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December 22, 2009

The December 21, 2009 Polanski Decision - Case No. B217290, LET’S MOVE ON

The Court of Appeal holds that trial court correctly refused to dismiss Mr. Polanski’s case even though allegations of misconduct existed:

“We have thoroughly reviewed the record of the proceedings in this matter as well as the allegations made by Polanski of serious misconduct by the original judge and a member of the district attorney’s office.  Even though the allegations, if ultimately found to be true, present a very significant systemic issue of injustice and misconduct, we cannot conclude that the trial court abused its discretion here in precluding Polanski from affirmatively seeking relief from the trial court until he submitted to its jurisdiction.  Contrary to Polanski’s argument, the trial court did not simply deny Polanski’s request for relief because of his status as a fugitive, without weighing any equitable factors.  To the contrary, the court exercised its discretion in reaching its conclusion, and its thoroughly considered ruling was in no respect arbitrary, capricious, or patently absurd.”

The Court of Appeal Finds the Availability of Legal Remedies Other than Flight

“Polanski argues that the trial court should be precluded from invoking the disentitlement doctrine to deny him relief today because his absence resulted from the original trial judge’s own misconduct in failing to abide by the sentencing agreement and threatening Polanski with additional incarceration coupled with illegal deportation conditions.  Even in light of our fundamental concern about the misconduct that has been alleged here with significant evidentiary support, flight was not Polanski’ s only option.  It was not even his best option.  From the record Polanski has provided to this court, at the time he fled Polanski knew what he needed to know to make a case for a violation of due process,  and at all times in this matter, he has had means at his disposal other than flight by which he could have obtained relief.”

The Court of Appeal lists the remedies available to him:

“Even now Polanski has remedies besides seeking a dismissal of the entire action from this court while remaining a fugitive.  While section 977, subdivision (b)(1) imposes a general requirement of personal appearance for sentencing in felony matters, section 1193 permits defendants to be sentenced in absentia when specific conditions are met.  Whether the offense is treated as a misdemeanor or a felony, Polanski could request to be formally sentenced in absentia.  Section 1193, subdivision (a) provides that when a defendant is convicted of a felony, “the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence, and that he or she be represented by an attorney when judgment is pronounced, and the court approves his or her absence during the pronouncement of judgment, or unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his or her absence . . .  Sentences for misdemeanors, of course, may be imposed in absentia without the satisfaction of any conditions.  (§ 1193, subd. (b).)  At sentencing, Polanski’s counsel could argue that the proper sentence is the time already served.

Polanski could also cooperate with the extradition process and return to California.  Once back in the jurisdiction, he could request that the trial court exercise its discretion to dismiss the prosecution in the interest of justice under section 1385.  Alternatively, as he had already fulfilled the terms of the agreed sentence he alleges, he could appear for the formal sentencing hearing from which he fled and ask the trial court to honor those sentencing provisions.  Potentially more expeditiously, upon his return he could immediately file a petition for writ of habeas corpus with a request for an immediate stay of all further sentencing proceedings.  While we neither claim an ability to predict the future nor purport to prejudge any matter for ourselves or for the trial court, the evidentiary showing that he has mustered in support of this petition would appear highly likely to merit both a stay and an immediate review of the propriety of any continued detention.  While Polanski most likely would have to incur some amount of custodial detention while his allegations were addressed—for it is difficult to envision a California court offering bail to a recently extradited long-standing fugitive with family and residence outside the country—if he would return to this jurisdiction it appears that he would soon thereafter be able to establish a factual record of, and obtain all appropriate relief for, the very serious misconduct that it appears may have occurred here.

Polanski is not without any remedy.  He is only without the remedy that he prefers:  complete release not only from any threat of future punishment, but also from the very charges themselves—despite the fact that no misconduct has been alleged impacting the validity or voluntariness of Polanski’s plea to unlawful sexual intercourse—and all without ever having to subject himself to the jurisdiction of the court.”

The Court of Appeal concludes:

“While we agree with Polanski’s contention that the gravity and constitutional aspects of his allegations matter greatly in this analysis and that when “a fugitive defendant seeks to vindicate a right vouchsafed by the United States Constitution, the Court should give weight to this factor in determining how to exercise its discretion” (Veliotis, supra, 586 F.Supp. at p. 1515), the responsibility of a court considering whether to apply the disentitlement doctrine remains to balance the many equitable concerns and to reach a decision based on the totality of the circumstances.  (Van Cauwenberghe, supra, 934 F.2d at pp. 1054-1055.)  Here, the seriousness of the misconduct that Polanski alleges played a role in his decision to flee clearly weighs against disentitlement, but the traditional justifications for the doctrine, Polanski’s refusal to accept relief offered in the past, and the fact that he has always had legitimate alternatives to flight all weigh in favor of applying disentitlement here and support the trial court’s ruling.  Considering the totality of circumstances in reviewing the trial court’s ruling on disentitlement, Polanski has not established that the trial court’s decision fell outside the bounds of reason under the law and the facts here.  (Giordano, supra, 42 Cal.4th at p. 663.)  Whether or not we would have reached the same conclusion if we had been in the position of the trial court, we cannot say that the trial court’s decision was so irrational or arbitrary that no reasonable person could agree with it, nor may we substitute our judgment for that of the trial court.  (See, e.g., Carmony, supra, 33 Cal.4th at p. 377.)”

The Court of Appeal denies relief for Mr. Polanski:

“Polanski urges this court to override the trial court’s exercise of discretion and compel it to dismiss the prosecution.  We decline to do so for several reasons.
In the first instance, this court lacks a sufficient factual foundation to grant relief.  No factual findings have ever been made as to the allegations of misconduct in this case, and as an appellate tribunal we are not equipped to make the factual findings that would be necessary for us to determine whether relief was warranted.  What we have before us at this time is a set of declarations of judicial misconduct; a series of out-of-court statements in filmed interviews concerning judicial misconduct; and Wells’s interview detailing what appears to be his own unethical conduct.  Polanski asserts that the misconduct he has alleged is “undisputed,” but the record and briefing submitted to this court reveal that there are in fact disputes as to the underlying facts.  Judge Rittenband contradicted some of these statements in 1978 in his verified answer to Polanski’s disqualification papers, and Polanski’s communications with this court indicate that Wells may have recanted an unspecified number of his statements made in his film interview.  Without dismissing or diminishing the allegations made here, at this point they remain allegations, and we lack a factual foundation that would permit us to offer the immediate dismissal relief that Polanski seeks.  We cannot exercise our discretion on the basis of facts that no court has found.

Moreover, even if we were to accept all of Polanski’s misconduct allegations as if they were supported by factual findings and admissible evidence, it is not at all clear to us that the relief Polanski seeks from this court is the proper relief for the misconduct that he has alleged.  Polanski has claimed that all he is seeking is that we recognize that misconduct occurred and “provide him with the relief that he should have been given upon his release from prison over 30 years ago—conclusion of this prosecution without further threat of punishment” but the relief that he requests goes far beyond asking the courts to honor Judge Rittenband’s alleged 1977 commitment that the diagnostic study would constitute Polanski’s full punishment for unlawful sexual assault, presumably by a formal sentence to time served.  Instead, Polanski seeks a complete dismissal of the criminal prosecution against him under section 1385, and he asks us to compel that result by means of writ of mandate.  The effect of such a dismissal would be not only to bar any further prosecution or punishment for the crime, but also to entirely erase Polanski’s plea to unlawful sexual conduct.  He would “stand as if [he] had never been prosecuted” for the crime.  (People v. Simpson (1944) 66 Cal.App.2d 319, 329; see also Barro, supra, 93 Cal.App.4th at p. 67; People v. Superior Court (Flores), supra, 214 Cal.App.3d at p. 136 (Flores).)

Nothing in the record suggests that this is an appropriate result.  Polanski has not alleged any misconduct with  respect to the plea itself or at any point in the proceedings prior to the consideration of sentencing, and therefore has not established any reason for this court to nullify the criminal proceeding altogether.  “While irresponsible or overzealous conduct by government agents is not to be condoned, in the case of challenged conduct which occurred only after a plea of guilty and neither coerced nor induced that plea, it is not immediately apparent how there could have been prejudice to a defendant which would justify withdrawal of the plea or dismissal.”  (People v. Shaw (1989) 210 Cal.App.3d 859, 865 (Shaw).)  In the cases on which Polanski relies to support his request for outright dismissal, Boulas v. Superior Court (1986) 188 Cal.App.3d 422 (Boulas) and Morrow v. Superior Court (1994) 30 Cal.App.4th 1252 (Morrow), the prosecutorial misconduct occurred before trial, impacted the integrity of the entire criminal proceeding, and could not be adequately remedied by any order short of dismissal.

Here, in contrast, except for one media statement in June 1977 all the malfeasance is alleged to have occurred post-plea, and therefore there appears to be no basis for this court to conclude that the process by which the determination of Polanski’s guilt was made was compromised in any way.  Polanski, in short, has not shown that this court, on this record, should overturn his apparently untainted conviction for unlawful sexual assault because of misconduct occurring after he pleaded guilty to that offense.
Furthermore, Polanski seeks a writ of mandate, but a writ of mandate is only proper when the petitioner has no plain, speedy, and adequate remedy in the ordinary course of law.  (Code Civ. Proc., § 1086.)  Here, Polanski has not demonstrated that he is without such a remedy in the ordinary course of law.  Polanski asked the trial court to apply section 1385 to conduct a hearing on his very serious allegations of misconduct that implicate due process in his criminal matter.  Having no legal standing to make a motion under the express terms of section 1385, Polanski necessarily had to request the court to grant that hearing on its own motion, and ultimately the court declined to exercise its discretion to grant that evidentiary hearing because of Polanski’s fugitive status.  But this does not mean that Polanski has no other tools at his disposal to obtain the evidentiary hearing that he seeks and to make a record of, and obtain factual findings on, his evidence of judicial and prosecutorial misconduct.

Without returning to the United States or dropping his battle against extradition, Polanski may, through counsel, request that the trial court conduct the never-yet-held sentencing hearing in absentia pursuant to section 1193.  If the trial court approves this request, then Polanski, through his counsel, will be able to obtain the evidentiary hearing that is so urgently required to establish the facts of what occurred in 1977 and 1978.  The trial judge now presiding over the matter, Judge Espinoza, has already indicated that at a sentencing hearing Polanski would be able to fully litigate the allegations of misconduct and a prior pledge by Judge Rittenband as to Polanski’s punishment:  At the same hearing at which Judge Espinoza ruled that he would not entertain Polanski’ s section 1385 request, he also stated, “[H]aving reviewed all of the evidence in this case, notwithstanding the People’s assertion that the misconduct that occurred is still in dispute, there was substantial, it seems to me, misconduct that occurred during the pendency of the case which will be among the many factors that would be considered by me and any other court that would sentence Mr. Polanski.  He had a plea agreement with Judge Rittenband.  Unfortunately, Judge Rittenband is long since deceased, but the terms and conditions of that plea agreement are well known.”  While Judge Espinoza has expressed the view that Polanski is required by section 977 and the bench warrant to be present at any proceeding regarding his case, on this record it does not appear that he has ever been asked to release Polanski from that obligation, as he is authorized to do by section 1193.  Because Polanski possesses a means to seek an evidentiary hearing on his allegations of prosecutorial and judicial misconduct, he has not demonstrated that he is without any remedy in the ordinary course of the law.”

The Court of Appeal outlines the relief available to Mr. Polanski:

“Even without appearing in California courts Polanski may request to be sentenced in absentia.  (§ 1193.)  While the trial court would have to consent to this request, if it agreed, this would resolve the disentitlement problem that Polanski has encountered in the trial court and would afford him the evidentiary hearing that he so urgently seeks to support his allegations of misconduct.  Judge Espinoza has already indicated on the record his opinion that the misconduct alleged by Polanski and the issue of the original trial court’ s sentencing commitment are relevant to and may be explored at a sentencing hearing.  Polanski, therefore, still holds in his hands the potential means to hold the trial court to the commitment it allegedly made to him in 1977.  As we have expressed elsewhere in this opinion, if Polanski presents admissible evidence leading the trial court to conclude that Judge Rittenband committed to the diagnostic study as Polanski’s entire punishment, it is difficult to imagine that the trial court would not honor that commitment today.

Alternatively, or if a request for sentencing in absentia is denied, Polanski could return to California. . . [R]eturning to the jurisdiction would permit Polanski to obtain the evidentiary hearing he seeks through a section 1385 request or at a sentencing hearing.  Upon a return to custody, Polanski would also be able to seek relief by means of petition for habeas corpus.  Whatever avenues he may pursue, Polanski’s return would enable him to present admissible evidence of judicial and prosecutorial misconduct and to finally conclude the criminal proceedings that have languished these many years.”

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