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As of: Oct 22, 2017
No. B217290
180 Cal. App. 4th 507; 102 Cal. Rptr. 3d 696; 2009 Cal. App.
LEXIS 2035
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
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
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
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
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
(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
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.
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,
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