Mistrial Motions Ass. DA Submitted Fraudulent Jury Instruction!
Clive
Boustred
THE SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF SANTA CRUZ
In addition to other Motions to Dismiss and declare a mistrial, the following Motions are added. 1. MOTIONTO DECLARE A MISTRIAL ASS. DA JEFFREY RANDOLPH ENTERED DECEPTIVE AND FALSE JURY INSTRUCTIONS RE CALCRIM 2656.
Ass. DA Jeffery Randolph entered the following Jury Instruction which specifically claims that a person is guilty of violating PC § 148 if the person does not give the officer their birth date!:
JURY INSTRUCTION SUBMTTED
TO JURY BY ASS.DA: The defendant is charged in Count ! with resisting obstructing or delaying a peace officer in the performance or attempted performance of his duties. To prove that the defendant is guilty of this crime, the People must prove that: 1. Troy Vincent was a peace officer lawfully performing or attempting to perform his duties as a peace officer. 2. The defendant willfully resisted or obstructed or delayed Troy Vincent in the performance or attempted performance of those duties; AND 3. When the defendant acted, he knew, or reasonably should have know that Troy Vincent was a peace officer performing or attempting to perform his duties. Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage. A person who is employed as a Highway Patrol Officer by the California Highway Patrol is a peace officer. The duties of a Highway Patrol Officer include stopping cars that appear to be breaking vehicle code section to investigate and possibly cite or arrest the occupants or drivers of those cars, identifying the occupants of vehicles they come into contact with, and evaluating whether occupants of vehicles they come into contact with in the performance of their duties are intoxicated. The People allege that the defendant resisted or obstructed or delayed Tory Vincent by doing the following: Failing to provide proper photo identification, failing to obey the officers direction to come out of the vehicle, failing to provide his name, address, date of birth, etc. upon request, and or refusing to allow Troy Vincent and the other officers to handcuff him without making his muscles resist. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.
The jury instruction the Ass. DA entered is significantly different from formal CALCRIM instruction which is show below: CALCRIM 2656. Resisting Peace Officer, Public Officer, or EMT The defendant is charged [in Count ______] with (resisting[,]/ [or] obstructing[,]/ [or] delaying) a (peace officer/public officer/ emergency medical technician) in the performance or attempted performance of (his/her) duties. To prove that the defendant is guilty of this crime, the People must prove that: 1. <insert name, excluding title> was (a/an) (peace officer/public officer/emergency medical technician) lawfully performing or attempting to perform (his/her) duties as a (peace officer/public officer/emergency medical technician); 2. The defendant willfully (resisted[,]/ [or] obstructed[,]/ [or] delayed) <insert name, excluding title> in the performance or attempted performance of those duties; AND 3. When the defendant acted, (he/she) knew, or reasonably should have known, that <insert name, excluding title> was (a/an) (peace officer/public officer/emergency medical technician) performing or attempting to perform (his/her) duties. Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [A person who is employed as a police officer by <insert name of agency that employs police officer> is a peace officer.] [A person employed by <insert name of agency that employs peace officer, e.g., "the Department of Fish and Game"> is a peace officer if <insert description of facts necessary to make employee a peace officer, e.g., "designated by the director of the agency as a peace officer">.] [An officer or employee of <insert name of state or local government agency that employs public officer> is a public officer.] [An emergency medical technician is someone who holds a valid certificate as an emergency medical technician.] [The duties of (a/an) <insert title of peace officer, public officer, or emergency medical technician> include <insert job duties>.] <When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Officer.> [A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).] [The People allege that the defendant (resisted[,]/ [or] obstructed[,]/ [or] delayed) <insert name, excluding title> by doing the following: <insert description of acts when multiple acts alleged>. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.] [If a person intentionally goes limp, requiring an officer to drag or carry the person in order to accomplish a lawful arrest, that person may have willfully (resisted[,]/ [or] obstructed[,]/ [or] delayed) the officer if all the other requirements are met.]
In comparing the official jury instruction with the Ass. DA Jeffery Randolph’s Jury Instruction with the official Jury Instruction we can see where the Ass. DA intentionally and deceptively modified the Jury Instruction and intentionally excluded the paragraph with regard to the illegality of the arrest/lawful performance of the officer, which the Ass. DA then implies in the duties section that the officer was in fact acting lawfully demanding a passenger give the officer a birth date when the passenger had more than adequately identified himself pursuant to the law and code. AUTHORITIES: Terry v. Ohio, 392 U.S. 1. The California court has defined "credible and reliable" identification as "carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself." AUTHORITIES: U.S. Supreme Court KOLENDER v. LAWSON, 461 U.S. 352 (1983) 461 U.S. 352 KOLENDER, CHIEF OF POLICE OF SAN DIEGO, ET AL. v. LAWSON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 81-1320. Argued November 8, 1982 Decided May 2, 1983 A California statute requires persons who loiter or wander on the streets to identify themselves and to account for their presence when requested by a peace officer. The California Court of Appeal has construed the statute to require a person to provide "credible and reliable" identification when requested by a police officer who has reasonable suspicion of criminal activity sufficient to justify a stop under the standards of Terry v. Ohio, 392 U.S. 1. The California court has defined "credible and reliable" identification as "carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself." Appellee, who had been arrested and convicted under the statute, brought an action in Federal District Court challenging the statute's constitutionality. The District Court held the statute unconstitutional and enjoined its enforcement, and the Court of Appeals affirmed. Held: The statute, as drafted and as construed by the state court, is unconstitutionally vague on its face within the meaning of the Due Process Clause of the Fourteenth Amendment by failing to clarify what is contemplated by the requirement that a suspect provide a "credible and reliable" identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest. Pp. 355-361. 658 F.2d 1362, affirmed and remanded.
The Ass. DA was fully aware that the Defendant provided the officer the Defendant’s business card, which the Ass. DA submitted into evidence, however, here in these instructions the Ass DA states that the Defendant failed to provide his name and address. This is clearly false and deceptive. The Ass. DA knew full well that the Defendant provided not only his name and address, but also his telephone numbers his email and association he worked for. The video evidence also proved that when the officer ordered Defendant out of the vehicle, the Defendant complied. The Ass DA states deceptively in the instruction that the Defendant failed to obey the officers direction to come out of the vehicle. Clearly Ass. DA Jeffery Randolph submitted these modified Jury Instructions so as to guarantee the Defendant was found guilty when the Defendant was clearly Innocent. In comparing the CALCRIM instructions to the Ass. DA’s instructions we can see the differenced clearly highlighted: CALCRIM 2656. Resisting Peace Officer, Public Officer, or EMT RESISTING PEACE OFFICER, PUBLIC OFFICER, OR EMT The defendant is charged [in Count ______]! with (resisting[,]/ [or] obstructing[,]/ [ or] delaying) a (peace officer/public officer/ emergency medical technician) in the performance or attempted performance of (his/her) duties. To prove that the defendant is guilty of this crime, the People must prove that: 1. Troy Vincent was a peace officer lawfully performing or attempting to perform his duties as a peace officer. 2. The defendant willfully (resisted[,]/ [ or] obstructed[,]/ [ or] delayed) <insert name, excluding title> Troy Vincent in the performance or attempted performance of those duties; AND 3. When the defendant acted, (he/she) knew, or reasonably should have known, that <insert name, excluding title>Troy Vincent was (a/an) ( peace officer/public officer/emergency medical technician) performing or attempting to perform (his/her) duties. Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. A person who is employed as a Highway Patrol Officer by the California Highway Patrol is a peace officer. The duties of a Highway Patrol Officer include stopping cars that appear to be breaking vehicle code section to investigate and possibly cite or arrest the occupants or drivers of those cars, identifying the occupants of vehicles they come into contact with, and evaluating whether occupants of vehicles they come into contact with in the performance of their duties are intoxicated. LAW NOTE: The duty of Highway Patrol Officers is not to identify the occupants of a velhicle they come into contact with, and evaluate whether occupants of vehicles they come into contact with in the performance of their duties are intoxicated. Case and Point – if this were the case then no intoxicated person would be allowed to leave a bar and get a ride home! The Ass. DA clearly and intentionally misdirected and modified the Jury instructions to intentionally deceive the jury and to find the Defendant guilty when the Defendant was innocent. The Ass. DA must be dismissed from his duties in the District Attorney’s office.
NOT
Included by Ass. DA which is a part of the CALCRIM Instructions: When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Officer. A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties. Instruction 2670 explains when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive.
LAW NOTE: Clearly officer Troy Vincent was not performing his lawful duties by arresting a passenger for intoxication and clearly the officer as evidenced from the video and clearly alleged and proven by Defense used unreasonable and excessive force in his duty. Furthermore the Court did not provide Instruction 2670 The People allege that the defendant resisted or obstructed or delayed Tory Vincent by doing the following: Failing to provide proper photo identification, failing to obey the officers direction to come out of the vehicle, failing to provide his name, address, date of birth, etc. upon request, and or refusing to allow Troy Vincent and the other officers to handcuff him without making his muscles resist. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed. As can be seen from the Ass. DA’s Jury Instruction, the Ass. DA completely modified the instruction and submitted a fraudulent and intentionally deceptive instructions designed to find the Defendant guilty. This criminal act by the Ass DA is similar to Ass. DA Jeffrey Randolph deleting critical testimony from the video transcript then submitting the clearly and deceptively altered transcript to the jury (Which the Judge refused to admonish the Ass DA over or to advice the Jury of the Ass. DA’s crime therein). The trail must be declared a mistrial as the Jury Instructions were false and fraudulent and designed to find an innocent man guilty, while Jury Instructions that were required by law were not given to they jury.
2. NOTICE OF MOTION AND MOTIONTO DECLARE A MISTRIAL FAILURE OF JUDGE TO INSTRUCT PURSUANT TO CALCRIM 375.
Bench Notes Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the crime. "[I]f a defendant is charged with violating section 148 and the arrest is found to be unlawful, a defendant cannot be convicted of that section." (People v. White (1980) 101 Cal.App.3d 161, 166 [161 Cal.Rptr. 541].) An unlawful arrest includes both an arrest made without legal grounds and an arrest made with excessive force. (Id. at p. 167.) "[D]isputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) The court has a sua sponte duty to instruct that the defendant is not guilty of the offense charged if the arrest was unlawful. (People v. Olguin (1981) 119 Cal.App.3d 39, 46-47 [173 Cal.Rptr. 663].) On request, the court must instruct that the prosecution has the burden of proving the lawfulness of an arrest beyond a reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give the bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Officer. When giving the portion of CALCRIM No. 2670 on the "use of force," the court must either delete the following sentence or specify that this sentence does not apply to a charge of violating Penal Code section 148: "If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force." (People v. White, supra, 101 Cal.App.3d at pp. 168-169 [court must clarify that Pen. Code, � 834a does not apply to charge under section 148].) If the prosecution alleges multiple, distinct acts of resistance, the court has a sua sponte duty to instruct on unanimity. (People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 9 [108 Cal.Rptr. 338].) Give the bracketed paragraph that begins with "The People allege that the defendant." The jury must determine whether the alleged victim is a peace officer. (People v. Brown (1988) 46 Cal.3d 432, 444-445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury on the appropriate definition of "peace officer" from the statute (e.g., "a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers"). (Ibid.) However, the court may not instruct the jury that the alleged victim was a peace officer as a matter of law (e.g., "Officer Reed was a peace officer"). (Ibid.) If the alleged victim is a police officer, give the bracketed sentence that begins with "A person employed as a police officer." If the alleged victim is another type of peace officer, give the bracketed sentence that begins with "A person employed by." The court may give the bracketed sentence that begins with "The duties of a <insert title . . . > include" on request. The court may insert a description of the alleged victim's duties such as "the correct service of a facially valid search warrant." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr. 729, 800 P.2d 1159].) If the facts indicate passive resistance to arrest, give the bracketed sentence that begins with "If a person goes limp." (In re Bacon (1966) 240 Cal.App.2d 34, 53 [49 Cal.Rptr. 322].) Authority Elements. Pen. Code, � 148(a); see In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 [116 Cal.Rptr.2d 21]. General-Intent Crime. In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 [116 Cal.Rptr.2d 21]. Knowledge Required. People v. Lopez (1986) 188 Cal.App.3d 592, 599-600 [233 Cal.Rptr. 207]. Multiple Violations Permissible If Multiple Officers. Pen. Code, � 148(e). Peace Officer Defined. Pen. Code, � 830 et seq. Emergency Medical Technician Defined. Health & Saf. Code, �� 1797.80-1797.84. Delaying Officer From Performing Duties. People v. Allen (1980) 109 Cal.App.3d 981, 985-986, 987 [167 Cal.Rptr. 502]. Verbal Resistance or Obstruction. People v. Quiroga (1993) 16 Cal.App.4th 961, 968, 970-972 [20 Cal.Rptr.2d 446] [nondisclosure of identity following arrest for felony, not misdemeanor]; People v. Green (1997) 51 Cal.App.4th 1433, 1438 [59 Cal.Rptr.2d 913] [attempt to intimidate suspected victim into denying offense]. Passive Resistance to Arrest. In re Bacon (1966) 240 Cal.App.2d 34, 53 [49 Cal.Rptr. 322]. Unanimity. People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 9 [108 Cal.Rptr. 338]. Secondary Sources 2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, �� 18-19. 1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest, � 11.06[3][b] (Matthew Bender). 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, � 85.02[2][a][i] (Matthew Bender). (New January 2006)
3. MOTION TO DECLARE A MISTRIAL JURY INSTRUCTIONS INTRODUCED INFORMATION IN LIMINE.Defendant was not allowed to submit any jury instructions. The Prosecution submitted as a Jury Instruction evidence in limine. Prosecution and Defendant was clearly instructed not to address the March 10, 2003 assassination attempt of Defendant by the Santa Cruz Sheriffs Shooting Instructor Michael MacDonald (who repeatedly entered the court and confiscated On Second Thought’s representative Producer Anthony J. Hilder’s video camera despite a formal motion to record the trial) and the false arrest of Defendant in that case or the fact that the Sheriffs lied in their reports falsely claiming that they were chasing the Defendant for a felonious child abduction, or the fact that Defendant was sentenced to six months in jail for driving at 27 mph down his private road before MacDonald attempted to blow Defendant’s head off in front of Defendant’s children or the fact that the judge was a nationally renowned criminal rated as not qualified by the Judicial Nominations Committee etc., etc. etc... Prosecution submitted the Jury Instruction below which lists the allegations and false arrest in the body of the instruction thereby after the trial was over introducing to the jury evidence that was clearly and obviously limited and which the Defense had no opportunity what so ever to answer to or counter. Clearly and obviously despite all the other ‘errors’ in the trial a mistrial must be declared. CALCRIM 375. EVIDENCE OF UNCHARGED OFFENSE TO PROVE IDENTITY, INTENT, COMMON PLAN, ETC. The People presented evidence that the defendant committed ((another (other) offence the offenses of ______ <insert description of alleged offenses>) that (was/were) not charged in this case. <introductory Sentence Alternative B -- evidence of another act admitted> The People presented evidence of other behavior by the defendant that was not charged in this case/that the defendant was previously convicted after a jury trial of resisting arrest in 2003, in this county. Additionally, the people have presented evidence that the defendant was convicted after a trial, of the crime of evading an officer with willful disregard for the safety of other, in this county. Finally, the people have presented evidence that the defendant was convicted in 2003 of refusing to provide his identifications to a peace officer upon request in a different county. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the prior offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. If you decide that the defendant committed the prior offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not A: Identity The defendant was the person who committed the offenses alleged in this case, or C: Motive the defendant had a motive to commit the offenses alleged in this case /, or D: Knowledge The defendant knew he was required to cooperate with police officers and to provide his photo identification to them upon request, when (he/she) allegedly acted in this case, or F: Common Plan The defendant had a plan or scheme to commit the offenses alleged in this case, or In evaluation this evidence, consider the similarity or lack of similarity between the prior alleged offenses and acts and the charged offenses. Do not consider this evidence for any other purpose except for the limited purposes that I just noted to you. Namely, Identity, Motive, Prior Knowledge, and Common Plan or Scene. Do not conclude from this evidence that the defendant was a bad character or is disposed to commit crime. If you conclude that the defendant committed the prior alleged acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crime of resisting arrest or public intoxication. The People must still prove each element of every charge beyond a reasonable doubt.
The Ass. DA clearly and intentionally misdirected and modified the Jury instructions to intentionally deceive the jury and to find the Defendant guilty when the Defendant was innocent. The Ass. DA must be dismissed from his duties in the District Attorney’s office. This trial is yet another clear example of the ongoing pattern and practice of DA Bob Lee’s malicious prosecution of Clive Boustred. DA Bob Lee must be dismissed and prosecuted,
4. MOTION TO DECLARE A MISTRIAL, RACKETEERING CHICKEN COURT PROCEDURES AND CHICKEN COURT APPELLATE SYSTEM – OFFER OF PROOF SAN JOSE MERCURY NEWS TAINTED TRIALS STOLEN JUSTICE SERIES AND PROFESSIONAL STUDY.
VERIFICATIONI, Clive Boustred, am a Party in the above-entitled action. I have read the foregoing Document(s), Affidavit(s), Declaration(s), and/or Materials, Id., including referenced and/or attached documents, and/or duplicates of such documents and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct to the best of my knowledge and belief, and that I have executed this Declaration at Riverside California Date: May 5, 2009 __________________________________ Clive Boustred, In Propria Persona Sui Juris – Non Assumpsit Clive Boustred In Propria Persona, Sui Juris 210 Suncrest Dr. Soquel, CA 95073 clive@coppercards.com
State of California, County of Santa Cruz,
(1) Date of mailing: ________________________ (2) Place of Mailing: _________________________
Signature: ________________________________ Date: ______________
(b) Address: 701 Ocean St. Santa Cruz CA 95060
(b) Address: 701 Ocean St. Santa Cruz CA 95060
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