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CALIFORNIA OFFICIAL REPORTS
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MIAMISBURG, OH 45342-4425
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ROMAN RAYMOND POLANSKI, Petitioner, v. THE SUPERIOR COURT OF


LOS ANGELES COUNTY, Respondent; THE PEOPLE et al., Real
Parties in Interest.

No. B217290

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,


DIVISION SEVEN

180 Cal. App. 4th 507; 102 Cal. Rptr. 3d 696; 2009 Cal. App.
LEXIS 2035

December 21, 2009, Filed

PRIOR-HISTORY: judicial and prosecutorial misconduct.


Superior Court No. A334139, Peter Many of the traditional reasons for
P. Espinoza, Judge. applying the disentitlement doctrine
Doe v. Superior Court, 8 Cal. App. 4th were present. Above all, as the trial
1236, 1992 Cal. App. LEXIS 1024 (Cal. court recognized, defendant had
App. 2d Dist., 1992) engaged in exactly the kind of conduct
that the disentitlement doctrine is
HEADNOTES-1 designed to combat--seeking relief
from the courts while insulating
CALIFORNIA OFFICIAL REPORTS HEADNOTES himself from the consequences of an
unfavorable result. The "heads I win,
tails you'll never find me" dynamic
that arises when a fugitive seeks to
(7) Extradition § 6--Fugitive undercut criminal proceedings without
Disentitlement subjecting himself or herself to the
Doctrine--Considerations--Enforcability--Request
criminal justice system is a
for Dismissal.--Defendant, a fugitive fundamental enforceability problem at
since 1978, was not entitled to have the core of the disentitlement
the trial court consider his request doctrine.
to exercise its discretionary
authority to dismiss the criminal [Erwin et al., Cal. Criminal
prosecution against him, which had Defense Practice (2009) ch. 13, §
been pending since 1977, despite his 13.21; 6 Witkin & Epstein, Cal.
extremely serious allegations of Criminal Law (3d ed. 2000) Criminal
Page 2

Writs, § 92; 5 Witkin & Epstein, Cal. prosecutorial 1 misconduct that have
Criminal Law (3d ed. 2000) Criminal been brought forward, but urge the
Trial, § 417; 6 Witkin & Epstein, Cal. parties to take steps to investigate
Criminal Law (3d ed. 2000) Criminal and to respond to the claims.
Appeal, § 160.]
1 For clarity, we emphasize
COUNSEL: Manatt, Phelps & Phillips, that all references to alleged
Chad S. Hummel, Diana M. Kwok, prosecutorial misconduct in this
Benjamin G. Shatz; Douglas Dalton; and opinion concern only the alleged
Bart P. Dalton for Petitioner. conduct of former Deputy District
Attorney David Wells as described
No appearance for Respondent. by Wells in the interview he gave
for the film Roman Polanski:
Steve Cooley, District Attorney, Irene Wanted and Desired (Antidote
T. Wakabayashi, Phyllis C. Asayama and Films 2008). No allegation of
David Walgren, Deputy District misconduct has been leveled at
Attorneys, for Real Party in Interest former Deputy District Attorney
The People. Roger Gunson, the prosecutor
responsible for Polanski's
Silver & Field and Lawrence Silver for prosecution.
Real Party in Interest Samantha
Geimer. FACTUAL AND PROCEDURAL BACKGROUND

JUDGES: Opinion by Zelon, J., with I. Information Established by the


Perluss, P. J., and Woods, J., Documentary Record, 1977-1978
concurring.
The limited documentary record of
OPINION BY: Zelon the proceedings in this case furnishes
little insight into the serious issues
OPINION presented by this matter. Roman
Polanski was indicted by a grand jury
ZELON, J.--In another chapter of in March 1977 on six counts:
what surely must be one of the longest furnishing a controlled substance to a
running sagas in California criminal minor (Health & Saf. Code, § 11380,
justice history, Roman Polanski, a subd. (a)); a lewd or lascivious act
fugitive since 1978, asked the trial on a child under the age of 14 (Pen.
court to exercise its discretionary Code, 2 § 288 3); unlawful sexual
authority to dismiss the criminal intercourse (§ 261.5 4); rape by use
prosecution against him that has been of drugs (§ 261, subd. (3) 5);
pending since 1977. The trial court perversion 6 (§ 288a, subds. (a),
declined to consider Polanski's (c)); and sodomy (§ 286, subds. (a),
request until Polanski submitted to (c) 7). Polanski initially pleaded not
the court's jurisdiction by returning guilty.
to the United States and appearing in
court. Polanski asks this court to 2 Unless otherwise indicated,
compel the trial court to dismiss the all further statutory references
action or, at least, to conduct an are to the Penal Code.
evidentiary hearing on Polanski's 3 This offense is now numbered
request. We conclude that the trial as section 288, subdivision (a).
court did not abuse its discretion in 4 This statute has been
applying the fugitive disentitlement substantially revised since 1977.
doctrine and refusing to consider Were Polanski charged under the
dismissing the action. In so doing, we current statute, based on his age
do not disregard the extremely serious and the victim's age, he would
allegations of judicial and presumably be charged under
Page 3

current section 261.5, whether Polanski was a mentally


subdivision (d). disordered sex offender. The court
5 This offense is now numbered appointed two psychiatrists to
as section 261, subdivision evaluate Polanski and set a further
(a)(3). hearing for the mentally disordered
6 This offense is now referred sex offender hearing. The hearing was
to as oral copulation, and the scheduled for September 19, 1977.
charged offense is now numbered
as section 288a, subdivision On September 19, 1977, the trial
(c)(1). court conducted a hearing and
7 This offense is now numbered determined that Polanski was not a
as section 286, subdivision mentally disordered sex offender. The
(c)(1). court acknowledged that it had read
and considered the probation report in
The district attorney's office the case and asked whether there was
agreed to a plea bargain with Polanski any legal cause why judgment should
at the request of the family of the not be pronounced. Polanski's trial
victim, Samantha Geimer, 8 who was 13 counsel, Douglas Dalton, answered that
years old at the time of the offense. there was no legal cause why judgment
In light of Geimer's age and fears should not be pronounced. The court
about the trauma that an extremely invited Dalton to argue on sentencing,
high profile trial would cause for and Dalton argued that Polanski should
her, Geimer's family, through counsel, be given probation as recommended by
advocated strongly for a plea bargain the probation department. Deputy
to protect her from further harm. On District Attorney Roger Gunson argued
August 8, 1977, Polanski changed his that Polanski should receive time in
plea from not guilty to guilty on custody. 9
count 3, unlawful sexual intercourse.
In the course of his plea, Polanski 9 See discussion in Factual and
acknowledged that the trial court Procedural Background part II.A.,
would determine whether he would post, concerning allegations of
receive a felony or misdemeanor events leading up to the hearing.
sentence; that his punishment could
range from probation, to up to one After identifying various
year in county jail, to 20 years in considerations that the court would
state prison; and that the judge would incorporate into its sentencing
not determine Polanski's sentence decision, the court stated, "This
until he had received a report from Court, i[n] sentencing the defendant,
the probation department and heard the will do so upon the basis of fitting
arguments of counsel. the punishment to the crime, yet at
the same time weighing all of the
8 Although we customarily would circumstances surrounding the
not identify the victim of the incident, including the defendant's
offense by name in order to background and lack of criminal
protect her privacy, Geimer has record, and all factors in mitigation
elected to relinquish what and aggravation of the offense. [¶] It
anonymity she had and to proceed is the judgment of this Court that the
under her own name both in public defendant be committed to the custody
statements and in filings with of the Department of Corrections at
this court. In light of her its prison facility in Chino,
decision, we use her full name California, where he will be confined
here. for a period of 90 days and undergo a
diagnostic evaluation, pursuant to the
The trial court then instituted provisions of [section] 1203.03 of the
mandatory proceedings to determine Penal Code. [¶] The purpose of the
Page 4

Court in ordering the in-depth both Prosecutor Gunson and Defense


diagnostic study is better to enable Counsel Dalton. Some of these
the Court to reach a fair and just allegations were disputed by Judge
decision as to the sentence to be Rittenband in 1978 in his response to
finally or eventually imposed. [¶] The the disqualification papers Dalton
defendant will be returned here 90 filed, and this account of the
days hence for further proceedings." preflight events is included below as
Neither Polanski nor the People well. To the extent that these
objected to the diagnostic study allegations are true--and from the
order. The court stayed the execution documentary evidence filed with this
of the diagnostic study for 90 days to court, it appears to this court that
permit Polanski to complete a film he there is a substantial probability
was directing, stating that the stay that a court conducting an evidentiary
would "certainly" not extend past 90 hearing would conclude that many, if
days, "if it could be avoided." The not all, are true--they demonstrate
diagnostic study, dated January 25, malfeasance, improper contact with the
1978, contained recommendations that media concerning a pending case, and
Polanski be placed on probation. unethical conduct.

On February 1, 1978, Polanski A. Allegations of Judicial Misconduct


failed to appear in court for a at a Preorder In-chambers Meeting with
scheduled sentencing hearing and a Counsel, September 1977
bench warrant was issued for his
arrest. Under penalty of perjury, Dalton
and Gunson have both described an
Dalton filed a verified statement unreported in-chambers meeting among
of disqualification for cause of the the trial judge, Dalton, Gunson, and
trial judge, Judge Laurence probation officer Irwin Gold prior to
Rittenband, on February 14, 1978. On the trial court's order referring
February 21, 1978, Judge Rittenband Polanski for the diagnostic study. In
filed a verified answer to the a 1978 verified answer to the
disqualification statement in which he disqualification papers, the trial
denied bias but consented to the judge responded to some of the then
transfer of the matter. aired allegations of judicial
misconduct.
II. Allegations of Judicial Misconduct
Known to or Knowable by Polanski at Douglas Dalton, 1978: 10 "On
the Time of His Flight September 16, 1977, prior to ordering
this very diagnostic study, Judge
Here we diverge from the Rittenband stated to Deputy District
indisputable facts of what has gone Attorney Roger Gunson, Probation
before in this matter to allegations Officer Irwin Gold and defense counsel
presented by Polanski in documents Douglas Dalton in his chambers that
filed with the courts in 1978, 2008 the diagnostic study at Chino would
and 2009 concerning events that constitute the defendant Polanski's
occurred prior to Polanski's flight punishment and that there would be no
from the United States immediately further incarceration. (In fact, at
before the February 1, 1978 sentencing the time of the September 16, 1977,
hearing. These allegations--and they meeting, he stated he expected a
must be termed "allegations" because favorable report from Chino.) [¶]
no court has ever held an evidentiary Deputy District Attorney Gunson and
hearing and made factual findings Probation Officer Gold had stated in
concerning their veracity--are in many this September 16, 1977, meeting that
cases supported by considerable the use of a [section] 1203.03 study
evidence, including declarations from as punishment was an improper
Page 5

utilization of that provision. Gold both objected to the use of Penal


Nevertheless, the Judge stated that he Code section 1203.03 as punishment,
would use this method of incarceration stating that it was an improper and
rather than the county jail because illegal use of the provision. Judge
Polanski would be safer at Chino than Rittenband disregarded their
in the county jail. Judge Rittenband objections. Notwithstanding the fact
stated that 60 days at Chino would be that he had already made up his mind
sufficient time in custody to and pre-determined the result, Judge
constitute the defendant's Rittenband directed Deputy District
punishment." Dalton further stated Attorney Gunson and me to engage in
that "Judge Rittenband told defense the charade of arguing our respective
counsel Dalton that at the hearing he positions at the Probation and
should argue for probation, that Sentencing Hearing on September 19,
Deputy District Attorney Gunson should 197[7]."
argue for incarceration, and that then
the Judge would order the diagnostic Roger Gunson, 2009: "After Mr.
study pursuant to Section 1203.03 of Polanski's plea in August 1977, Judge
the Penal Code." Rittenband informed both Mr.
Polanski's lawyer, Douglas Dalton, and
10 Dalton's 1978 statements are me that Mr. Polanski would be sent to
taken from his verified statement Chino State Prison under Penal Code
to disqualify Judge Rittenband section 1203.03 as his punishment. At
for cause. While Gunson's 2009 that time, I told Judge Rittenband
declaration did not individually that the diagnostic study was not
address Dalton's statements in designed to be used as a sentence, but
that filing, Gunson did declare, Judge Rittenband said that he was
"I reviewed that document [the going to do it anyway."
statement of disqualification for
cause] before it was filed and I Judge Rittenband: "I had a
agreed with it." discussion in chambers with Dalton and
Roger Gunson, the Deputy District
Douglas Dalton, 2008: "Several days Attorney, about possible sentences. I
before September 19, 197[7], the date told them and the probation officer,
scheduled for the Probation Hearing who was present, that I would not
and Sentencing, Judge Laurence follow the probation officer's
Rittenband told Deputy District recommendation for straight probation
Attorney Roger Gunson, Deputy and that I felt time in custody was
Probation Officer Irwin Gold, and me indicated. I indicated that I was
that he had already decided to send concerned that Polanski might be the
Mr. Polanski to prison for a subject of an attack in the County
'diagnostic study' under section Jail by other jail inmates who
1203.03 of the Penal Code as his traditionally dislike child molesters
complete punishment under the plea if and that I instead would commit Mr.
the prison returned a favorable report Polanski to the state prison at Chino
and the press were not told of the for a 90-day diagnostic study. At that
agreement. [¶] Judge Rittenband time, I stated I wanted such a study
neither sought nor listened to any to assist me in determining what
opinions or recommendation of the sentence to impose on Polanski."
parties present. Not only had the
minor's family urged that Mr. Polanski B. Trial Court's Alleged Declaration
not serve any time in prison, but the of Decision to Impose Additional
probation report also recommended a Punishment and to Require Polanski to
sentence of probation only." According Waive His Rights to Fight Subsequent
to Dalton, "Deputy District Attorney Deportation; Alleged Refusal to
Gunson and Deputy Probation Officer Consider Evidence to be Adduced at
Page 6

Sentencing Hearing chambers on January 31, ... 1978, with


Judge Rittenband and attended by Roger
Douglas Dalton, 1978: "On or about Gunson, Douglas Dalton, and Lawrence
January 30, 1978, Judge Rittenband met Silver, the attorney for the involved
in his chambers with Deputy District girl and her family. Discussions had
Attorney Roger Gunson and defense taken place regarding the defense
counsel Douglas Dalton. Judge possibly having an evidentiary hearing
Rittenband stated that the diagnostic in order to endeavor to change the
study from California Institution for current position of the Judge. Judge
Men, which recommended probation, was Rittenband expressed his then existing
the worst he had ever seen and a opinion that there was nothing which
complete whitewash of the defendant could be produced by the defense that
and that he had determined to send him would influence him regarding his
back to prison." Dalton alleged that intended sentence. Judge Rittenband
the trial court had hatched a plan to further stated that he had not
make the court look tough on Polanski, believed either Polanski or
but with unpublicized relief coming DeLaurentiis at the evidentiary
later provided that Polanski left the hearing regarding the Munich trip [12]
country: "On January 30, 1978, at the and that DeLaurentiis was 'so slick'
meeting described in his chambers with and only giving his testimony to try
Deputy District Attorney Gunson and to help his friend for which he did
defense counsel Dalton, Judge not blame him. The Judge further
Rittenband had stated that he intended stated that he would not permit any
to send Polanski to state prison additional time for the defense to
pursuant to Section 1168 of the Penal decide whether or not they wanted such
Code and then permit him to be a hearing or to prepare for the
released after the expiration of 48 hearing prior to sentencing despite
days upon the condition that he would repeated requests by Dalton for more
voluntarily agree to be deported from time for this purpose. Deputy District
the United States. Section 1168 of the Attorney Gunson stated that if Judge
Penal Code would permit the Judge to Rittenband wanted to give Polanski 48
retain his jurisdiction to modify the more days in custody that he should
sentence within 120 days. [11] Deputy sentence him to 90 days in the county
District Attorney Gunson and defense jail and give him credit for the 42
counsel Dalton had been told by the days which Polanski had served while
Judge that neither the Judge, Dalton, undergoing the diagnostic study at
nor Gunson need explain to them (the Chino. Judge Rittenband stated that
newsmen) that Section 1168 of the the appearance of a state prison
Penal Code would permit the Judge to sentence must be maintained for the
modify the sentence within 120 days, press and for this reason he would not
and tha[t] the sentence he would consider any county jail sentence."
pronounce in open court would state
only th[at] Polanski was sentenced to 12 There are allegations in the
state prison for the term prescribed record that during the stay of
by law." the diagnostic study that was
granted by the trial court to
11 The authority to recall a permit Polanski to direct a movie
sentence within 120 days is now in Europe, a published photograph
found at section 1170, depicting Polanski at Oktoberfest
subdivision (d). in Munich prompted the judge to
become concerned about Polanski's
According to Dalton, the parties overseas activities and to
reconvened in chambers the following conduct a two-day hearing in
day to meet again with the trial October 1977 for the purpose of
court. "Another meeting was held in determining whether the stay
Page 7

should be dissolved. At that the public.) In addition, Judge


hearing, Polanski allegedly Rittenband told defense counsel Dalton
testified that he was in Munich that if he conducted the hearing at a
on a business matter relating to motion for a new trial there would be
the film, and the movie's no assurance that Polanski would be
producer, Dino DeLaurentiis, released in 48 days upon the
allegedly corroborated Polanski's conditions the Judge had previously
account. Neither a transcript of outlined, i.e., the voluntary
this hearing nor any order agreement to deportation. Judge
relating to it appears in the Rittenband further stated that if the
record. Further discussion of defense decided not to hav[e] such a
events that are alleged to have hearing they would be permitted to
led up to the hearing may be withdraw the motion fo[r] a new trial
found at part II.C. of the and Polanski would be committed to the
Factual and Procedural state prison and the agreement about
Background, post. the 48 days would still be in effect."

Dalton alleged that he told the According to Dalton, he and Gunson


court "that he needed additional time each resolved not to participate in
to consult with his client regarding the charade ordered by the trial
the evidentiary hearing. Judge court: "Following the meeting with the
Rittenband stated that the press Judge, Deputy District Attorney
expected a hearing on the following Gunson, defense counsel Dalton and
day and that they were going to have attorney Silver discussed what had
one. During these conversations, Judge occurred at the meeting with the Judge
Rittenband took a telephone call which in chambers, and both Gunson and
he identified as being from Bill Dalton stated that they would not
Farr[,] a reporter for the Los Angeles permit themselves to act out the roles
Times[,] and stated that he advised assigned to them by the Judge in such
Farr that the hearing was going a staged proceeding which was for the
forward on the following day. The benefit of the press and with the
Judge further stated that at the result already pre-determined by the
hearing on the following day, February Judge."
1, 1978, that Dalton should vigorously
argue for no further incarceration and Douglas Dalton, 2008: After
that Gunson should then argue against Polanski submitted to the diagnostic
probation and for a sentence of study ordered by the trial court,
incarceration. Following the arguments "Judge Rittenband reneged on his
of counsel, the judge would make his promise that Mr. Polanski would serve
own statement and the state prison no further time in custody, giving as
sentence would be imposed. Gunson his sole reason that he had been the
pointed out that the question of the subject of 'criticism.' The Judge
hearing should be resolved before the never identified the source or nature
Judge imposed a sentence. Judge of the 'criticism,' and no such
Rittenband stated that he would, 'criticism' appeared in the probation
nevertheless, make his remarks and report or diagnostic study, which both
impose the sentence and that if Dalton recommended probation for Mr.
and his client Polanski still wanted a Polanski." Dalton alleged that "Judge
hearing that they could have one Rittenband announced to counsel that
within ten days in the form of a he now intended to send Mr. Polanski
motion for a new trial. (This, of to prison for the second time under
course, meant that the hearing would the following conditions: (1) that he
follow the statement of the Judge and serve 48 additional days in prison;
the imposition of the sentence that (2) that he would not be permitted to
then would be known to the press and have a hearing on this additional
Page 8

sentence; (3) that he agree to waive copulation of the 13-year-old victim.


his rights to a deportation hearing I believe I pointed out to them that a
and agree to 'voluntarily deport statement in the report 'that
himself;' and (4) that no hearing throughout the experience (with the
would be permitted until after the victim) Mr. Polanski seems to have
imposition of the prison sentence and been unaware that he was involving
that even more serious consequences himself in a criminal offense, an
could be expected if a hearing were isolated instance of naivete, unusual
held. [¶] At no time did the assigned in a mature sophisticated man', was
prosecutor, Deputy District Attorney one of the most fatuous statements in
Gunson, request any of the above a diagnostic report that I have ever
conditions. Both Deputy District read. I told Mr. Dalton that I did not
Attorney Gunson and I objected to propose to follow the recommendations
Judge Rittenband's denial of Mr. which were for straight probation
Polanski's right to a hearing prior to without any additional time in
sentencing. However, Judge Rittenband custody. [¶] I then stated that an
summarily rejected our arguments appropriate sentence would be for Mr.
without any suggestion of legal Polanski to serve out the remainder of
authority to support the sentence and the 90-day period for which he had
conditions that he intended to impose. been sent to Chino, provided Mr.
The Judge also instructed Mr. Gunson Polanski were to be deported by the
and me to argue as though we were Immigration and Naturalization Bureau,
unaware of his intentions, and not to by stipulation or otherwise, at the
expose this information to the press." end of the 90 days. I expressly stated
that I was aware that the court lacked
Roger Gunson, 2009: "After Mr. authority to order Mr. Polanski
Polanski's release from Chino, Judge deported directly or as a condition of
Rittenband told Mr. Dalton and me that probation. However, based on the facts
he intended to impose a further term before me, I believed that the safety
of incarceration upon Mr. Polan[sk]i." and welfare of the citizens of
California required that Mr. Polanski
Judge Rittenband, 1978: "On or be kept out of circulation for more
about January 27, the court received than 90 days. However, since Mr.
the diagnostic study and Polanski is an alien who had pleaded
recommendation by the California guilty to an act of moral turpitude, I
Department of Corrections at Chino. believe that the interests of the
Mr. Polanski, having returned to Los citizens of California could be
Angeles, was supposed to report on adequately safeguarded by a shorter
Monday, January 30. On January 30, Mr. jail term if Mr. Polanski would
Dalton and Mr. Gunson came to my thereafter absent himself from the
chambers to discuss the report. I told country."
them that I had carefully read it and
that I felt it was superficial, C. Allegations of Judicial
replete with many inaccuracies and Preoccupation with Public Response
factually unsupported conclusions, and Concerning the Stay and Judicial
was conspicuous more for what it Statements to the Press While the Case
failed to report than what it did Was Pending
report. I believe I used the word
'whitewash'. I stated that there was Douglas Dalton, 1978: Dalton
absolutely no mention in the report of alleged that as early as June 1977,
any discussions which the counsellors the trial court was speaking to the
[sic] and psychiatrists at Chino had press about the pending Polanski case.
with Mr. Polanski relating to the "In the June 6, 1977, issue of People
serious and aggravated charges of rape magazine, the Judge was quoted as
by drugs and alcohol, sodomy, and oral saying, 'I've handled other celebrity
Page 9

cases and this just doesn't look like argued that a 90-day stay was
anything other than a routine rape insufficient to permit Polanski
case to me.' When asked if the to finish the movie, which could
defendant would be able to receive a take a year to complete; and (2)
fair trial in Los Angeles, Judge the probation report, which
Rittenband replied: [¶] 'People here included producer Dino
are more sophisticated than anywhere DeLaurentiis's assessment that
else in the country and from what I've the production was "extremely
been able to gather, public opinion is difficult" and likely to involve
divided on who is at fault. There are Polanski for "at least the next
those who think Polanski a devil, and 12 months."
others who wonder why a mother would
let her 13-year old daughter go around Although the transcript of this
with a 43-year old film director hearing is not in the record, it
anyway.' " appears not to be disputed that the
trial court convened a hearing
Dalton asserted that after a concerning whether Polanski's visit to
photograph of Polanski at Oktoberfest Munich was in connection with a
in Munich appeared in a newspaper in business matter and whether the stay
late September 1977, "Judge Rittenband should be dissolved. Dalton alleged in
expressed great consternation to 1978 that prior to that hearing, the
Deputy District Attorney Gunson and trial court "advised Gunson and Dalton
defense counsel Dalton over the that he had been criticized in the
appearance of this article and the press and by others for his action in
criticism it engendered of him, and he granting the stay in the first place,
advised them both tha[t] he wanted and that he would not under any
defendant Polanski immediately to circumstances grant any additional
return to court." Dalton alleged that stays."
the trial court gave an interview to
the Herald Examiner newspaper in which Douglas Dalton, 2008: After "a
he stated that Polanski could be on picture of Mr. Polanski appeared in
his way to prison that weekend. 13 the Santa Monica Evening Outlook
According to Dalton's representation Newspaper carrying a false caption
of the contents of the newspaper that Mr. Polanski had 'popped over to
article, the trial court stated in the Munich for rest and relaxation,' " the
interview, "I didn't know then (at the trial court indicated an intent to
time of granting [the] stay) that the dissolve the stay on the diagnostic
picture would be impossible to finish study. "In an interview with Marilyn
in 90 days," and "I do feel that I Beck of the Herald Examiner, Judge
have very possibly been imposed upon." Rittenband stated that Mr. Polanski
14 'could be on his way to prison by the
weekend.' "
13 Dalton's 1978 statement of
disqualification stated that the Judge Rittenband, 1978: "At no time
interview was attached as an was I swayed by public clamor or
exhibit, but the interview was considerations of personal popularity
not provided to this court. or by apprehension of unjust
14 This alleged statement by criticism."
the trial court was contradicted
by information established by the D. Allegations of Ex Parte
documentary record to have been Communications and Consideration of
provided to the trial court: (1) Matters Outside the Record
Gunson's opposition to the stay
at the September 19, 1977 In the 1978 verified statement of
hearing, in which Gunson had disqualification for cause, Dalton
Page 10

alleged that "On several occasions in he believed that one Henri Sera had
the presence of Gunson and Dalton, put Polanski in touch with the girl
Judge Rittenband has referred to mail involved in the present case for the
which he has received criticizing him specific purpose of Polanski having a
for granting the stay to Polanski to sexual contact with her. Gunson
work on the film; for permitting advised the Judge that his office had
Polanski to go to Europe; and for thoroughly investigated that
ordering the diagnostic study. Judge possibility, and their investigation
Rittenband indicated he read these had concluded that there was nothing
letters and was concerned about them." to substantiate that Henri Sera
Dalton believed that a file of these contacted the family or the girl so
letters was maintained in Judge that Polanski could have sexual
Rittenband's department and stated relations with her. Despite this
that he would ask at the hearing that assertion by the District Attorney
the file be marked as an exhibit to Gunson, on or about January 30,[]
the statement of disqualification. 1978, in a conference in chambers,
According to Dalton, "Both Deputy Judge Rittenband stated to Roger
District Attorney Gunson and defense Gunson and Douglas Dalton that he
counsel Dalton have stated to the still believed that Sera had made
Judge that it was improper to consider arrangements for Polanski so that the
such ex parte communications." defendant could have a sexual
relationship with the girl."
Furthermore, Dalton alleged that
"[p]rior to the defendant's commitment III. Alleged Conduct After Flight,
to Chino for the diagnostic study, Prior to Statement of Disqualification
Judge Rittenband advised counsel for
the defense and for the prosecution Dalton alleged that within days
that he had heard from a friend of his after Polanski's flight, Judge
that there had been an article in a Rittenband held a press conference.
London newspaper approximately eight Dalton asserted that the judge
to ten years ago stating that Polanski discussed the in-chambers meetings he
had been involved in a similar had with counsel and disclosed that he
incident with a minor female in London "had told the attorneys that his
and had been forced to leave that intention at that time was to sentence
country because of the occurrence. the defendant to state prison and
Gunson was told by Judge Rittenband to release him in 48 days if he agreed to
look into the matter. Thereafter he voluntary deportation."
reported back to Judge Rittenband that
he had found no factual record to According to Dalton, at the news
support that such an event had conference on February 6, 1978, Judge
occurred. Dalton stated his client Rittenband stated, "I'm not unhappy
denied that any such event had he's out of the country. His conduct
occurred[.] Judge Rittenband made a in this case is such that it would
phone call to his friend in the warrant his leaving the country."
presence of both Dalton and Gunson and Dalton further alleged that the judge
said that the person still insiste[d] said, "I then discussed with them
such an article had appeared in a [counsel] what I might do, and among
London paper. Counsel for the that was the--my thought that I would
defendant complained that it was see that Mr. Polanski spend additional
improper for the Judge to consider time in prison. The length of time, of
such reports outside the record." course, would depend on whether or not
there would be a deportation or if not
Dalton also alleged that on another deported involuntarily he would agree
occasion, the trial court "stated to with the Director of Immigration to
Roger Gunson and Douglas Dalton that consent in writing to leaving the
Page 11

country in which case any balance of Mr. Gunson and me, Judge Fidler
his stay in prison would be cut advised us that, if Mr. Polanski
short." returned to Los Angeles, he would
allow Mr. Polanski to be booked and
IV. Polanski's Subsequent Opportunity immediately released on bail, require
to Return Without Further Mr. Polanski to meet with the
Incarceration probation department, order a
probation report, conduct a hearing,
Douglas Dalton, 2008: "[S]ometime and terminate probation without Mr.
in 1997, I requested that Mr. Gunson Polanski having to serve any
appear in Department 100, the additional time in custody."
presiding criminal department, so I
could request assignment of the Dalton continued, "Judge Fidler
Polanski case to a new judge to stated that due to the widespread
discuss a potential resolution of the public interest in the case and the
matter. The case was assigned to lack of awareness regarding what had
Superior Court Judge Larry Fidler. Mr. occurred in 1978, the sentencing
Gunson and I were given the court file proceedings should be televised in
which we took to Judge Fidler's order that wide public coverage could
courtroom. Nothing was said to us that be afforded for the benefit of the
any part of the court file, was public understanding." Dalton
missing. Judge Fidler recognized both consulted with Polanski and Polanski's
of us and invited us into his agent. According to Dalton, the
chambers. No court reporter or prospect of televising the proceedings
stenographer was present at the was a deal breaker, and Polanski
ensuing meetings between Judge elected not to return to the United
Fidler, Mr. Gunson, and me that States even with this assurance of no
followed over the next several weeks. incarceration: "Given the prospect of
I explained to Judge Fidler my purpose another huge media event and the
in requesting the meeting, and he changed personal circumstances of Mr.
stated that he had some recollection Polanski, which included a stable
of the case from 1977 and the problems marriage and two young children, it
regarding Judge Rittenband. Judge was Mr. Polanski's decision not to
Fidler agreed to take the case, even resurrect this 20-year old case at
though he could easily have declined that time for another worldwide
to accept handling what he knew to be televised media event."
a controversial matter in which he
could expect criticism." V. Evidence of Misconduct by a Member
of the District Attorney's Office
Dalton stated, "Judge Fidler made Revealed After Polanski's Flight
no representation of what he would
have done had he handled the case The film Roman Polanski: Wanted and
originally, but only that he believed Desired, released in 2008, contained
that a commitment made by a Judge of interviews from a number of persons
the Court should be fulfilled. Thus, involved in the Polanski case,
after several meetings and a full including Dalton and Gunson. It also
review of the factual material, Judge featured excerpts from an interview
Fidler stated that he would honor the with a former deputy district attorney
agreement made by Judge Rittenband named David Wells. Wells claimed he
that the period of incarceration for had initially handled the case for the
Mr. Polanski while undergoing the district attorney's office but that
diagnostic study would constitute the the case was taken from him because
full and complete punishment. [¶] he "was too close to the
After considering the materials we investigation" and had become a
submitted and after discussions with potential witness by engaging in
Page 12

conversations with Polanski. 15 involved with Polanski's plea, but he


felt strongly about it: "I know I was
15 The court has viewed the very miffed the way it turned out
film, which was submitted as part because my feeling was the guy
of the record. Statements belonged in state prison." Wells was
attributed to David Wells were "pretty vocal about that," to the
taken from the transcript of the point where he "was told by the
interview with Wells that was [district attorney's] office, 'It's
submitted with this portion of not your case anymore.' " Wells
the record. Not all the described himself as feeling that
statements set forth herein Polanski's offense was "reprehensible
appeared in the film. and I felt that he should have gone to
state prison, and I would have
In an interview with the insisted on a state prison sentence."
filmmakers, Wells described himself as
disappointed that the Polanski case Wells described ex parte
was taken from him. "I wanted to try communications he had with Judge
that case because all of us like some Rittenband while the matter was
measure of publicity, and this is the pending before him. "Rittenband had
way you get it in the D.A.'s office, asked me about it. And I said,
trying major cases or publicity 'Judge,' I said, 'You know, you're
cases." gonna give this guy probation.' [¶] He
said, 'No, no. I wanna send him to
Although Wells was not the jail.' [¶] I said, 'You'll never do it
prosecutor on the Polanski matter, he because the first thing that's gonna
claimed to have been "privy to almost happen when you sentence him, he's
everything that went on in that gonna appeal it. And it's gonna go all
case[,] being assigned to that court the way up to the State Supreme
as the calendar deputy. I was in the Court--he has the money--and he'll
court every day. So Rittenband'd ask take it to the U.S. Supreme Court, if
me questions about the thing because he thinks he can."
he counted on me, or whoever his
favorite D.A. was at the time, to Wells claimed to have been the
advise him on what the--what the law architect of the plan to use a
was, criminal law. He was very good diagnostic study referral as a
at civil law, but criminally, he left nonappealable punishment. According to
that to his D.A.s to--to do." He Wells, Judge Rittenband asked, " 'Well
described Judge Rittenband as saying what am I gonna do'--or 'What should I
to him, " 'Look, I don't know anything do?' " Wells allegedly responded, "And
about criminal law, don't want to I said, 'You know what you should do
know. Just don't get me reversed on is send him up for a 90-day
appeal. You do whatever you want to observation because that's probably
do, just don't get me reversed.' That more time than you're gonna give him
was his theory." Wells claimed to have anyway because you're a softy on
been "as good [a friend with Judge sentencing.' " Wells reported that the
Rittenband] as anybody can be," even court asked, " 'Well what will that
discussing the judge's girlfriends do?' [¶] And I said, 'It's not a final
with him. Wells said that he used to sentence. You can't appeal it. He has
"kid with him a lot. He took me to to go.' " Wells said, "And so that's
Hillcrest [Country Club] for lunch what Rittenband did. He made his own
every once in a[]while. And in that decision up, but, you know, I told him
respect I knew him and I could talk to it's not a final sentence."
him."
Wells also claimed in the interview
According to Wells, he was not to have called the court's attention
Page 13

to the photograph of Polanski in 1977 and 1978; on Wells's revelations


Munich and to have characterized it as in the film; on allegations that the
a direct insult to Judge Rittenband: district attorney's office and the
"I took it in to Rittenband because I court committed misconduct in 2008
figured it was something he ought to when they denied, in response to the
see. [¶] And what I told him was, I Polanski film, that Judge Fidler had
said, 'You know, Judge, you've made so insisted in 1997 negotiations that
many mistakes, I think, in this case. the proceedings would be televised if
Look at [this]. He's giving you the Polanski returned; and on Geimer's
finger. He's flipping you off. And expressed wishes that the matter be
here's the way he's doing it.' And I concluded. Geimer filed a declaration
said, 'Haven't you had enough of and requested the court to dismiss the
this?' " According to Wells, the court action.
responded, " 'What? What?' " and "
'He's not gettin' away with that.' " In January 2009, Polanski's counsel
Wells said, "And then, of course, then filed a verified statement of
he exploded, what happened happened." disqualification seeking to disqualify
Wells drew a distinction between the entire Los Angeles Superior Court
provoking Judge Rittenband with the from hearing the Polanski matter, in
Polanski photograph and "sitting down which counsel alleged that one judge
and talking about sentencing on a case (Judge Fidler) had personal knowledge
or the trial tactics, which would be of disputed evidentiary facts in the
unethical," although he thought that, case; that the court's public
"In retrospect, it would have probably information office had expressed the
been better to let it sit because I'd court's predetermination of issues
be waiting like a big spider or before the court; and that the court
Rittenband would, and if he saw the was biased against Polanski's counsel.
picture and Roman Polanski didn't know This statement was stricken on the
about it and he slammed him with a ground that it demonstrated on its
sentence, he'd be in trouble." face no legal basis for
disqualification.
Both Gunson and Dalton have denied,
in written statements made under On February 17, 2009, the trial
penalty of perjury, any knowledge of court heard argument and issued its
these alleged ex parte contacts written order. The court ruled that
between Wells and the trial judge at Polanski must be present at any
the time that they allegedly occurred. proceeding regarding his case,
Counsel for Polanski has also pursuant to the outstanding bench
communicated to this court that Wells warrant and section 977, and it also
has since "in part recanted" his concluded that under the fugitive
statements but this is not established disentitlement doctrine, Polanski was
by the record supplied to this court. not entitled to request affirmative
relief from the court while he
VI. Legal Proceedings Subsequent to remained at large. The trial court
Film Revelations extensively discussed the policy
considerations underlying the fugitive
In late 2008, Polanski's counsel disentitlement doctrine and their
filed a request in Department 100, application in the context of the
before Judge Peter Espinoza, asking Polanski matter, and relied on
that the trial court, on its own principles of enforceability,
motion, dismiss the action against deterrence, encouragement of
Polanski in furtherance of justice. surrender, the protection of the
That request was based on the court's dignity, attempts to gain an
allegations of judicial misconduct advantage over the court, and delay.
that had been known to Polanski in It concluded that Polanski forfeited
Page 14

his right to approach the court for relief from this court. This court
affirmative relief by remaining also received Geimer's request to this
outside the jurisdiction of the court. court to dismiss the matter for the
Expressly stating that it did not purpose of finality and to end the
reach the substantive merits of disruption, trauma, and personal
Polanski's claims, the court denied invasion that she suffers whenever
what it called "the motion to dismiss" public interest resurges in the case.
without prejudice, but stayed the
order to permit Polanski to return and DISCUSSION
submit to the court's jurisdiction.
The court orally granted a stay of the I. Standing
order until May 7, 2009. On May 4,
2009, Polanski's counsel advised the The People contend that this
trial court that Polanski would not petition should be dismissed because
appear at the hearing set for May 7. Polanski lacks standing to bring it.
The court, on May 7, ordered that its The People begin with the language of
previously stayed order take immediate section 1385, which confers authority
and full effect. to move to dismiss an action in the
interest of justice upon two parties,
On July 7, 2009, Polanski's counsel the trial court and the prosecutor. It
filed a petition for writ of mandate is well established that "a defendant
in this court, asking as principal does not have a right formally to make
relief that we compel the trial court a motion before a magistrate [or
to dismiss the action. On July 8, judge] to dismiss a complaint in
2009, this court requested that the furtherance of justice under section
People serve and file opposition to 1385. By its terms, section 1385
the writ petition on or before July provides for the magistrate [or judge]
24, 2009. We received the requested to exercise his or her authority to
opposition on July 24; on July 30, dismiss on this basis only on 'his or
2009, this court issued an order to her own motion or upon the application
show cause why the trial court should of the prosecuting attorney.' (§ 1385,
not be compelled to vacate its orders subd. (a).) It is settled, however,
and to set the matter for an that a defendant may 'informally
evidentiary hearing, without requiring suggest' that the magistrate [or
Polanski to be present, to determine judge] consider dismissal on the
whether the case should be dismissed magistrate's [or judge's] own motion.
in furtherance of justice. (People v. Smith (1975) 53 Cal.App.3d
655, 657 [126 Cal.Rptr. 195] [with
After briefing was completed but reference to a trial court]; accord,
before the matter was set for oral People v. Superior Court (Flores)
argument, it came to the court's (1989) 214 Cal.App.3d 127, 137 [262
attention that Polanski had been Cal.Rptr. 576] [same]; see Rockwell v.
arrested in Switzerland in connection Superior Court (1976) 18 Cal.3d 420,
with the pending criminal action. 441-442 [134 Cal.Rptr. 650, 556 P.2d
Polanski's counsel soon thereafter 1101] [same].)" (People v. Konow
asked for expedited oral argument in (2004) 32 Cal.4th 995, 1022 [12 Cal.
this matter because Polanski had been Rptr. 3d 301, 88 P.3d 36], fn.
apprehended, while the district omitted.)
attorney's office advocated dismissing
the writ proceeding as moot for the The People acknowledge that the
same reason. We requested and received defendant in a criminal matter has the
supplemental briefing on the People's authority to ask the trial court to
assertion that Polanski's anticipated consider dismissal in the furtherance
plan to oppose extradition constitutes of justice and that the court must
a forfeiture of the right to request entertain the request. Indeed, they
Page 15

cite the decision in People v. Carmony Gillispie (1997) 60 Cal.App.4th


(2004) 33 Cal.4th 367 [14 Cal. Rptr. 429 [70 Cal. Rptr. 2d 462], does
3d 880, 92 P.3d 369] (Carmony), which not convince us otherwise. The
provides, "A defendant has no right to People quote from a small portion
make a motion, and the trial court has of a footnote in that decision,
no obligation to make a ruling, under but a reading of the full
section 1385. But he or she does have footnote indicates that this is
the right to 'invite the court to the court's explanation in dicta
exercise its power by an application of how it understands dicta
to strike a count or allegation of an contained in an earlier decision
accusatory pleading, and the court in People v. Benson (1976) 64
must consider evidence offered by the Cal.App.3d Supp. 10 [134 Cal.
defendant in support of his assertion Rptr. 766]. (Gillispie, at p.
that the dismissal would be in 433, fn. 2.) The Gillispie court
furtherance of justice.' [Citation.] considered whether a defendant
And '[w]hen the balance falls clearly may appeal the denial of relief
in favor of the defendant, a trial under section 1385, and over the
court not only may but should exercise People's argument that a
the powers granted to him by the defendant lacked standing to
Legislature and grant a dismissal in raise the issue, the court
the interests of justice.' concluded that on appeal, a
[Citation.]" (Id. at p. 375.) In defendant may assert a claimed
Carmony, moreover, the Supreme Court error in the court's refusal to
held that "the defendant's inability strike a prior conviction.
to move to dismiss under section 1385 (People v. Gillispie, at p. 433.)
should not ... preclude him or her The court wrote, "The People
from raising the erroneous failure to argue that a defendant has no
do so on appeal." (Id. at p. 376 standing to complain of the
[holding that a defendant may appeal manner in which the trial court
the decision not to dismiss a prior exercises its discretion to deny
conviction under § 1385].) Although we such relief under Penal Code
are here considering a petition for section 1385. They reason that a
writ relief rather than an appeal, defendant cannot complain of an
the People have not offered, nor do we order denying that which he had
discern, any principled basis under no right to request. In our
section 1385 for distinguishing opinion, however, the People
between the two forms of appellate erroneously analyze the issue of
relief. Based on Carmony, we identify standing." (Ibid., fn. omitted.)
no impediment to appellate review of
the trial court's ruling on Polanski's The People contend, however, that
invitation, whether it is termed a if the limitation on who may seek
motion or an informal request, to the dismissal under section 1385 "is to
trial court to dismiss the matter. The have any meaning at all, it must apply
People's contention that "[b]ecause he to this defendant who is a fugitive
lacked standing to bring the motion, ... ." Conflating standing and
there are no arguable issues on equitable disentitlement, the People
appellate review before this Court and seek to bootstrap the concept of
the Petition should be dismissed; he fugitive disentitlement to the idea of
cannot seek appellate review of a no defense standing from the language
motion he could not bring in the first of section 1385 and conclude that "the
place," contravenes the holding of concept of requiring a court to
Carmony and is not meritorious. 16 dismiss a case [on] its own motion in
the furtherance of justice cannot be
16 The People's reliance on the reconciled with a fugitive who flouts
pre-Carmony decision in People v. the authority of that same court." If
Page 16

we properly understand the People's of mandate on mootness grounds.


claim, they assert both that Polanski According to the People, because the
lacks the authority to informally sole issue presented in this matter,
request the court to dismiss his case as set forth in the order to show
until he returns to the jurisdiction, cause, was whether the trial court
and that we lack the authority to should be compelled to order an
review any trial court decision on evidentiary hearing without requiring
such an informal request. 17 Polanski to be physically present, the
arrest of Polanski and the pending
17 The People write, "Should extradition proceedings have mooted
Petitioner decide to submit to the issue. If Polanski does not fight
the jurisdiction of the superior extradition, the People argue, then
court, he would have the right to his physical presence will promptly be
request the court to dismiss his secured and he may make a section 1385
case, the court would be required request in person. If he fights
to exercise its discretion, and extradition, then by this conduct he
the exercise of that discretion forfeits the right to invoke the
then would be reviewable." jurisdiction of the court.

Although presented as a section "A case becomes moot when a court


1385 standing argument, this ruling can have no practical impact or
contention is at its core an argument cannot provide the parties with
for the application of the equitable effective relief." (Simi Corp. v.
doctrine of fugitive disentitlement. Garamendi (2003) 109 Cal.App.4th 1496,
The People have not, nor have we, 1503 [1 Cal. Rptr. 3d 207].) We do not
identified any authority making an agree that Polanski's arrest and
exception for fugitives to the Supreme detention moot this case. We do not
Court's ruling in Carmony that a trial know whether Polanski will in fact be
court's section 1385 determination is extradited and are given to understand
reviewable. (Carmony, supra, 33 that he is at present fighting
Cal.4th at p. 376.) We do not hold extradition. Polanski's recent
that a trial or appellate court is apprehension in Switzerland could
barred from considering a defendant's potentially result in mooting the
fugitive status in considering a issue of a hearing in his absence:
section 1385 request or an appeal or Polanski could appear in a California
writ therefrom; we simply observe that court at some point, either because
nothing in section 1385 or its he assents to extradition or because
interpretive decisional law precludes his opposition proves unsuccessful.
this court from considering the But even before Polanski was detained,
instant petition. As far as fugitive the possibility, albeit remote, that
disentitlement, which shall be Polanski could appear in court
discussed in far greater depth below, existed, and the existence of that
the doctrine remains an equitable one, possibility did not moot the issue.
and we are aware of no authority Certainly the arrest in Switzerland
compelling any court to disentitle a significantly increased the
fugitive defendant by determining that possibility that Polanski would appear
he lacks standing for the purposes of in the superior court, but in the
seeking appellate review of a court's absence of actual extradition, we
decision under section 1385. cannot say that the question of
Polanski's entitlement to a hearing in
II. Mootness/Appellate Disentitlement his absence has been rendered moot.
Polanski is still not here and shows
The People, by letter filed October no signs of appearing anytime soon, so
9, 2009, have advocated that we the question of whether he is entitled
dismiss Polanski's petition for writ to relief from afar has not been
Page 17

rendered " 'abstract or academic' " by J.) (Eisler) ["I do not think we can
subsequent events, nor is there any run away from the case just because
indication that a decision in Eisler has."].)
Polanski's favor would now be "without
practical effect." (People v. Herrera III. Timeliness
(2006) 136 Cal.App.4th 1191, 1198 [39
Cal. Rptr. 3d 578].) The People next argue that this
petition should be dismissed because
Although the People characterize it was filed 61 days after the date
their argument as concerning mootness, that the trial court's ruling became
in fact they advocate appellate final. While conceding that "a one-day
application of the fugitive delay by itself is not significant,"
disentitlement doctrine. As the People the People argue that the delay was
put it, "It was an affront to the unreasonable and unjustified,
authority of this Court and of the warranting dismissal. "A filing
superior court for Petitioner to say period of 60 days is typically
that he should not have to voluntarily recognized, but a petition filed after
get on a plane and surrender himself 60 days will not be denied unless the
to this Court's jurisdiction in order respondent can show prejudice.
to have his dismissal motion heard; it [Citations.]" (Good v. Superior Court
is an even more egregious affront and (2008) 158 Cal.App.4th 1494, 1505, fn.
a waiver of the issue presented, to 9 [71 Cal. Rptr. 3d 125].) We decline
affirmatively fight return to the to dismiss the petition on timeliness
jurisdiction of this Court while grounds because the People have not
seeking relief from it at the same identified any prejudice from the
time." While there is no filing of this writ petition on July
constitutional bar to forcing a 7, 2009, rather than on July 6, 2009;
fugitive to decide between fighting because the delay in filing the
extradition and obtaining legal petition was truly minimal; and
benefits that are denied to fugitives because any court interest in holding
(see U.S. v. Catino (2d Cir. 1984) 735 fast to the timeliness principle
F.2d 718, 723 [not unconstitutional to against a nonprejudicial one-day
require a defendant to choose between incursion is far outweighed by the
fighting extradition and gaining the interest in considering the grave
benefit of the statute of judicial and prosecutorial misconduct
limitations]), Polanski's resistance alleged here.
to extradition does not automatically
"disentitle" us from considering his IV. The Trial Court Did Not Abuse Its
petition. (U.S. v. Gonzalez (9th Cir. Discretion When It Ruled That Polanski
2002) 300 F.3d 1048, 1051 [because Was Subject to the Fugitive
fugitive disentitlement "is an Disentitlement Doctrine
equitable doctrine, application is
discretionary"].) Because of the very A. The Fugitive Disentitlement
serious allegations of judicial and Doctrine: History and Policies
prosecutorial misconduct raised by
?That the court, independent of
Polanski in this matter and their
statutory authority, has power to
implications for the integrity of the
dismiss the appeal of an appellant who
criminal justice system, we decline
is a fugitive from justice has long
the People's request to apply the
been accepted as a proper exercise of
disentitlement doctrine to Polanski's
the jurisdiction of the appellate
petition for writ of mandate and
courts of this state." (People v.
instead consider it on its merits.
Clark (1927) 201 Cal. 474, 477 [259 P.
(See Eisler v. United States (1949)
47].) The fugitive disentitlement
338 U.S. 189, 196 [93 L. Ed. 1897, 69
doctrine dates back to 1880 in
S. Ct. 1453] (dis. opn. of Jackson,
Page 18

California with People v. Redinger the "abstract principle that a


(1880) 55 Cal. 290 (Redinger), in fugitive forfeits the right to invoke
which the Supreme Court dismissed an the jurisdiction of the courts to
escaped defendant's appeal because review a judgment that the fugitive
"[i]t would be a farce to proceed in a flouts. [Citations.]" (People v. Kubby
criminal cause, unless the Court had (2002) 97 Cal.App.4th 619, 623 [118
control over the person charged, so Cal. Rptr. 2d 588] (Kubby).)
that its judgment might be made
effective." (Id. at p. 298.) The Courts have also grounded the
California disentitlement doctrine is disentitlement doctrine in the affront
frequently explained in these terms: to the justice system arising from a
"A party to an action cannot, with fugitive's appropriation to himself or
right or reason, ask the aid and herself of the power to dictate the
assistance of a court in hearing his ultimate result of the criminal
demands while he stands in an attitude proceedings. One California court has
of contempt to legal orders and articulated this concern as follows:
processes of the courts of this "Defendant's flight from the court's
state." (MacPherson v. MacPherson jurisdiction makes a mockery of the
(1939) 13 Cal.2d 271, 277 [89 P.2d justice system because it places the
382].) misdemeanant, rather than the courts,
in the position of determining whether
The disentitlement doctrine is to submit to the court's judgment."
equally venerable on the federal (Kubby, supra, 97 Cal.App.4th at p.
level. In 1876, in Smith v. United 626.) In Allen v. Georgia (1897) 166
States (1876) 94 U.S. 97 [24 L. Ed. U.S. 138, 141 [41 L. Ed. 949, 17 S.
32], the United States Supreme Court Ct. 525], the United States Supreme
declared, "It is clearly within our Court observed that if a fugitive is
discretion to refuse to hear a not barred from pursuing an appeal
criminal case in error, unless the while absent, "he is put in a position
convicted party, suing out the writ, of saying to the court: 'Sustain my
is where he can be made to respond to writ and I will surrender myself, and
any judgment we may render." (Id. at take my chances upon a second trial;
p. 97.) The defendant's escape "does deny me a new trial and I will leave
not strip the case of its character as the State, or forever remain in
an adjudicable case or controversy," hiding.' We consider this as
but "it disentitles the defendant to practically a declaration of the terms
call upon the resources of the Court upon which he is willing to surrender,
for determination of his claims." and a contempt of its authority, to
(Molinaro v. New Jersey (1970) 396 which no court is bound to submit. It
U.S. 365, 366 [24 L. Ed. 2d 586, 90 S. is much more becoming to its dignity
Ct. 498].) that the court should prescribe the
conditions upon which an escaped
A variety of justifications have convict should be permitted to appear
been advanced in support of the and prosecute his writ, than that the
fugitive disentitlement rule. One, of latter should dictate the terms upon
course, is enforceability. "[S]o long which he will consent to surrender
as the party cannot be found, the himself to its custody."
judgment on review may be impossible
to enforce." (Degen v. United States This need to vindicate the
(1996) 517 U.S. 820, 824 [135 L. Ed. integrity of the judicial system has
2d 102, 116 S. Ct. 1777] (Degen), been considered, under some
superseded in the civil forfeiture circumstances, so significant that the
context by 28 U.S.C. § 2466; see also disentitlement doctrine has been
Redinger, supra, 55 Cal. at p. 298.) imposed on a nonfugitive defendant who
Another is a sense of unclean hands: has signaled by his conduct that he
Page 19

will only accept a decision in his proceedings that the Government would
favor. In People v. Brych (1988) 203 be prejudiced in locating witnesses
Cal.App.3d 1068 [250 Cal. Rptr. 402], and presenting evidence at retrial
the appellant had served his sentence after a successful appeal"]; People v.
and lawfully emigrated from the United Kang (2003) 107 Cal.App.4th 43, 51
States, but his appeal remained [131 Cal. Rptr. 2d 447] (Kang).)
pending. (Id. at p. 1075.) Brych
refused to communicate with his B. The Balance of Equitable
counsel or to divulge his whereabouts. Considerations
(Id. at p. 1077.) The Court of Appeal
concluded that the disentitlement Fugitive disentitlement, however
doctrine should apply even though the much it may advance legitimate
appellant was not a fugitive, because policies (U.S. v. Veliotis (S.D.N.Y.
the court could not be sure it was 1984) 586 F.Supp. 1512, 1515
making a decision that could be (Veliotis)), is not an automatic rule
enforced; because the legal issues but a discretionary tool of the courts
were no longer tethered to an that may only be applied when the
available litigant; and because the balance of all equitable concerns
appellant would accept only an outcome leads the court to conclude that it is
agreeable to him. The court wrote, a proper sanction for a party's
"Appellant thus has placed himself in flight. (U.S. v. Van Cauwenberghe (9th
the enviable position of being able to Cir. 1991) 934 F.2d 1048, 1054 (Van
decide unilaterally whether to return Cauwenberghe) ["The disentitlement
to the United States in the event this doctrine ... is not one of
court reverses his conviction and the jurisdictional dimensions, but rather
district attorney determines a retrial one based on equitable
is feasible. We cannot reasonably considerations."].) The doctrine is a
assume that, if ordered to return to blunt weapon, not appropriate in every
this jurisdiction for retrial, matter in which a party has fled
appellant would learn of such order criminal prosecution. For instance,
and return voluntarily, or that he the United States Supreme Court held
could be compelled to return. Such an that the trial court was not justified
approach on appellant's part to the in striking the filings of a claimant
present appeal is inherently offensive in a civil forfeiture action and
to the judicial process." (Ibid.) granting summary judgment against him
because of his failure to appear in a
The disentitlement doctrine "serves related criminal prosecution. 18
an important deterrent function" (Degen, supra, 517 U.S. at pp. 821,
(Ortega-Rodriguez v. United States 825.) The Supreme Court considered all
(1993) 507 U.S. 234, 242 [122 L. Ed. the justifications for the doctrine
2d 581, 113 S. Ct. 1199] and concluded that the balance of the
(Ortega-Rodriguez)): it discourages equitable concerns clearly did not tip
the felony of escape and encourages in the direction of disentitlement.
voluntary surrenders. (Degen, supra, First, the defendant's absence posed
517 U.S. at p. 824.) Disentitlement no risk of delay or frustration in
also "'promotes the efficient, determining the merits of the
dignified operation' of the courts." forfeiture claims. (Id. at p. 825.)
(Ibid.) Finally, in appropriate cases, Second, the property in question was
disentitlement protects the people secure and any ultimate judgment would
from prejudice by the passage of time clearly be enforceable. (Ibid.) Third,
in the event of a reversal on appeal. although there existed a legitimate
(Ortega-Rodriguez, at p. 249 concern that the criminal prosecution
[disentitlement may be "an appropriate of the defendant might be compromised
response" where "a long escape ... so by his participation in the forfeiture
delay[s] the onset of appellate case, the trial court could manage
Page 20

and minimize any impact on the this case; to strike Degen's filings
criminal matter by finely tailored and grant judgment against him would
rulings rather than a flat ban on be an excessive response to the
participation. (Id. at pp. 825-826.) concerns here advanced." (Id. at p.
Although the interests in redressing 829.)
the affront to the courts of the
defendant's flight and the need to Similarly, in Ortega-Rodriguez,
deter flight by others were supra, 507 U.S. 234, the United States
"substantial," "disentitlement is too Supreme Court considered the equities
blunt an instrument for advancing of mandating the dismissal of an
them." (Id. at p. 828.) appeal of a defendant who fled the
jurisdiction of a district court but
18 In response to the decision was recaptured before appealing. The
in Degen, supra, 517 U.S. 820, court ruled that the fugitive
Congress enacted the Civil Asset disentitlement doctrine could not be
Forfeiture Reform Act of 2000 applied under these circumstances
(Pub.L. 106-185 (Apr. 25, 2000) because the balance of the equitable
114 Stat. 202), which authorizes concerns did not support it: "the
federal judicial officers to justifications we have advanced for
disentitle fugitives from allowing appellate courts to dismiss
participating in forfeiture pending fugitive appeals all assume
actions under specific some connection between a defendant's
conditions. (28 U.S.C. § 2466.) fugitive status and the appellate
process, sufficient to make an
The Supreme Court acknowledged its appellate sanction a reasonable
"disquiet at the spectacle of a response. These justifications are
criminal defendant reposing in necessarily attenuated when applied to
Switzerland, beyond the reach of our a case in which both flight and
criminal courts, while at the same recapture occur while the case is
time mailing papers to the court in a pending before the district court, so
related civil action and expecting that a defendant's fugitive status at
them to be honored." (Degen, supra, no time coincides with his appeal."
517 U.S. at p. 828.) Uncomfortable (Id. at p. 244, fn. omitted.)
though the Supreme Court was at the Enforceability would not be a concern,
prospect of Degen litigating a civil because the recaptured defendant would
forfeiture action while avoiding be within the control of the appellate
criminal prosecution, "A court-made court throughout the appeal and
rule striking Degen's claims and issuance of judgment. (Ibid.) The
entering summary judgment against him efficient operation of the appellate
as a sanction ... would be an process would not be advanced by
arbitrary response to the conduct it dismissing appeals filed after former
is supposed to redress or discourage." fugitives are recaptured, because
(Ibid.) A careful balance of the legal matters relating to the escape
equities mandated that the fugitive most likely would have been litigated
disentitlement doctrine not be at the time of recapture. (Id. at p.
applied: "There would be a measure of 245.) The dismissal of a former
rough justice in saying Degen must fugitive's appeal would not protect or
take the bitter with the sweet, and advance the dignity of the appellate
participate in the District Court court, and trial courts may defend
either for all purposes or none. But their own dignity. (Id. at pp.
the justice would be too rough. A 245-246.) Moreover, a rule
court's inherent power is limited by "allow[ing] an appellate court to
the necessity giving rise to its sanction by dismissal any conduct that
exercise. There was no necessity to exhibited disrespect for any aspect of
justify the rule of disentitlement in the judicial system, even where such
Page 21

conduct has no connection to the whether a former fugitive whose


course of appellate proceedings ... initial appeal had been dismissed
would sweep far too broadly, could pursue an appeal anew after his
permitting, for instance, this Court recapture. Considering the factors
to dismiss a petition solely because traditionally evaluated in the
the petitioner absconded for a day disentitlement analysis, the court
during district court proceedings, or concluded that it should decide Kang's
even because the petitioner once appeal on its merits. (Id. at p. 51.)
violated a condition of parole or Enforceability was no longer a
probation." (Id. at p. 246.) Finally, problem, because Kang was back in
such a broad disentitlement rule would custody. (Ibid.) Moreover, "[i]t may
not advance the principle of be true that Kang flouted the
deterrence any more effectively than authority of the trial court when he
would a more limited rule: "Once failed to appear for sentencing and
jurisdiction has vested in the became a fugitive, but disentitlement
appellate court, ... then any of Kang to foreclose appellate review
deterrent to escape must flow from is not desirable. If it is essential
appellate consequences, and dismissal to vindicate judicial authority, the
may be an appropriate sanction by prosecution may charge Kang with
which to deter. Until that time, failure to appear pursuant to Penal
however, the district court is quite Code section 1320.5, although the
capable of defending its own penalty for that crime pales in
jurisdiction. While a case is pending comparison with the sentence imposed
before the district court, flight can by the trial court. Put in
be deterred with the threat of a wide perspective, disentitlement is largely
range of penalties available to the symbolic. Also, any consideration that
district court judge." (Id. at p. dismissal discourages escape is
247.) speculative at best." (Id. at pp.
51-52.) The court considered the most
"Accordingly," ruled the Supreme significant factor to be the impact
Court, "we conclude that while that Kang's fugitive status had on the
dismissal of an appeal pending while appellate process: his appeal could
the defendant is a fugitive may serve have been combined with that of his
substantial interests, the same codefendants had he been present. (Id.
interests do not support a rule of at p. 52.) The court questioned
dismissal for all appeals filed by whether there would be prejudice to
former fugitives, returned to custody the government because "it would be
before invocation of the appellate impossible to convene a new trial due
system. Absent some connection between to the unavailability of witnesses and
a defendant's fugitive status and his other evidence," but found no evidence
appeal, as provided when a defendant of prejudice. (Ibid.) The court
is at large during 'the ongoing concluded, "Even though Kang's
appellate process,' [citation], the fugitive status precluded
justifications advanced for dismissal consolidation of his appeal with his
of fugitives' pending appeals codefendants' appeals, which resulted
generally will not apply." in the loss of an efficient
(Ortega-Rodriguez, supra, 507 U.S. at disposition of these related appeals,
p. 249.) that is an inadequate basis by itself
to disallow appellate review.? (Ibid.)
California courts, too, have
declined to apply the disentitlement In a noncriminal context, courts
doctrine when the equities did not routinely decline to disentitle
support it. In Kang, supra, 107 litigants on the basis of contempt,
Cal.App.4th at page 48, the Court of fugitive status, or noncompliance with
Appeal addressed the question of court orders when the issues raised by
Page 22

the litigant entail interests beyond The trial court's ruling on a


the personal of the individual request for dismissal in the
petitioner, such as the welfare of furtherance of justice under section
minor children or overarching issues 1385 is reviewed for an abuse of
of public interest and policy. The discretion. (Carmony, supra, 33
California Supreme Court, in the Cal.4th at p. 375.) As the application
divorce case Hull v. Superior Court of the disentitlement doctrine is
(1960) 54 Cal.2d 139 [5 Cal. Rptr. 1, abundantly within the court's
352 P.2d 161], confirmed the discretion (see, e.g., People v.
disentitlement doctrine but noted that Buffalo (1975) 49 Cal.App.3d 838, 839
the court need not disentitle a [123 Cal. Rptr. 308]; Van
petitioner if the public interest will Cauwenberghe, supra, 934 F.2d at pp.
be better served by handling the 1054-1055), we review the trial
matter on its merits: "A court should court's refusal to consider
have the right to deny its processes exercising its discretionary authority
and aid to one who stands in contempt to dismiss the action on the basis of
or is in contempt of its orders. One this doctrine for an abuse of that
who has wilfully refused to comply discretion. "Under the abuse of
with the mandate of a court cannot discretion standard, 'a trial court's
then compel that court to do his ruling will not be disturbed, and
bidding. But it must be remembered reversal of the judgment is not
that even though the moving party has required, unless the trial court
been adjudicated in contempt, the exercised its discretion in an
court is not required to bar entry of arbitrary, capricious, or patently
the final decree, but such action absurd manner that resulted in a
remains within the trial court's manifest miscarriage of justice.'
discretion. If the court determines [Citation.]" (People v. Hovarter
that the public interest will be (2008) 44 Cal.4th 983, 1004 [81 Cal.
better served by finally and Rptr. 3d 299, 189 P.3d 300].)
permanently dissolving the marital
status it is entirely within its power "The abuse of discretion standard
to do so. [Citation.]" (Id. at p. is 'deferential,' but it 'is not
146.) Similarly, in Smith v. Smith empty.' [Citation.] '[I]t asks in
(1955) 135 Cal.App.2d 100 [286 P.2d substance whether the ruling in
1009], the Court of Appeal refused to question "falls outside the bounds of
apply the disentitlement doctrine reason" under the applicable law and
against an absconding father because, the relevant facts [citations].'
inter alia, his appeal raised [Citation.]" (People v. Giordano
questions of the best interests of the (2007) 42 Cal.4th 644, 663 [68 Cal.
minor children involved. As the court Rptr. 3d 51, 170 P.3d 623]
explained, "The personal rights of the (Giordano).) " 'Obviously the term is
parties are by no means the sole a broad and elastic one [citation]
subject of judicial concern." (Id. at which we have equated with "the sound
p. 107; see also Dupes v. Dupes (1919) judgment of the court, to be exercised
43 Cal.App. 67, 69 [184 P. 425] according to the rules of law."
[declining to dismiss mother's appeal [Citation.]' [Citation.] Thus, '[t]he
in a dissolution matter based on courts have never ascribed to judicial
"consideration for the welfare of the discretion a potential without
minors and of their probable ultimate restraint.' [Citation.] 'Discretion is
disposition, as well also the interest compatible only with decisions
the state has in the maintenance of "controlled by sound principles of
the marital state"].) law, ... free from partiality, not
swayed by sympathy or warped by
C. Standard of Review prejudice ... ." [Citation.]'
[Citation.] '[A]ll exercises of legal
Page 23

discretion must be grounded in this court to dismiss the


reasoned judgment and guided by legal prosecution, she neither filed a
principles and policies appropriate to petition for writ relief nor
the particular matter at issue.' formally joined in Polanski's
[Citation.]" (People v. Superior Court petition for writ of mandate.
(Alvarez) (1997) 14 Cal.4th 968, 977 Geimer's contention that article
[60 Cal. Rptr. 2d 93, 928 P.2d 1171] I, section 28 of the California
(Alvarez).) Constitution confers on crime
victims a right to independently
Review for an abuse of discretion require the trial court to
gives appropriately broad latitude to consider whether to exercise its
the trial court with respect to discretion under section 1385 was
discretionary decisions that involve not briefed by any participant in
balancing equitable considerations. this proceeding, and we therefore
The trial court's " 'decision will not do not reach that issue. We note,
be reversed merely because reasonable however, that Geimer asked the
people might disagree. "An appellate trial court to consider her views
tribunal is neither authorized nor in deciding whether to exercise
warranted in substituting its judgment its discretion to dismiss the
for the judgment of the trial judge." prosecution, and that the court's
[Citations.]' [Citation.]" (Alvarez, order reflects that in balancing
supra, 14 Cal.4th at p. 978.) the equitable considerations the
court "read and considered"
D. Denying the Request for Dismissal Geimer's declaration. As
and Applying the Fugitive explained below, we find no abuse
Disentitlement Doctrine Was Not an of discretion by the trial court.
Abuse of Discretion
1. Factors Considered by the Trial
We have thoroughly reviewed the Court
record of the proceedings in this
matter as well as the allegations made Many of the traditional reasons for
by Polanski of serious misconduct by applying the disentitlement doctrine
the original judge and a member of the are present here. Above all, as the
district attorney's office. Even trial court recognized, Polanski has
though the allegations, if ultimately engaged in exactly the kind of conduct
found to be true, present a very that the disentitlement doctrine is
significant systemic issue of designed to combat--seeking relief
injustice and misconduct, we cannot from the courts while "insulating
conclude that the trial court abused [himself] from the consequences of an
its discretion here in precluding unfavorable result." (Antonio-Martinez
Polanski from affirmatively seeking v. INS (9th Cir. 2003) 317 F.3d 1089,
relief from the trial court until he 1093.) If the trial court had acceded
submitted to its jurisdiction. to Polanski's request that the
Contrary to Polanski's argument, the criminal proceedings be dismissed, he
trial court did not simply deny would of course have accepted that
Polanski's request for relief because ruling. But under the preapprehension
of his status as a fugitive, without circumstances facing the trial court
weighing any equitable factors. To when it ruled, the court lacked any
the contrary, the court exercised its ability to enforce any judgment it
discretion in reaching its conclusion, might render if it declined to dismiss
and its thoroughly considered ruling the action--because a dissatisfied
was in no respect arbitrary, Polanski would simply remain abroad.
capricious, or patently absurd. 19 This is the " 'heads I win, tails
you'll never find me' " (ibid.)
19 Although Geimer has asked dynamic that arises when a fugitive
Page 24

seeks to undercut criminal proceedings to consider the possible general


against himself or herself without deterrent effect on defendants who do
subjecting himself or herself to the not believe themselves to be victims
criminal justice system. This of irremediable misconduct. We cannot
fundamental enforceability problem is gainsay the trial court's reasoned
at the core of the disentitlement conclusion that the public interest
doctrine. (Redinger, supra, 55 Cal. at and media coverage of all developments
p. 298.) We recognize that Polanski in this matter would tend to increase
argues that his flight was warranted the potential deterrent effect on
and necessary, but his actions are others of refusing to grant Polanski
nonetheless the archetypal conduct relief unless he returns to California
warranting disentitlement. and appears in court.

Moreover, as the trial court Another consideration weighed in


observed, the doctrine's motivating the balance by the trial court was the
aspect was applicable here. One intent court's ability to protect its own
of the doctrine is to encourage dignity from a litigant who defies the
voluntary surrenders (Degen, supra, court's authority. We need not add our
517 U.S. at p. 824) by dangling the voice to the chorus of courts that
carrot of review before runaway have expressed indignation at the
litigants, to be delivered when the prospect of a fugitive litigant
litigant returns to the jurisdiction. demanding affirmative relief from the
A trial court possesses few options courts while remaining safely
for inducing a fugitive who has left ensconced outside the jurisdiction and
the jurisdiction to voluntarily protected from an adverse decision,
return, and denying Polanski relief but we note that this was a proper
until he returned to California by consideration for the trial court,
denying the request without prejudice which is entitled to and empowered to
to a future request struck a balance protect its own dignity. This interest
between punishing Polanski for leaving is not paramount--were there no other
and offering him the opportunity to factors weighing in favor of
seek relief as soon as he honored the disentitlement, we believe that the
court's order to appear. interest in self-protection alone
could not merit reliance on the
The trial court also considered the doctrine--but here it is one factor
deterrent aspect of the fugitive among many that support
disentitlement doctrine, usually one disentitlement. Polanski contends that
of the less explored considerations in justifying disentitlement on the basis
the doctrine's application. Although of protecting the court's dignity is
some courts have expressed skepticism unreasonable because the court's
that the disentitlement doctrine conduct prompted his flight, but as we
serves a deterrent purpose (see Kang, will discuss further, post, Polanski
supra, 107 Cal.App.4th at p. 52 ["any could have availed himself of
consideration that dismissal mechanisms for raising his allegations
discourages escape is speculative at of judicial misconduct short of being
best"]), the trial court observed that disrespectful of the entire judicial
the long-standing public fascination process by fleeing.
with this case increased its deterrent
potential. Polanski's claim that there The trial court also rejected
is no potential deterrent effect here Polanski's argument that he was not
because any other defendant in flouting the process of the law or
Polanski's shoes would react as attempting to obtain a tactical
Polanski did both underestimates other advantage over the court, noting that
defendants' abilities to identify the very court that set forth the
legal alternatives to flight and fails concept of an attempt to obtain a
Page 25

tactical advantage described it as ex parte communications and devise


being in a position "to await the illegal, nonappealable sentences to
judicial result and return if it is circumvent the defendant's due process
favorable or to remain a fugitive if and sentencing rights--but it remains
it is not." (Katz v. U.S. (9th Cir. Judge Rittenband who imposed an
1990) 920 F.2d 610, 612, abrogated on improper punishment, said he would
other grounds in Lozada v. Deeds (9th renege on the punishment agreement,
Cir. 1992) 964 F.2d 956.) That, as the threatened to sentence Polanski to
trial court saw, is exactly what prison with unlawful conditions for
Polanski tried to do here. Polanski his release, and engaged in improper
claims that he was not seeking a conduct with the media and others not
tactical advantage because he was "not involved in the matter. Polanski knew
challenging his judgment," but about all this judicial conduct at the
Polanski clearly attempted to see if time of his flight, but did not seek
he could secure complete relief dismissal of the prosecution for more
without risk: He filed his request than 30 years. During that time, many
asking the court to exercise its of the players have retired and the
discretion under section 1385 to judge alleged to have compromised the
dismiss the criminal prosecution justice system has died. Polanski's
against him and wipe the slate clean delay in seeking relief when he had
(People v. Barro (2001) 93 Cal.App.4th all the information he needed to make
62, 67 [112 Cal. Rptr. 2d 797] a case of judicial misconduct has
(Barro)), and when that request negatively impacted the justice
yielded no benefit, he advised the system's ability to ascertain the
court that he would not return during truth here, for we will never be able
the stay of the ruling on the section to hear Judge Rittenband's full
1385 request, a stay ordered expressly account of events and are left with
to allow Polanski to return for a only a short written document from
hearing on the merits. Clearly 1978. 20
Polanski did not surrender to
California authorities prior to his 20 While we do not consider
arrest in Switzerland. this in the balance of equities
concerning disentitlement,
Finally, the court considered how another unfortunate consequence
long Polanski had waited before of the delay here in seeking an
requesting the dismissal of the evidentiary hearing on these
charges and the prejudice resulting allegations is that the justice
from the delay. Polanski's delay system's ability to police its
appears to have been unjustifiable own through disciplinary
under the facts of the case. Polanski proceedings was frustrated, and a
may not have known of the alleged judge whose ethics and conduct
contacts between Wells and Judge are strongly questioned was left
Rittenband until 2008, but he was well on the bench for more than a
aware of the misconduct he alleges by decade without closer oversight.
Judge Rittenband in 1977 and 1978. Of course, Polanski and his
Without minimizing the seriousness of counsel are not the only actors
the misconduct that Wells appears to who could have prompted a timely
have revealed in his 2008 interviews, investigation, as it is also
the core of the alleged injustice in alleged that much of this conduct
this matter is Judge Rittenband's took place in the presence of
conduct. If Wells's account is true, other lawyers.
Judge Rittenband was ushered along a
path of iniquity by an officer of the 2. The Availability of Legal Remedies
court with a personal axe to grind and Other Than Flight
no hesitation to engage in unethical
Page 26

Polanski argues that the trial escape an illegal sentence, there is


court should be precluded from no evidence that Polanski was without
invoking the disentitlement doctrine a remedy when he fled in 1978.
to deny him relief today because his Polanski appears to be under the
absence resulted from the original impression that he would not have been
trial judge's own misconduct in able to obtain any relief in the
failing to abide by the sentencing superior court because Judge
agreement and threatening Polanski Rittenband would have denied either a
with additional incarceration coupled stay of any jail sentence he imposed
with illegal deportation conditions. or bail pending appeal. It seems
Even in light of our fundamental probable to us too that Judge
concern about the misconduct that has Rittenband would not have granted
been alleged here with significant either of those requests, but we
evidentiary support, flight was not cannot imagine why those would be
Polanski's only option. It was not Polanski's only options in the trial
even his best option. From the record court. Polanski's counsel clearly knew
Polanski has provided to this court, how to proceed on a disqualification
at the time he fled Polanski knew what for cause--he did so soon thereafter
he needed to know to make a case for a with the disqualification papers he
violation of due process, 21 and at all filed on February 14, 1978.
times in this matter, he has had means
at his disposal other than flight by Aside from the judge's postflight
which he could have obtained relief. press conference, all the wrongful
conduct alleged in the statement of
21 There was one layer of disqualification for cause had already
alleged misconduct of which occurred before the February 1, 1978
Polanski could not have been sentencing hearing. Instead of fleeing
aware at the time he fled, or, and then urging disqualification,
indeed, until recently: the Polanski could have raised these
alleged relationship between issues of judicial misconduct by
Judge Rittenband and Wells, their attending the sentencing hearing on
alleged ex parte communications February 1, 1978, and filing the
concerning the case, and Wells's statement of disqualification for
apparent personal agenda in the cause at that time. The statute
matter. These recent revelations governing disqualifications at that
add to, but do not fundamentally time, Code of Civil Procedure former
change, Polanski's evidence and section 170, provided that "No justice
argument that justice was or judge shall sit or act as such in
miscarried here. With or without any action or proceeding" under a
knowledge of Wells's alleged variety of circumstances, including
operations behind the scenes, at "[w]hen it is made to appear probable
the time Polanski fled he already that, by reason of bias or prejudice
had reason to know, and evidence of such justice or judge a fair and
to demonstrate, that the process impartial trial cannot be had before
of negotiating his punishment for him." (Code Civ. Proc., former § 170,
the offense to which he had subd. (5), as amended (Stats. 1977,
pleaded guilty had veered ch. 1257, § 6, pp. 4755, 4756).) The
constitutionally off course. law provided, "No judge who shall deny
his disqualification, shall hear or
a. Remedies Available to Polanski as pass upon the question of his own
of January 31, 1978 disqualification; but in every such
case, the question of the judge's
Contrary to his hyperbolic claim disqualification shall be heard and
that he was "provoked (indeed, determined by some other judge ... ."
compelled)" to flee the country to (Code Civ. Proc., former § 170, subd.
Page 27

(5), as amended (Stats. 1977, ch. court actually would have followed
1257, § 6, pp. 4755, 4757).) Provided through and denied Polanski a hearing
that the statement was legally to which he was entitled before
sufficient on its face to state a sentence was imposed if Polanski had
claim of bias or prejudice, it would actually demanded one in open court.
have had the "immediate effect" of
depriving Judge Rittenband of the 22 In In re Harrington, supra,
authority to proceed with substantive 87 Cal.App.2d 831, the Court of
matters until the question of Appeal granted habeas corpus
disqualification was resolved. (Oak relief to a defendant convicted
Grove School Dist. v. City Title Ins. at a trial held after he had
Co. (1963) 217 Cal.App.2d 678, 706 [32 sought disqualification for cause
Cal. Rptr. 288] ["Plaintiff's but the judge proceeded in
statement being legally sufficient, it disregard of his statement of
estopped Judge Callaghan from disqualification. Before the
determining his own qualifications to trial began, the defendant
sit as the trial judge in the attempted to disqualify the judge
proceeding, and it had the immediate for cause under Code of Civil
effect of depriving him of Procedure former section 170, but
jurisdiction to decide the motion to the trial court "disregarded the
tax costs."].) objections, declared that he was
not disqualified, and ordered the
Had Polanski availed himself of cause to proceed to trial
this alternative to flight, presumably immediately." (In re Harrington,
Judge Rittenband would have recognized at p. 832.) Because the
that the filing of a facially valid disqualification papers stated
statement of disqualification left him sufficient facts to require
"without power to pass upon the another judge to pass on the
question of his own disqualification disqualification question, the
and ... without jurisdiction to hear trial court could not proceed
the cause unless and until, after a until the disqualification
hearing had by another judge in the question was resolved. (Id. at
manner prescribed by section 170, pp. 834-835.) The court having
petitioner's objections had been proceeded nonetheless, habeas
overruled and the judge had been found corpus relief was appropriate:
not to be disqualified to act." (In re "Since the judge who heard the
Harrington (1948) 87 Cal.App.2d 831, case was not qualified at the
834-835 [197 P.2d 783].) If, however, time of the hearing to act, it
the trial court had refused to suspend follows that by virtue of a void
the proceedings and nonetheless judgment and commitment
proceeded to sentencing that day, petitioner is held in custody
there would have been two from which he is entitled to be
consequences. First, Polanski would released," although he would be
have been able to seek habeas corpus held in local custody pending a
relief on the basis of the court's new trial before a judge not
failure to follow the disqualification disqualified from handling the
process; 22 and second, Polanski could matter. (Id. at p. 835.) (See
have demanded a hearing to present his also Giometti v. Etienne (1934)
evidence of the court's sentencing 219 Cal. 687, 689 [28 P.2d 913]
commitment and its misconduct. [judgment rendered by
Polanski argues that the court had disqualified judge is void].)
already stated that it would not More recent decisions have
permit any hearing prior to characterized the acts of a judge
sentencing. Because Polanski chose to subject to disqualification as
flee, it cannot be known whether the voidable rather than void. (See,
Page 28

e.g., Betz v. Pankow (1993) 16 Rittenband would have done in response


Cal.App.4th 931, 938-940 [20 Cal. to this testimony, but even if he had
Rptr. 2d 841].) sentenced Polanski on February 1,
1978, to time in state prison or
If the court had indeed denied a county jail, based on the evidence
hearing prior to imposing sentence, that Polanski could have developed at
while Polanski is correct that the the sentencing hearing Polanski would
issue of misconduct would not have have been able to seek an immediate
been cognizable on direct appeal stay of any commitment pending review
because he would have been denied the of the sentence.
opportunity to make a record of the
misconduct, "[o]ur state Constitution 23 Dalton declared that in
guarantees that a person improperly chambers, Gunson "pointed out
deprived of his or her liberty has the that the question of the hearing
right to petition for a writ of habeas should be resolved before the
corpus." (People v. Duvall (1995) 9 Judge imposed a sentence."
Cal.4th 464, 474 [37 Cal. Rptr. 2d
259, 886 P.2d 1252].) A petition for We acknowledge that if a term of
habeas corpus is the appropriate imprisonment had been imposed at the
vehicle for obtaining review of issues sentencing hearing on February 1,
requiring consideration of matters 1978, Polanski would have remained in
outside the record. (People v. Jones custody for the time it would have
(2003) 29 Cal.4th 1229, 1263 [131 Cal. taken to prepare, as appropriate, an
Rptr. 2d 468, 64 P.3d 762].) Had the appeal and/or a petition for writ of
court sentenced Polanski to any habeas corpus and to seek a stay of
further incarceration, Polanski could the sentence. Still, Polanski had more
have filed an immediate petition for than enough information concerning
habeas corpus with a request that the judicial misconduct at the time of his
sentence be stayed pending the flight to have sought prompt relief
petition's resolution. even if the trial court had imposed a
sentence beyond time served at the
On the other hand, when confronted sentencing hearing on February 1,
with a request for a hearing in open 1978. Polanski simply was not without
court that it appears the prosecutor a remedy other than flouting the
would have supported, 23 the trial judicial system through flight. 24
court might have granted the hearing
requested by Polanski--or perhaps the 24 Indeed, Dalton revealed in
court would have avoided it by an interview for the Polanski
agreeing to comply with the prior film that he advised Polanski
sentencing commitment the court is prior to his flight that Polanski
alleged to have made. If a hearing had would likely be able to secure
been requested on the record and relief from the sentence they
granted, by Polanski's account at feared the trial court would
least three people could have impose: "I contacted Roman and I
testified at the sentencing hearing to said for them to come to my
the trial court's agreement that the office and discuss what was going
diagnostic study would constitute to happen the following morning.
Polanski's entire punishment: Dalton, I told them it was my opinion
Gunson, and probation officer Gold. that the sentence would be
These three witnesses as well as illegal, that we could probably
Geimer's attorney, Lawrence Silver, obtain relief on appeal but that
could have testified to the other would involve[] a long procedure
misconduct occurring in their and Polanski would be
presence, if Polanski's allegations incarcerated during that period
are true. We cannot know what Judge of time." Dalton has declared
Page 29

under penalty of perjury that he both the prosecutor and the defense
accurately related the events in attorney substantially agreed
his interview for the film. concerning the details of the
Nothing in the record sheds any punishment arrangements to be imposed
light on why Dalton would not by the trial court, even though the
have foreseen, if in fact he did deal was unrecorded, if Polanski had
not foresee, that on the facts been able to prove his allegations by
that he alleges, Polanski would admissible evidence at that time, it
have been able to seek an is difficult to imagine any new bench
immediate stay of the sentence officer failing to honor a prior
pending appellate resolution of agreement that had already been
the issues. performed by Polanski.

b. Remedies Available to Polanski c. Polanski's 1997 Refusal of


After His Flight Resolution with No Further
Incarceration
Polanski's potential avenues for
relief actually increased soon after Importantly for the purposes of
his flight. In response to the analyzing the equities of applying the
disqualification papers, Judge disentitlement doctrine here, not only
Rittenband consented to the transfer has Polanski had legal alternatives
of the case out of his department in to flight at all times in this
late February 1978. At that point, matter, it appears that he
Polanski could have returned without deliberately opted to remain a
fear that he would be subjected to any fugitive despite a proposal for relief
further injustice at Judge made by the trial court, Judge Fidler,
Rittenband's hands. Moreover, Polanski in 1997. Polanski's own moving papers
has not offered any evidence that he and accompanying evidence reveal that
had a legitimate reason to fear that Polanski has previously been offered
any other judge of the superior court full relief from the alleged
would have sentenced him to injustices perpetrated by the trial
incarceration beyond the time he had court in 1977 and 1978 but that
already spent undergoing the Polanski rejected that relief because
diagnostic study. While the evidence the trial court indicated that the
has not yet been tested by a hearing, proceedings would be televised. 25
all the evidence submitted to this According to Dalton's declaration, in
court suggests that the contrary is 1997 Judge Fidler "stated that he
true. Dalton alleged in February 1978 would honor the agreement made by
that after Judge Rittenband announced Judge Rittenband that the period of
his intention to disregard his prior incarceration for Mr. Polanski while
commitment and to sentence Polanski to undergoing the diagnostic study would
incarceration, with instructions to constitute the full and complete
the parties as to what to argue at the punishment. [¶] After considering the
sentencing hearing, "both Gunson and materials we submitted and after
Dalton stated that they would not discussions with Mr. Gunson and me,
permit themselves to act out the roles Judge Fidler advised us that, if Mr.
assigned to them by the Judge in such Polanski returned to Los Angeles, he
a staged proceeding which was for the would allow Mr. Polanski to be booked
benefit of the press and with the and immediately released on bail,
result already pre-determined by the require Mr. Polanski to meet with the
Judge." Gunson, too, has declared that probation department, order a
he read the disqualification papers probation report, conduct a hearing,
before they were filed and that he and terminate probation without Mr.
agreed with them. In light of Polanski having to serve any
Polanski's evidentiary showing that additional time in custody."
Page 30

25 We recognize that there Today


exists some controversy as to
whether the trial court actually Even now Polanski has remedies
insisted that the proceedings besides seeking a dismissal of the
upon Polanski's return would be entire action from this court while
televised, but the record remaining a fugitive. While section
contains no dispute that Polanski 977, subdivision (b)(1) imposes a
declined to return despite the general requirement of personal
pledge of no further time in appearance for sentencing in felony
prison because he was matters, section 1193 permits
dissatisfied, not with the trial defendants to be sentenced in absentia
court's offer, but with the when specific conditions are met.
conditions surrounding the Whether the offense is treated as a
hearing that would be held. misdemeanor or a felony, 26 Polanski
could request to be formally sentenced
Polanski refused. According to in absentia. Section 1193, subdivision
Dalton, Polanski personally decided (a) provides that when a defendant is
not to accept the trial court's offer convicted of a felony, "the defendant
to resolve the case without any shall be personally present when
further potential exposure to jail or judgment is pronounced against him or
prison time because Polanski did not her, unless the defendant, in open
want television coverage of the court and on the record, or in a
sentencing proceedings. notarized writing, requests that
judgment be pronounced against him or
Polanski's complaints that he has her in his or her absence, and that he
been denied justice for more than 30 or she be represented by an attorney
years decrease significantly in when judgment is pronounced, and the
persuasive force in light of his court approves his or her absence
refusal to resolve the pending during the pronouncement of judgment,
criminal proceedings as originally or unless, after the exercise of
allegedly promised by Judge Rittenband reasonable diligence to procure the
simply because the hearing would not presence of the defendant, the court
be sufficiently private. This is not shall find that it will be in the
the case of a man who for 31 years has interest of justice that judgment be
been effectively unfairly exiled from pronounced in his or her absence ...
the United States because he was left ." 27 Sentences for misdemeanors, of
with no remedy but flight in the face course, may be imposed in absentia
of alleged misconduct by the trial without the satisfaction of any
court. Instead it appears to be a case conditions. (§ 1193, subd. (b).) At
in which the litigant wants not only sentencing, Polanski's counsel could
to obtain relief for the events that argue that the proper sentence is the
occurred long ago but also to direct time already served.
the conditions under which that relief
is dispensed. In the consideration of 26 At the plea hearing in this
the equities of disentitlement here, case, Polanski specifically
the fact that Polanski has chosen to pleaded guilty to the offense as
remain a fugitive tends to a felony, but on the record he
considerably diminish any injustice acknowledged that the judge would
that would otherwise be wrought by the decide whether he would receive a
trial court's refusal at this time to felony sentence or a misdemeanor
permit him to solicit relief from the sentence.
criminal proceeding while he remains 27 Based on the oral arguments
aloof from the court. of counsel, this court would not
expect any objection to be made
d. Remedies Available to Polanski if Polanski should request to be
Page 31

sentenced in absentia. having to subject himself to the


jurisdiction of the court.
Polanski could also cooperate with
the extradition process and return to e. Impact on the Balance of Equities
California. Once back in the of the Availability of Alternative
jurisdiction, he could request that Remedies
the trial court exercise its
discretion to dismiss the prosecution The existence of legal alternatives
in the interest of justice under to flight is a highly significant
section 1385. Alternatively, as he had consideration in evaluating whether a
already fulfilled the terms of the defendant should be disentitled from
agreed sentence he alleges, he could seeking relief from the courts. In
appear for the formal sentencing Kubby, supra, 97 Cal.App.4th 619, the
hearing from which he fled and ask the defendant fled after the court ordered
trial court to honor those sentencing probation and a jail term. He argued,
provisions. Potentially more inter alia, that the appellate court
expeditiously, upon his return he should not apply the disentitlement
could immediately file a petition for doctrine because of his severe health
writ of habeas corpus with a request issues. (Id. at p. 628.) Kubby claimed
for an immediate stay of all further that he required medical marijuana to
sentencing proceedings. While we control his symptoms and that he would
neither claim an ability to predict die without it while serving his
the future nor purport to prejudge any sentence. (Ibid.) The court expressed
matter for ourselves or for the trial sympathy for Kubby's medical condition
court, the evidentiary showing that he but found that it did not bar
has mustered in support of this disentitlement. Kubby, the court
petition would appear highly likely to explained, had legal alternatives to
merit both a stay and an immediate violating the court's order, such as
review of the propriety of any seeking a stay or asking for bail
continued detention. While Polanski pending resolution of the appeal. (Id.
most likely would have to incur some at pp. 628-629.) "Indeed, the trial
amount of custodial detention while court suggested that defendant move
his allegations were addressed--for it for a stay of execution of the order
is difficult to envision a California of probation, but for reasons left
court offering bail to a recently unexplained, defendant failed to avail
extradited long-standing fugitive with himself of that opportunity. Instead,
family and residence outside the he decided to take the law into his
country--if he would return to this own hands and flee the jurisdiction of
jurisdiction it appears that he would the court. For that, we have little
soon thereafter be able to establish a sympathy." (Id. at p. 628.)
factual record of, and obtain all
appropriate relief for, the very 3. Van Cauwenberghe and Doe v.
serious misconduct that it appears may Superior Court (Polanski) Do Not
have occurred here. Compel a Different Result

Polanski is not without any remedy. Polanski argues that the fugitive
He is only without the remedy that he disentitlement doctrine should not be
prefers: complete release not only applied to him, citing Van
from any threat of future punishment, Cauwenberghe, supra, 934 F.2d 1048 and
but also from the very charges Doe v. Superior Court (Polanski)
themselves--despite the fact that no (1990) 222 Cal.App.3d 1406 [272 Cal.
misconduct has been alleged impacting Rptr. 474]. Neither case establishes
the validity or voluntariness of an abuse of discretion here.
Polanski's plea to unlawful sexual
intercourse--and all without ever In Van Cauwenberghe, supra, 934
Page 32

F.2d 1048, Van Cauwenberghe had been months prior to Van Cauwenberghe's
sentenced to a jail term, fines, and departure the federal district court
five years' probation. (Id. at p. had made an express finding that no
1051.) He served his time, paid his further probationary purpose would be
fines, and satisfied the terms of served by requiring Van Cauwenberghe
probation by paying restitution and to remain in the United States, and
remaining in the United States until this determination had caused the
the restitution was paid. (Id. at pp. court of appeals to instruct the
1051, 1054.) The district court even district court to consider modifying
made an order that Van Cauwenberghe the terms of probation. Although he
had turned over sufficient property to should not have left the country
pay the restitution and that " 'there without permission, the court of
[was] no further probationary purpose appeals concluded that under the
to be served by requiring Van totality of the circumstances,
Cauwenberghe to remain in the United dismissal was not warranted. (Ibid.)
States.' " (Id. at p. 1051.) The
government subsequently agreed that The circumstances here differ
Van Cauwenberghe could return to significantly. Crucially, Van
Belgium--but, unbeknownst to the Cauwenberghe had been formally
government, Van Cauwenberghe had sentenced; Polanski has not. The trial
already left the country prior to the court concluded that no probationary
government's agreement. (Id. at pp. purpose was served by requiring Van
1052, 1054.) By leaving the country Cauwenberghe to remain in the country;
before he had received permission to no decision has ever been made by a
do so, Van Cauwenberghe violated a court that no purpose would be served
condition of his probation, and a by requiring Polanski to remain in the
bench warrant was issued. (Id. at p. country. Van Cauwenberghe did
1054.) everything his formal sentence
required him to do, except that he
The following year, Van left the country a bit ahead of the
Cauwenberghe moved for the return of approval to depart; according to his
the portion of the proceeds from the allegations, Polanski did what the
liquidation of the property he had court allegedly told him to do to
surrendered that exceeded the amount avoid further detention, then left the
necessary to pay his fines and country before ever undergoing a
restitution. (Van Cauwenberghe, supra, sentencing hearing. 28 While Van
934 F.2d at p. 1052.) The court Cauwenberghe, supra, 934 F.2d 1048,
refused to refund the excess, and Van shows that an appellate court, in its
Cauwenberghe appealed. (Ibid.) He also discretion, may conclude that a
appealed rulings in a related civil person's conduct does not merit
case. (Id. at p. 1053.) disentitlement when it balances the
equities, even when that person left
The Ninth Circuit Court of Appeals the country and has an outstanding
weighed the equitable considerations bench warrant, the Ninth Circuit's
and chose not to dismiss Van discretionary decision not to
Cauwenberghe's appeals on the basis of disentitle Van Cauwenberghe on appeal
the disentitlement doctrine. (Van (which, incidentally, corresponds to
Cauwenberghe, supra, 934 F.2d at p. this court's decision not to
1055.) The court considered Van disentitle Polanski from seeking
Cauwenberghe's noncompliance rather relief in this court) does not
minimal: He left without permission, establish any abuse of discretion by
but not in order to avoid satisfying the trial court when it weighed and
obligations or to otherwise flout the balanced the totality of the
processes of the law. (Ibid.) circumstances in this matter.
Moreover, the court of appeals noted,
Page 33

28 Considering what could have him. (Id. at p. 1408.) The Court of


happened at the sentencing Appeal, in a divided decision, held
hearing brings up another problem that the disentitlement doctrine did
in determining on this record not apply to the civil action, but not
what commitment Judge Rittenband because it found that Polanski was not
allegedly made to Polanski. a fugitive or that his behavior did
Dalton alleged in 1978 that Judge not amount to unclean hands. (Id. at
Rittenband said "there would be pp. 1409-1411.) In fact, the majority
no further incarceration" beyond described Polanski's flight as a
the diagnostic stay at Chino. "reprehensible, irresponsible, and
Clearly that would not rule out unlawful absence from this country."
the imposition of probation at (Id. at p. 1410.) Instead, the Court
the sentencing hearing. In 2008, of Appeal ruled that because Polanski
Dalton declared that Judge neither initiated the proceeding nor
Rittenband said that the study sought affirmative relief, to
would be the "complete disentitle him from mounting a defense
punishment" under the plea as in a civil action because of his
long as the report from Chino was fugitive status would violate the due
favorable. This phrasing leaves process clause of the Fourteenth
open the possibility that Judge Amendment to the United States
Rittenband could sentence Constitution. (222 Cal.App.3d at pp.
Polanski to incarceration if the 1409-1411.)
report was not favorable
(although the report was in fact It is evident from the text of the
favorable), but would tend to Doe v. Superior Court (Polanski)
indicate by its reference to decision that the Court of Appeal
"complete punishment" that Judge neither hinted nor ruled that Polanski
Rittenband had pledged himself to should not be subject to the fugitive
employ no other nonincarceration disentitlement doctrine where
sentencing options, such as appropriate, and the court also
probation. Gunson's declaration emphasized that there was no relation
sheds no light on whether Judge between the civil action and
Rittenband made a commitment that Polanski's flight from the criminal
ruled out probation, stating only action. (Doe v. Superior Court
that the diagnostic study would (Polanski), supra, 222 Cal.App.3d at
be Polanski's punishment. We do p. 1410.) Polanski argues that it
not impugn Dalton's veracity; we would be "similarly unconstitutional"
simply observe that smaller to apply fugitive disentitlement here
discrepancies as well as larger because he has been "forced out" of
disputes make it impossible for the country "and is simply trying to
this court to resolve the factual defend himself" against an "assault on
issues without an evidentiary his constitutional rights." Although
hearing to find the facts of the Polanski claims he is only trying to
alleged misconduct and punishment defend himself, in fact he came to the
commitment. court requesting affirmative relief: a
dismissal of the criminal action. As
Doe v. Superior Court (Polanski), we have discussed, Polanski has failed
supra, 222 Cal.App.3d 1406, concerned to avail himself of the many other
the civil action filed by Geimer options he has had to vindicate his
against Polanski based on the events constitutional rights, and he retains
that gave rise to the criminal the ability to seek that vindication
prosecution here. In that action, the today. Doe v. Superior Court
trial court denied Geimer's request (Polanski) does not demonstrate any
that the court strike Polanski's abuse of discretion here.
answer and enter a default against
Page 34

4. Conclusion the prosecution. We decline to do so


for several reasons.
While we agree with Polanski's
contention that the gravity and In the first instance, this court
constitutional aspects of his lacks a sufficient factual foundation
allegations matter greatly in this to grant relief. No factual findings
analysis and that when "a fugitive have ever been made as to the
defendant seeks to vindicate a right allegations of misconduct in this
vouchsafed by the United States case, and as an appellate tribunal we
Constitution, the Court should give are not equipped to make the factual
weight to this factor in determining findings that would be necessary for
how to exercise its discretion" us to determine whether relief was
(Veliotis, supra, 586 F.Supp. at p. warranted. What we have before us at
1515), the responsibility of a court this time is a set of declarations of
considering whether to apply the judicial misconduct; a series of
disentitlement doctrine remains to out-of-court statements in filmed
balance the many equitable concerns interviews concerning judicial
and to reach a decision based on the misconduct; and Wells's interview
totality of the circumstances. (Van detailing what appears to be his own
Cauwenberghe, supra, 934 F.2d at pp. unethical conduct. Polanski asserts
1054-1055.) Here, the seriousness of that the misconduct he has alleged is
the misconduct that Polanski alleges "undisputed," but the record and
played a role in his decision to flee briefing submitted to this court
clearly weighs against disentitlement, reveal that there are in fact disputes
but the traditional justifications for as to the underlying facts. Judge
the doctrine, Polanski's refusal to Rittenband contradicted some of these
accept relief offered in the past, and statements in 1978 in his verified
the fact that he has always had answer to Polanski's disqualification
legitimate alternatives to flight all papers, and Polanski's communications
weigh in favor of applying with this court indicate that Wells
disentitlement here and support the may have recanted an unspecified
trial court's ruling. Considering the number of his statements made in his
totality of circumstances in reviewing film interview. Without dismissing or
the trial court's ruling on diminishing the allegations made here,
disentitlement, Polanski has not at this point they remain allegations,
established that the trial court's and we lack a factual foundation that
decision fell outside the bounds of would permit us to offer the immediate
reason under the law and the facts dismissal relief that Polanski seeks.
here. (Giordano, supra, 42 Cal.4th at We cannot exercise our discretion on
p. 663.) Whether or not we would have the basis of facts that no court has
reached the same conclusion if we had found.
been in the position of the trial
court, we cannot say that the trial Moreover, even if we were to accept
court's decision was so irrational or all of Polanski's misconduct
arbitrary that no reasonable person allegations as if they were supported
could agree with it, nor may we by factual findings and admissible
substitute our judgment for that of evidence, it is not at all clear to us
the trial court. (See, e.g., Carmony, that the relief Polanski seeks from
supra, 33 Cal.4th at p. 377.) this court is the proper relief for
the misconduct that he has alleged.
V. Writ Relief Is Not Warranted Here Polanski has claimed that all he is
seeking is that we recognize that
Polanski urges this court to misconduct occurred and "provide him
override the trial court's exercise of with the relief that he should have
discretion and compel it to dismiss been given upon his release from
Page 35

prison over 30 years ago--conclusion Superior Court (1994) 30 Cal.App.4th


of this prosecution without further 1252 [36 Cal. Rptr. 2d 210] (Morrow),
threat of punishment" but the relief the prosecutorial misconduct occurred
that he requests goes far beyond before trial, impacted the integrity
asking the courts to honor Judge of the entire criminal proceeding, and
Rittenband's alleged 1977 commitment could not be adequately remedied by
that the diagnostic study would any order short of dismissal. 30 Here,
constitute Polanski's full punishment in contrast, except for one media
for unlawful sexual assault, statement in June 1977 all the
presumably by a formal sentence to malfeasance is alleged to have
time served. Instead, Polanski seeks a occurred postplea, and therefore there
complete dismissal of the criminal appears to be no basis for this court
prosecution against him under section to conclude that the process by which
1385, and he asks us to compel that the determination of Polanski's guilt
result by means of writ of mandate. was made was compromised in any way.
The effect of such a dismissal would Polanski, in short, has not shown that
be not only to bar any further this court, on this record, should
prosecution or punishment for the overturn his apparently untainted
crime, but also to entirely erase conviction for unlawful sexual assault
Polanski's plea to unlawful sexual because of misconduct occurring after
conduct. He would "stand as if [he] he pleaded guilty to that offense.
had never been prosecuted" for the
crime. (People v. Simpson (1944) 66 29 There is one exception:
Cal.App.2d 319, 329 [152 P.2d 339]; Dalton alleged in the 1978
see also Barro, supra, 93 Cal.App.4th statement of disqualification for
at p. 67; People v. Superior Court cause, inter alia, that Judge
(Flores), supra, 214 Cal.App.3d at p. Rittenband had made statements
136 (Flores).) about the case that appeared in a
June 1977 issue of People
Nothing in the record suggests that magazine, two months before the
this is an appropriate result. plea was taken. Polanski,
Polanski has not alleged any however, has not claimed that the
misconduct with respect to the plea proceedings leading up to and
itself or at any point in the including the plea were tainted
proceedings prior to the consideration by misconduct, and his counsel
of sentencing, 29 and therefore has not stated at oral argument that all
established any reason for this court the misconduct at issue occurred
to nullify the criminal proceeding after the plea was taken.
altogether. "While irresponsible or 30 In Boulas, supra, 188
overzealous conduct by government Cal.App.3d at pages 426 through
agents is not to be condoned, in the 429, a sheriff's deputy told a
case of challenged conduct which defendant, outside the presence
occurred only after a plea of guilty of his counsel, that if he wanted
and neither coerced nor induced that to reach a plea bargain with the
plea, it is not immediately apparent prosecutor he must discharge his
how there could have been prejudice to attorney and retain an attorney
a defendant which would justify acceptable to the district
withdrawal of the plea or dismissal." attorney. The trial court
(People v. Shaw (1989) 210 Cal.App.3d conducted an evidentiary hearing
859, 865 [258 Cal. Rptr. 693] (Shaw).) and found that the deputy had
In the cases on which Polanski relies deliberately set out to cause the
to support his request for outright defendant to change counsel. (Id.
dismissal, Boulas v. Superior Court at p. 429.) The court declined,
(1986) 188 Cal.App.3d 422 [233 Cal. however, to dismiss the charges.
Rptr. 487] (Boulas) and Morrow v. (Ibid.) The Court of Appeal
Page 36

compelled the trial court to Polanski asked the trial court to


dismiss the charges because the apply section 1385 to conduct a
authorities had "effectively hearing on his very serious
short-circuited Boulas's right to allegations of misconduct that
be assisted by counsel at a implicate due process in his criminal
critical stage of the matter. Having no legal standing to
proceedings," "denied Boulas the make a motion under the express terms
right to have his counsel attempt of section 1385, Polanski necessarily
to obtain a negotiated had to request the court to grant that
disposition," and "caused hearing on its own motion, and
irremediable harm to Boulas's ultimately the court declined to
relationship with his attorney." exercise its discretion to grant that
(Id. at p. 433.) No remedy less evidentiary hearing because of
than a dismissal could redress a Polanski's fugitive status. But this
violation of this magnitude. (Id. does not mean that Polanski has no
at p. 434.) other tools at his disposal to obtain
the evidentiary hearing that he seeks
In Morrow, supra, 30 and to make a record of, and obtain
Cal.App.4th at page 1255, on the factual findings on, his evidence of
day trial was supposed to begin, judicial and prosecutorial misconduct.
the prosecutor sent her
investigator to eavesdrop on Without returning to the United
conversations between the States or dropping his battle against
defendant and his counsel while extradition, Polanski may, through
they discussed the prosecutor's counsel, request that the trial court
request that the defendant either conduct the never-yet-held sentencing
plead guilty or waive time and hearing in absentia pursuant to
accept a continuance. The trial section 1193. If the trial court
court conducted an evidentiary approves this request, then Polanski,
hearing and found that through his counsel, will be able to
eavesdropping had occurred and obtain the evidentiary hearing that is
that confidential matters were so urgently required to establish the
discussed. (Id. at pp. facts of what occurred in 1977 and
1257-1258.) The Court of Appeal 1978. The trial judge now presiding
ordered the trial court to set over the matter, Judge Espinoza, has
aside its order denying the already indicated that at a sentencing
petitioner's motion to dismiss, hearing Polanski would be able to
because only per se dismissal fully litigate the allegations of
would sufficiently remedy the misconduct and a prior pledge by Judge
obvious harm and threat of Rittenband as to Polanski's
demonstrable prejudice arising punishment. At the same hearing at
from the outrageous eavesdropping which Judge Espinoza ruled that he
on the defendant's discussion of would not entertain Polanski's section
confidential matters with 1385 request, he also stated,
counsel. (Id. at p. 1263 & fn. "[H]aving reviewed all of the evidence
4.) in this case, notwithstanding the
People's assertion that the misconduct
Furthermore, Polanski seeks a writ that occurred is still in dispute,
of mandate, but a writ of mandate is there was substantial, it seems to me,
only proper when the petitioner has no misconduct that occurred during the
plain, speedy, and adequate remedy in pendency of the case which will be
the ordinary course of law. (Code Civ. among the many factors that would be
Proc., § 1086.) Here, Polanski has not considered by me and any other court
demonstrated that he is without such a that would sentence Mr. Polanski. He
remedy in the ordinary course of law. had a plea agreement [31] with Judge
Page 37

Rittenband. Unfortunately, Judge defendant seeks to vindicate a


Rittenband is long since deceased, but right vouchsafed by the United
the terms and conditions of that plea States Constitution, the Court
agreement are well known." While Judge should give weight to this factor
Espinoza has expressed the view that in determining how to exercise
Polanski is required by section 977 its discretion"].)
and the bench warrant to be present at
any proceeding regarding his case, on VI. Disentitlement Does Not Prevent
this record it does not appear that he Relief
has ever been asked to release
Polanski from that obligation, as he As we discussed ante in part IV.B.
is authorized to do by section 1193. of the Discussion, the disentitlement
Because Polanski possesses a means to doctrine does not bar relief when a
seek an evidentiary hearing on his matter presents systemic issues and
allegations of prosecutorial and interests of higher importance than
judicial misconduct, he has not the values that would be advanced by
demonstrated that he is without any disentitling a litigant because of his
remedy in the ordinary course of the or her flight. Polanski argues that
law. 32 this is one of those cases: Only if
this court compels the trial court to
31 The term "plea agreement" to grant relief will the grave systemic
describe what actually appears to issues he has raised be addressed. We
have been a postplea sentence disagree. A ruling that the trial
agreement is a misnomer. First, court did not abuse its discretion
by all accounts, the plea was when it declined to consider the
taken without any negotiations or merits of Polanski's request for a
promises as to punishment and was dismissal because of the
an open plea. Second, according disentitlement doctrine does not
to the statements of both Dalton prevent the thorough airing of the
and Gunson, Gunson opposed the serious allegations of injustice
use of the diagnostic study as presented by this case. Polanski, the
punishment. trial court, and the People all have
32 Should Polanski secure the ability to ensure that this matter
sentencing in absentia, we is resolved and that Polanski's
anticipate that any appeal allegations receive the court hearing
subsequently taken while Polanski that they deserve.
remains out of the country would
be met with a request by A. Polanski
respondent that this court then
apply the disentitlement As we have already discussed, even
doctrine. Polanski, however, by without appearing in California courts
then would have had the Polanski may request to be sentenced
opportunity to establish a record in absentia. (§ 1193.) While the trial
by admissible evidence of the court would have to consent to this
misdeeds he has alleged by Judge request, if it agreed, this would
Rittenband and Wells, and to the resolve the disentitlement problem
extent that he had proven such that Polanski has encountered in the
misconduct in violation of his trial court and would afford him the
constitutional rights, these evidentiary hearing that he so
facts would properly be urgently seeks to support his
considered in the balance of allegations of misconduct. Judge
equities required by the Espinoza has already indicated on the
disentitlement doctrine. (See record his opinion that the misconduct
Veliotis, supra, 586 F.Supp. at alleged by Polanski and the issue of
p. 1515 ["where a fugitive the original trial court's sentencing
Page 38

commitment are relevant to and may be in this matter, to order an


explored at a sentencing hearing. evidentiary hearing on whether to
Polanski, therefore, still holds in dismiss the prosecution in furtherance
his hands the potential means to hold of justice. Such a hearing would
the trial court to the commitment it permit the trial court to make factual
allegedly made to him in 1977. As we findings as to the events in 1977 and
have expressed elsewhere in this 1978 and to dismiss the prosecution in
opinion, if Polanski presents its entirety if the facts so warrant.
admissible evidence leading the trial (Compare Boulas, supra, 188 Cal.App.3d
court to conclude that Judge 422 and Morrow, supra, 30 Cal.App.4th
Rittenband committed to the diagnostic 1252 with Shaw, supra, 210 Cal.App.3d
study as Polanski's entire punishment, at p. 865; see also People v. Orin
it is difficult to imagine that the (1975) 13 Cal.3d 937, 945-948 [120
trial court would not honor that Cal. Rptr. 65, 533 P.2d 193]
commitment today. [delineating boundaries of the
judicial power to dismiss proceedings
Alternatively, or if a request for in the interest of justice].) In this
sentencing in absentia is denied, scenario, the trial court could
Polanski could return to California. consider the larger question of
As we have discussed ante in part whether the justice system was
IV.D.2.d., returning to the compromised by the actions of the
jurisdiction would permit Polanski to judge and a prosecutor not assigned to
obtain the evidentiary hearing he the case; the balance of the equities,
seeks through a section 1385 request without the weight of the request of a
or at a sentencing hearing. Upon a fugitive, could very well be
return to custody, Polanski would also different.
be able to seek relief by means of
petition for habeas corpus. Whatever Should the trial court conclude
avenues he may pursue, Polanski's that justice does not warrant outright
return would enable him to present dismissal of the prosecution with its
admissible evidence of judicial and concomitant elimination of Polanski's
prosecutorial misconduct and to guilty plea (see, e.g., Shaw, supra,
finally conclude the criminal 210 Cal.App.3d at p. 865), another
proceedings that have languished these option for the trial court--on a
many years. finding that, reasonable efforts
having been made to procure Polanski's
B. The Trial Court presence, it would be in the interests
of justice to do so (§ 1193, subd.
The trial court's justified refusal (a))--would be to set a sentencing
to consider Polanski's request that it hearing for the purpose of taking
consider dismissing the prosecution on evidence on the events of 1977 and
the basis that Polanski was not 1978. If, after taking evidence, the
entitled to seek relief while defying trial court finds that Polanski's
the court's authority does not allegations are true and that the
preclude the court from considering original trial judge agreed that the
whether to offer relief--at the trial prison stay for the diagnostic study
court's own instance in the would constitute Polanski's entire
furtherance of justice--based on the punishment, a condition Polanski
overarching systemic issues here of fulfilled, the trial court could find
ensuring that the court system that justice requires that the trial
operates with integrity and responds court's commitment be honored and that
appropriately to judicial and Polanski should be sentenced to time
prosecutorial misconduct when it has served. Of course, sentencing would be
occurred. The trial court is fully complicated by the fact that the
empowered, upon examining the evidence sentencing arrangement the trial court
Page 39

is said to have originally made was an communications with a judge about a


illegitimate use of the provision for pending matter; recommended the misuse
diagnostic studies: Section 1203.03, of a sentencing tool as a punishment;
subdivision (f) provides that the deliberately provoked the judge
diagnostic facilities made available against a defendant based on a
by the statute "shall only be used for newspaper photograph and no further
the purposes designated and not in information; and pursued a personal
lieu of sentences to local agenda against a defendant. Such
facilities." But if the trial court profoundly unethical conduct, if
concludes that justice requires proven to be true, strikes at the
honoring a commitment to serving only heart of the prosecutor's role as a
the amount of time required to perform guardian of systemic integrity. "In
the diagnostic study, then whether the all [a prosecutor's] activities, his
ultimate sentence is reached by giving [or her] duties are conditioned by the
credit for time served during the fact that he [or she] 'is the
diagnostic study pursuant to section representative not of any ordinary
1203.03, subdivision (g) or whether party to a controversy, but of a
another method of sentencing would be sovereignty whose obligation to govern
devised to ensure that Polanski served impartially is as compelling as its
no future time in prison (such as obligation to govern at all; and whose
Judge Fidler's alleged offer of a interest, therefore, in a criminal
sentence of probation and immediate prosecution is not that it shall win a
termination of probation), we are case, but that justice shall be done.
confident that the trial court could ...' [Citations.]" (People v. Superior
fashion a legal sentence that results Court (Greer) (1977) 19 Cal.3d 255,
in no further incarceration for 266 [137 Cal. Rptr. 476, 561 P.2d
Polanski. 1164], superseded on other grounds by
statute as stated in People v. Conner
Polanski has also suggested other (1983) 34 Cal.3d 141, 147 [193 Cal.
alternatives to dismissal that might Rptr. 148, 666 P.2d 5]; see also
be appropriate here depending upon the People v. Dehle (2008) 166 Cal.App.4th
court's ultimate factual findings, 1380, 1388 [83 Cal. Rptr. 3d 461] [it
such as "specific enforcement of the is appropriate for a prosecutor to
sentence agreement, monetary sanctions want to bring a defendant to justice
imposed on the District Attorney's with respect to the charged crime, but
Office, or the appointment of special a prosecutor is not disinterested if
counsel to explore the misconduct of he or she has an axe to grind against
the District Attorney's office." As the defendant].)
the trial court may use its inherent
power to fashion "a remedy for Although the district attorney's
deprivation of a constitutional right office dismisses the allegations
to suit the needs of the case" concerning the conduct of former
(Flores, supra, 214 Cal.App.3d at p. Deputy District Attorney Wells with
144), the court may consider any the assertions that "[i]t is unknown
suitable options. at this time whether statements made
during a heavily edited documentary
C. The People reflect actual circumstances,
opinions, or exaggerated braggadocio"
We are disturbed by the district and that Polanski is not entitled to a
attorney's refusal in the briefing hearing on the merits until he
submitted to this court to address or returns, the district attorney's
consider what appears to be an office has an interest in ascertaining
admission by a former member of the whether, in fact, one of its former
district attorney's office that he: members committed unethical acts
engaged in highly improper ex parte interfering with a criminal case. The
Page 40

prosecutor's responsibility to ensure the entire prosecution, the district


that justice is done (People v. attorney's office is empowered to and
Conner, supra, 34 Cal.3d at p. 148) is should apply to the trial court for a
not extinguished by a litigant's bad dismissal of the action under section
behavior: While Polanski's unclean 1385. Alternatively, if the district
hands may disentitle him from attorney's office finds that
requesting relief, the need remains to misconduct occurred after the taking
investigate and take appropriate of the plea and with regard to the
curative action in response to Wells's sentence only, the district attorney's
admissions that he engaged in office could request that the court
prosecutorial misconduct in the set a sentencing hearing in absentia
Polanski matter. and that Polanski be sentenced only to
time served.
Similarly, although Judge
Rittenband's alleged transgressions 33 The investigation of the
cannot be attributed to the district alleged misconduct should occur
attorney's office, former Deputy immediately, regardless of
District Attorney Gunson has declared Polanski's custody status,
under penalty of perjury that the because further delay threatens
trial court engaged in misconduct. to frustrate the determination of
"Prosecutors play a dual role in the the veracity of Polanski's
criminal justice system; they are allegations: The original trial
advocates, but they are also judge has died; the two
administrators of justice. [Citation.] prosecutors involved in the
' "[I]t is their sworn duty to see matter have retired; and the
that the defendant has a fair and memories of witnesses may lose
impartial trial ... ." ' [Citation.]" precision over intervening
(People v. Bryden (1998) 63 decades. Moreover, the absence of
Cal.App.4th 159, 182 [73 Cal. Rptr. 2d finality here continues to injure
554].) This role as an administrator Geimer.
of justice should prompt the district
attorney's office to internally VII. Polanski's Transfer and
investigate whether the allegations of Disqualification Requests
judicial misconduct are substantiated
and whether Polanski was subjected to In the event that this court does
unethical and unjust proceedings. not grant full relief or compel the
trial court to do so, Polanski asks
We cannot know what a thorough, that the matter be remanded for an
neutral investigation may reveal. 33 evidentiary hearing in another county
However, if the district attorney and that the district attorney's
finds that the allegations of office be disqualified from
prosecutorial and/or judicial representing the People in any future
misconduct advanced by Polanski are proceeding in the matter.
substantiated, we expect the district
attorney's office both to consider A. Arguments Concerning the Los
whether to refer former Deputy Angeles Superior Court
District Attorney Wells to the State
Bar of California for disciplinary Although Polanski offers five
proceedings and to seek condign arguments for transfer of the cause to
remedies for the misconduct. Should another county, he has not
the misconduct be found by the demonstrated that the entire Los
district attorney's office to have Angeles County Superior Court is
tainted the proceedings against unable or unwilling to render justice
Polanski to the point that justice in this matter. First, he argues that
would be furthered by a dismissal of Judge Rittenband refused to conduct a
Page 41

sentencing hearing before deciding to furtherance of justice. These


impose incarceration on Polanski arguments offer no basis for
beyond the time he had spent in transferring the matter away from the
custody for the diagnostic study, thus trial court, as they concern only the
denying Polanski due process and the conduct of the district attorney's
opportunity to make a record of the office, and Polanski has offered no
court's misconduct. Second, he explanation or argument for why the
observes that Judge Rittenband recused actions of that office should be
himself when Dalton sought his imputed to the trial court.
disqualification, thereby precluding
an evidentiary hearing where Finally, Polanski argues that at
Polanski's claims of misconduct would the hearing on the request for a
have been supported by testimony. As dismissal, Judge Espinoza and the
part of this argument, Polanski also district attorney's office "avoided an
alleges that the district attorney's evidentiary hearing" by applying the
office knowingly filed Judge fugitive disentitlement doctrine,
Rittenband's false response to these thereby "effectively condoning the
allegations. misconduct." This argument seems to
posit that any court that rules
These first two arguments concern against Polanski must be using
the alleged actions 31 years ago of a whatever grounds upon which it relies
now deceased trial judge. Leaving as an attempt to frustrate an inquiry
aside the problem we have already into long-ago misconduct. Polanski
discussed that these facts are offers no factual basis whatsoever for
disputed and we are not able to his unsupported argument that the
resolve the factual disputes in this trial court now is engaged in a
court, Polanski has offered no basis coverup of the alleged 1977 and 1978
in fact or law to support his implicit misconduct. Our holding that the trial
argument that we should consider the court did not abuse its discretion in
entire current county bench complicit applying the disentitlement doctrine
in the in-chambers misconduct of a would seem to dispose of any idea that
judge who left the bench two decades the trial court set out to defeat the
ago and is now deceased. Moreover, the ends of justice here. Moreover,
allegation that the district although he ruled that Polanski had
attorney's office filed a false forfeited by his then ongoing 30-year
declaration is irrelevant to the stint as a fugitive any authority he
question of transfer of the matter would otherwise have had to ask the
away from the Los Angeles County court, on its own motion, to dismiss
Superior Court. the charges against him, Judge
Espinoza stated that it appeared to
Third, Polanski argues that in 30 him that there had been misconduct,
years, the district attorney's office that he would consider that misconduct
has never once attempted to secure his if Polanski returned to the
extradition, and although he does not jurisdiction, and that the motion was
specifically claim that this alleged not only denied without prejudice, but
dereliction was designed to prevent an it also would not take effect for more
evidentiary hearing, he argues that than two months 34 so that Polanski
"[i]f it had [sought extradition], could return to the United States if
there would have been a hearing he desired a hearing on his
regarding the misconduct in this allegations. While Polanski did not
case." Fourth, he contends that the obtain the relief he wanted on his
district attorney's office has tried terms, these hardly seem the actions
to avoid discovery that he has of a court that is aiming to preclude
attempted to initiate since filing his Polanski's contentions from ever being
request for a dismissal in the addressed on their merits.
Page 42

34 The court's written order, Polanski--procedurally, the next


dated February 17, 2009, provided hearing for Polanski remained,
for a 30-day stay, but at the and remains to this day, a
hearing on the matter, the court sentencing hearing.
orally stayed the order until May
7, 2009. In sum, Polanski has not
established any basis for this court
Although it is not mentioned in to disqualify the trial court and the
this portion of the petition, we entire county bench from proceeding
assume that Polanski also believes over this matter.
that transfer is supported by his
contention, presented elsewhere in the B. Arguments Concerning the District
petition for writ of mandate, that Attorney's Office
Judge Espinoza's statement that, if
Polanski returned to the jurisdiction, Although in his petition for writ
he or another judge would "sentence" of mandate Polanski sets forth a
him means that the judge has prejudged series of claims concerning the
the question of dismissal and would conduct of the district attorney's
not dismiss the charges against office in the context of his argument
Polanski even if he returned to that the matter should be transferred
California. This "effective[] to a different county, his argument
indicat[ion]" that Polanski purports dedicated to the request for
to derive from the court's reference disqualification of the district
to the procedural posture of the case attorney's office from the matter does
35 is directly belied by the trial not include any of those allegations.
court's written order agreeing to We address them here, and then proceed
"consider the merits of the motion" if to the arguments he directs against
Polanski submitted to the jurisdiction the present district attorney
of the court within the duration of personally.
the stay granted by the court, as well
as by the court's denial of the motion Polanski asserts that the district
without prejudice at the conclusion of attorney's office knowingly filed
the stay. Judge Rittenband's false response to
Dalton's statement of disqualification
35 Polanski has never had a for cause. This is contradicted by the
formal sentencing hearing. His very page in the record on which
own counsel has observed that Polanski relies as support for his
Polanski, having pleaded guilty assertion. The cover of Judge
in August 1977, was next Rittenband's answer to the statement
scheduled to be sentenced: Dalton of disqualification bears the names of
declared that September 19, 1977, John H. Larson, county counsel, and
was the date set for the John P. Farrell, deputy county
"Probation Hearing and counsel. The Office of the Los Angeles
Sentencing." We know from the County Counsel, established in 1913
record of that hearing that the pursuant to the Los Angeles County
court ordered Polanski to undergo Charter, is distinct from the Los
the diagnostic study and then to Angeles Office of the District
return to court "for further Attorney. (Board of Supervisors v.
proceedings." In the absence of Simpson (1951) 36 Cal.2d 671, 673-674
the imposition of sentence at the [227 P.2d 14] [noting that L.A. County
September 19, 1977 hearing--and Counsel has been appointed pursuant to
whatever agreements Judge county charter since 1913 and "does
Rittenband may have made in not have the powers and duties of a
secret, on the record he did not district attorney except as they are
impose sentence on given by section 22 of the charter"],
Page 43

superseded by statute on other grounds Polanski should be subject to the


as stated in People v. Bhakta (2006) fugitive disentitlement doctrine. In
135 Cal.App.4th 631, 639-640 [37 Cal. light of the fact that the trial
Rptr. 3d 652].) court's ruling on the section 1385
request was within its discretion, the
Next, Polanski argues that in 30 People's espousal of that position
years, the district attorney's office would not seem to constitute
has never once attempted to secure his misconduct; and Polanski has offered
extradition, and intimates that this no evidence that the People had any
lack of effort indicates disinterest motive beyond seeking to dissuade the
in a hearing regarding the misconduct trial court from dismissing the
alleged in this case. The district charges when they advocated the
attorney's office contests this application of the fugitive
unsupported statement of fact, and of disentitlement doctrine. Polanski's
course, Polanski's subsequent arguments with respect to the
apprehension proves conclusively that prosecutor's office do not provide a
the district attorney's office tried basis for disqualifying the entire
at least once to secure his district attorney's office.
extradition. Moreover, even if it were
not both unsupported and in at least Polanski, however, also claims that
one respect demonstrably false, the the district attorney's office should
argument proves too much. If we should be disqualified from further
consider the district attorney's representing the People of the State
office to have frustrated the urgent of California in this matter because
need for an evidentiary hearing by of a statement District Attorney Steve
failing to catch Polanski after he Cooley is alleged to have made in an
fled, how can we not hold the person interview printed in the Criminal Law
who fled and supposedly should have Journal. District Attorney Cooley is
been caught by the district attorney's quoted as saying that the legislative
office at least equally responsible initiative process in California "has
for frustrating that urgent need? been whored beyond belief," and that
the Victims' Bill of Rights Act of
Polanski's next two arguments both 2008: Marsy's Law, also known as
allege that if the district attorney's Proposition 9, may have unintended
office opposes Polanski's requests, it consequences, citing Geimer's efforts
must be trying to frustrate the to cause the conclusion of criminal
pursuit of truth. First, Polanski proceedings against Polanski without
contends that the district attorney's further punishment. District Attorney
office has tried to avoid discovery Cooley allegedly said that Geimer's
that he has attempted to initiate ability to seek dismissal of the
since filing his request for a charges against a man who pleaded
dismissal in the furtherance of guilty to having unlawful sexual
justice because it has opposed intercourse with her when she was 13
Polanski's ex parte requests for years old "shows you how the special
subpoenas and the disclosure of any role of being a victim can, in a
communications between the district sense, be corrupted by a defendant who
attorney's office and the trial court. happens to have money. There have been
This is merely an invitation to wade suggestions that there was a civil
into a dispute between Polanski and settlement way back when with this
the district attorney's office and to victim, and there are currently
make factual findings that this court relationships going on with this
is not equipped to make. Second, victim and Mr. Polanski and her
Polanski argues that the district lawyers. They were documented just
attorney's office avoided an yesterday in the L.A. Times [January
evidentiary hearing by alleging that 13, 2009]. When you look at her
Page 44

picture, the victim--who, by the way, on the disqualification issue. (§


we didn't name in any of our moving 1424, subd. (a).) The judge reviews
papers--comes out and names herself. the affidavits and determines whether
But the picture that is submitted is an evidentiary hearing is necessary.
her standing in front of a premiere of (§ 1424, subd. (a).)
some Polanski-related film. So the
system's already being corrupted by Defendants "bear the burden of
the so-called Victim's Bill of demonstrating a genuine conflict" by a
Rights." motion for recusal of the prosecutor
and/or the prosecutor's office.
Polanski argues that these (Haraguchi v. Superior Court (2008) 43
statements are false and violate both Cal.4th 706, 709 [76 Cal. Rptr. 3d
rule 5-120 of the Rules of 250, 182 P.3d 579].) A motion to
Professional Conduct and section 6068, recuse "is directed to the sound
subdivision (f) of the Business and discretion of the trial court, and its
Professions Code. Moreover, he decision to grant or deny the motion
declares, without any explanation or is reviewed only for an abuse of
support, that they were "undoubtedly discretion." (Id. at p. 711.) Here, on
intended to intimidate Mr. Polanski the record provided by Polanski, we
and end any prospect of a voluntary have no motion to recuse, no findings
return." Polanski characterizes this of fact by the trial court, and no
as "only one of multiple instances of rulings of law by the trial
ethical and statutory violations court--merely a demand that we
committed by the District Attorney's disqualify an entire office based on
Office during this case," but does not the appearance in print of a statement
further describe any alleged attributed to District Attorney
violations. Polanski notes that Cooley. This is completely
section 1424 permits the recusal of a insufficient to support the
district attorney based on a conflict disqualification of the entire
of interest that would render it district attorney's office from
unlikely that the defendant would participating in this case. "Recusal
receive a fair trial. What Polanski of an entire district attorney's
does not say is that section 1424 sets office is an extreme step. The
out a very clear process for seeking threshold necessary for recusing an
to disqualify a district attorney: The entire office is higher than that for
notice of a motion to disqualify a an individual prosecutor. [Citation.]"
district attorney is to be served on (People v. Cannedy (2009) 176
the district attorney and the Attorney Cal.App.4th 1474, 1481 [98 Cal. Rptr.
General at least 10 court days before 3d 596].) "Thus, 'the entire
the motion is heard. (§ 1424, subd. prosecutorial office of the district
(a).) The notice of motion must attorney should not be recused in the
contain a statement of the facts absence of some substantial reason
setting forth the grounds for the related to the proper administration
claimed disqualification and the legal of criminal justice.' [Citations.]"
authorities relied upon by the moving (Id. at p. 1482.)
party and shall be supported by
affidavits of witnesses who are VIII. Conclusion
competent to testify to the facts set
forth in the affidavit. (§ 1424, subd. Although there is no basis for
(a).) The district attorney or the extraordinary relief here--Polanski
Attorney General, or both, may file retains remedies in the ordinary
affidavits in opposition to the motion course of the law, and the trial court
and may appear at the hearing on the did not abuse its discretion in
motion and may file with the court relying on the disentitlement doctrine
hearing the motion a written opinion to deny Polanski the opportunity to
Page 45

seek relief--we remain deeply process and fundamental fairness


concerned that these allegations of raised by the events of long ago.
misconduct have not been addressed by
a court equipped to take evidence and 36 Under article I, section 28,
make factual determinations as to the subdivision (b)(9) of the
events in 1977 and 1978. Fundamental California Constitution, crime
fairness and justice in our criminal victims are entitled to "a prompt
justice system are far more important and final conclusion of the
than the conviction and sentence of case." The California
any one individual. "[F]or my part I Constitution also provides that
think it a less evil that some "[v]ictims of crime are entitled
criminals should escape than that the to finality in their criminal
government should play an ignoble cases," although the remainder of
part." (Olmstead v. United States that provision makes clear that
(1928) 277 U.S. 438, 470 [72 L. Ed. what is contemplated is freeing
944, 48 S. Ct. 564] (dis. opn. of victims from the fear that the
Holmes, J.).) offender will not be sufficiently
punished. (Cal. Const., art. I, §
Polanski's allegations urgently 28, subd. (a)(6) ["Lengthy
require full exploration and then, if appeals and other post-judgment
indicated, curative action for the proceedings that challenge
abuses alleged here. Time continues to criminal convictions, frequent
pass, and the delay in addressing this and difficult parole hearings
matter has already removed one that threaten to release criminal
participant from the ranks of offenders, and the ongoing threat
available witnesses for an evidentiary that the sentences of criminal
hearing on the judicial and wrongdoers will be reduced,
prosecutorial misdeeds that have been prolong the suffering of crime
alleged here. The passage of more time victims for many years after the
before this case's final resolution crimes themselves have been
will further hamper the search for perpetrated. This prolonged
truth and the delivery of any suffering of crime victims and
appropriate relief, and it will also their families must come to an
prolong the agony that the lack of end."].) Geimer has attested to
finality in this matter continues to the continuing trauma caused by
cause Samantha Geimer. 36 We exhort all the lack of finality here and the
participants in this extended drama to endless media interest in the
place the integrity of the criminal case. Although Geimer blames the
justice system above the desire to failure to conclude this case on
punish any one individual, whether for judicial and prosecutorial
his offense or for his flight. As corruption, Polanski's decision
Justice Murphy wrote in dissent in to flee rather than to avail
Eisler, supra, 338 U.S. at pages 194 himself of legal remedies for
to 195, "Our country takes pride in that alleged misconduct cannot be
requiring of its institutions the excluded as a significant, if not
examination and correction of alleged primary, cause of the failure to
injustice whenever it occurs. We conclude the matter. Regardless
should not permit an affront of this of the blame, we remind Polanski,
sort to distract us from the the district attorney's office,
performance of our constitutional and the trial court that each has
duties." We encourage all the power to pursue the long
participating parties to do their overdue resolution of this
utmost to ensure that this matter now matter.
draws to a close in a manner that
fully addresses the issues of due DISPOSITION
Page 46

The writ petition is denied. concurred.

Perluss, P. J., and Woods, J.,


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