her not to
speak.
IV. THE TRIAL COURT COMMITTED ERROR WHEN IT
ALLOWED THE PROSECUTION TO INTRODUCE EVIDENCE
THAT THE UNDERLYING CHARGE IN SANTA CLARA COUNTY
WAS PERJURY AND THAT APPELLANT FAILED TO APPEAR
ON ANOTHER CASE IN L. A.
A. Procedural Background
The trial court allowed the prosecution to introduce evidence that: (1) the
underlying action in Santa Clara County was for perjury; and (2) appellant failed
to appear in a separate case in L.A., was apprehended in Utah, and returned to
California to face the L.A. charges.
Appellant argued at trial that the crime of failure to appear did not require any
particular crime as a predicate act, so there was no basis to permit the jury to be
told that the underlying offense was perjury. She argued that this error was
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compounded by the trial court’s redaction of the evidence to mask the fact that the
underlying perjury claim was dismissed. (See infra at pp. 115-16). (2 CT 225).
In its motions in limine, the People stated that it intended to “prove out the
failure of the defendant to appear on the docket set for trial on November 13,
2003,” (the L.A. case) claiming that “proof of that failure is of enormous probative
value, since it demonstrates the defendant’s intent to avoid trial on any matter.
Moreover, proof of that other act is built in to the People’s case-in-chief, since it
was the bail bondsman on that docket who actually arrested the defendant and
returned her to California.” (1 CT 116). The prosecutor argued that the prejudicial
effect would be minimal since the offense charged in that docket, a charge of
perjury related to a driver’s license application, “is not a charge likely to inflame
the passions of the jury.” (1 CT 116). The prosecutor further argued that the L.A.
case should be introduced to show that defendant intentionally failed to appear in a
prior action against her. (1 RT 42-43, 48). Appellant objected to the introduction
of this evidence. (1 RT 50, 56, 59). Although the grounds for the objection appear
to be that appellant did not receive notice of the evidence the prosecutor intended
to introduce regarding the L.A. case, it appears that she was prevented from
arguing the merits of whether the evidence should be allowed in under 1101(b).
During argument on the issue, the following exchange occurred:
“Mr. Berry: … what’s actually before the court is the 1101(b), to put in the
Los Angeles failure to appear, and I would repeat my argument that I believe the
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prejudicial value is minimal. It bears heavily on the defendant’s intent, and of
course, the means by which she was returned to California.
The Court: All right. And I will allow the evidence of the failure to appear
in Los Angeles.
Ms. Mohammed: Your Honor, may I comment?
The Court: I already gave you the opportunity to do that.
Ms. Mohammed: Your Honor, may I comment on his most recent –
The Court: You can comment on whether you received the discovery that
he says was sent to you in February. If you did not read it all, that’s your problem
but if you got it then you’re responsible for knowing what’s in it.” (1 RT 59).
Appellant was prevented from specifically arguing the issue of section
1101(b). Therefore, appellant did not waive her claim to raise this issue on
multiple grounds, including futility, lack of opportunity to object, and judicial
misconduct. (See, e.g., People v. Hill (1998) 17 Cal. 4 th 800, 820; In re
Khonsoavahn S. (1998) 67 Cal. App. 4 th 532, 536-37). It should also be noted
that, on July 5, 2006, when Ms. Arlidge took over representation of appellant, she
made a motion for mistrial, and argued, among other things, that it was error to
admit evidence of the L.A. case. She argued that this error was compounded by
the trial court’s failure to give a proper limiting or cautionary instruction relating
to the 1101(b) evidence. The court denied the motion for mistrial. (2 CT 224-25;
8 RT 1180-1184).
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B. The Evidence Should Have Been Excluded Under Section
1101(b)
The trial court granted the People’s motion in limine, and allowed the
prosecution to introduce evidence that appellant had been charged with perjury in
L.A. and to put on testimony from Sean Clark, Chad Christensen, and Zeke Unger,
in order to prove that appellant skipped out on her bond in the L.A. case, was
apprehended by a bounty hunter in Utah, and returned to California to face the
charge.
Evidence Code section 1101(b) allows the admission of a crime, civil
wrong, or other act to prove a fact such as motive, intent, common plan, or
identity, other than disposition. However, evidence of uncharged offenses is so
prejudicial that its admission requires extremely careful analysis of its probative
value weighed against its prejudicial effect. Because a substantial prejudicial
effect is inherent in such evidence, uncharged offenses are admissible only if they
have substantial probative value. (Brown v. Smith (1997) 55 Cal. App. 4th 767,
People v. Carpenter (1997) 15 Cal. 4th 312).
In weighing the probative value against the prejudicial effect, a three-prong
test applies: (1) the materiality of the fact sought to be proved or disproved; (2)
the tendency of the uncharged crime to prove or disprove the material fact; and (3)
the existence of any rule or policy requiring the exclusion of relevant evidence,
e.g. Evidence Code section 352. (People v. Sully (1991) 53 Cal.3d 1195, 1224.)
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A review of each of these prongs results in a conclusion that admission of this
evidence was error.
1. The Perjury Charge in Santa Clara County
As indicated above, the only reason the prior perjury count was admitted
was to prove that there was an underlying action in which appellant failed to
appear. This is a collateral issue that could have even been stipulated to or proven
simply by introducing evidence that appellant was charged with a prior crime and
that she failed to appear. However, the trial court allowed the prosecution to
introduce evidence that appellant failed to appear on a perjury case. This was
especially damaging given that appellant’s L.A. charge was also for perjury, and
given the fact that appellant was representing herself in pro per, requiring a certain
amount of credibility in front of the jury.
2. The Apprehension and Arrest on the L.A. Case
The apprehension in Utah on the L.A. case was immaterial to this case.
The evidence showed that appellant failed to appear in L.A., allegedly fled to
Utah, and was apprehended and returned to California. None of this had anything
to do with the circumstances of either the underlying perjury case in Santa Clara
County or the failure to appear. The material fact it intended to prove was that
appellant intended to evade the process of the court in Santa Clara County. Its
tendency to prove intent was weak.
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The evidence demonstrated that appellant had been present at multiple
court dates in the underlying action prior to the Master Trial calendar on
December 22, 2003. In addition, her attorney in the underlying action testified
that she always kept in contact with him, even after the failure to appear. She had
faxed him a notification that she could not appear on December 22, 2003 due to
medical reasons prior to the nonappearance. She had not fled her home or left the
State or failed to make contact with her attorney. However, the jury was asked to
believe that, since appellant failed to appear in L.A., her failure to appear in Santa
Clara County was to evade the process of the court. There is no clear rationale as
to how this is material and how it tended to prove intent. These facts are quite
different than what occurred in the L.A. case, where she was apprehended by a
bounty hunter in Utah while out on bail.
C. The Evidence Should Have Been Excluded Under 352
The trial court should have exercised its discretion to bar introduction of this
evidence as more prejudicial than probative. There is an abuse of discretion where
the probative value of the evidence “clearly is outweighed by [its] prejudicial
effect.” (People v. Crittenden (1994) 9 Cal.4 th 83, 134; see People v. Karis (1988)
46 Cal 3d 612, 637).
Several factors can be examined to determine if evidence is more
prejudicial than probative: the inflammatory nature of the evidence, the
speculative nature of the evidence, the probability of confusing the jury,
remoteness, consumption of time and probative value. (People v. Pitts (1990) 223
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Cal. App. 3d 606). Evidence that is weak, cumulative, immaterial and
inflammatory must be excluded. (People v. Maestas (1993) 20 Cal. App. 4 th 1482,
1486).
When the weak probative value is balanced against the grave risk that the
jury would be confused and prejudiced by appellant’s described behavior,
appellant submits that this court is compelled to conclude that the trial court
abused its discretion under 352 when it admitted the evidence of appellant’s
charge in L.A. and subsequent apprehension and the fact that the underlying
charge in Santa Clara County was for perjury.
The evidence of appellant’s prior charges had the effect of confusing and
distracting the jury from their job of determining whether the actual charged crime
was proved beyond a reasonable doubt. (See People v. Harris (1998) 60 Cal. App.
4 th 727, 738-9; and People v. Ewoldt, supra at 405.)
The admission of unfairly prejudicial evidence, including evidence of other
offenses is governed by the Watson standard, which encapsulates the
constitutional test for prejudice: whether it is “reasonably probable” a result more
favorable to the defendant would have been reached had the error not occurred.
(People v. Watson (1956) 46 Cal.2d 818).
In this case, appellant contended that she did not intend to evade the process
of the court. When the trial court allowed the testimony with regard to her L.A.
case and apprehension, it appeared more probable that this is something that
appellant does as a practice, and gave the jury a very compelling reason to convict
96

her. In addition, it let the jury know that appellant was charged twice with perjury.
Without this additional evidence, there was reasonable doubt as to whether or not
appellant intentionally evaded the process of the court or, rather, had a medical
reason for not appearing that day.
As argued in Section I above, there was not sufficient evidence to prove
Count One in this case. The evidence of intent was particularly weak; the only
evidence submitted by the prosecutor on appellant’s willful intent to evade the
process of the court was the circumstantial evidence of failing to appear in L.A.
Her counsel on the underlying perjury case, on the other hand, testified that
appellant had appeared multiple times, kept in contact with him even after failing
to appear, and was not told of the consequences of not appearing at the Master
Trial Calendar.
It should also be noted that the prejudicial value of this evidence was
actually enhanced by the fact that the jury was not allowed to be told, however,
that both the Santa Clara County case and the L.A. case against appellant were
ultimately dismissed. (Exhibit __, Second Motion to Augment; Probation Report
__ CT __). 5
In fact, the jury was not even allowed to hear appellant’s full
explanation for failing to appear in L.A. because the trial court refused to let her
go into the subject, contending that it was irrelevant. [“Now, anything else that
[Sean Clark] has to say is frankly irrelevant, and how many pieces of paper he got
from you is also irrelevant, or from somebody else. That’s not the issue. We’re
5 The Probation Report indicates that appellant had no prior felony convictions.
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not dealing with the case in Los Angeles; we’re dealing with the case up here, and
too many of your questions have tried to make an issue out of the case in Los
Angeles…”] (4 RT 713).
In addition, the testimony regarding appellant’s apprehension in Utah was
particularly colorful, and therefore, inflammatory. The bounty hunter tracing
appellant via a ruse involving an Islamic education website, the subsequent
surveillance and arrest, and the transport to Las Vegas, all read like they came
from a crime drama and served to elevate the perception of appellant’s criminality.
Yet, the reason it was all introduced is not clear. All of the testimony with regard
to her apprehension did little to demonstrate intent. When the guilt evidence is
weak, while the inflammatory evidence and/or argument are pervasive, the
evidence should be excluded. (Maestas, supra, 20 Cal. App. 4 th at 1497.)
When reading the transcript in this case, it is never made clear to the jury
why the evidence of appellant’s L.A. apprehension is introduced. The entire casein-chief
consisted of the testimony of the bail bondsman, the Utah landlord, and
the bounty hunter. The jury almost certainly was led to believe that appellant was
apprehended and returned to California to face trial in Santa Clara County.
The trial court compounded the possibility of misunderstanding when it
stated to appellant during her cross-examination of Sean Clark: “Just so happens,
apparently, that his bounty hunter found you someplace else. He has testified
extensively about placing you on bail in a case in Los Angeles where apparently
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you did not appear, and that’s why a bounty hunter went after you, and that’s why
you’re here.” (4 RT 714). Appellant was not apprehended by a bounty hunter to
face charges in Santa Clara County. To infer that she did so was incredibly
prejudicial in that, if it were true, it would be persuasive evidence of appellant’s
intent to evade the process of the court. However, appellant was not apprehended
by a bounty hunter due to a failure to appear in Santa Clara County. To say that
she was misled the jury on a pivotal issue in this case.
Allowing all the evidence of other crimes was confusing to the jury and
prejudicial to appellant. Weighed against the probative value to demonstrate
intent to evade the process of the court in Santa Clara County, it appears to be
more prejudicial than probative.
V. THE TRIAL COURT VIOLATED APPELLANT’S SIXTH
AMENDMENT AND FOURTEENTH AMENDMENT RIGHTS WHEN IT
FAILED TO GRANT APPELLANT’S MOTION TO CONTINUE BASED
ON MEDICAL REASONS
A. Procedural Background
Prior to and during the course of the trial, appellant filed and/or orally made
numerous requests for a continuance. (1 CT 120, 130, 180; 1 RT 16). These
motions were based on appellant’s poor health, specifically her diagnosis of
rhabdomyolysis. (1 RT 22). Because she was in pro per and had been
significantly ill, appellant argued that she was unable to properly prepare for trial.
(1 RT 28). Appellant further argued that to force her to go to trial in pro per and
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in poor health was a violation of her 14 th amendment and 6 th amendment rights. (1
RT 40). Her motions to continue were all denied as untimely and because the trial
court did not have any evidence of appellant’s medical condition from a physician.
(1 CT 150, 1 RT 17, 1 RT 37).
Just prior to the start of trial, appellant requested daily transcripts because
her medical condition made it difficult for her to pay attention in trial all day. (3
RT 408). Appellant reiterated that she was unprepared to proceed in pro per, that
she was in great pain, and that, therefore, she was being denied ineffective
assistance of counsel. (3 RT 408). The trial court stated that she would “not
listen to [appellant] ramble on like this” and denied her request for daily
transcripts. (3 RT 409).
On May 31, 2006, appellant advised the court that she would be in the
hospital the next morning, and requested a continuance on that ground. (1 CT
180). The court denied her request, stating that she required evidence of
appellant’s medial condition. In an effort to comply with the judge’s requirement
of medical evidence, appellant arranged for Dr. Earle Petrus to call into the
courtroom later that day. (2 RT 270). The judge asked to be put on the phone with
the doctor. After a discussion off the record, defendant stated to the court that Dr.
Petrus would not talk with her absent a written waiver. (2 RT 271).
On June 2, 2006, defendant advised the court that she was too ill to
continue with the trial that day. (1 CT 199). The court ordered defendant
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transferred to Regional Medical Center for purposes of determination of her illness
and ordered the medical center to provide findings by June 5, 2006. (1 CT 199).
On June 6, 2006, the court read certain information from Regional Medical Center
into the record over defendant’s objections. (2 CT 204). Specifically, the trial
court, which had received 88 pages of medical records from the hospital,
“summarized” the medical records, stating for the record that the patient was in
“no distress,” and that she had a normal CT scan and MRI. (4 RT 563-65). The
court stated that appellant had refused to be discharged home on June 5, that she
threatened litigation, and that she wanted two weeks leave from court. (4 RT 566).
She stated that appellant would not allow a psych consult, but that her neural work
up was negative and that appellant was manipulative, threatening, and demanded a
letter to avoid court. (4 RT 567-68). 6
B. Applicable Law
“No mechanical tests exist for deciding when a denial of a motion for a
continuance is so arbitrary as to violate due process, so the answer lies “in the
circumstances present in every case, particularly in the reasons presented to the
trial judge at the time the request is denied.” (People v. English (2007) ___ Cal.
Rptr. 3d __, 2007 WL 1651910 quoting Ungar v. Sarafite (1964_) 376 U.S. 575,
589). However, an “unreasoning and arbitrary insistence upon expeditiousness in
the face of a justifiable request for delay violates the right to counsel.” (English,
supra quoting Morris v. Slappy (1983) 461 U.S. 1, 11-12). Abuse of discretion
6 The medical records are found in Augmented CT 1-90.
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and prejudice to the defense suffices to reverse a judgment on the basis of a denial
of a motion for continuance. (English, citing People v. Samayoa (1997) 15 Cal. 4 th
795, 840).
C. It Was Error For the Court to Deny the Requests to Continue Based
on the “Summary” of the Medical Records
While the trial court read in portions of the medical records that, it
believed, justified the denial of a motion to continue, there are other notations in
the record that could equally support appellant’s request. Specifically, Dr. Kim
also stated that appellant may have “psych problems” that “underlie her
symptoms.” (Augmented CT 12). In addition, she was prescribed morphine
sulfate for “severe pain” intravenously from June 2 until discharge. (Augmented
CT 51). The “OT Evaluation” dated June 4 indicated that her diagnosis is “R/O
Myopathy Flare-up.” (Augmented CT 52). Her prior level of function was listed
as “limited ambulation” and her evaluation indicated that she needed assistance
grooming, dressing, showering, and walking. (Augmented CT 52). Appellant was
referred to as “cooperative and pleasant, with a good awareness of her physical
deficits.” (Augmented CT 52).
Given that appellant was in pro per and was experiencing, at a minimum,
pain that was debilitating enough that she needed assistance grooming, dressing,
showering and walking, and required the administering of morphine, her request
for a continuance was reasonable. In addition, appellant was granted one prior
continuance due to her medical condition and the records supporting that motion
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for continuance were in the record. (1 RT 18; 1 CT 74-99). It was an abuse of
discretion for the trial court to look through the 88 pages of records, which are
incredibly difficult to read and interpret, and make its own assessment of
appellant’s health, and then rely on that assessment to refuse to grant a
continuance.
D. Appellant Was Prejudiced By the Denial of a Continuance
Appellant was unable to adequately represent herself at trial due to her
medical condition. A continuance should have been granted and/or counsel
appointed so that appellant could have adequate representation. Appellant asked
multiple times during the trial to adjourn or break because of her symptoms. When
she did so, the trial court continually questioned appellant’s credibility in the
presence of the jury. The prejudice was, therefore, two-fold. First, appellant was
clearly not able to represent herself effectively at trial. She was unable to prepare
due to her illness and unable to perform in court. Secondly, she was prejudiced by
the continual questioning of her credibility whenever she raised the issue of her
health. For these reasons, the motion to continue should have been granted and
the failure to grant the motion prejudiced appellant.
VI. THE TRIAL COURT VIOLATED APPELLANT’S
FOURTEENTH AMENDMENT AND SIXTH AMENDMENT RIGHTS
WHEN IT FAILED TO GRANT APPELLANT’S REQUEST FOR
APPOINTMENT OF COUNSEL
A. Procedural Background
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Prior to the selection of the jury, defendant advised the trial court that she
was unprepared for trial, and she requested a continuance so that she could obtain
trial counsel. (2 RT 246). Defendant advised the court that she always intended
to represent herself in pretrial proceedings only and to retain counsel for the actual
trial. (2 RT 247). The trial judge, accusing defendant of “playing games with the
Court,” denied the motion as untimely. (2 RT 248). Appellant again objected that
her constitutional rights were being violated. (1 RT 40). Appellant then tried to
get a continuance for medical reasons. (See infra pp. 94-95).
After failing to get a continuance for medical reasons, and realizing that she
would not be able to handle the trial herself, appellant requested that the court
allow her time to retain counsel. On June 6, the day appellant returned to court
from the hospital, the following exchange occurred during a break to discuss
scheduling issues:
“Ms. Mohammed: It has been a consistent habit of Mr. Berry to defame me
to anyone and everyone, which changes their perception of me totally.
The Court: Oh, no. I don’t think Mr. Berry is responsible for changing
people’s perceptions of you, Ms. Mohammed. You do a very good job of that.
Ms. Mohammed: Your Honor, I know I sometimes – I have been provided
no discovery materials, and I’ve been railroaded to trial. I have put forward very
normal requests, which you have consistently denied. I have requested, very
validly, a motion to continue under very valid multiple grounds, including a sworn
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declaration from an attorney who I had intended to have represent me, and under
penalty of perjury, he swore he was hit by a car and couldn’t take care of it.
The Court: I don’t know what you’re talking about, Ms. Mohammed, and I
am going to ask you, please be quiet as the jury will be on their way in the
courtroom, and they’re on their way now.
Ms. Mohammed: There’s no one entering, Your Honor. What I’m
referring to –
The Court: I’m not going to listen to you anymore. You’re not getting a
continuance, and that’s it.
Ms. Mohammed: -- that I did not want to –
The Court: Ms. Mohammed, that’s it.
Ms. Mohammed: -- that I wish to procure counsel.
The Court: That’s it.
Ms. Mohammed: He swore under penalty of perjury –
The Court: Be quiet, Ms. Mohammed. You will be quiet.
Ms. Mohammed: You have a copy of the document, ma’am.
The Court: Are you going to be quiet?” (4 RT 696-97).
The jury then entered the courtroom, and the issue of appellant retaining
counsel was not raised again until the court, on its own motion several days later,
appointed counsel for appellant.
B. Applicable Law/ Standard of Review
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Appellant’s request for counsel operated as a request to reappoint counsel
after a waiver of that right in order to proceed in pro per. The decision whether to
reappoint counsel after a waiver of the right to proceed in pro per is a matter
within the discretion of the trial court. (People v. Cruz (1978) 83 Cal. App. 3d 308,
319-20 citing In re Conner (1940) 16 Cal.2d 701, 709; People v. Ruiz (1968) 263
Cal.App.2d 216, 223).
In People v. Elliot (1977) 70 Cal, App. 3d 984, the court suggested the
criteria to be used by an appellate court in reviewing the propriety of a trial court's
denial of a defendant's request to withdraw his waiver of counsel as follows: “(1)
defendant's prior history in the substitution of counsel and in the desire to change
from self-representation to counsel-representation, (2) the reasons set forth for the
request, (3) the length and stage of the proceedings, (4) disruption or delay which
reasonably might be expected to ensue from the granting of such motion, and (5)
the likelihood of defendant's effectiveness in defending against the charges if
required to continue to act as his own attorney.” (70 Cal.App.3d at pp. 993-994,
139 Cal.Rptr. at p. 211.) Further, the Elliot court stated that it is the duty of the
trial court to establish a record based upon the above factors. (Ibid.)
In both Cruz and Elliot, applying the factors listed above, the court held that
the trial judge abused his discretion in denying defendant's motion to withdraw his
waiver of counsel. The following is a factual comparison of the factors in these
cases to the case at bar.
The reasons set forth for the request: In Elliot, the defendant requested
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the reappointment of counsel, stating that he “could not successfully compete with
the prosecutor” after the prosecution made a motion under 1101(b). (Id. at 994). In
Cruz, the defendant stated that he felt incompetent to proceed further in pro per.
The courts in both cases declared these reasons to be valid. (Elliot, supra at 997;
Cruz, supra at 320). In the case at bar, appellant specifically told the court before
a jury was selected, that, while she felt competent to handle the pretrial motions,
she could not handle the trial and wished to procure counsel. (2 RT 246-47). The
trial court told appellant to “stop playing games with the court.” (2 RT 248).
When appellant reiterated her request to procure counsel, the trial court stated:
“You’re not getting a continuance, and that’s it.” (4 RT 696-97).
Length and stage of the trial proceedings: In Elliot, defendant made his
motion after a jury had been selected and just prior to the prosecution's opening
statement. Further, the court in Elliot found the trial not to have been a lengthy
one. In Cruz, the motion was made prior to assignment of a courtroom. Prior to the
court's ruling on Cruz’s motion, the prosecution estimated that the case would
require only two or three days of trial. In the case at bar, appellant made her
motion prior to a jury being selected. At the time, the prosecutor had estimated
that his case would take one to two days. (1 RT 20).
Disruption or delay which reasonably might be expected to ensue from
the granting of such motion: The continuance entailed in the substitution
requested by the defendant in Elliot would have required a ten-day delay. In Cruz,
the deputy public defender estimated a period in excess of three weeks would have
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een required. In both Elliot and Cruz, no showing was made by the prosecution
that the requested continuances would cause a disruption in the calendar of the
courts, that it would be detrimental to the prosecution of the cases, or that it would
be contrary to the interests of justice. Due to this failure, Cruz held that it “must be
presumed that the continuance requested by defendant in the instant case would
not have caused disruption to the court or prejudice to the prosecution beyond that
normally involved in a three-week delay.” In the case at bar, the prosecution
vehemently objected to a continuance for any purpose, stating “the time is at hand
to try this case, and the People will oppose it and will oppose any motion to
withdraw the Faretta waiver at this time. The defendant is also pro per in the Los
Angeles docket, and has been since April of 205 [sic], for nearly a year. She
knows her way around, and knew full well today was the day for trial and the day
to fish or cut bait day.” (1 RT 19). There was no specific reason why it was “fish
or cut bait day,” and there was no articulation of any prejudice, i.e., unavailability
of witnesses or preservation of evidence, by the prosecution.
The likelihood of defendant's effectiveness in defending against the
charges if required to continue to act as his own attorney: “…this factor, the
likelihood of effectiveness of the pro per defense, will in most cases weigh in
favor of a reappointment of counsel. This factor gains added weight when the
defense asserted is complex.” (Cruz, supra at 321). Here, hindsight is helpful. A
two-day trial turned into a 15-day trial. Appellant was placed in a holding cell.
Given that the first threat to place her in a holding cell occurred on the first day of
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motions in limine, it is not surprising where this case ended up. There are
hundreds of pages of transcript before a jury was ever selected. As it turned out,
the court, after placing appellant in a holding cell, had to appoint counsel mid-way
through the case. A short continuance ensued to then allow new counsel to
prepare. The likelihood of effectiveness was apparent from the very beginning of
this case. Appellant may have “known her way around,” but this did not in any
way mean that she could effectually handle her own trial defense.
The reason for denial of request: The court in Elliot was strongly
influenced by the reason for the trial court's denial of the defendant's motion. After
the defendant in Elliot made his motion, the trial court called in the deputy public
defender who had been previously assigned to the case. The deputy was asked by
the court whether he could immediately proceed to trial. After the deputy stated
that a ten-day continuance would be needed, the trial court denied the motion.
Upon these facts the court in Elliot concluded, “(f)rom the trial court's statements,
it is obvious that the trial judge only would consider granting defendant's request if
the deputy public defender was prepared to proceed at once, and with the jury that
had been selected to try the case.” (Elliott, supra at 996). In Cruz, although there
were no explicit statements made by the trial court, the court of appeal inferred
from the record that the principal reason for denial of defendant's motion was the
deputy public defender's lack of capacity to proceed immediately to trial. Cruz
concluded: “This factor should be irrelevant to the consideration of a defendant's
motion.” (Cruz, supra at 321). In the case at bar, the reason for the denial of the
109

equest appears to be founded on the trial court’s belief that the defendant is
malingering, and that her request is untimely, and made solely to avoid going to
trial. Appellant advised the court that she was not prepared for trial, that she
wished the proceedings to be suspended, and that she wished to retain counsel.
The trial court responded as follows:
“Your request is not timely, and it is denied. You have had a
very long time to get counsel in this case; years, in fact. You did not
do that. You have – you talk about how you just haven’t had any
time to prepare this case, and yet if that were the case, then you
should have been using that time to get an attorney to help you with
the case and to take it over. You have not done that.
You are apparently playing games with the court, and the
Court is simply not going to allow itself to have that happen.
You were told when you chose to go pro per how dangerous
that was and that you should not do it. You, nevertheless, made a
full waiver at that time and said you wanted to represent yourself,
and we have proceeded on that basis. You have spent hours – hours,
I am quite sure – preparing these motions and other documents that
you have submitted to the Court. You know case names and even
citations off the top of your head, so clearly, you have spent time
working on this.
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Perhaps you should have spent that time differently, but you
haven’t shown that you didn’t have time to work on your case, and it
is not timely for you to ask to substitute in an attorney at this time,
and I will not allow it. The case will proceed.” (2 RT 248).
C. Error/Prejudice
Both Elliot and Cruz concluded that the trial court abused its discretion in
denying defendant's motion to withdraw his waiver of counsel and for the
reappointment of counsel. These cases, as demonstrated above, are very similar
factually to the case at bar. Appellant made a request to withdraw her waiver prior
to the selection of the jury. There was no prejudice shown had time been allowed
for counsel to be retained or appointed. It was predictable at an early stage of the
proceedings that there would be great difficulty getting to a verdict given the
extreme tension between the appellant and the trial court judge. More importantly,
however, appellant had a fundamental right to withdraw her waiver and have
counsel appointed on her behalf. To refuse to continue the trial to allow for the
retention or appointment of counsel was an abuse of the court’s discretion, and a
violation of appellant’s 6 th amendment and 14 th amendment rights, requiring
reversal.
VII. THE TRIAL COURT COMMITTED ERROR WHEN IT
FAILED TO GIVE NEWLY APPOINTED COUNSEL TIME TO
PREPARE FOR TRIAL
A. Procedural Background
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As detailed above, appellant was placed in a holding cell, necessitating the
appointment of counsel midway through the defense case. When attorney Arlidge
first appeared on appellant’s behalf on July 5, 2006, she asked for a continuance of
two weeks to prepare for trial, because she had only received the discovery and
trial transcripts on June 27, 2006, and she was taking over in the middle of trial.
(8 RT 1178). In addition, Arlidge set forth the following grounds: she needed to
make arrangements for witnesses; there were 1200 pages of transcripts and 2,000
pages of discovery to read and interpret; no defense witnesses had been
interviewed by an investigator; and records had not been subpoenaed. Based on
these facts, Arlidge argued that, without a continuance, she could not effectively
represent the client. (8 RT 1178, 1184).
The trial court denied the motion for continuance, stating: “I can’t grant
that. I simply won’t. This jury was – we’ll never get to this jury, and that’s
simply not acceptable, and frankly, I don’t even know that I’ll give you until
Monday, and I will have to talk to the jury and see whether that can happen, but I
will not give you two weeks, and you know, if I’m going to lose my jury by even
going into next week, then we’re going to go this week.” (8 RT 1178). The trial
court further stated: “All I can say is Ms. Mohammed knew the danger of
representing herself and chose to take that risk, and if she didn’t properly prepare
the case, you know, that is also her risk…” (8 RT 1184).
Appellant subsequently made a motion to dismiss when the People failed to
prove each element of section 1318. The trial court denied the motion and
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allowed the district attorney to reopen. On July 11, after the prosecutor was
allowed to reopen, appellant again asked for more time to procure witnesses,
evidence, and the assistance of an investigator. (8 RT 1312, 1315). The court
again denied her request. (8 RT. 1316).
After the trial court made a ruling striking the testimony of defense expert
Mark Arnold and deciding as a matter of law compliance with the statute,
appellant’s counsel again asked the court for additional time, since the defense
case had been essentially gutted with this ruling. The trial court again denied this
request. (9 RT 1465, 1471).
B. Applicable Law
A trial continuance is mandatory when newly appointed defense counsel is
substituted in mid-trial. (People v. Maddox (1967) 67 Cal.2d 647, 652). “ ‘While
the determination of whether in any given case a continuance should be granted
“normally rests in the discretion of the trial court,” that discretion may not be
exercised in such a manner as to deprive the defendant of a reasonable opportunity
to prepare his defense. “That counsel for a defendant has a right to reasonable
opportunity to prepare for a trial is as fundamental as is the right to counsel.”
(Jennings v. Superior Court (1967) 66 Cal.2d 867, 875-876 quoting People v.
Murphy (1963) 59 Cal.2d 818, 825; see also People v. Maddox, supra, 67 Cal.2d
at page 652.)
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The court in People v. Maddox explained that the rationale for this is that “a
counsel who has been denied the opportunity to prepare is the equivalent of no
counsel at all: ‘the denial of opportunity for appointed counsel to confer, to consult
with the accused and to prepare his defense, could convert the appointment of
counsel into a sham and nothing more than a formal compliance with the
Constitution's requirement that an accused be given the assistance of counsel.’
Such an accused has not been ‘accorded the right of counsel in any substantial
sense.... The prompt disposition of criminal cases is to be commended and
encouraged. But in reaching that result a defendant, charged with a serious crime,
must not be stripped of his right to have sufficient time to advise with counsel and
prepare his defense.’ ” (People v. Maddox, supra, 67 Cal.2d at page 652).
The court in Maddox rejected the argument that a continuance was not
necessary due to an insufficient showing of the need to continue the trial to obtain
witnesses or conduct legal research. “The argument misses the mark. We are not
here concerned with the validity of those or any other particular statutory grounds
for continuing the trial; we vindicate, rather, defendant's general constitutional
right to adequate time for the preparation of his defense.” (People v. Maddox,
supra, 67 Cal.2d at pages 654-655).
When the court appoints new counsel, who is unfamiliar with the case, the
substitution order must be coupled with a continuance to allow newly appointed
counsel adequate time to prepare for trial. (People v. Wilkins (1990) 225
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Cal.App.3d 299, 307). Failure to grant a continuance under such circumstances
violates the defendant's rights to due process and effective representation and thus
constitutes structural error requiring automatic reversal. (People v. Morgan (1980)
101 Cal.App.3d 523, 530; People v. Maddox, supra, 67 Cal.2d at pages 653-654).
C. The Trial Court Violated Appellant’s Constitutional Rights
When It Failed to Grant Appellant’s Newly Appointed Counsel an
Adequate Continuance
Even if the record indicates defendant was at fault for placing the court in
this undesirable position, once the trial court withdrew defendant's pro per status it
was required to continue the trial to allow Arlidge an opportunity to familiarize
herself with the case and prepare for trial. Arlidge had received the 1200 pages of
trial transcripts and 2000 pages of discovery only five business days prior to
having to appear in the middle of a trial, with a seated jury, and put on a defense.
The case-in-chief had already been completed and appellant had begun her
defense when Arlidge was expected to appear and defend appellant.
The five days allowed to educate herself about everything that had occurred in the
trial, review the discovery, interview the client, procure witnesses, and conduct an
investigation was insufficient to allow her to prepare an adequate defense. This
was amplified when appellant was left eventually defenseless after the trial court
struck the testimony of her expert witness and took the key defense legal issue
from the jury. At that point in time, appellant’s new counsel again insisted that
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she needed time to prepare in order to effectively represent appellant. As
indicated above, her motion was denied. The trial court’s primary concern was
getting to the jury, regardless of how that affected the rights of appellant. As the
trial court said, if it would have affected the jury, it would not have even allowed
defense counsel the five days granted to prepare.
“When the right of a defendant to representation by counsel is involved,
the legislative policy in favor of prompt disposition of criminal cases, however
commendable, must not be permitted to transcend any of the basic elements of due
process of law . (Little v. Superior Court (1980) 110 Cal.App.3d 667, 671). The
trial court's failure to grant a continuance to appellant’s new counsel, appointed
after a significant amount of the trial had occurred, constituted a deprivation of
defendant's rights to due process and effective representation, thereby requiring
reversal of appellant's conviction.
VIII. THE TRIAL COURT COMMITTED ERROR BY REDACTING
EXHIBITS THAT SO THAT THE JURY WOULD NOT BE TOLD
THE SUBSTANCE OF THE UNDERLYING CHARGE AND THAT
SAID CHARGE HAD BEEN DISMISSED
A. Procedural Background
Prior to trial, the prosecutor made a motion in limine to introduce evidence
of the perjury case “just to show there was a case.” (1 RT 176). In his motion, he
further asked that the defendant not be allowed to mention that the case was
dismissed. (1 RT 177). Appellant objected to the introduction of the perjury
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charge without being allowed to tell the jury it was dismissed as unduly
prejudicial. (1 RT 177-78). The trial court ruled that the People were allowed to
introduce an Information showing the underlying charge, that the facts of the
perjury case could not be discussed by either party, and that the disposition of the
charge not be mentioned. (1 RT 180, 1 CT 150, 151, 169). Appellant objected to
the admission of Exhibit 4, which was the court docket print-out admitted with the
notation that the charge was dismissed redacted. The exhibit was admitted over
her objection. (3 RT 406-7, 9 RT 1545-46).
The following are the admitted exhibits in question:
Exhibit 4: Court Docket, redacted to remove mention of dismissal of
underlying perjury case granted “in the interest [of] justice.” (Not admitted
Exhibit 5 is the original document submitted to the court). (See Second
Supplemental Motion to Augment Record.)
Exhibit Y: A packet of minute orders evidencing appellant’s court dates in the
underlying perjury case, as redacted to remove the final Minute Order dated
December 5, 2005, stating that the perjury case had been dismissed and that
defendant had been discharged. (Not admitted Exhibit Y-1 is the original packet
submitted to the court, which includes the December 5 Minute Order). (See
Second Supplemental Motion to Augment Record.)
Exhibit 1: Information, redacted to remove the foundation of the perjury
charges, specifically the claim that appellant lied when she stated under oath that
she has “personally, literally always since the age of eighteen lived in Beverly
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Hills” and the claim that appellant lied by certifying under penalty of perjury that
“for the past thirty years every permanent address I have had has [sic] been in or in
Beverly Hills [sic].” (Not admitted Exhibit 1(A) is the original Information). (See
Second Supplemental Motion to Augment Record.)
The trial court did not specifically articulate why it was not allowing
evidence of the substance of the perjury charge, as well as evidence of the
dismissal to be admitted. The prosecutor stated that he needed to put on a
“truncated version of the perjury case…just to show there was a case.” (1 RT 176).
He added that he did not “want the defendant to mention … that the case was
dismissed.” (1 RT 176). His reasoning was as follows: “The defendant may have
had a defense to the case. We were all set to hear it in 2003. What happened, it
was going to cost another fortune to set it up in 2006. I was not about to do that to
the people of this county. That being the case, I can do one of two things. I could
show right off it was a meritorious case, in which event we would go through the
barbed wire that we’ve done today, or I can ask the Court for a ruling saying there
will be no discussion of the outcome of this case.” (1 RT 176). The trial court
ruled that there would be no discussion of the outcome of the case.
B. Applicable Law
The trial court never defined why it was not admitting the outcome of the
perjury case or substance of the charge. Arguably, it may not have been relevant
to let the jury know that the substance of the underlying perjury involved lying
about the location of appellant’s permanent residence and that the prior case was
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dismissed. However, once the trial court allowed the prosecution to articulate that
the crime charged was perjury, it was an abuse of discretion to fail to provide
context for the jury. This was particularly critical because the crime was perjury,
which directly impugned appellant’s credibility before the jury. The evidence
was, therefore, probative, in that it tempered the blow to appellant’s credibility.
The jury would learn that the perjury charge involved somewhat innocuous facts
and was, in fact, ultimately dismissed.
Once the trial court allowed the jury to learn of the perjury charge, the facts
of the charge and the fact that it was dismissed became equally relevant. Given
the probative value of the excluded evidence, exclusion of that evidence under
Section 352 was only proper if a countervailing consideration listed in that section
“substantially outweighed” that probative value. Here, the trial court cited no
countervailing consideration as the basis for exclusion. Presumably, it was relying
on the prosecution’s argument that the excluded evidence would have consumed a
great deal of time and explanation as to why it was dismissed.
To enable meaningful appellate review, when a trial court excludes
evidence under Section 352, “the record must demonstrate affirmatively” a
weighing of the probative value of the evidence against the harm sought to be
avoided by its admission. ( People v.. Crittenden (1994) 9 Cal.4th 83, 135.)
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There is, in fact, little case law supporting the exclusion of probative evidence on
the ground that it would confuse the issues or otherwise mislead the jury, and one
respected commentator suggests that it is “difficult to conceive of” a valid exercise
of discretion on these grounds. (See 1 Witkin, Cal. Evidence (4th ed. 2000)
Circumstantial Evidence, § 23, p. 347 [arguing that “it is most difficult to conceive
of relevant evidence” that can be properly excluded on the grounds of confusing
the issues or misleading the jury under Section 352, and warning that in doing so,
“the judge risks reversible error”]; Cunningham, supra, 25 Cal .4th at p. 999
[Section 352 “must yield to a defendant's ... right to present all relevant evidence
of significant probative value to his or her defense”].)
Section 352 does not authorize exclusion of evidence based on a likelihood
of “confusing the issues” where the proffered evidence is relevant to an issue
already present in the trial. (See Cudjo, supra, 6 Cal.4th at p. 609 [finding abuse
of discretion to exclude evidence for potential confusion where excluded
testimony went to “the primary defense,” an “issue [that] was already there, as
defense counsel had made clear from the outset of trial”]; People v. McAlpin
(1991) 53 Cal.3d 1289, 1310, fn. 15 ( McAlpin ) [where evidence raises no new
issue, but is “limited to the main issue in the case,” it does not create a substantial
danger of confusing the issues within the meaning of § 352].) In the instant case,
the excluded evidence was relevant to an issue that was already before the jury,
namely, appellant’s underlying perjury charge. Thus, the trial court could not
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properly exclude evidence relevant to that issue as “confusing the issues” under
Section 352.
If the proffered evidence was of significant probative value, and its
exclusion was not authorized on the ground relied on by the trial court, the trial
court's evidentiary ruling constituted an abuse of its discretion. (See Wright, supra,
39 Cal.3d at pp. 582-585) and a violation of appellant’s constitutional rights.
(See, e.g., Cunningham, supra, 25 Cal.4th at p. 998 [Section 352 “must yield to a
defendant's due process right to a fair trial and to the right to present all relevant
evidence of significant probative value to his or her defense”]; Pennsylvania v.
Ritchie (1987) 480 U.S. 39, 56 [“criminal defendants have ... the right to put
before a jury evidence that might influence the determination of guilt).
C. It Was Error to Allow Introduction of Evidence of the Prior
Perjury Charge Without Allowing Evidence that the Charge Had
Been Dismissed and the Substance of the Charge
Proving up the prior offense was not a justifiable reason for defining the
charge. The trial court allowed the jury to hear that appellant was charged with
perjury, but refused to allow the jury to hear evidence that the perjury case was
dismissed in the interest of justice. In addition, the trial court refused to allow the
jury to read the Information in that case, specifying that the charge was with
regard to lying about the location of her permanent residence.
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As redacted, the evidence of the perjury case became much more
inflammatory. First, as argued infra at pages 92-96, the jury should not have been
told at all that the charge was for perjury. It was unnecessary and not probative.
The prosecution only needed to prove that appellant failed to appear on an
underlying charge. It did not need to go into the details of the charge. That being
said, when the trial court allowed the prosecution to go into the specific charge,
appellant should have been able to submit evidence that the substance of the
charge involved lying about her permanent residence and that the charge had been
dismissed in the interest of justice.
D. Appellant Was Prejudiced By the Redacted Exhibits
Potentially, the jury could have formed a completely different impression
of appellant’s charge if they had been informed of all the facts – or if it had been
simply been informed that there was a prior charge without defining it. By
redacting exhibits, the trial court made the evidence of the underlying charge even
more prejudicial. Appellant’s honesty was impugned, without providing the
specific facts of the charge and without providing the critical information that the
case against her was ultimately dismissed. The court, to be fair and prevent such a
prejudicial outcome, should have either allowed all of it in or none of it in.
Redacting exhibits to conform to the prosecution’s desire to advise the jury that
appellant had been charged with perjury and nothing else, was prejudicial to
appellant.
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IX. THE TRIAL COURT ERRED BY REFUSING TO ADMIT EVIDENCE
RELATING TO APPELLANT’S MEDICAL EXCUSE FOR NOT
BEING PRESENT AT TRIAL AND BY FAILING TO ALLOW
APPELLANT’S TRIAL COUNSEL TIME TO SUBPOENA
DOCUMENTS AND AUTHENTICATING WITNESSES
A. Procedural Background
The trial court refused to allow appellant to introduce evidence of a medical
excuse faxed to Frank Cole, her attorney in the underlying perjury case. (9 RT
1570-72). The trial court admitted as Exhibit W, a redacted version of the letter
that only includes the following: “Salee Barnes is a patient of this office and had
been scheduled today for an EEG in this office. Sincerely, Makkah Mixon.” (9
RT 1571). The trial court refused to admit evidence the “four paragraphs that talk
about her being under the care of Dr. Young, that she must attend medical
appointments, or that she must not be exposed to stressful duties,” concluding that
it was “all unsubstantiated hearsay.” (9 RT 1571). This was over appellant’s
objection. (9 RT 1571).
During the testimony of Frank Cole, the trial court prevented questioning
regarding the content of this letter, as well. During Cole’s testimony, the
following exchange occurred:
“Q. (By Ms. Arlidge): Mr. Cole, that letter concerns, does it not, Ms.
Mohammed’s appointment with that office on December 22, 2003; correct?
Yes. It says it’s mandatory.
The Court: No, no.
Mr. Berry: Objection.
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The Court: Not – all we’re asking for is the date and the time; nothing further.
The Witness: Yes, it does.
The Court: Anything further is stricken from the record.” (9 RT 1348).
The trial court precluded admission of the exhibit and testimony from Cole
that appellant’s medical appointment was mandatory and that she was under the
care of a physician at the time. The trial court did so based on the fact that it was
hearsay.
The trial court also refused to allow trial counsel to have time to subpoena
witnesses who could potentially authenticate the medical records, including the
disputed faxed letter to Cole. Trial counsel asked for additional time to locate and
interview witnesses and obtain records. (9 RT 1312-13). She argued specifically
that those records show that appellant “was not running from the law by going to
another state, as was suggested by the prosecution.” (9 RT 1316). In addition, she
argued that the subpoenas she served (but had not yet been responded to) would
produce records to establish “a pattern of behavior that occurred during this period
of time.” (9 RT 1321).
The trial court denied appellant’s request for more time, stating that “these
things are, one, explanations, not excuses, not legal excuses; and two, they appear
to call for hearsay.” (9 RT 1316). The trial court further stated that the medical
records themselves would not come it because “[w]e have to have a doctor who
was involved with those medical records to make them at all admissible and
relevant.” (9 RT 1319).
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B. Applicable Law
The evidence excluded as hearsay went directly to appellant’s state of
mind, i.e., whether or not she intended to evade the process of the court. Pursuant
to Evidence Code section 1250, hearsay is permitted if it is “evidence of a
statement of the declarant's then existing state of mind, emotion, or physical
sensation ... when (1) The evidence is offered to prove the declarant's state of
mind, emotion, or physical sensation at that time or any other time when it is itself
an issue in the action; or (2) The evidence is offered to prove or explain acts or
conduct of the declarant.” (Evid.Code, § 1250, subd. (a).)
As observed in People v. Hernandez (2003) 30 Cal.4th 835, “[a]
prerequisite to this exception to the hearsay rule is that the declarant's mental state
or conduct be factually relevant.” ( Id. at p. 872.)
C. Standard of Review
The trial court's evidentiary rulings are reviewed for abuse of discretion.
(People v. Jablonski (2006) 37 Cal.4th 774, 821; People v. Rowland (1992) 4
Cal.4th 238, 264 [admissibility of evidence turning on “hearsay rule/state of mind
exception” subject to abuse of discretion review].)
D. The Trial Court Erred By Refusing to Admit Evidence of
Appellant’s State of Mind Relative to Her Willful Failure to
Appear to Evade the Process of the Court
Appellant’s state of mind was a critical element of the crime with which she
was charged. It was not sufficient to prove that appellant simply failed to appear
at the Master Trial Calendar. The prosecution was required to prove that her
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failure to appear was a willful act, and that it was done to evade the process of the
court. Appellant attempted to prove that she did not intend to evade the process of
the court; rather, she was under strict instructions from a doctor to be available for
mandatory testing and to avoid stressful conditions while awaiting these tests. The
trial court, however, refused to admit the letter that contained these statements.
The statements are clearly relevant to appellant’s state of mind as they
demonstrate that appellant was not trying to evade the process of the court.
Instead, she remained in Los Angeles because she believed it was necessary that
she have mandatory medical procedures and take care of her health. Since the trial
court concluded that this was inadmissible hearsay, the jury was unable to have
this very important evidence of appellant’s state of mind. This was extremely
prejudicial to appellant, who had advanced her lack of intent to evade the process
of the court as a primary defense. In addition, the lack of evidence on appellant’s
state of mind was pounced upon by the prosecutor who argued that it was merely
inconvenient for appellant to appear in court that day, and that she made up her
own rules. (9 RT 1504-7).
X. THE TRIAL COURT COMMITTED ERROR BY ALLOWING
INTRODUCTION OF EXHIBIT 25 AND THEN REFUSING TO
GIVE A LIMITING INSTRUCTION
A. Procedural Background
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Over objection, the prosecution was allowed to introduce Exhibit 25, which
was appellant’s agreement to appear in a different case, executed subsequent to
her failure to appear in her underlying perjury case. (9 RT 1365, 1457).
Appellant argued that the promise to appear was filed in another case, and was
therefore, irrelevant to whether appellant signed a promise to appear in this case.
(9 RT 1364-65). Appellant further argued that since it postdates the O.R. release
that occurred in the underlying perjury case, it was not probative with regard to
whether or not appellant knew her obligations of O.R. release. (9 RT 1365). The
trial court admitted the exhibit as more probative than prejudicial. (9 RT 1366).
Appellant then offered the following instruction, which was declined by the
trial court: “You should not substitute evidence of any other agreement to appear
that the defendant may have made in any other case in determining whether or not
there was an agreement in this case.” (9 RT 1457). The trial court concluded that
the People “may use circumstantial evidence of the other agreement in this case”
and thus, refused to give the instruction. (9 RT 1457).
B. Applicable Law/Error
Initially, under section 352, discussed above, the circumstantial evidence of
appellant’s agreement to appear in another case is not probative of any fact
properly put before the jury. Even if appellant had signed multiple agreements to
appear on prior cases, there was not a signed agreement to appear in this case.
Circumstantial evidence of her awareness of the obligations of O.R. release does
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not get around that fact. Appellant recognized that this evidence could also be
misleading and confusing to the jury. Most of this trial was spent talking about
appellant’s other cases. There was testimony at length about her arrest in the L.A.
case. Exhibit 25 consisted of an agreement to appear in another case. There was a
grave possibility that the jury could believe that Exhibit 25 applied to the
underlying perjury case unless this fact was clarified by the court. The judge’s
refusal to clarify was prejudicial to appellant. When admission of evidence is
error, the resulting prejudice to the defendant can be compounded both by the
absence of any limiting instruction. (People v. St. Andrew (1980) 101 Cal.App.3d
450, 464-65).
Here, appellant realized the misleading effect that this evidence could have
on the jury and requested a specific instruction that would limit the jury’s
consideration of Exhibit 25. The instruction would have clarified that Exhibit 25
was not an agreement to appear in the underlying perjury case. Instead of giving
this instruction, however, the trial court instructed that it could be used as
“circumstantial evidence.” As indicated above, this made no sense since it postdated
the failure to appear. Additionally, the lack of a limiting instruction,
coupled with the lengthy testimony about the L.A. case, made it plausible that the
jury would find that the agreement actually applied to this case.
XI. THE TRIAL COURT ERRED BY GIVING THE FLIGHT
INSTRUCTION
A. Procedural Background
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The trial court instructed the jury as follows: “If the defendant fled
immediately after the crime was committed, that conduct may show that she was
aware of her guilt. If you conclude that the defendant fled, it is up to you to decide
the meaning and importance of that conduct. However, evidence that the
defendant fled cannot prove guilt by itself.” (9 RT 1493). Prior to giving this
instruction, appellant objected because there was no evidence of flight in this case.
Appellant merely failed to appear for trial; she had not, however, fled. (2 CT
258).
B. Applicable Law
Instructions that are inapplicable to the facts of a case simply should not be
given. (People v. Jackson (1954) 42 Cal.2d 540, 546-7). [“It has long been the law
that it is error to charge the jury on abstract principles of law not pertinent to the
issues in the case [citation omitted]. The reason for the rule is obvious. Such an
instruction tends to confuse and mislead the jury by injecting into the case matters
which the undisputed evidence show are not involved.”]
C. Error/Prejudice
In this case, as indicated above, the potential for confusion relative to
appellant’s prior L.A. case was great. There was significant testimony about
appellant being apprehended in Utah after allegedly fleeing from her L.A. court
date. Given that this was the only evidence of flight in the case, and given the fact
that there was not even an allegation that she fled from her Santa Clara County
case, to instruct on flight in general terms was misleading and confusing. In
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addition, it was prejudicial in that it, once again, misled the jury into believing that
the testimony about appellant’s alleged flight to Utah before her failure to appear
in this case was somehow applicable to her failure to appear in Santa Clara
County.
XII.
THE TRIAL COURT COMMITTED ERROR BY REFUSING TO
STRIKE THE ENHANCEMENT CHARGE
A. Procedural Background
Appellant argued that the enhancement charged under section 12022.1
should be stricken under People v. Meloney (2003) 30 Cal. 4 th 1145 because the
underlying charge was dismissed. (9 RT 1460, 2 CT 259). The trial court denied
this request. (9 RT 1461). Appellant further asked that the jury not be instructed
on the enhancement for the same reason. (2 CT 259). The trial court refused to
strike the enhancement or the instruction and, instead, opted to decide the matter at
sentencing if and when appellant was convicted. After appellant was convicted
on both Count 1 and the enhancement, she asked for the trial court to strike the
enhancement. (10 RT 1628). The court requested letter briefs on the subject;
these briefs however were apparently never filed and a ruling was not issued. (10
RT 1627-29).
B. Waiver
Initially, it should be noted that the failure to submit a letter brief on the
subject post-trial does not waive this issue. Appellant had asked on three separate
occasions for the court to strike the enhancement based on specific case law. She
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was denied each time. The only reason for submitting letter briefs was the
prosecutor’s claim at the sentencing hearing that “because it wasn’t briefed by the
defendant…I didn’t brief it either.” (10 RT 1628). Appellant had already
repeatedly asked for a ruling and provided the authority for the ruling: People v.
Meloney. If this court did find that the failure to ultimately procure a ruling
waived this issue, appellant contends that such a waiver was due to ineffective
assistance of trial counsel.
C. Applicable Law
Section 12022.1 provides that when a defendant who is on bail pending
adjudication of a “primary offense” felony is convicted of a “secondary offense”
felony, he or she “shall be subject to a penalty enhancement of an additional two
years in state prison ....” (§ 12022.1, subd. (b).)
Pursuant to section 12022.1(a): “For the purposes of this section only: (1)
'Primary offense' means a felony offense for which a person has been released
from custody on bail or on his or her own recognizance prior to the judgment
becoming final, including the disposition of any appeal, or for which release on
bail or his or her own recognizance has been revoked.... (2) 'Secondary offense'
means a felony offense alleged to have been committed while the person is
released from custody for a primary offense.”
Pursuant to section 12022.1(d): “Whenever there is a conviction for the
secondary offense and the enhancement is proved, and the person is sentenced on
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the secondary offense prior to the conviction of the primary offense, the
imposition of the enhancement shall be stayed pending imposition of the sentence
for the primary offense. The stay shall be lifted by the court hearing the primary
offense at the time of sentencing for that offense and shall be recorded in the
abstract of judgment. If the person is acquitted of the primary offense the stay
shall be permanent.”
D. Appellant Cannot Receive an Enhancement on a Secondary
Offense When the Primary Offense Has Been Dismissed
The primary offense in this case was the perjury charge in Santa Clara
County. In the interests of justice, that charge was dismissed prior to the trial of
the secondary offense – the failure to appear at the perjury trial. As such, section
12022.1(d) requires that a permanent stay of the imposition of the enhancement be
granted. The trial court herein, as required by the statute, should have issued such
a stay at the sentencing hearing, or stricken the enhancement allegation altogether
as requested by appellant.
E. If the Trial Court Finds that This Issue is Waived, Trial
Counsel’s Failure to File a Letter Brief and/or Request a Supplemental
Ruling Constitutes Ineffective Assistance of Counsel
In People v. Lewis (1990) 50 Cal.3d 262, 288, the court summarized the
showing required for a claim of ineffectiveness of counsel as: (1) trial counsel
failed to act in the manner to be expected of reasonably competent attorneys acting
as diligent advocates and (2) it is reasonably probable that a more favorable
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determination would have resulted in the absence of counsel’s failings.” Under
this standard, the failure to submit a letter brief as requested by the trial court, and
the consequent failure to obtain a ruling on a critical issue of law, constituted
ineffective assistance of counsel. The issue is fairly straightforward. Appellant’s
sentence cannot be enhanced on a primary offense that was dismissed. Had her
counsel filed the necessary briefing and requested a ruling, it s likely that the
enhancement would have been stricken.
XIII. THE COURT ABUSED ITS DISCRETION IN REFUSING TO
REDUCE THIS CHARGE TO A MISDEMEANOR
A. Procedural Background
At the sentencing hearing in this case, appellant requested that her
conviction be reduced to a misdemeanor, arguing that the failure to appear does
not rise to the level of a crime that warrants her to bear the burden of the
consequences of a felony conviction. (10 RT 1604-6). The trial court refused to
reduce the charge to a misdemeanor, finding that:
“Ms. Mohammed has shown utter contempt for the law and
for the court in the way she failed to appear in this case; her move to
Utah, her use of other names, her use of other social security
numbers…..to this day Ms. Mohammed fails to acknowledge any
behavior of hers that was improper or let alone criminal, and I
simply do not believe that she has shown that she is a responsible
adult or that she recognizes the appropriateness of her actions in
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failing to appear and fleeing to Utah, and I think that it was felony
conduct.” (10 RT 1618).
The Probation Report recommended that appellant be given
probation and a minimal County Jail sentence, noting that she had no prior
felony offenses and that the current offense was neither a violent or serious
felony. (2 CT 288-89).
B. Applicable Law
The trial court has discretion to reduce a conviction of failing to appear to a
misdemeanor under section 17, subdivision (b). ( People v. Trausch (1995) 36
Cal.App.4th 1239, 1247; see also § 1320.5.) A trial court, in deciding whether to
exercise its discretion under section 17 should consider “ ‘the nature and
circumstances of the offense, the defendant's appreciation of and attitude toward
the offense, or his traits of character as evidenced by his behavior and demeanor at
the trial.’ “ ( People v. Superior Court ( Alvarez ), supra, 14 Cal.4th at p. 978).
Further, a lower court must take into account “the defendant's criminal past and
public safety....” ( Id. at pp. 981-982). Also, in appropriate circumstances, a trial
court should consider the general objectives of sentencing such as those set forth
in California Rules of Court, rule 410 (now rule 4.410). ( Alvarez, supra, at p.
978.) “The corollary is that even under the broad authority conferred by section
17[subdivision] (b), a determination made outside the perimeters drawn by
individualized consideration of the offense, the offender, and the public interest
‘exceeds the bounds of reason.” ( Ibid.)
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C. Error
The trial court abused its discretion when it denied appellant’s request to
reduce her felony failure to appear conviction to a misdemeanor pursuant to
section 17, subdivision (b). Specifically, the court abused its discretion in refusing
to reduce to a misdemeanor for the following reasons: her failure to appear was in
a case that was ultimately dismissed; there was no victim in the case; the failure to
appear was “not felony behavior”; and appellant has had a positive impact on the
community. (10 RT 1615-17).
In addition, the trial court improperly relied on evidence presented at trial to
deny her motion. Specifically, the trial court placed a great deal of emphasis on
the fact that appellant fled to Utah when her L.A. case was pending. This had
nothing to do with the conduct in Santa Clara County. As her trial counsel in the
underlying charge testified, she maintained contact with him continuously, even
after the failure to appear.
The trial court also seemed to rely on the long historical narrative the
prosecutor gave about his interactions with appellant. He was allowed to proceed
at length, accusing her of behaviors that had nothing to do with this case, and that
were wholly unsubstantiated. The prosecutor alleged that appellant falsely
claimed to be a victim of domestic violence and that she stole goods from a
domestic violence shelter (10 RT 1611, 1615), that appellant has a “serious
disorder” (10 RT 1613), her “systematical abuse of relationships of just every
kind” (10 RT 1614), and that she escaped prosecution for three offenses via
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“felonious flight.” (10 RT 1615). None of this is substantiated by the record; it is
simply the argument of counsel. To the extent that the trial court relied on this
information in denying the motion to reduce the conviction to a misdemeanor, it
was misplaced.
It is also important that the underlying charge was ultimately dismissed.
Appellant now holds a felony conviction for failing to appear on a case that was
dismissed in the interests of justice. The trial court, while extremely frustrated
with appellant’s behavior, should not have allowed that to influence whether to
reduce this charge to a misdemeanor. The failure to reduce the charge to a
misdemeanor was an abuse of discretion.
XIV. THE CONVICTION IN THIS CASE SHOULD BE REVERSED
BECAUSE CUMULATIVE ERROR PREVENTED APPELLANT
FROM RECEIVING A FAIR TRIAL
Appellant herein has cited multiple grounds of significant constitutional error,
including: multiple instances of judicial misconduct, involving repeated
derogatory remarks to appellant and significant interference on behalf of the
prosecution; allowing the prosecution to reopen its case to prove that appellant
was out on O.R., without request of the prosecutor, based on evidence and legal
theory procured by the trial court; deciding as a matter of law that appellant was
out on O.R., striking the testimony of the defense expert, and removing a key
defense from consideration by the jury; failing to instruct on the requirements of
O.R. release; continually threatening to physically gag appellant and remove her to
a holding cell while she represented herself; admitting evidence of two prior
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perjury charges against appellant that were both ultimately dismissed, without
allowing the jury to learn that they were dismissed; allowing evidence that
appellant was apprehended by a bounty hunter in Utah to face charges in L.A. and
inferring that appellant was captured and returned to face charges in Santa Clara
County; failing to appoint counsel when requested to do so prior to trial;
appointing counsel midway through the trial and failing to give her adequate time
to prepare; and redacting exhibits to diminish or eliminate proper defense
evidence.
The cumulative effect of these errors requires reversal of the judgment.
Appellant acknowledges that: “Lengthy criminal trials are rarely perfect, and this
court will not reverse a judgment absent a clear showing of a miscarriage of
justice. (People v. Hill (1998) 17 Cal.4th 800, 844 citing Cal. Const., art. VI, § 13;
see also Chapman v. California (1967) 386 U.S. 18, 24 [harmless-beyond-areasonable-doubt
standard applies to review of federal constitutional error].)
Nevertheless, a series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial
error.”(Id.) (citations omitted).
In the circumstances of the case at bar, the sheer number of instances of
judicial misconduct and other legal errors raises the strong possibility the
aggregate prejudicial effect of such errors was greater than the sum of the
prejudice of each error standing alone. (Id., citing People v. Roberts (1992) 2
Cal.4th 271, 326, 6 Cal.Rptr.2d 276, 826 P.2d 274 [concluding “the whole” of the
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trial errors “did not outweigh the sum of their parts”].)
As noted in People v. Hill, although the court may conclude that any single
instance of misconduct was harmless standing alone, it could not ignore the
overall prejudice to defendant's fair trial rights caused by the multiple errors. In
Hill, the court cited the prosecutor’s “pervasive campaign to mislead the jury on
key legal points, as well as her unceasing denigration of defense counsel before
the jury.” Hill noted that, even with generally appropriate admonishments,
instructions and sustaining of objections, because of “the onslaught of the
misconduct that occurred in this case, it became increasingly difficult for the jury
to remain impartial.” (Id.)
In reversing defendant’s conviction, the court in Hill held that the
cumulative errors “created a negative synergistic effect, rendering the degree of
overall unfairness to defendant more than that flowing from the sum of the
individual errors. Considering the cumulative impact of [the prosecutor's]
misconduct, ….and the other errors throughout the trial, we conclude defendant
was deprived of that which the state was constitutionally required to provide and
he was entitled to receive: a fair trial.”
Appellant herein did not receive a fair trial for the numerous reasons
articulated herein. Considered in the aggregate, the errors rose to the level that her
constitutional rights to due process and a fair trial were violated, warranting
reversal.
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CONCLUSION
For the reasons stated herein, appellant respectfully requests that the
conviction be reversed and the enhancement be stricken.
Respectfully submitted,
____________________
Jill A. Fordyce
Attorney for Appellant
Salee Amina Mohammed
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