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Opening Brief Revealing Utterly Sham Trial Clive Was Given For Rescuing
His 3 Year Old Son Off A Learner Ski Run

Go here for a formatted version of this brief Placer Opening Brief (Word) - The Court refused to consider this brief or the blatant facts proving well beyond any reasonable doubt that Clive was not guilty of anything but that his ex-wife and her lover were guilty of multiple crimes along with the judges, sheriffs and DA's.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

PLACER COUNTY DISTRICT

DIVISION _______

MAY TERM

 

 

___________________________________

In Re:  Clive Boustred                                                )

                        Petitioner  )     CASE NUMBER: _____________

                                                                        )           (Sup. Ct. No. 72-002045)

Vs                                                                    )          

                                                                        )

THE PEOPLE OF THE STATE OF              )

CALIFORNIA                                               )

                                                Respondents   )

____________________________________)

 

 

 

BRIEF ON APPEAL

Petitioner’s Appeal

[California PC § 1271]

From The Judgment of the Superior Court of the

COUNTY OF PLACER

COMMISSIONER TRILLA E. BAHRKE

 

 

 

 

 

 

 

CLIVE FRANK BOUSTRED

210 Suncrest Drive

Soquel, California [95073]

+1 (408) 889-4351

 

 

THE OFFICE OF THE DISTRICT ATTORNEY   
Placer County
P.O. Box 5609

Placer, CA 96145
(831) 454-2400  fax (831) 454-2227
by:  CHSITOPERH M. CATTRAN, Deputy

 

 

TABLE OF CONTENTS

 

 TOC \o "1-3" \h \z BRIEF ON APPEAL PAGEREF _Toc71310480 \h 9

PETITIONER’S OPENING BRIEF PAGEREF _Toc71310481 \h 9

I BRIEF IS A MATTER OF RIGHT AND NECESSARY IN THIS MATTER TO VINDICATE APPELLANTS’ RIGHTS ON AN UNLAWFUL AND ERRONEIOUS CONVICTION OF THE LOWER COURT PRESIDED BY COMMISSIONER TRILLA BAHKE PAGEREF _Toc71310482 \h 10

II STATUS OF THE PARTIES PAGEREF _Toc71310483 \h 12

III SUMMARY OF THE CASE PAGEREF _Toc71310484 \h 14

IV PROCEDURAL FACTS PAGEREF _Toc71310485 \h 17

V STATEMENT OF FACTS PAGEREF _Toc71310486 \h 18

VI NOTICE OF DEFECTS:  CASE VIOLATIONS WHICH PROVE THAT NO SUBSTANTIVE JUSTICE OR FAIL TRIAL WAS ACCORDED DEFENDANT, IN DIRECT VIOLATION OF SETTLED LAW—COMPLETE MISCARRIAGE OF JUSTICE PAGEREF _Toc71310487 \h 25

VII MEMORANDUM OF POINTS AND AUTHORITIES PAGEREF _Toc71310488 \h 41

VIII CONCLUSION PAGEREF _Toc71310494 \h 69

IX PRAYER FOR RELIEF PAGEREF _Toc71310495 \h 72

DECLARATION IN SUPPORT OF PAGEREF _Toc71310496 \h 74

PETITIONER’S OPENING BRIEF PAGEREF _Toc71310497 \h 74

ORDER FOR APPELLATE RELIEF PAGEREF _Toc71310498 \h 76

VERIFICATION PAGEREF _Toc71310499 \h 77

SUBSCRIPTION PAGEREF _Toc71310500 \h 77

 


 

TABLE OF AUTHORITIES

 TOA \h \c "1" \p Cases

Alday v. State, 57 So. 2d 333, 333 (Fla. 1952)............................................. 42

Alterauge v. Los Angeles Turf Club, 97 Cal. App. 2d 735 [218 P.2d 802].).......... 41

Bailey v. Commonwealth (VA 2000) 529 SE2d 570, 584-85.................................. 47

Beagle, supra, 6 Cal.3d 441, 455.............................................. 44

Brady v. Maryland, 373 U.S. 83, 87 (1963)................................... 49

Buck v. Eureka, 97 Cal. 135....................................................... 37

Chase v. Crips (10th Cir. 1975) 523 F.2d 595, 597.......................... 45

City of Decatur v. Barteau, 200 Ill. 612, 103 N.E. 601, 602....................... 33

Conde v. Henry, supra, 198 F.3d 734, 740-741................................ 47

Cowlin v. Pringle, 46 Cal. App. 2d 472, 476 [116 P.2d 109]..................................... 43

Cox v. Cox, 25 Ind. 202........................................................... 34

Crane v. Kentucky (1986) 476 U.S. 683, 690.................................. 45

Cruger v. McCracken (Tex. Civ. App.) 26 S.W. 282.................................. 33

Curtis v. Illinois (7th Cir. 1975) 512 F2d 717.............................. 45

De Manneville v. De Manneville, 10 Ves. 51.................................. 39

Fanning v. Fanning, 1 Misc.N.Y. 97........................................... 40

First National Bank of Boston v Belluth, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 10

Gallegos v. People (CO 1957) 316 P2d 884, 885..................................... 48

Galloway v. United States, 319 U.S. 372 (1943);............................. 49

Griswold v. Hollywood Turf Club, 106 Cal. App. 2d 578, 235 P.2d 656 (Cal.App.Dist.2 09/19/1951)..................................................................... 41

Grube v. State, 134 Idaho 24, 27, 995 P.2d 794, 797 (2000)................ 49

Haines v. Kerner (1972) 404 U.S. 519......................................... 45

Hairston v. Alabama (5th Cir. 1972) 465 F.2d 675, 678...................... 45

Ham v. North Carolina (4th Cir. 1973) 471 F.2d 406, 407.................... 45

Hedges v. State, 172 So. 2d 824, 827 (Fla. 1965).......................................... 42

Herrick v. Richardson, 40 NH 272 (1860)........................................... 38

Herring v. New York, supra (1975) 422 US 853, 858 [95 SCt 2550; 45 LEd2d 593]................ 48

Horsely v. Horsely (77 Cal.App.2d 442; 175 P.2d 580).............................. 35

Huntoon v. Hazelton, 20 N.H. 389.............................................. 39

in People v. Barton, supra, 12 Cal.4th 186, 200............................. 44

In re Campbell, 130 C. 380, 382, 62 P. 613 (1900)................................. 38

In re Schwartz, (1916) 154 P. 304, 171 C. 633..................................... 32

Jenness v. Emerson, 15 N.H. 486............................................... 39

Kass v. Great Coastal Express, Inc. (NJ 1996) 676 A2d 1099, 1107........................... 47

Kendall-Jackson Winery, Ltd. v. Superior Court (E. & J. Gallo Winery) (1999) 76 Cal.App.4th 970... 35

Kennedy v. United States, 44 F.2d 57................................................... 43

Kettelle v. Kettelle, 11 Cal.App. 310, 294 P. 453 (1st Dist., Div., 1, 1930)...... 35

Keystone Driller Co. v. General Excavator, 290 US 240 (1933)............................... 35

LaLonde v. County of Riverside, 204 F. 3d 947( 9th Cir. Feb. 25, 2000)... 49

Lemus, supra, 203 Cal.App.3d at p. 478....................................... 45

McInerney v. United Railroads, 50 Cal. App. 538, 547 [195 P. 958]................. 41

Montgomery v. Brierly (3rd Cir. 1969) 414 F.2d 552......................... 45

Morse v. Commonwealth (VA 1994) 440 SE2d 145......................................... 47

Mulger v. Kansas, 123 U.S. 623, 661.......................................... 39

Peck v. Peck (1959) 16 Ill.2d 268, 157 NE2d 249, 73 ALR2d 723............. 15

Penry v. Johnson, supra(6/4/01, No. 00-6677) ____ US ____ [121 SCt 1910; ____ LEd2d ____].... 48

People ex rel Barry v. Mercien 3 Hill 399......................................... 13

People ex rel. Hastings v. Hofstadter, 258 N. Y. 425, 429................. 37

People v. Beagle (1972) 6 Cal.3d 441, 455................................... 44

People v. Breverman, supra, 19 Cal.4th 142, 163............................. 44

People v. Burnham (1986) 176 Cal.App.3d 1134, 1143......................... 44

People v. Castillo (CA 1997) 16 C4th 1009, 1016 [68 CR2d 648].............................. 47

People v. Earnest (1975) 53 Cal.App.3d 734, 744-745)....................... 44

People v. Flannel, supra, 25 Cal.3d 668, 684-685........................... 44

People v. Fudge (CA 1994) 7 C4th 1075, 1110 [31 CR2d 321]................................ 47

People v. Gordon (1973) 10 Cal.3d 460, 470)................................. 43

People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278........................ 44

People v. Kimbrel (1981) 120 Cal.App.3d 869, 872............................ 44

People v. Lee (1987) 43 Cal.3d 666, 675...................................... 48

People v. Lemus (1988) 203 Cal.App.3d 470................................... 44

People v. Lomeli (1993) 19 Cal.App.4th 649, 654-655........................ 44

People v. Madden (1981) 116 Cal.App.3d 212, 214............................. 44

People v. Mayes, 262 Cal. App. 2d 195, 68 Cal. Rptr. 476 (Cal.App.Dist.5 05/15/1968) 41

People v. Mercein, 25 Wend. 72.................................................... 38

People v. Modesto (1963) 59 Cal.2d 722, 729................................. 44

People v. One 1941 Chevrolet Coupe, 37 Cal. 2d 283, 231 P.2d 832 (Cal. 05/25/1951)............ 43

People v. Parsons (CO 1980) 610 P2d 93, 94............................................. 47

People v. Sedeno (1974) 10 Cal.3d 703, 717.................................. 44

People v. Soldavini (1941) 45 Cal.App.2d 460, 463-464)..................... 43

People v. Stewart (CA 1976) 16 C3d 133, 140 [127 CR 117]................................. 47

People v. Stewart, supra, 16 Cal.3d 133, 141................................ 48

People v. Thompkins (1987) 195 Cal.App.3d 244, 252................................ 46

People v. Wickersham (1982) 32 Cal.3d 307, 324.............................. 44

People v. Wiley (1976) 18 Cal.3d 162, 174................................... 44

People v. Wright (1988) 45 Cal.3d 1126, 1137................................ 44

Phillips v. Phillips, 48 C.A.2d 404, 119 P.2d 736 (3d Dist., 1941)................ 35

Price v. Johnston (1948) 334 U.S. 266, 292.................................. 45

Ramirez v. State, 119 Idaho 1037, 1040, 812 P.2d 751, 754 (Ct. App. 1991). 50

Redondo v. State, 380 So. 2d 1107, 1108........................................... 42

Reno v. Flores, 507 U. S. 292, 301-302 (1993)............................... 43

Reynolds v. Reynolds (1957) 149 Cal.App.2d 409, 308 P2d 921................................... 40

Rice v Rizk, Ky.453 S.W.2d 732.................................................... 10

Rock v. Arkansas (1987) 483 U.S. 44, 53- 56;................................ 45

Roe v Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147............................ 10

Russell v. State, 54 So. 360, 361 (Fla. 1911).............................................. 42

Selfridge v. Paxton, 145 Cal. 713 (1905).......................................... 38

Spaulding v. Spaulding, 133 Ind. 122.............................................. 34

State Dep't of Health & Welfare v. Altman, 122 Idaho 1004, 1007, 842 P.2d 683, 686 (1992)......................................................................... 49

State v. Albert, 138 Idaho 284, 62 P.3d 208 (Idaho App. 10/22/2002)...... 50

State v. Beorchia, 135 Idaho 875, 882, 26 P.3d 603, 610 (Ct. App. 2001... 50

State v. Bunce (NM 1993) 861 P2d 965.................................................. 47

State v. Dellinger (VA 1987) 358 SE2d 826............................................... 47

State v. Gardner, 126 Idaho 428, 432-33, 885 P.2d 1144, 1148-49 (Ct. App. 1994) 50

State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989)................... 49

State v. Holden, 126 Idaho 755, 757, 890 P.2d 341, 343 (Ct. App. 1995)... 50

State v. Joyner (CT 1992) 625 A2d 791, 805........................................ 48

State v. Lambert (WV 1984) 312 SE2d 311............................................... 47

State v. Sawyer (HI 1998) 966 P2d 637, 642.............................................. 47

State v. Zimmerman, 121 Idaho 971, 974, 829 P.2d 861, 864 (1992)......... 49

Stock v. Stock, 11 Phil. 324...................................................... 34

Stuart v. Stuart, (1962) 209 Cal.App.2d 478, 25 Cal.Rptr. 893..................... 16

Thompson v. Mahre, 110 F. 3d 716, 719 (9th Cir. 1997)...................... 49

Turner v. Heavrin, 1918, 182 Ky. 65, 1206 S.W. 23, 4 A.L.R. 562............................. 35

Turrell v. Perini (6th Cir. 1969) 414 F.2d 1231, 1233...................... 45

U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1132........................................ 47

United Bank vs. Mesa Nelson Co., 121 Ariz 438, 590 P2d 1384, 25 U.C.C.RS 1113..... 40

United States v. Bagley, 473 U.S. 667, 682 (1985).......................... 50

United States v. Escobar De Bright, supra, 742 F.2d 1196, 1201-1202...... 47

Washington v. Glucksberg, 521 U. S. 702, 719 (1997)........................ 43

Whittaker v. Overholster (D.C. Cir. 1962) 299 F.2d 447, 448............... 45

Williams v. State (TX 1982) 630 SW2d 640, 643........................................... 47

 TOA \h \c "2" \p Statutes

11 U.S.C. §101(30)................................................................ 10

15 U.S.C. §77(b)(2)............................................................... 10

15 U.S.C. §79(b)(1)............................................................... 10

18 U.S.C. §917(1)................................................................. 10

29 U.S.C. §403 (d)................................................................ 11

 TOA \h \c "3" \p Other Authorities

American State Reports, by A.C. Freeman, Vol. XXXVI (36), San Francisco, Bancroft & Witney Co., 1894, p. 534............................................................... 34

Handbook of The Law of Torts, by William L. Prosswer, Sec. Ed., © 1941, West Publishing Co., St. Paul, Minn., p. 684......................................................... 35

Lippman, the Breakdown of Consortium, 1930, 20 Col.L.Rev. 651, 654-660..................... 35

 TOA \h \c "4" \p Rules

California Civil Code: § 22.2..................................................... 40

California Rules of Court Rule 78............................................ 32

CCP § 453....................................................................... 36

CCP § 456....................................................................... 36

P.C. § 242........................................................................ 37

PC 963............................................................................ 36

Penal Code section 1127b....................................................... 44

Rule 803 (24)................................................................... 49

U.C.C. §1-201(29)................................................................. 11

 TOA \h \c "7" \p Constitutional Provisions

Constitution for California 1849, Art. I, Sec. 1.................................. 38

Constitution for the state of California 1849 at Article VI, section I............. 9

Constitution of California 1849, Art. I, § 8...................................... 16

 

Exhibits

Exhibit 1

July 12, 2002, Court Order

 

Exhibit 2

Verified Criminal Complaint

 

Exhibit 3

Seventy Four Page Jury Instructions by Clive F. Boustred

 

Exhibit 4

Case Presentation Denied By COMMISSIONER TRILLA E. BAHRKE,

 

Clive Frank Boustred

In Propria Persona, Sui Juris

210 Suncrest Drive

Soquel, California [95073]

+1 (408) 889-4351

APPEALS COURT OF CALIFORNIA

COUNTY OF PLACER[1]

May Term

Clive Boustred

                        Petitioner      

Vs      

THE PEOPLE OF THE STATE OF CALIFORNIA

                        Respondents

           

     CASE NO. 

            Re: Placer Sup. Ct. 72-002045

 

BRIEF ON APPEAL

 

          PETITIONER’S OPENING BRIEF

            [PC § 1271]

 

Time: 3:30 pm ________

Date:  June 2, 2004_

Dept:  2

 

 

 

TO THE NISI PRIUS COURT OF APPEAL IN AND FOR PLACER_COUNTY AND ALL PARTIES IN THIS MATTER AND HIS OR HER LEGAL REPRESENTATIVE, GREETINGS:

PLEASE TAKE NOTICE that on July 27, 2004, at the hour of 3:30 PM or as soon as the matter may be heard IMMEDIATELY in the courtroom of Department 2 of the above-entitled court, the defendant will present formal APPEAL BRIEF as secured by the Constitution of California Article I, section 8 “due process of law” as well as by the Sixth and Fourteenth Amendments to the United States Constitution which impinge on the presumption of innocence and redress of grievance for your petitioner and plaintiff to defend his substantive rights at law.

The brief will be based on this notice of motion, on the memorandum of points and authorities, and affidavits and/or law proffered in support thereof, served and filed herewith, on the records on file in this action, and on such oral and documentary evidence as may be presented at the hearing on the motion.

 

Comes now, the damaged and aggrieved party Clive Frank Boustred, who comes before Almighty God and the above mentioned judicial powers tribunal, who hereby invokes true law and thereby deposes and says and proffer’s the following facts in support of said brief on appeal to vindicate his rights.

DATED:  May 2, 2004                 ____________________________________

                                                                                    Clive Frank Boustred,

In Propria Persona, Sui Juris

I
BRIEF IS A MATTER OF RIGHT AND NECESSARY IN THIS MATTER TO VINDICATE APPELLANTS’ RIGHTS ON AN UNLAWFUL AND ERRONEIOUS CONVICTION OF THE LOWER COURT PRESIDED BY COMMISSIONER TRILLA BAHKE

 

1.)     I, am in fact, Clive Frank Boustred, a Christian male adult of the age of Majority, a California State Citizen,[2] residing within the County of Santa Cruz, a human being not embarrassed by the Fourteenth Amendment, who is a free man, sui juris, who was in the County of Placer  for all acts and/or omissions in this matter, and thereby come under this courts substantive jurisdiction.

2.)     I am in fact, my own counsel, (reserving all rights, and giving up none) who is in propria persona, sui juris.

3.)     I have read the foregoing document, understand its contents and formally submit same into the above-mentioned tribunal for an at law review.

4.)     I have done no crime, and in fact, have only been accused of crime, and have not been found guilty of any act and/or omission which would give rise to a crime.

5.)     Therefore, I come before this courts discretionary powers as I am now formally appealing an erroneous and wrong and unjust conviction to vindicate my rights.

6.)     The District Attorney has had formally filed upon him by lawful 3rd party service, a Proof of Service of this document.

7.)     All parties to this matter have had formal service of same by mail or otherwise.

8.)     Your petitioner, the accused and greatly aggrieved party in this matter, as alleged by the term defendant; submits this document by special appearance and not generally, and appears specially at all times.

9.)     For good cause shown, this brief must go forward to overturn the lower courts outrageous miscarriage of justice in the County of Placer case number 72-002045 held in the Superior Court of the State of California, in and for the County of Placer, Tilla E. Bahrke, Commissioner on or about the dates Friday, September 5, 2003 through to October 20th, 2003.  This Nisi Prius Appeals court has claimed they have jurisdiction and authority [see fn1] to vindicate my rights in this matter and can provide me with substantive relief in overturning the lower court’s erroneous and unjust case decision.

10.)   This court has common law judicial power over this matter granted by the Constitution for the State of California 1849, Article VI, Section 1, et seq.

II
STATUS OF THE PARTIES

11.)   I am in fact, Clive Frank Boustred, in propria persona, sui juris, who has the status of a male adult Christian of the age of majority, a naturalized California state Citizen, with full rights and privileges who was within the county of Placer for all acts and/or omissions committed therein and thereby comes under this courts substantive judicial powers and Appeals jurisdiction.  I reserve all rights and at no time give up any rights.

12.)   THE PEOPLE OF THE STATE OF CALIFORNIA, is a corporate fiction, an artificial entity created by the legal subdivision COUNTY OF PLACER, within the incorporated confines of the STATE OF CALIFORNIA, who was acting in both personal and professional capacities, for all acts and/or omissions herein, and thereby comes under this courts appellate jurisdiction.

13.)   The COUNTY OF PLACER, is the political subdivision of the STATE OF CALIFORNIA, who was acting in both personal and professional capacities, for all acts and/or omissions herein, and thereby comes under this courts appellate jurisdiction.

14.)  The STATE OF CALIFORNIA, is the incorporated entity of one of the “Union of Several States,” and was on the landmass therein, and not a territory, and who was acting in both personal and professional capacities, for all acts and/or omissions herein, and thereby comes under this courts appellate jurisdiction.

15.)   TRILLA E. BAHRKE, COMMISSIONER, is the alleged COMMISSIONER for the COUNTY OF PLACER, representing the alleged THE PEOPLE OF THE STATE OF CALIFORNIA, who was acting as the surrogate attorney for plaintiff’s in matter 72-002045 in both her personal and professional capacities in this matter, for all acts and/or omissions in this matter, and thereby comes under this courts Appellate jurisdiction.

16.)   CHRISTOPHER CATTRAN, is the alleged Deputy District Attorney for the COUNTY OF PLACER, representing the alleged THE PEOPLE OF THE STATE OF CALIFORNIA, who was acting in both his personal and professional capacities in this matter, for all acts and/or omissions in this matter, and thereby comes under this courts Appellate jurisdiction.

17.)  ANAMARIA BOUSTRED is in fact, a femme sole, an adulteress with unclean hands who was acting in both her personal and professional capacities, for all acts and/or omissions herein, and thereby comes under this courts appellate jurisdiction.

18.)   STEFFEN TICHATSCHKE is in fact, was the protagonist in this matter, an adulterer with unclean hands who was acting in both his personal and professional capacities, for all acts and/or omissions herein, and thereby comes under this courts appellate jurisdiction

19.)   Richard Clive Boustred, is my son born March 7, 1996, of which I am his lawful natural guardian and father,[3] and he does come under my venue and jurisdiction in this matter, for all acts and/or omissions committed within the County of Placer, who was an unemancipated minor, and thereby, whom comes under this courts just appellate jurisdiction.

20.)   William Frank Boustred, is my son born January 21, 2000, of which I am his lawful natural guardian and father, and he does come under my venue and jurisdiction in this matter, for all acts and/or omissions committed within the County of Placer, who was an unemancipated minor, and thereby, whom comes under this courts just appellate jurisdiction.

III
SUMMARY OF THE CASE

21.)   It is a fact, that on or about Sunday, March 9, 2003, at the Homewood Ski Resort, contemnor’s STEFFEN TICHATSCHKE along with ANNAMARIA BOUSTRED did violate a court order of July 12, 2002, and meet together in front of my children in overt and willful violation of a known court order of July 12, 2002 established by the County of Santa Cruz Superior Court,[4] [See Exhibit 01— July 12, 2002, COURT ORDER]  which clearly stated that contemnor STEFFEN TICHATSCHKE could not be within the presence of my sons, Richard Clive Boustred, as well as William Frank Boustred, both unemancipated minors—under the age of reason.  This court order prohibiting contemnor STEFFEN TICHATSCHKE was fair, just and reasonable, and was established in the BEST INTERESTS OF MY CHILDREN.[5]

22.)   This contempt of a known court order, was committed by collusion between contemnors STEFFEN TICHATSCHKE and ANNAMARIA BOUSTRED to intentionally illicit an altercation with me.   This altercation did take place and was initiated by contemnor STEFFEN TICHATSCHKE.   When I did see him in direct violation of this court order, I did immediately confront him and state:  “Please leave.”  “You are in violation of a court order, please leave[6].”  He did patently refuse, even though he did not rebut and in fact had knowledge of the court order, and an altercation did ensue as he came aggressively towards me.

23.)   I broke away from the altercation and took both my sons to safety and back to their home.

24.)   It is a fact, that on Monday, March 10, 2003, I did file with the Santa Cruz Police Department a sworn and subscribed VERIFIED CRIMINAL COMPLAINT against STEFFEN TICHATSCHKE as well as ANNAMARIA BOUSTRED over this event within the COUNTY OF SANTA CRUZ Superior Court.   [See Exhibit 02—COPY OF VERIFIED CRIMINAL COMPLAINT]

25.)   It is a fact, that coming back home from court with my sons, I was ambushed by the COUNTY OF SANTA CRUZ Sheriff’s office, whom were illegally on my property, whom had no warrant, and who had knowledge that I had just come from court and that I filed a Verified Criminal Complaint, and that they did come and shoot at me, and did falsely arrest me, and place me into jail, and did seize my children in direct violent violation of the concise rule of law.

26.)   Said Verified Criminal Complaint was in fact, THE FIRST FORMAL LEGAL FILING IN THIS EVENT and has unlawfully been ignored and not addressed, giving rise to NO LAWFUL JURISDICTION in any other proceeding or court hearing or events, as my substantive due process rights have been violated under Article I, Section 8, of the Constitution of California 1849 TA \l "Constitution of California 1849, Art. I, § 8" \s "Constitution of California 1849" \c 7 , as well as Amendment the Fifth, Constitution for the United States, 1787-1791.

27.)   That it is a fact, that the alleged Placer County Superior Court hearing under Case Number 72-002045, was a travesty of justice, which shocks the conscience of a so-called free nation.  It is a fact, that court commissioner TRILLA E. BAHRKE, did act in open collusion with the alleged plaintiff(s) and their lawyer CHRISTOPHER CATTRAN, and Ms. BAHRKE, did act overtly, as an ongoing enterprise with them as their surrogate attorney, in direct violation of law.[7]

28.)   It is a fact, that the above-documented altercation was the direct result of a divorce occurring between Mr. Clive Frank Boustred as well as ANNAMARIA BOUSTRED.[8]

29.)   It is an undisputed fact, that both contemnor’s Ms. ANNAMARIA BOUSTRED as well as alleged defendant, STEFFEN TICHATSCHKE had unclean hands in this matter, and by the concise rule of law, could not enter court to seek relief.

30.)  It is also a fact, that alleged defendant/contemnor STEFFEN TICHATSCHKE was in violation of a known court order—as contemnor’s both sought the assistance of the COUNTY OF PLACER to aid them in their unclean hands and their overt criminality—in order to actively frustrate my ability to protect my home and my family, which they were knowingly destroying.

IV
PROCEDURAL FACTS

31.)  That I am representing myself, In Propria Persona, Sui Juris.

32.) I have been falsely labeled as the defendant in the above-mentioned court and case, 72-002045.

33.) That the following procedural facts occurred in the above-entitled cause of action:

11-01-2002       That plaintiff Steffan Tichatschke, was in fact caught violating a court order by defendant in the above-entitled cause of action, in direct violation of a court order issued by the County of Santa Cruz judicial district which did cause an altercation giving rise to the above entitled cause of action.

9-05-2003           That on this date, a sham trial occurred in the above entitled cause of action within the County of Placer, under Case Number 72-002045.

9-12-2003   NOTICE was given and lawfully served upon all parties that Clive Frank Boustred formally appealed the jury court decision of “guilty” made on September 5, 2003 at the above entitled cause of action case number 72-002045 for the contested violation of California Penal Code § 242, a misdemeanor entered on said date

9-12-2003           That it is a fact, that I did file a timely APPELLANT’S NOTICE TO PREPARE REPORTER’S TRANSCRIPT.

2-10-2004           That only on or about February 10th, 2004, I did receive notice that said Reporters Transcript was finally ready and would be sent to me for review.

V
STATEMENT OF FACTS

34.)  At the trial in the County of Placer, no substantive evidence was submitted against me, only the hearsay proffered by contemnor’s Steffan Tichatschke and Anamaria Boustred.

35.)  All other “testimony” did more to affirm appellant’s case in the matter, such as the testimony of the lift operator at the ski resort.

36.)  It is a fact, that at the above-entitled cause of action, that I did in fact, prove plaintiff’s were in fact, not only in contempt of a valid court order, but also proved that they had conspired to overtly lie in this matter.

37.)  It is also a fact, that the County of Placer District Attorney, did conspire along with the County of Placer Commissioner, to actively undermine my case; to withhold evidence from the jury in direct violation of law; to withhold substantive law from the jury; to deny defendant any ability to present a defense; to actively prevent defendant to present a theory of his defense; and law on the case; as well as denying defendant CALJIC Jury Instructions, in which the District Attorney and Plaintiff(s) were able to file their CALJIC instructions un-impeded by the judge.

38.)  It is a fact that I was wrongly convicted in this matter.

39.)  It is a fact that the Appeals Court must review the lower court to answer important questions of law.  This was denied me in the above entitled cause of action.

40.)  It is also a fact, that the Appeals Court must also be assured, that the lower court instructed, and allowed the defendant to cite his full theory of the case, which in fact, the above entitled court failed to do.

Cal.3d 661, 670); and (3) lesser included offenses (Breverman, supra, 19 Cal.4th 142, 154). Thus, in every case, appellate counsel must review the record in order to ensure that the jury was instructed on all applicable aspects of the forgoing categories…In addition to the above noted categories, California law also holds that the trial court must instruct sua sponte[9] on a smorgasbord of other points of law. These points of law include: (1) the burden of proof and presumption of innocence (People v. Soldavini (1941) 45 Cal.App.2d 460.

 

Without doubt, it is the duty of defense counsel to request appropriate instructions which will advise the jury of the defendant's theory of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, overruled on other points in People v. Breverman, supra, 19 Cal.4th 142, 163, fn. 10 and People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) Assuming that the instruction proffered by defense counsel is a correct statement of the law, the trial court must give the instruction. (People v. Wright (1988) 45 Cal.3d 1126, 1137.)

 

In this regard, it is essential to note that the law provides standards of appellate review which are quite favorable to the defendant. If the defense requests an instruction on a particular defense or a lesser included offense, an instruction must be given so long as there is substantial evidence in support of the defense or lesser included crime. (People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on another point in People v. Barton, supra, 12 Cal.4th 186, 200.) Importantly, doubt as to the sufficiency of the evidence must be resolved in favor of the defendant. (People v. Flannel, supra, 25 Cal.3d 668, 684-685.) Moreover, even if the evidence in support of the instruction is "incredible," the reviewing court must proceed on the hypothesis that it is entirely true. (People v. Burnham (1986) 176 Cal.App.3d 1134, 1143, relying on People v. Modesto (1963) 59 Cal.2d 722, 729.)

 

On this latter point, People v. Lemus (1988) 203 Cal.App.3d 470 is a most illustrative case. There, the government presented witnesses who testified that the defendant had engaged in an unprovoked knife assault on the victim. In contrast, the defendant testified that the victim had tried to stab him and had threatened to kill him. Thus, according to the defendant, he stabbed the victim in self defense. On these facts, the trial court refused to instruct on a self defense theory. In so holding, the trial court apparently relied on the lack of independent proof that the victim possessed a knife. On appeal, the trial court's ruling was reversed:

 

"We conclude there was evidence worthy of consideration by the jury that [defendant] was acting in self-defense. Regardless of how incredible that evidence may have appeared, it was error for the trial court to determine unilaterally that the jury not be allowed to weigh and assess the credibility of [defendant's] testimony . . ." (Lemus, supra, 203 Cal.App.3d at p. 478.)

 

   In short, as Lemus demonstrates, the appellate courts are highly solicitous of the defendant's right to have the jury instructed on his theory of the case. Thus, in many cases, the trial court commits reversible error when it denies a defendant's requested instruction.

 

   As a final point on requested instructions, it is essential to note that a proper instruction must pinpoint "the crux of the defense" without engaging in an argumentative recitation of the evidence. (People v. Wright, supra, 45 Cal.3d 1126, 1137.) Thus, when defense counsel drafts an instruction, it must be confined to the "`theory of the defendant's case'" without reference to specific evidence. (Ibid., emphasis in original.) Nonetheless, even a defectively drafted instruction may not doom the defendant's cause.

 

   In this regard, there is substantial authority for the proposition that the trial court has a duty to sua sponte correct any defects in an instruction requested by the defendant which bears on his theory of the case. (People v. Falsetta (1999) 21 Cal.4th 903, 924; People v. Stewart, supra, 16 Cal.3d 133, 140; accord, People v. Cole, supra, 202 Cal.App.3d 1439, 1446.) Thus, even when the defendant presented an improperly argumentative instruction, it may be contended on appeal that the trial court erred by failing to remedy its deficiencies.

 

In short, due process requires that the jury must be instructed on the defendant's theory of the case. (People v. Modesto, supra, 59 Cal.2d 722, 730.) Given this fundamental principle, appellate counsel should carefully review those instructions requested by the defense which were not given

 

Although there is little case law on the subject, the California Legislature has clearly stated that a trial court has a mandatory obligation to instruct the jury on burdens of proof. Specifically, Evidence Code section 502 provides:

"The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt."

 

41.)  It is a fact, that I was In Propria Persona, and as such, am to receive Liberal Construction of the law.  Instead, the above mentioned trial court, held me up to the most excruciating construction and standards of the law, and in fact the trial court did overtly violate the law so as to prevent me from presenting my case:

There are decisions in virtually every federal circuits that generously proclaim that pro per petitions should be construed liberally and that pro per petitioners should be held to less stringent standards than lawyers.  See, e.g., Price v. Johnston (1948) 334 U.S. 266, 292; Chase v. Crips (10th Cir. 1975) 523 F.2d 595, 597; Curtis v. Illinois (7th Cir. 1975) 512 F2d 717; Ham v. North Carolina (4th Cir. 1973) 471 F.2d 406, 407; Hairston v. Alabama (5th Cir. 1972) 465 F.2d 675, 678 n5; Turrell v. Perini (6th Cir. 1969) 414 F.2d 1231, 1233; Montgomery v. Brierly (3rd Cir. 1969) 414 F.2d 552; Pembrook v. Wilson, (9th Cir. 1966) 370 F.2d 37, 40; Whittaker v. Overholster (D.C. Cir. 1962) 299 F.2d 447, 448.  See also Haines v. Kerner (1972) 404 U.S. 519 (concerning allegations in a pro per civil rights complaint).

 

42.)  I also lawfully SUBPONEAD parties to this matter, and said Placer County District Attorney, as well as his surrogate court commissioner, thumbed their nose at said lawfully issued subpoena’s[10] (at great effort and expense to me); and illegally refused real party of interest from appearing at trial.[11] [See State v. Gallegan, 567 A.2d 204, 117 N.J. 345 (N.J. 2/20/1989) [directed verdicts of acquittal on State Officers refusal to obey subpoena.] 

See Penal Code §  136:  (2) "Witness" means any natural person, (i) having knowledge of the existence or nonexistence of facts relating to any crime, or (ii) whose declaration under oath is received or has been received as evidence for any purpose, or (iii) who has reported any crime to any peace officer, prosecutor, probation or parole officer, correctional officer or judicial officer, or (iv) who has been served with a subpoena issued under the authority of any court in the state, or of any other state or of the United States, or (v) who would be believed by any reasonable person to be an individual described in subparagraphs (i) to (iv), inclusive.

 

43.)  That said above mentioned court in matter 72-002045, did willfully and intentionally allow said plaintiff’s to enter any and all evidence they desired in this case, yet; when I lawfully filed (at great effort and expense to me); all my evidence—then; for no good cause shown, and against my will and over my objections, said court commissioner did willfully omit the greatest (and most devastating) portions of my evidence, which were submitted to the court, but then; not presented to the jury in direct violation of law:

The Supreme Court has clearly held that a defendant has a due process right to adduce evidence in his defense. (Rock v. Arkansas (1987) 483 U.S. 44, 53- 56; Crane v. Kentucky (1986) 476 U.S. 683, 690.) In light of this rule, it necessarily follows that a corollary right to an instruction on the defense theory is also required. Indeed, absent an appropriate instruction, the right to present evidence would be entirely meaningless. (United States v. Escobar De Bright, supra, 742 F.2d 1196, 1201-1202; "[p]ermitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal.")

 

44.)  That it is a fact, that I did prove, that each and every element was not proven by the plaintiff in this matter, whereas; said court did intentionally beguile this issue to the jury who desperately came up to me after their “guilty” verdict and were visibly upset that the judge “gave us nothing to find you innocent with.” [their words] and that jury members said that they were coerced under duress to issue the guilty verdict.

Generally speaking, the court must instruct sua sponte on the general principles of law relevant to the issues in the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) "‘"The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case." [Citation.]’" (Ibid.) This category includes: (1) defenses (People v. Stewart (1976) 16 Cal.3d 133, 140); (2) elements of the offense charged (People v. McDaniel (1979) 24 Cal.3d 661, 670); and (3) lesser included offenses (Breverman, supra, 19 Cal.4th 142, 154).

 

See also:

 

In addition to the above noted categories, California law also holds that the trial court must instruct sua sponte on a smorgasbord of other points of law. These points of law include: (1) the burden of proof and presumption of innocence (People v. Soldavini (1941) 45 Cal.App.2d 460, 463-464); (2) the definition of an accomplice and the rules governing accomplice testimony (People v. Gordon (1973) 10 Cal.3d 460, 470); (3) a cautionary instruction concerning the use of a statement made by the defendant (People v. Beagle (1972) 6 Cal.3d 441, 455); (4) the manner in which the jury is to view inferences drawn from circumstantial evidence (People v. Wiley (1976) 18 Cal.3d 162, 174); (5) a limiting instruction on the use of evidence of a defendant’s prior felony conviction (People v. Lomeli (1993) 19 Cal.App.4th 649, 654-655; contra, People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278); (6) the requirement of a unanimous agreement by the jury as to a single act committed by the defendant when more than one act could be deemed sufficient to constitute the offense charged (People v. Madden (1981) 116 Cal.App.3d 212, 214); (7) the manner in which expert testimony is to be viewed (Penal Code section 1127b); (8) the requirement that the corpus delicti of a crime must be proved by evidence independent of a defendant's statement (Beagle, supra, 6 Cal.3d 441, 455); (9) the definition of conspiracy when the government seeks to rely on the conspiracy exception to the hearsay rule (People v. Earnest (1975) 53 Cal.App.3d 734, 744-745); and (10) the definition of terms which have a specific technical meaning peculiar to the law (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872). [Footnote 2]

   As should be readily apparent, the trial court has a broad duty to instruct sua sponte on a variety of legal points. Frequently, the court fails to satisfy its obligation in this regard. By becoming conversant with the many general principles of law upon which the court must instruct sua sponte, appellate counsel will be able to raise quite a few claims of instructional error. (For a list of those instructions which must be given sua sponte, see Appendix A, CALJIC (6th ed. 1996) pp. 655-663.)

 

45.)  One such example of this willful and intentional discrimination by said plaintiffs and their surrogate court system, is that when I attempted to simply read the law (which was submitted in the case) on the “Clean Hands Doctrine,”—said Placer County Assistant District Attorney, along with its surrogate judge screamed out-loud so the jury could not hear me read from a Black’s Law Dictionary legal definition of that established doctrine.  When in chambers, said Commissioner and Assistant District Attorney in overt conspiracy, openly lied to me and said that “no such legal doctrine exists.”  This was a lie, both to me, and in overt violation to the concise rule of law.[12]

For the moment, the only instructional error which qualifies as a "structural" error under U.S. Supreme Court precedent is one which serves to dilute the standard of proof beyond a reasonable doubt or which directs a verdict against the defendant. (Sullivan v. Louisiana, supra, 508 U.S. 275, 281-282; United States v. Martin Linen Supply Company (1977) 430 U.S. 564, 572-573.) Importantly, the analysis in Sullivan has potentially broad application.

 

   In Sullivan, the court noted that harmless error analysis is impossible when the jury has not been properly instructed on the standard of proof beyond a reasonable doubt. This is so because the dilution of the reasonable doubt standard "vitiates all the jury’s findings." (Id., at p. 281, emphasis in original.) Thus, since the consequences of the error "are necessarily unquantifiable," per se reversal is required. (Id., at p. 282.)

 

   Under the Sullivan reasoning, per se reversal should be required whenever the jury is given an improper understanding of the quantum of evidence required for a guilty verdict. A case pending in the California Supreme Court will examine this principle. (People v. Tobias, S085471, rv. granted March 29, 2000.)

 

   In Tobias, the Court of Appeal held that the trial court erred by failing to instruct the jury that a daughter (the alleged victim) was an accomplice of the defendant in his incest prosecution. (People v. Tobias (1999) 77 Cal.App.4th 38, 53-61.) Although the Court of Appeal did not acknowledge the argument, the defendant contended that per se reversal is required under Sullivan since the jury had no clue that it was required to find corroboration for the daughter’s testimony. (See CALJIC Nos. 3.11 and 3.12.) In other words, there can be no harmless error analysis since the misdescription of the burden of proof vitiated the jury’s findings. (Sullivan, supra, 508 U.S. at pp. 279-280.)

 

   In short, appellate counsel should carefully review every record with an eye toward finding Sullivan error.

 

46.)  It is a fact, that the trial court “could” have cleared up these errors, as the jury wrote several times for clarification on both the law and the record; and the Court, instead of curing these gross errors, continued to obfuscate the legal issues and instructions in favor of plaintiff’s and not your defendant in direct violation of law:

Given the complexity of our modern jury instructions, a deliberating jury will often request additional guidance from the trial court. When the jury does so, it is the trial court's "`mandatory duty' to clear up any instructional confusion expressed by the jury. [Citations.]" (People v. Gonzales (1990) 51 Cal.3d 1179, 1212; see also Bollenbach v. United States (1946) 326 U.S. 607, 612-613.) Given the importance of the instructions which are given to a deliberating jury, it has been said that "there is no category of instructional error more prejudicial than when the trial judge makes a mistake in responding to a jury's inquiry during deliberations." (People v. Thompkins, supra, 195 Cal.App.3d 244, 252-253.)

 

   Given this reality, appellate counsel should carefully review the record with an eye towards the jury's requests for assistance and the court's response to those requests. In this regard, it is essential to note that the court's failure to respond may be as prejudicial as an erroneous response. This is especially true if the court merely repeats instructions which the jury indicates that it either does not understand or finds to be unhelpful. (Thompkins, supra, 195 Cal.App.3d at p. 253; "[i]t is hardly preferable for a judge to merely repeat for a jury the text of an instruction it has already indicated it doesn't understand;" accord, People v. Gonzales, supra, 74 Cal.App.4th 382, 390-391.)

 

47.)  Whereas, for the above substantive reasons and for good and substantial cause shown, it is clear that the lower court proceeding was a factual sham, and must be overturned through appellate review.  The record will show prima facia evidence  that substantive reversible error was committed by conspiracy of both the Placer County District Attorney, as well as the Court Commissioner.

 

VI
NOTICE OF DEFECTS:  CASE VIOLATIONS WHICH PROVE THAT NO SUBSTANTIVE JUSTICE OR FAIL TRIAL WAS ACCORDED DEFENDANT, IN DIRECT VIOLATION OF SETTLED LAW—COMPLETE MISCARRIAGE OF JUSTICE

 

48.)   It is a fact, that this is an CLEAN HANDS DOCTRINE case.  Said contemnors STEFFEN TICHATSCHKE, and ANNAMARIA BOUSTRED did in fact have UNCLEAN HANDS.  This fact was not disputed, but actively and fraudulently sidestepped and lied about in the Placer County Superior Court under Commissioner TRILLA E. BAHRKE and her co-conspirator, CHRISTOPHER CATTRAN.  Yet, the clean hands doctrine was prohibited and yelled over (the transcript does not reflect the fact, that both the COMMISSIONER TRILLA E. BAHRKE, as well as her co-conspirator CHRISTOPHER CATTRAN, did in fact, yell over any of my reading of the law in this matter.  [See CT Vol. I, p. 61.]

49.)   It is a fact, that there was an overt plan by defendant’s surrogate attorneys Commissioner TRILLA E. BAHRKE and her co-conspirator, CHRISTOPHER CATTRAN to frustrate and confuse me under color of law, and under color of authority.  [CT generally].

50.)   It is a fact, that during said “trial” 72-002045, that there was a conspired program to refuse to almost all of my evidence—committed under color of authority, and under color of law by Commissioner TRILLA E. BAHRKE and her co-conspirator, CHRISTOPHER CATTRAN  [CT Vol I, pp. 59-61]

51.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE, did in fact, remove palpable and genuine evidence from the juries view, “because pages were missing”—and as Mr. Boustred Explained, the letter was partially burnt by contemnor ANNAMARIA BOUSTRED who had unclean hands who was attempting to discard this palpable evidence.  [NOTE:  CT. Vol. I, p. 61:  THE DEFENDANT:  “Your honor, that is the whole letter that has been submitted, it was burned.”]

52.)   That it is a fact, that COMMISSIONER TRILLA E. BAHRKE did knowingly and intentionally frustrate the ends of justice, and did obstruct justice, by fraudulently removing palpable government documents out of the purview of the jury for its consideration which did prove Mr. Boustred’s complete innocence in this matter and which Mr. Boustred did in fact, give a good faith effort to bring in certified copies which in fact, were not required, as there was in fact, no objection as to the verity of the documents involved. [See CT, V. I, p. 165-166.

THE DEFENDANT:  Your Honor, if there is any issue with respect to that, I can get a signed and certified copy of that Court Order on July the 12th. 

         THE COURT:  Wait.

         What's your objection? 

         MR. CATTRAN:  It is hearsay. 

         THE DEFENDANT:  Your Honor, I am happy to present to the Court a certified signed copy of the July 12th order, and we can ask Mr. Tichatschke if he is aware of the order.

         THE COURT:  We are talking about something else right now.

         Your response to the hearsay objection. 

         THE DEFENDANT:  It is not hearsay, Your Honor.  It is a Court Order.  It is a clear Court Order from Santa Clara (sic) Superior Court.

         There is a filed stamp version, if you want one. 

         MR. CATTRAN:  Be a start. 

         THE COURT:  It is hearsay, so --

         THE DEFENDANT:  Your Honor, I will submit to the Court a certified version of that, and I think it would be quite clear that it is a valid order.

         What we are going to ask Mr. Tichatschke, if he has seen the order and aware of the content.

         THE COURT:  The document you are showing me is neither certified, nor is it signed.  There is written notations on this that -- 

         Objection will be sustained.  ]

 

53.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE did sustain objections which were not even made by Deputy District Attorney CHRISTOPHER CATTRAN  [See CT, V. I, p. 166:  COURT:

THE COURT:  I'm ruling on Exhibit Number 11, and my indication to you is that, one, it is hearsay; two, that you have given me no exception to the hearsay rule.  It is not signed.  There is writing on this that does not appear to be a part of the typed written document.  And so I am sustaining the objection to this exhibit. 

54.)   It is a fact, that Deputy District Attorney CHRISTOPHER CATTRAN did enter direct perjury into the record  [See CT, V. I, p. 168:  

THE COURT:  All right.  You may answer it.

         THE WITNESS:  So at the time of the -- March 9, that Court Order was actually not in place.  It had been replaced by another Court Order and a clarification by the Court in Santa Cruz specifically allowing me to have contact with the children of Miss Boustred.

         THE DEFENDANT:  Q.  How was the other Court Order you are referring to obtained, Mr. Tichatschke?

         A.   Just in Court.

         Q.   Was it in an ex parte hearing? 

         MR. CATTRAN:  Objection.  Relevance. 

         THE DEFENDANT:  Relevance is obvious.  We need to establish if this other Court Order is valid or not.

         MR. CATTRAN:  No, we don't.]

 

55.)           It is a fact, that COMMISSIONER TRILLA E. BAHRKE did fully understand that both she and Deputy District Attorney CHRISTOPHER CATTRAN were engaged in an unlawful and ongoing enterprise to deny Mr. Clive Frank Boustred substantive justice and access to the law in this matter:  [Note CT, VI, p. 168-169: 

THE COURT:  -- discussed this in Chambers, and I gave you my ruling on this in Chambers.

         THE DEFENDANT:  If Your Honor please, I came to this country expecting justice here.  We have a clear Court Order which was issued in Santa Cruz.

         THE COURT:  You may disagree with my ruling, sir.  You will not argue with them in Court.  You are stuck with them.

         THE DEFENDANT:  I am.

         I object and make an exception to that again, Your Honor.

         THE COURT:  You can have as many objections to it as you want, but that is the ruling.  ]

 

56.)  It is a fact, that during the trial, that COMMISSIONER TRILLA E. BAHRKE did liberally construe her associate’s Deputy District Attorney CHRISTOPHER CATTRAN, et als; objections, however; when your appellant Clive Frank Boustred made objections, she intentionally and maliciously incorrectly and extremely biased ruled against your appellant’s timely objections. [See CT, VI, p. 195: 

         MR. CATTRAN Q.  Mr. Wagner, just a couple of questions.

         On Sunday, when Mr. Boustred first came up to you and directed your attention up the hill, what was his demeanor?  How was he acting?  

         THE DEFENDANT:  Object.  Leading question. 

         THE COURT:  No.  That is not leading.  Overruled. 

         MR. CATTRAN:  Q.  You can answer it.  Go ahead.  ]

 

57.)   That it is a fact, that your appellant, did in fact, in good faith submit a timely formal subpoena against ANNAMARIA BOUSTRED, and it is a fact, that COMMISSIONER TRILLA E. BAHRKE did violate that instrument and refuse a dismissal and summary judgment on the case due to she not being lawfully brought to trial to testify as I mandated.  [Note CT, VI, pp. 202-204]

         THE COURT:  Okay.  So, Mr. Boustred, you have a motion that you want to present to the Court?  

         THE DEFENDANT:  Summary judgment.

         THE COURT:  Okay. 

         THE DEFENDANT:  Motion for Summary Judgment.  I subpoenaed Anamaria Boustred to be here.  She is a party to the case.  She didn't --

         THE COURT:  Okay.  Let's see.  First of all, I need to see that you have a subpoena with a Proof of Service.  Do you have that?  

         THE DEFENDANT:  Yeah. 

         THE CLERK:  Is there an original, Mr. Boustred?  

         THE DEFENDANT:  Here (handing) is the original.

         THE COURT:  Okay.  What we have is a civil subpoena for personal appearance at trial or hearing.  I don't know that this subpoena was properly issued. 

         THE DEFENDANT:  Your Honor, that is a properly issued subpoena.  It comes off of the California forms.

         THE COURT:  Well, you --

         THE DEFENDANT:  Personal litigants get lenience in the law, Your Honor.  With respect to that --

         MR. CATTRAN:  You know what, this is a whole bunch of garbage.  Right.

         THE DEFENDANT:  Sure is.

         MR. CATTRAN:  Now, listen, the fact of the matter is she is present.  She is here.  As far as I know. 

         THE DEFENDANT:  Where? 

         MR. CATTRAN:  She is not here in the courtroom.  She is here.  I --

         THE DEFENDANT:  Produce her.

         THE COURT:  Mr. Boustred, if you interrupt one more time, I am running out of patience.  Please let him finish.  I will give you the same courtesy.

         MR. CATTRAN:  The fact of the matter is she is present.  She came up with Mr. Tichatschke.  And my understanding is they do have the children in tow with them.  The fact of the matter is I chose not to call her.  I do not believe she -- so that is 1.  Number 2 is I do not believe that is a proper subpoena.  First of all, it is not filed with the Court, and my understanding is, notwithstanding the fact that is a civil subpoena, my understanding is a criminal subpoena, unless it is signed by an attorney, has to be filed with the Court. 

         THE COURT:  And issued by the Clerk.

         MR. CATTRAN:  And issued by the Clerk. 

         THE DEFENDANT:  I am not an attorney.  Signed by myself. 

         MR. CATTRAN:  But, the fact of the matter is --

         THE DEFENDANT:  Signed under:  We the people.

         THE COURT:  Are you going to keep interrupting or are you going to be quiet? 

         THE DEFENDANT:  I will be quiet, Your Honor.

         THE COURT:  Thank you. 

         MR. CATTRAN:  The fact of the matter is when

Mr. Tichatschke left I asked him to bring Anamaria and the kids and go wait at my office, so as far as I know they are waiting over there right now.  If Mr. Boustred would like us to bring Anamaria over to have her ordered back, we can do that. 

         THE COURT:  Let's do that. 

         THE DEFENDANT:  Prima facie fact, Your Honor, they are not here.  Motion for Summary Judgment.

         THE COURT:  Denied.

 

58.)   That  it is a fact, that COMMISSIONER TRILLA E. BAHRKE did shockingly, in bad faith, in direct violation to the concise rule of law, in direct violation of her oath of office, and in direct insolence to our form of free government, did deny Mr. Clive Frank Boustred, 11 of his exhibits, and only entered one into the record, and only one side of that document.  [See CT, VII, p. 222:  “THE DEFENDANT:  So we confirmed that the only exhibit that was admitted was Exhibit Number 1, my business card, and I believe only the front side of my business card was admitted.”   COURT:  “That’s correct.”   THE DEFENDANT:  “And I understand that, for example, Exhibit Number 10, of the Court Order, and Exhibit Number 8 and 9, both Continuation Reports –“  COURT:  “I think you can assume that every other exhibit was not admitted.”]

59.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE did institute and unlawfully force upon your appellant an alien and treasonous form of government, one based on communist doctrines of force and violence and complete insolence and arrogance to the concise rule of law:  [See CT, VII, pp. 222

THE DEFENDANT:  What I would like to put on the record is California Evidence Code and Article 8, Section 1280, record by public employee.  

         THE COURT:  Okay. 

         THE DEFENDANT:  Evidence --

         THE COURT:  Come into Chambers.

         THE DEFENDANT:  Your Honor, I would like to get this on the record.

         THE COURT:  Into Chambers.

         (Whereupon, at 9:53 a.m. the following proceedings were had in Chambers out of the presence of the Jury:) ]

 

60.)   It is a fact, that when Mr. Clive Frank Boustred, formally noticed COMMISSIONER TRILLA E. BAHRKE of the her own code, she did scoff at her own Evidence Code and did refuse entry of palpable evidence—and she actively kept substantive evidence to knowingly color and pervert the course of justice in matter 72-002045.  [See CT, VII, pp. 224-228: 

         THE DEFENDANT:  Certainly is.  We are not doing it properly.  You are denying evidence before the Jury.  Evidence which you may not deny under the law.

         MR. CATTRAN:  What law? 

         THE DEFENDANT:  California Evidence Code, 1280 section.  It is very clear. 

         MR. CATTRAN:  It is very clear.  And it is also very clear that you did not admit that properly. 

         THE DEFENDANT:  Oh, I am afraid not.  What was wrong with respect to admitting that?  

         MR. CATTRAN:  We told you Wednesday.  Bring a certified document, and then the Judge will --

         THE DEFENDANT:  I am afraid that -- the Evidence Code does not require a certified copy of Government documents.  It is quite clear. 

         THE COURT:  Let's look at 1282. 

         THE DEFENDANT:  1280.

         THE COURT:  I am not going to spend much time doing this with you, Mr. Boustred.

         (Brief interruption.)

         THE COURT:  1282? 

         THE DEFENDANT:  1280.  Eight zero. 

         THE COURT:  Okay.  Here we go.

         Evidence of a writing made as a record of an act, condition or event is not made inadmissible by the hearsay rule when offered to prove the act, condition or event, if:  The writing was made by and within the scope of duty of a public employee.

         Do you have anybody that testifies that this writing was made by and within the scope of duty of the public employee?  

         THE DEFENDANT:  Yes, I can put people on the stand to testify. 

         THE COURT:  Who?  Who can testify to that? 

         THE DEFENDANT:  First of all, I can testify.  These are the --

         THE COURT:  Are you the -- 

         Do you know what the scope of duty of a public employee is? 

         THE DEFENDANT:  First of all, I can testify that the Court Order issued was issued by a judge.  I was recipient of that order.

         I can also testify that the request --

         THE COURT:  You know what, why don't we look at the Evidence Code and talk about the Evidence Code, not about your view of the Evidence Code.

         THE DEFENDANT:  Why don't we talk about justice, Your Honor.

         THE COURT:  The writing was made --

         THE DEFENDANT:  You are trying to throw evidence out that is related to this case, and you are trying to pervert the course of justice.

         THE COURT:  Because you are not doing it properly, sir.

         THE DEFENDANT:  I am afraid you are trying to pervert the course of justice here.

         THE COURT:  You are not going to do this in front of the Jury.  If you continue to do it, I am going to grant a mistrial in this case, because of your actions in this matter, and it will be directly because of your actions, if you continue to make statements like that in front of the Jury. 

         THE DEFENDANT:  You are welcome to do what you want to in that regard, Your Honor.  The record will show it. 

         THE COURT:  So who do you have as going to testify that the writing was made by and within the duty of a public employee.  Who did the writing? 

         THE DEFENDANT:  We have the officers.

         THE COURT:  Who did the writing?

         Would you answer my question. 

         THE DEFENDANT:  I am answering your question.

         THE COURT:  Okay.  Who did the writing? 

         THE DEFENDANT:  The officers.

         MR. CATTRAN:  Wait a minute.  You are talking -- Back up the bus.  You are talk- -- We are talking about the Court Orders right now.

         THE DEFENDANT:  We are talking about two things right now.

         MR. CATTRAN:  Let's talk about the Court Orders right now.  The Court Orders, who are you going to have testify?  Who is the public employee that you are going to have testify? 

         THE DEFENDANT:  Forgive me.

         MR. CATTRAN:  Who is it? 

         THE DEFENDANT:  Forgive me.  That this -- 

         Section 1280 does not require that in any way, shape or form.  It is quite clear.

         MR. CATTRAN:   Who.

         THE DEFENDANT:  You may not deny Government evidence as hearsay.

         And forget it, Guys, you are trying to pervert the course of justice.  

         Why are you trying to prevent the Orders to come in before the Jury?  They are relative to the case.  They are Government orders.

         THE COURT:  You haven't --

         MR. CATTRAN:  Attempted to introduce them properly.

         THE COURT:  If you had introduced --

         THE DEFENDANT:  According to the Evidence Code, they are introduced properly.  It is quite clear.  Evidence Code 1280 --

         THE COURT:  I am not going to argue with you anymore.  You have not done -- You have not laid a foundation for the admission of those documents into the record.

         THE DEFENDANT:  I have.  I have laid it down quite clearly, Section 1280. 

         THE COURT:  Take me up on appeal. ]

 

61.)   It is a fact, that Ms. BAHRKE feigned stupidity when confronted with knowledge of the law, and said she did not know her own law.  It would appear that Ms. BAHRKE could cite chapter and verse when denying Mr. Boustred his vested rights, and when any law supported his theory of the case, then suddenly, she could not remember any longer:  [See CT, VII, p. 234-235: 

MR. CATTRAN:  Objection. 

         THE WITNESS:  -- very angrily --

         THE COURT:  Excuse me.

         What --

         MR. CATTRAN:  Hearsay.

         THE COURT:  Sustained.

         THE WITNESS:  I object. 

         THE COURT:  Well, I'm sorry.

         Before ruling on that, do you have an exception to the hearsay rule? 

         THE WITNESS:  I have an exception in that my son was called to testify, and he is not here. 

         THE COURT:  Um -- I don't -- If you can point me to the part of the Evidence Code that says that that is an exception, I am not aware of it.  So that objection will be sustained.

 

62.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN did willfully keep known government documents out of the record, when the concise rule of law under the Evidence Code was clear, that said documents must be entered into evidence in good faith to the proceeding and must be submitted to the jury for consideration.  [See CT, V.II, p. 296:  DEFENDANT:  But they are Government documents.  MR. CATTRAN:  Anyway, it has been ruled on.” ]

63.)   Your petitioner in this matter, Clive Frank Boustred, wants it judicially noted and on the record, that any attempts to get the Court Order of July 12, 2002 established as evidence, COMMISSIONER TRILLA E. BAHRKE did frustrate and ignore any such notice of violation of order being entered into the record, however; with respect to your appellant Mr. Boustred, he was admonished to not violate any court order whatsoever:  [See CT, VII, p. 281:  THE COURT:  “I don’t want you to come up and then violate my orders…”]  This put your appellant in an impossible position at law, where his accusers could violate the concise rule of law as well as established court orders at will, yet, Mr. Boustred was held to the highest and strict construction of the law.

64.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN did conspire to enter hearsay into the record, flaunting and thumbing their nose at the same restrictions to evidence, that they  together applied against Mr. Boustred:  [See CT., VII, p. 299:  DEFENDANT:  “I object,   It is hearsay.”   MR. CATTRAN:  “Letter’s a prior statement by the defendant.”   THE COURT:  “Overruled.” ]

65.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN to openly berate your appellant Mr. Clive Frank Boustred in front of the jury, without admonishment:  [See CT., VII, p. 305: “MR. CATTRAN:  “Sir, you are an intelligent man.  Stop trying to act stupid.” ]

66.)     It is a fact, that COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN did intentionally keep your appellant in a constant state of confusion, and refused to concisely explain themselves in an ongoing pattern of conspiring to keep your appellant ignorant of the proceedings, and berating him and humiliating him openly in front of the jury to appease their own power and aggrandizement:  [See CT., VII, p. 306: “DEFENDANT:  I don’t understand the question.”  MR. CATTRAN:  “I’m sorry.  Am I speaking in Latin?” ]

67.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN did in fact, conspire to keep lawfully subpoenaed witnesses from the court, when there was no good cognizable reason to do so:  [See CT, VII, pp. 310 - 311 (pertinent parts):    DEFENDANT:  I would like to call the witness stand Richard Clive Boustred.”  COURT:  “Okay.  You may go out and get him.”  DEFENDANT:  “He  was subpoenaed.  He is in my wife’s custody.”   COURT:  Do you have a valid subpoena showing Proof of Service on your son?”  DEFENDANT:  I had a subpoena that was issued in good faith.  COURT:  DO you have a subpoena that was issued by this court?”   DEFENDANT:  I was here on Wednesday.”  COURT:  That is a ‘yes or no’ answer sir.”  DEFENDANT:  “Yes.  Yes.”   COURT:  Okay.  Well, where is it?   DEFENDANT:  I filed it.”  DEFENDANT:  I have a subpoena that was issued.”   COURT:  “By this court?”   …DEFENDANT:  I have another witness.  COURT:  Alright.  Then let’s call them.  Who is your next witness?”  DEFENDANT:   “William Frank Boustred.”  THE COURT:  “He is apparently not present.  COURT:  I have looked at the documents, you apparently don’t have a valid subpoena that was issued by the Court, nor do you have a valid proof of Service, so move on.  DEFENDANT:  I object with exception.”

68.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE was in good faith, handed a 76 page set of CALJIC Jury instructions—to which she did unlawfully refuse to place before the jury.  [See CT. VII. P. 313-314:  “COURT:  Okay.  So, for the record, I have been handed a set of requested Jury Instructions from Mr. Boustred.   First page of this is labeled Stephen -- Steffen Tichatschke versus Clive Boustred.”     THE DEFENDANT:  That is incorrect.  It should be labeled State of California.  THE COURT:  I have looked over these instructions.  He has included in here status of the parties -- um -- argument as to what he believes that he has proven in this matter.  I am not going to give any of those instructions.   Starting on Page 8 of 76 notes that these are Jury Instructions for the 9th Circuit Model Criminal Jury Instructions.  I choose not to use those instructions, and instead will use CALJIC Jury Instructions. “    THE DEFENDANT:  “May I make an objection on that, Your Honor?”  COURT:  “Certainly. “    DEFENDANT:  “These Jury Instructions are put together in good faith and in a rush, I must admit.  I understand you received Federal funds here in this Court, and that the 9th Circuit Model Criminal Jury Instructions is par and equivalent to CALJIC, and these are submitted in good faith.”  COURT:  Okay.  I’m going to use CALJIC starting –“  DEFENDANT:  “You are overruling my objection?”  COURT:  “Yes I am.”  DEFENDANT:  “I object with exception.”

69.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN did in fact, conspire to only allow CALJIC Jury Instructions which tended to only show your appellants guilt, but never allowed any countervailing or opposing Jury Instructions which would prove otherwise:  {See CT., VII, p. 319:  DEFENDANT:  “I object your honor.”   COURT: Okay.  I think that there was evidence that –from that witness that may have happened, so I am going to leave that in.”  DEFENDANT:  “I object with exception.” ][13]

70.)   It is a fact, that It is a fact, that COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN did in fact, conspire to exclude the correct jury instructions from the Jury:  [See CT., VII, p. 336-337:  “

         MR. CATTRAN:  Force that may be used in defense of property.  When conditions are present which, under the law, justify a person using force in defense of property, that property may -- that person may use the degree and extent of force as would appear to a reasonable person.

         THE COURT:  Okay.  That is out. 

         THE DEFENDANT:  No.  No.  That is included.  I am defending property.

         MR. CATTRAN:  Not defending property.  You don't own Homewood.

         THE DEFENDANT:  I am defending my son --

         MR. CATTRAN:  Which is talked about --

         THE DEFENDANT:  -- and my property.

         MR. CATTRAN:  Which is talked about in one of the defense of others instruction.

         THE DEFENDANT:  No.  The Jury Instruction's quite clear.  It needs to be included.

         MR. CATTRAN:  No, it doesn't.  There is an "or" in there, sir.

         THE DEFENDANT:  The "or" is only for 5.56.  Says in defense of self, others or others -- property give CALJIC 5.40, 5.43, 5.51, and the only "or" is 5.56. 

         MR. CATTRAN:  Okay.  You are not defending your property.

         THE DEFENDANT:  I am the property.

         MR. CATTRAN:  It is a person.

         THE DEFENDANT:  It is property.

         MR. CATTRAN:  It is a person.

         THE DEFENDANT:  It is the --

         MR. CATTRAN:  Under the law, a minor child is a person.

         THE DEFENDANT:  Minor child is a person and your property.  You are entitled to your children.

         MR. CATTRAN:  5.50.  Self-defense, assailed person need not retreat. 

         THE COURT:  Okay.  Five point –

                       ….”I am not going to include self-defense of property, because it does not apply in this case.”

 

71.)   That it is a fact, that that COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN did willfully exclude the evidence by omission in the CALJIC Jury instructions:  [See CT. VII, p. 343:

        MR. CATTRAN:  She is not going to comment on the evidence.

         THE DEFENDANT:  The Judge's already commented on the evidence.

         THE COURT:  No, I haven't.  I have ruled on the evidence.

         THE DEFENDANT:  You commented on the evidence.

         THE COURT:  I ruled on the evidence.

         It is out.

         THE DEFENDANT:  I maintain there is an argument in defense that you have commented on the evidence.

CALJIC 17.32.

         THE COURT:  Not giving it.

         THE DEFENDANT:  I object with exception that CALJIC 17.32 is not included in the Instructions.

         THE COURT:  All righty then. ]

 

72.)   That it is a fact, that COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN did willfully exclude CALJIC Jury instructions, then overtly and willfully lied about them being even existing:  [See CT., VII, p. 345:  “DEFENDANT:  “The one I am looking for is the innocence, burden of proof.  Charge against the defendant not evidence.  Presumption of innocence.  I haven’t seen that in there.”  MR. CATTRAN:  Because they are not CALJIC Jury instructions….you won’t find them  in  CALJIC.” ]

73.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN did willfully exclude CALJIC Jury instructions which had any bearing on the fairness, or innocence of your appellant and petitioner, Clive Frank Boustred:  [See CT., VII, p. 348-350:

Page 348:  THE DEFENDANT:  Our Jury Instructions, Page 52.  Jury must find foundation of -- Jury must find foundation of facts before considering evidence as consciousness of guilt.

         THE COURT:  I am not giving that instruction. 

         THE DEFENDANT:  You are not giving that instruction? 

         THE COURT:  No. 

         THE DEFENDANT:  I object with exception. 

 

         MR. CATTRAN:  Which ones I am referring to are Mr. Boustred's Special Jury Instructions. 

         THE DEFENDANT:  I would like to include our Page 55 as very relevant to this case.  Instruction to believe unfair and balance between prosecution and defense.  I think you all agree with that.  There is an unfair balance.

         MR. CATTRAN:  It is not an appropriate Instruction. 

         THE DEFENDANT:  Failure to give consciousness of innocence instruction may unfairly favor the prosecution in World versus Oregon.

         MR. CATTRAN:  There is no consciousness of innocence instruction being given. 

         THE DEFENDANT:  If we go on further the U.S. Supreme Court warned that State Trial Rules which provide reciprocal benefits to the State and a lack of reciprocity interferes with defendants' ability to secure a fair trial.

         THE COURT:  I am not giving that. 

         THE DEFENDANT:  I object with exception.

Page 351

         DEFENDANT:  And, of course, the falsus in -- falsus in uno, falsus in Omnibus Jury Instruction, Page 68, needs to be included. 

         MR. CATTRAN:  I have no idea what that is.  It is addressed in the believability of witness section. 

         THE DEFENDANT:  Once false, always false where --

         THE COURT:  No. I think that is --

         Sorry.  I don't mean to talk at the same time.

         No. 

         THE DEFENDANT:  His entire testimony will be rejected.

         MR. CATTRAN:  That is covered in a CALJIC instruction. 

         THE DEFENDANT:  I object with exception.

Page 352 [On elements of all crime]

         DEFENDANT:  “It [CALJIC Jury Instructions] does not define the mens rea –

          COURT:  “Okay.  I have ruled…”

          DEFENDANT:  “I object with exceptions.”

 

74.)   In fact COMMISSIONER TRILLA E. BAHRKE repeatedly acted as council to her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN and did often advise and even edge on her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN during the trial and in chambers as illustrated from the transcript below [See CT., VII, p 345:

         THE COURT:  In the concluding --

         Let's see.  I am not going to give 17.52.  I already gave that one. 

         MR. CATTRAN:  The separation? 

         THE COURT:  Yeah.  I think I like the alternate jurors.

         MR. CATTRAN:  Hang on.

         THE COURT:  Go. 

         MR. CATTRAN:  Okay.

 

75.) It is a fact, that upon final summation of your appellant, Mr. Clive Frank Boustred, both COMMISSIONER TRILLA E. BAHRKE along with her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN did in fact, “object” and did overtly lie and perjure themselves that Mr. Boustred “misstates the law.”  [See CT., VII, p. 367:  “MR. CATTRAN:  “Objection Your Honor.  Misstates the law.   COURT:  “It does misstate the law.”]

76.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE did allow her co-conspirator, Deputy District Attorney CHRISTOPHER CATTRAN to intentionally misstate, and taint the record before the jury to intentionally mislead the jury.  [See CT., VII, p. 370 L10:  DEFENDANT:  Objection.  He is tainting the evidence.  He must read from the record.  COURT:  Sir, overruled.”]

77.)   It is a fact, that COMMISSIONER TRILLA E. BAHRKE did overtly lie to the jury when she stated that “You must accept and follow the law as I state it to you, regardless of whether you agree with it.”  [CT., VII, p 377 L5]

78.)   It is a fact, that I did solemnly note COMMISSIONER TRILLA E. BAHRKE that she was acting outside the concise rule of law in this matter:  I did in fact, place on the record read directly into the record in open court [CT., VII, p 263 L7]:

         THE DEFENDANT:  Judge, I wanted to judicially note and place on the record and call your attention to the California Rules of Court, Rule 78, Notification of Failure to Perform Judicial Duties. 

         THE COURT:  Mr. Boustred, let's go into Chambers.

 

CRC Rule 78 TA \l "California Rules of Court Rule 78" \s "Rule 78" \c 4   Notification of Failure to Perform Judicial Duties.”  The Chief Justice or presiding justice of a reviewing court, or the administrative presiding justice with regard to a presiding justice, shall notify the Commission on Judicial Performance of (1) a reviewing  court judge’s substantial failure to perform judicial duties, including but not limited to any habitual neglect of duty, or (2) any absences caused by disability totaling more than 90 court days in a 12 month period, excluding absence for authorized vacations and attendance at schools, conferences, and workshops for judges.

            The Chief Justice or presiding justice or administrative presiding justice shall give the judge a copy of any notification to the commission.”

 

79.)   That it is a fact, that as I am in fact, my son’s natural guardian,[14] that all I was in fact doing was protecting my life, liberty and property from the irresponsible, immoral and unlawful destruction by the alleged plaintiffs in Placer County matter 72-002045, and the record shows this by and through the testimony of the prosecutions own witness, Mr. BRADLEY WAGNER: [See CT V. 1, p. 191-192;

DEFENDANT:  Q.  I DIDN’T’ RUN AWAY AT ALL, DID I?

A.     I DIDN’T SEE YOU RUN, NO.

Q.     I protected my children.  Was I taking care of them?

B.     Yea.

Q.     I took them out of there afterwards.  Shielded them?

C.     You took them out of there.”

 

80.)   It is a fact, that there are items illegally omitted from the court transcripts:

A.)    My demand for sua sponte rights directed to COMMISSIONER TRILLA E. BAHRKE were denied, but completely missing on the record.

B.)     That Ms. COMMISSIONER TRILLA E. BAHRKE outburst at me reading from the California Rules of Court, was truncated, and neither was my reading in the record, nor was her outburst, which was partially omitted from the record, amongst other omissions from the record.

VII
MEMORANDUM OF POINTS AND AUTHORITIES

 

81.)   This motion is secured under Article I, Section 8 of the Constitution for the State of California (1849) and Amendment the Fifth, for the Constitution for the United States. Substantive “due process of law” clauses.

82.)   It is first factual, that the alleged plaintiff in the original matter, Tichatschke, refused to appear at court in either the opening voir dire or the opening of the first day of trial.  Your petitioner correctly moved for dismissal and summary judgment in his favor which was erroneously denied.  It is a fact, that both the parties and their lawyers must appear for trial on the first day:  SEE: Appearance Day.  The day for appearing; that on which the parties are bound to come into court.  Cruger v. McCracken (Tex. Civ. App.) 26 S.W. 282 TA \l "Cruger v. McCracken (Tex. Civ. App.) 26 S.W. 282" \s "Cruger v. McCracken (Tex. Civ. App.) 26 S.W. 282" \c 1 , Compare City of Decatur v. Barteau, 200 Ill. 612, 103 N.E. 601, 602 TA \l "City of Decatur v. Barteau, 200 Ill. 612, 103 N.E. 601, 602" \s "City of Decatur v. Barteau, 200 Ill. 612, 103 N.E. 601, 602" \c 1 .

83.)   The facts are, that under COMMISSIONER TRILLA E. BAHRKE strict and sadistic reading and construction of the law, that the initial complaint in this matter does not give rise to evidence or a cause of action[15] sustaining a complaint, nor can probable cause be established as the complaint fails on hearsay grounds in accordance with her own private rules of court.

84.)   It is a fact, that both appellants in this matter; STEFFEN TICHATSCHKE, and ANNAMARIA BOUSTRED[16] did and does in fact, have UNCLEAN HANDS in this matter,[17] and thereby, were not of a proper status to ask the court for any remedy in this matter, and said court was without lawful jurisdiction in this matter, to even hear this case[18] and did in fact, act outside the concise rule of law:[19]

The doctrine [of unclean hands] promotes justice by making a [petitioner] answer for his own misconduct in the action. It prevents "a wrongdoer from enjoying the fruits of his transgression." [Petitioner] must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim. Kendall-Jackson Winery, Ltd. v. Superior Court (E. & J. Gallo Winery) (1999) 76 Cal.App.4th 970 TA \l "Kendall-Jackson Winery, Ltd. v. Superior Court (E. & J. Gallo Winery) (1999) 76 Cal.App.4th 970" \s "Kendall-Jackson Winery, Ltd. v. Superior Court (E. & J. Gallo Winery) (1999) 76 Cal.App.4th 970" \c 1 . See also: Keystone Driller Co. v. General Excavator, 290 US 240 (1933) TA \l "Keystone Driller Co. v. General Excavator, 290 US 240 (1933)" \s "Keystone Driller Co. v. General Excavator, 290 US 240 (1933)" \c 1 (Clean hands doctrine - parties seeking relief in equity must come to court with clean hands and cannot defraud the court.)

 

85.)  It is a fact, that they committed adultery, of which the law does not countenance, and which is a direct damage to me, and which I must have redress of grievances:

A second form of interference with the interests of the husband is that of adultery with the wife, which in its tort aspects usually is called criminal conversation. [“Criminal” because it was an ecclesiastical crime; “conversation” in the sense of intercourse.  For the history of the tort, see Lippman, the Breakdown of Consortium, 1930, 20 Col.L.Rev. 651, 654-660 TA \l "Lippman, the Breakdown of Consortium, 1930, 20 Col.L.Rev. 651, 654-660" \s "Lippman, the Breakdown of Consortium, 1930, 20 Col.L.Rev. 651, 654-660" \c 3 .

 

“In the general and comprehensive sense, the term ‘criminal conversation,’ is synonymous with ‘adultery;’ but in its more limited and technical signification, in which it is here to be considered, it may be defiend as adultery in the aspect fo a tort.”  Turner v. Heavrin, 1918, 182 Ky. 65, 1206 S.W. 23, 4 A.L.R. 562 TA \l "Turner v. Heavrin, 1918, 182 Ky. 65, 1206 S.W. 23, 4 A.L.R. 562" \s "Turner v. Heavrin, 1918, 182 Ky. 65, 1206 S.W. 23, 4 A.L.R. 562" \c 1 .[20]

 

 

86.) It is a fact, that COMMISSIONER TRILLA E. BAHRKE refused to be properly instructed upon judicial notice, in direct violation to her oath of office and the concise rule of law:

CCP § 453 TA \l "CCP § 453" \s "CCP § 453" \c 4  Compulsory judicial notice upon request

 

The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:

(a)  Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and,

(b)  Furnishes he court with sufficient information to enable it to take judicial notice of the matter.  (Stats. 1965, c. 299, 2.)

 

CCP § 456 TA \l "CCP § 456" \s "CCP § 456" \c 4   Noting for the record denial of request to take judicial notice

 

If the trial court denies a request to take judicial notice of any matter, the court shall at the earliest practicable time so advise the parties and indicate for the record that it has denied the request."  (Stats 1965, c. 299, 2.)[21]

 

87.)   That it is a fact, that both alleged plaintiffs to this matter, Mr.  STEFFEN TICHATSCHKE, was in fact a trustee of mine,[22] and was in fact, obligated by contract to obey the Ten Commandments, and when he was with my children and he did allege that he had an interest being there, because my children were present, that he was compelled with due diligence to defer to my interests and could not have stated a claim upon which relief could be granted in  the first place, because of that fiduciary relationship that was obligated to me.  “It is a rule that remedial statutes are to be liberally construed to suppress the evil and advance the remedy.”  See:  Buck v. Eureka, 97 Cal. 135 TA \l "Buck v. Eureka, 97 Cal. 135" \s "Buck v. Eureka, 97 Cal. 135" \c 1 [23]

88.)   The right to file service of a subpoena, is a vested and constitutionally protected right of Mr. Clive Frank Boustred, which COMMISSIONER TRILLA E. BAHRKE, did repeatedly attempt to frustrate, in overt violation of the concise rule of law:[24]

[T]here is no immunity from the service of a subpoena. "A subpoena is not an arrest, though there are circumstances in which disobedience to its command may give rise to an arrest" (People ex rel. Hastings v. Hofstadter, 258 N. Y. 425, 429 TA \l "People ex rel. Hastings v. Hofstadter, 258 N. Y. 425, 429" \s "People ex rel. Hastings v. Hofstadter, 258 N. Y. 425, 429" \c 1 ).

 

89.)  IT IS A FACT, THAT NO BATTERY DID OCCUR IN THIS MATTER

It is a fact, that California Penal Code, § 242 TA \l "P.C. § 242" \s "§ 242" \c 4  States: “242.  A battery is any willful and unlawful use of force or violence.”

90.)   It is a fact, that your appellant Clive Frank Boustred, is in fact, the uncontested Father of his two sons, William Frank Boustred, and Richard Clive Boustred.

a.)               Your appellant Mr. Clive Frank Boustred, the father in fact, at law, owns his children as a right of property,[25] and this right cannot be alienated by any party:

The discretion to be exercised is not an arbitrary one, but, in the absence of any positive disqualification of the father for the proper discharge of his parental duties, he has, as it seems to us, a paramount right to the custody of his infant child, which no court is at liberty to disregard. And while we are bound also to regard the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will be best promoted by continuing that guardianship which the law has provided, until it is made plainly to appear that the father is no longer worthy of the trust. People v. Mercein, 25 Wend. 72 TA \l "People v. Mercein, 25 Wend. 72" \s "People v. Mercein, 25 Wend. 72" \c 1 . Herrick v. Richardson, 40 NH 272 (1860) TA \l "Herrick v. Richardson, 40 NH 272 (1860)" \s "Herrick v. Richardson, 40 NH 272 (1860)" \c 1

 

See also:

 

The natural right of a parent to the custody and society of his child is certainly equal in dignity and importance to any right of property, and ought not to be taken away with less deliberation than would be required if the controversy were over a cart or a horse.”  Selfridge v. Paxton, 145 Cal. 713 (1905) TA \l "Selfridge v. Paxton, 145 Cal. 713 (1905)" \s "Selfridge v. Paxton, 145 Cal. 713 (1905)" \c 1 .[26]

 

See also:

 

Under the general law, and independently of the provisions of the codes, the father has a natural right to the care and custody of the child…The father’s right…though not commonly spoken of as such, is of essentially the same nature as the right of property.  The right must therefore be regarded as coming within the reason, if not within the strict letter, of the constitutional provisions for the protection of property…”   In re Campbell, 130 C. 380, 382, 62 P. 613 (1900). TA \l "In re Campbell, 130 C. 380, 382, 62 P. 613 (1900)." \s "In re Campbell, 130 C. 380, 382, 62 P. 613 (1900)." \c 1

 

 

b.)               The father (your appellant Clive Frank Boustred) is in fact, assigned by law, as being the natural guardian of his children.

It is a well settled doctrine of the common law, that the father is entitled to the custody of his minor children, as against the mother and everybody else; that he is bound for their maintenance and nurture, and has the corresponding right to their obedience and services.  2 Story’s Eq., secs. 1343-1350; 2 Kent’s Com. 193; 1 Bl. Com. 453; Jenness v. Emerson, 15 N.H. 486 TA \l "Jenness v. Emerson, 15 N.H. 486" \s "Jenness v. Emerson, 15 N.H. 486" \c 1 , Huntoon v. Hazelton, 20 N.H. 389 TA \l "Huntoon v. Hazelton, 20 N.H. 389" \s "Huntoon v. Hazelton, 20 N.H. 389" \c 1 ….He is, in truth, the guardian by nature of his child.”  De Manneville v. De Manneville, 10 Ves. 51 TA \l "De Manneville v. De Manneville, 10 Ves. 51" \s "De Manneville v. De Manneville, 10 Ves. 51" \c 1 , cases cited, and notes.

 

c.)                As natural guardian, he may defend his children with as such force as he deems necessary to protect them.

 

91.)   It is a fact, that the COUNTY OF PLACER Court, had a substantive duty at law, to recognize the good and wholesome laws which not only protect your petitioner in this matter, but also his children.

“The courts are not bound by mere form, nor are they to be misled by mere pretenses.  They are at liberty—indeed they are under a solemn duty—to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority.  If, therefore, a statue purported to have been enacted to protect…the public safety, has no real or substantial relation to those objects or is a palpable invasion of Rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”  Mulger v. Kansas, 123 U.S. 623, 661 TA \l "Mulger v. Kansas, 123 U.S. 623, 661" \s "Mulger v. Kansas, 123 U.S. 623, 661" \c 1 .

 

92.)   It is a fact, and a solemn sworn duty, that the state has taken a vow to protect, and not destroy the marriage relation.   Unfortunately, COMMISSIONER TRILLA E. BAHRKE, acts and/or omissions have shown a propensity to relax the states commitment to the marriage relation. 

“As guardians of the interest of the public and persons not party to the record, it is our imperative duty to prevent dissolution of the marriage relation by means which the law condemns and expressly forbids.

            An infant child is the issue of this marriage, and we cannot tolerate that its character shall be sullied and its career clouded by a Judicial conviction of the Father, on such evidence of infidelity to the most sacred obligations….it behooves us not to relax the stringency of the rules which, in the interests of good moral[27] and social security, have been prescribed by law for the safeguard of the sanctity of the marriage relation.”  Fanning v. Fanning, 1 Misc.N.Y. 97 TA \l "Fanning v. Fanning, 1 Misc.N.Y. 97" \s "Fanning v. Fanning, 1 Misc.N.Y. 97" \c 1 .

 

93.)   Whereas, in the above entitled court case shows, that your petitioner, had clean hands in this matter, and it was the alleged plaintiff(s) who in fact, had unclean hands, and were adulterers, and did in fact, not honor the solemn marriage relation; and who did in fact, place my sons in jeopardy, and were in fact, in overt violation of a court order, which all the elements considered in this matter, give rise to a just claim for Mr. Clive Frank Boustred:

a.)               To protect his children from just being dumped and placed into harms way in the middle of a busy ski slope while both contemnors found time to kiss on the slope, disregarding the immediate danger to the children.

b.)               That the alleged plaintiff, was out of order, and was in direct violation of a valid court order of July 12, 2002.

c.)                And that it is a fact, that said “plaintiff’s” had unclean hands, and had in fact, violated the marriage relation—which did in fact, put them with unclean hands.

94.)   It is a fact, that the State of California and all its courts therein, are bound to the law of the common law, as the rule of decision within all the courts of California:[28]

"A statute should be construed in harmony with the Common Law unless there is a clear legislative intent to abrogate the Common Law." --United Bank vs. Mesa Nelson Co., 121 Ariz 438, 590 P2d 1384, 25 U.C.C.RS 1113 TA \l "United Bank vs. Mesa Nelson Co., 121 Ariz 438, 590 P2d 1384, 25 U.C.C.RS 1113" \s "United Bank vs. Mesa Nelson Co., 121 Ariz 438, 590 P2d 1384, 25 U.C.C.RS 1113" \c 1

 

95.)   It is a fact, “that the only legal justification of battery is self-defense.”  People v. Mayes, 262 Cal. App. 2d 195, 68 Cal. Rptr. 476 (Cal.App.Dist.5 05/15/1968) TA \l "People v. Mayes, 262 Cal. App. 2d 195, 68 Cal. Rptr. 476 (Cal.App.Dist.5 05/15/1968)" \s "People v. Mayes, 262 Cal. App. 2d 195, 68 Cal. Rptr. 476 (Cal.App.Dist.5 05/15/1968)" \c 1

a.)               That it is a fact, that I had right on my side.

b.)               It is a fact, that contemnors STEFFEN TICHATSCHKE, and ANNAMARIA BOUSTRED were in overt violation of a court order.

c.)                It is a fact, that my contemnor ANNAMARIA BOUSTRED left my three year old child irresponsibly and dangerously unsupervised in the middle of a learner ski-slope.

96.)   The COUNTY OF PLACER court COMMISSIONER TRILLA E. BAHRKE, and her co-conspirator Deputy District Attorney CHRISTOPER CATTRAN, acts and/or omissions in this matter, in denying me my substantive rights, was an abrogation of their sworn duty to uphold the marriage relation, and was in fact, a ratification of an evil and continued damage against my person, my home, and my property which includes my children.  (See: “ratification by the officers of the corporation of any conduct of the individuals who engaged in the acts of violence.” (McInerney v. United Railroads, 50 Cal. App. 538, 547 [195 P. 958] TA \l "McInerney v. United Railroads, 50 Cal. App. 538, 547 [195 P. 958]" \s "McInerney v. United Railroads, 50 Cal. App. 538, 547 [195 P. 958]" \c 1 ; Alterauge v. Los Angeles Turf Club, 97 Cal. App. 2d 735 [218 P.2d 802].) TA \l "Alterauge v. Los Angeles Turf Club, 97 Cal. App. 2d 735 [218 P.2d 802].)" \s "Alterauge v. Los Angeles Turf Club, 97 Cal. App. 2d 735 [218 P.2d 802].)" \c 1 [29]

97.)   It is a fact, that when I confronted contemnor STEFFEN TICHATSCHKE, instead of bowing down to either my superior will or higher moral, he did, in bad faith, utter “fighting words” which prompted me to act, to protect and defend my honor, my children as well as to uphold the July 12th, 2002 court order of which he was well aware he violated:

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words -- those which by their very utterance inflict injury or tend to incite to an immediate breach of the peace. It has been well observed that such utterances are no essential part of any such exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U.S. 296, 309-310 [84 L.Ed. 1213, 1220-1221, 60 S.Ct. 900, 128 A.L.R. 1352]." (Beauharnais v. Illinois, 343 U.S. 250, 255 [96 L.Ed. 919, 926, 72 S.Ct. 725]; Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 [86 L.Ed. 1031, 1034-1035, 62 S.Ct. 766].)  People v. Cohen, 1 Cal. App. 3d 94, 81 Cal. Rptr. 503 (Cal.App.Dist.2 10/22/1969)

 

98.)   As I am my children’s father, as well as their natural guardian assigned by law; their ultimate safety and well-being extends from me, and no other.  Whereas, I have a privilege to protect my children accorded to me under the common law,[30] known as the “Castle Doctrine” where I am not obliged to retreat at any time my children are in danger:

“[W]hen one is violently assaulted in his own house or immediately surrounding premises, he is not obliged to retreat but may stand his ground and use such force as prudence and caution would dictate as necessary to avoid death or great bodily harm. When in his home he has “retreated to the wall.” . . . [A] man is under no duty to retreat when attacked in his own home. His home is his ultimate sanctuary.”  quoting Hedges v. State, 172 So. 2d 824, 827 (Fla. 1965) TA \l "Hedges v. State, 172 So. 2d 824, 827 (Fla. 1965)" \s "Hedges v. State, 172 So. 2d 824, 827 (Fla. 1965)" \c 1 ).  See also Alday v. State, 57 So. 2d 333, 333 (Fla. 1952) TA \l "Alday v. State, 57 So. 2d 333, 333 (Fla. 1952)" \s "Alday v. State, 57 So. 2d 333, 333 (Fla. 1952)" \c 1    (“The law authorizes one whose home is assaulted without lawful authority to use such force as is necessary to repel the assailant.”); Russell v. State, 54 So. 360, 361 (Fla. 1911) TA \l "Russell v. State, 54 So. 360, 361 (Fla. 1911)" \s "Russell v. State, 54 So. 360, 361 (Fla. 1911)" \c 1  (“One

attacked in his home need not retreat, and he may use all necessary force to eject the intruder, whom he may kill in doing it, if this extreme measure appears unavoidable.”);[31]

 

 

99.)  THAT IT IS A FACT, THAT THE COUNTY OF PLACER TRIAL WAS AN UNCONSCIONABLE TRIAL WHICH WAS A MISCARRIAGE OF JUSTICE.  THE PROCEDINGS WERE IN BAD FAITH AND FRAUDULENT

I am of proper status to receive a fair and just trial by jury:

.The constitutional right of trial by jury is not to be narrowly construed. It is not limited strictly to those cases in which it existed before the adoption of the Constitution but is extended to cases of like nature as may afterwards arise. It embraces cases of the same class thereafter arising.

 

"We conclude that this forfeiture proceeding by the State is the type of action which was cognizable in a common-law court, and triable by a jury in the Court of Exchequer, according to the course of the common-law; that trial by jury was recognized as a right in the trial of actions for the forfeiture of property seized because used in violation of law at common-law at the time of the adoption of the Constitution of California, and that appellant had a constitutional right to a trial by jury of the issues of fact in this case.

 

"The denial of a trial by jury to one constitutionally entitled thereto constitutes a miscarriage of justice and requires a reversal of the judgment. (Cowlin v. Pringle, 46 Cal. App. 2d 472, 476 [116 P.2d 109]. TA \l "Cowlin v. Pringle, 46 Cal. App. 2d 472, 476 [116 P.2d 109]." \s "Cowlin v. Pringle, 46 Cal. App. 2d 472, 476 [116 P.2d 109]." \c 1 )"

 

That conclusion was based upon Kennedy v. United States, 44 F.2d 57 TA \l "Kennedy v. United States, 44 F.2d 57" \s "Kennedy v. United States, 44 F.2d 57" \c 1 . The court held that a seizure on land is not within the admiralty jurisdiction of the United States and the proceeding for forfeiture was, therefore, an action at law, triable by jury. In the Yamoto case, no reference was made to cases in which lienholders claimed the right to foreclose but looked only to the place of seizure as the basis for its decision.   People v. One 1941 Chevrolet Coupe, 37 Cal. 2d 283, 231 P.2d 832 (Cal. 05/25/1951) TA \l "People v. One 1941 Chevrolet Coupe, 37 Cal. 2d 283, 231 P.2d 832 (Cal. 05/25/1951)" \s "People v. One 1941 Chevrolet Coupe, 37 Cal. 2d 283, 231 P.2d 832 (Cal. 05/25/1951)" \c 1

 

100.)                  My right to a fair and just trial, is mandatory, and not discretionary:

The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, "guarantees more than fair process." Washington v. Glucksberg, 521 U. S. 702, 719 (1997) TA \l "Washington v. Glucksberg, 521 U. S. 702, 719 (1997)" \s "Washington v. Glucksberg, 521 U. S. 702, 719 (1997)" \c 1 . The Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests."  Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993). TA \l "Reno v. Flores, 507 U. S. 292, 301-302 (1993)." \s "Reno v. Flores, 507 U. S. 292, 301-302 (1993)." \c 1

 

101.)                  It is a fact, that COMMISSIONER TRILLA E. BAHRKE, did patently refuse your appellant sua sponte rights, when she formally asked for them IN OPEN COURT (due to the confusion which both said Commissioner, and her attorney, were conspiring to obfuscate legal issues with your appellant).

California law also holds that the trial court must instruct sua sponte on a smorgasbord of other points of law. These points of law include: (1) the burden of proof and presumption of innocence (People v. Soldavini (1941) 45 Cal.App.2d 460, 463-464) TA \l "People v. Soldavini (1941) 45 Cal.App.2d 460, 463-464)" \s "People v. Soldavini (1941) 45 Cal.App.2d 460, 463-464)" \c 1 ; (2) the definition of an accomplice and the rules governing accomplice testimony (People v. Gordon (1973) 10 Cal.3d 460, 470) TA \l "People v. Gordon (1973) 10 Cal.3d 460, 470)" \s "People v. Gordon (1973) 10 Cal.3d 460, 470)" \c 1 ; (3) a cautionary instruction concerning the use of a statement made by the defendant (People v. Beagle (1972) 6 Cal.3d 441, 455 TA \l "People v. Beagle (1972) 6 Cal.3d 441, 455" \s "People v. Beagle (1972) 6 Cal.3d 441, 455" \c 1 ); (4) the manner in which the jury is to view inferences drawn from circumstantial evidence (People v. Wiley (1976) 18 Cal.3d 162, 174 TA \l "People v. Wiley (1976) 18 Cal.3d 162, 174" \s "People v. Wiley (1976) 18 Cal.3d 162, 174" \c 1 ); (5) a limiting instruction on the use of evidence of a defendant's prior felony conviction (People v. Lomeli (1993) 19 Cal.App.4th 649, 654-655 TA \l "People v. Lomeli (1993) 19 Cal.App.4th 649, 654-655" \s "People v. Lomeli (1993) 19 Cal.App.4th 649, 654-655" \c 1 ; contra, People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278 TA \l "People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278" \s "People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278" \c 1 ); (6) the requirement of a unanimous agreement by the jury as to a single act committed by the defendant when more than one act could be deemed sufficient to constitute the offense charged (People v. Madden (1981) 116 Cal.App.3d 212, 214 TA \l "People v. Madden (1981) 116 Cal.App.3d 212, 214" \s "People v. Madden (1981) 116 Cal.App.3d 212, 214" \c 1 ); (7) the manner in which expert testimony is to be viewed (Penal Code section 1127b TA \l "Penal Code section 1127b" \s "Penal Code section 1127b" \c 4 ); (8) the requirement that the corpus delicti of a crime must be proved by evidence independent of a defendant's statement (Beagle, supra, 6 Cal.3d 441, 455 TA \l "Beagle, supra, 6 Cal.3d 441, 455" \s "Beagle, supra, 6 Cal.3d 441, 455" \c 1 ); (9) the definition of conspiracy when the government seeks to rely on the conspiracy exception to the hearsay rule (People v. Earnest (1975) 53 Cal.App.3d 734, 744-745) TA \l "People v. Earnest (1975) 53 Cal.App.3d 734, 744-745)" \s "People v. Earnest (1975) 53 Cal.App.3d 734, 744-745)" \c 1 ; and (10) the definition of terms which have a specific technical meaning peculiar to the law (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872 TA \l "People v. Kimbrel (1981) 120 Cal.App.3d 869, 872" \s "People v. Kimbrel (1981) 120 Cal.App.3d 869, 872" \c 1 ).

 

102.)                  It is a fact, that COMMISSIONER TRILLA E. BAHRKE, as well as her associate District Attorney CHRISTOPHER CATTRAN, did in fact, for no good cause shown; willfully obstruct justice, and refusing to allow the jury to hear your appellant: Clive Frank Boustred’s theories of the case:

“Without doubt, it is the duty of defense counsel to request appropriate instructions which will advise the jury of the defendant's theory of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 717 TA \l "People v. Sedeno (1974) 10 Cal.3d 703, 717" \s "People v. Sedeno (1974) 10 Cal.3d 703, 717" \c 1 , fn. 7, overruled on other points in People v. Breverman, supra, 19 Cal.4th 142, 163 TA \l "People v. Breverman, supra, 19 Cal.4th 142, 163" \s "People v. Breverman, supra, 19 Cal.4th 142, 163" \c 1 , fn. 10 and People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) Assuming that the instruction proffered by defense counsel is a correct statement of the law, the trial court must give the instruction. (People v. Wright (1988) 45 Cal.3d 1126, 1137 TA \l "People v. Wright (1988) 45 Cal.3d 1126, 1137" \s "People v. Wright (1988) 45 Cal.3d 1126, 1137" \c 1 .)

 

   In this regard, it is essential to note that the law provides standards of appellate review which are quite favorable to the defendant. If the defense requests an instruction on a particular defense or a lesser included offense, an instruction must be given so long as there is substantial evidence in support of the defense or lesser included crime. (People v. Wickersham (1982) 32 Cal.3d 307, 324 TA \l "People v. Wickersham (1982) 32 Cal.3d 307, 324" \s "People v. Wickersham (1982) 32 Cal.3d 307, 324" \c 1 , overruled on another point in People v. Barton, supra, 12 Cal.4th 186, 200 TA \l "in People v. Barton, supra, 12 Cal.4th 186, 200" \s "in People v. Barton, supra, 12 Cal.4th 186, 200" \c 1 .) Importantly, doubt as to the sufficiency of the evidence must be resolved in favor of the defendant. (People v. Flannel, supra, 25 Cal.3d 668, 684-685. TA \l "People v. Flannel, supra, 25 Cal.3d 668, 684-685." \s "People v. Flannel, supra, 25 Cal.3d 668, 684-685." \c 1 ) Moreover, even if the evidence in support of the instruction is "incredible," the reviewing court must proceed on the hypothesis that it is entirely true. (People v. Burnham (1986) 176 Cal.App.3d 1134, 1143 TA \l "People v. Burnham (1986) 176 Cal.App.3d 1134, 1143" \s "People v. Burnham (1986) 176 Cal.App.3d 1134, 1143" \c 1 , relying on People v. Modesto (1963) 59 Cal.2d 722, 729 TA \l "People v. Modesto (1963) 59 Cal.2d 722, 729" \s "People v. Modesto (1963) 59 Cal.2d 722, 729" \c 1 .)

 

On this latter point, People v. Lemus (1988) 203 Cal.App.3d 470 TA \l "People v. Lemus (1988) 203 Cal.App.3d 470" \s "People v. Lemus (1988) 203 Cal.App.3d 470" \c 1  is a most illustrative case. There, the government presented witnesses who testified that the defendant had engaged in an unprovoked knife assault on the victim. In contrast, the defendant testified that the victim had tried to stab him and had threatened to kill him. Thus, according to the defendant, he stabbed the victim in self defense. On these facts, the trial court refused to instruct on a self defense theory. In so holding, the trial court apparently relied on the lack of independent proof that the victim possessed a knife. On appeal, the trial court's ruling was reversed:

 

"We conclude there was evidence worthy of consideration by the jury that [defendant] was acting in self-defense. Regardless of how incredible that evidence may have appeared, it was error for the trial court to determine unilaterally that the jury not be allowed to weigh and assess the credibility of [defendant's] testimony . . ." (Lemus, supra, 203 Cal.App.3d at p. 478 TA \l "Lemus, supra, 203 Cal.App.3d at p. 478" \s "Lemus, supra, 203 Cal.App.3d at p. 478" \c 1 .)

 

   In short, as Lemus demonstrates, the appellate courts are highly solicitous of the defendant's right to have the jury instructed on his theory of the case. Thus, in many cases, the trial court commits reversible error when it denies a defendant's requested instruction.”

 

As is clearly evident in the transcript, the Court denied my right to prove essential and foundational theory to defense: That my accusers, my wife Anamaria Boustred and her adulterer, Steffan Tichatschke, were in fact in violation of a legal Court Order dated July 12, 2002, and that the my accuser, Tichatschke was allowed no contact with my children.  That a February 20, 2003 Exparte Order obtained illegally by Anamaria Boustred and her attorney Viki Parry was null and void on it’s face and that the Exparte Order was of no force or effect.  The February 20, 2003 Exparte Order being void for a number of reasons as I can and could prove, however I was denied the right to prove my theory by COMMISSIONER TRILLA E. BAHRKE and her co-conspirator the associate District Attorney CHRISTOPHER CATTRAN [See CT., VI, p100-105:

         THE COURT:  Okay.  I am not going to allow you to offer testimony with respect to this so-called illegal order lifting the bar on the boys.

         THE DEFENDANT:  Your Honor, that is --

         THE COURT:  We are not going to litigate that, no, because whenever -- 

         You look at that.  Where is the page? 

         THE DEFENDANT:  It is --

         THE COURT:  Just listen to me.  I don't have a lot of time.  I don't want the Jury sitting around for an hour while we are discussing all of this. 

         THE DEFENDANT:  On Page 9, Your Honor. 

         THE COURT:  I don't care if there is any urgency.  I am not going to litigate that.  I am not going to litigate the notice that was given to you.  That is -- That is -- It has so little relevance, and it is too time consuming, and it is -- it doesn't -- what -- it tends to mislead the Jury about this case that is in front of us, so whether or not it was heard in violation of Rule 7-103 through 7-108 of the Rules of Professional Responsibility, we are not litigating that.

         I am not going to litigate whether or not the Court considered the law in the interest of the children; whether or not her attorney had any legal basis to clarify the order; your recusal of Judge Kelly.  None of that is coming in.  Okay.  We are not going to litigate that issue.  You can say that she set an ex parte hearing on February 20 to lift the ban, -- 

         THE DEFENDANT:  Your Honor, it is --

         THE COURT:  -- and the results of that. 

         THE DEFENDANT:  Your Honor, it is extremely important with respect --

         THE COURT:  I am sure it is to you.  It is not relevant.

         THE DEFENDANT:  With respect to the relevance of this case, it is extremely important because a Court Order is not valid if it has been in violation of the law.  That Court Order was given in violation of those orders.  It is quite clear and been established.  We can prove that.  Because that Court Order was in violation of the law.  Mr. Tichatschke was in violation of the preceding --

         THE COURT:  Would you open that window behind you, please.

         THE DEFENDANT:  Mr. Tichatschke was in violation of the preceding Court Order, which was given in accordance with the law and was in full force, which he had no contact with my children.

         MR. CATTRAN:  The theory is this, Judge, Your Honor.

         THE COURT:  No.  I -- I understand what he is saying.  He is saying there was a valid order that he got.  Then she went into court and she violated -- there was no urgency.  There was insufficient notice.  That it was heard in violation of the Rules of Conduct.  That is not relevant to this proceeding.  And I am not going to let you litigate that hearing on those grounds. 

         MR. CATTRAN:  But there is a step further than that, Your Honor.  The basis of this alleged violation of the Court Order is Mr. -- Mr. --

         THE DEFENDANT:  Boustred.

         MR. CATTRAN:  -- Boustred -- Boustred is alleging the --

         THE COURT:  One second.

         (Brief interruption.)

         MR. CATTRAN:  The point is this.  I believe where Mr. Boustred is going is that you had talked earlier about a violation of a Court Order.  I believe what Mr. Boustred is going to -- attempting to say is that his ex-wife and

Mr. Tichatschke were in violation of this preceding Court Order, because according to him the February order wasn't good.  Well, the February order was good.  Therefore, he is not in violation.  Mr. Tichatschke or Ms. Boustred.

         THE COURT:  Is that what you are trying to say?  You are trying to get this Jury to litigate whether or not this hearing of February 3rd was valid or not? 

         THE DEFENDANT:  It is very important, Your Honor, with respect --

         THE COURT:  No.  No.  I know what you are saying.  I mean, is that what you are trying to do here? 

         THE DEFENDANT:  Um -- well, actually, Your Honor, I am trying to get false accusations here, is -- That is all I am trying to get out. 

         THE COURT:  Well, --

         THE DEFENDANT:  Believe me, I would -- all of these issues again will be litigated in Santa Cruz.  That is where I expect them to be litigated.  But for the matter of this case, it is extremely important to establish that

Mr. Tichatschke was in violation of a Court Order, and that the order that was obtained was not in force because it violated the law. 

         MR. CATTRAN:  Do you see the theory here? 

         THE COURT:  I think --

         MR. CATTRAN:  The theory is he wants to go back to some previous Court Order before the February order.  He is picking -- saying the February order was bad, which allowed Mr. Tichatschke and Ms. Boustred to have contact with the kids.  Basically, Mr. Tichatschke to have contact with the kids.  He is attempting to say that that Court Order was illegal; thus, the only order that was in effect was a preceding order that said that Mr. Tichatschke couldn't have contact with the kids.

         Do you follow me there? 

         THE COURT:  I follow you.

         That is not going to happen.  We are not going to litigate that. 

         THE DEFENDANT:  It is very relevant to this case, Your Honor.

         THE COURT:  Well, I -- It may be relevant to you, but what I have is that you are trying in this action to litigate the legality of an order that was made in another Court, --

         THE DEFENDANT:  But, Your Honor, --

         THE COURT:  -- but we are not going to do that.

         THE DEFENDANT:  But, Your Honor, the issues we are talking about here is that Mr. Tichatschke was in violation of the law.  He has claimed to not be in violation of the law.  I am being accused of being in violation of the law, when I am not, and the issue we have to establish with respect to this case is that Mr. Tichatschke was in violation of the law.  He had unclean hands.  He wasn't meant to be there.  We can't do that unless we establish the relative order.

         THE COURT:  You are not going to argue that.

         MR. CATTRAN:  Thank you.

         THE COURT:  That is not going to happen.  We are not going to litigate that issue.  You are not going to present Page 9 of your --

         THE DEFENDANT:  Presentation.

         THE COURT:  -- presentation.

 

         THE DEFENDANT:  So I object and take exception to that.  And may it be judicially noted.

         THE COURT:  It will be noted that you are objecting to my ruling that that is not admissible; that the trial -- the issue of legality of the February 20th, 2003, ex parte order is not -- I am not going to admit that into evidence. 

         THE DEFENDANT:  And I object and take exception to it. 

         THE COURT:  Okay.  Okay.

 

The fact that that Appellant/Defendant could actualy prove that the Feb 20, 2003 Exparte order was null and void on it’s face is not as relevant as the fact that the Court clearly denied Petitioner and Appellant the lawful right to argue this critical theory to the case.  Proof of that the Feb 20, 2003, Exparte order was and is void on it’s face is show below, this proof was also proffered in the presentation that Petitioner and Appellant was prevented from making by Commissioner Trilla E. Bahrke:

Reasons the Feb 20, 2003, Exparte order is void

1. Defendant & Wife Under Agreement Not To Litigate

2. Insufficient Notice

4. The Kelly Ex Parte Hearing Violated Rules 7-103 and 7-108 of the Rules of Professional Conduct of the State Bar

5. Recusal With Cause

6. Stevens Ruling Made In Absence of Petitioner

1. Under Agreement Not To Litigate

 

At the time of the ex parte hearing on February 19, 2003, my wife and I were under the express agreement not to litigate:

 

2. Insufficient Notice

 

Insufficient Notice was given to for the ex parte hearing before Judge Kelly, as a consequence in accordance with the General Provisions California Family Code § 241, the order issued on 2/20/2003 must be vacated”:

“Except as provided in Section 6300, an order described in section 240 may not be granted without notice to the respondent unless it appears from facts shown by the affidavit in support of the application for the order, or in the application for the order, that great irreparable injury would result in the applicant before the matter can be heard on notice.”

 

§ 240 Readiness for hearing; continuance; counter-affidavit

(a)   when the matter first comes up for hearing, the applicant must be ready to proceed.

(b)   If an order described in section 240 has been issued without notice pending the hearing, the applicant must have served on the respondent, at least two days before the hearing, a copy of each of the following:

(1)   The order to show cause.

(2)   The application and the affidavits and points and authorities in support of the application.

(3)   Any other supporting papers filed with the court.

(c)   If the applicant fails to comply with subdivisions (a) and (b), the court shall dissolve the order.

 

As the applicant did not serve me anything of what is required by the law, in accordance with § 240 the order issued on 2/20/2003 by Judge Kelly is void.

 4. The Kelly Ex Parte Hearing Violated Rules 7-103 and 7-108 of the Rules of Professional Conduct of the State Bar

In opinions rendered by The State Bar Of California Standing Committee On Professional Responsibility And Conduct Formal Opinion No. 1984-82.  Relating to Rules 7-103 and 7-108 of the Rules of Professional Conduct of the State Bar of California, states: 
“The new ABA Model Rules of Professional Conduct are even broader in that the comparable provisions of rule 3.5(b) prohibits ex parte contact with "officials.":” 
The ABA Model Rules of Professional Conduct were adopted by the House of Delegates of the American Bar Association in August, 1983. Rule 3.5 provides:
Rule 3.5 Impartiality and Decorum of the Tribunal A lawyer shall not:
(a)   seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b)   communicate ex parte with such a person except as permitted by law; or
(c)   engage in conduct intended to disrupt a tribunal."

“Furthermore, it must be noted that California rule 7-108(B) differs substantially from ABA Disciplinary Rule 7-110(B) in one respect which is highly material to the present inquiry: while the California rule refers to "judge or judicial officer," the ABA rule refers to the "judge or official before whom the proceeding is pending." The new ABA Model Rules of Professional Conduct are even broader in that the comparable provisions of rule 3.5(b) prohibits ex parte contact with "officials." This narrowing of the rule in California must be read as intentional.”
 
Opinions issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California, Formal Opinion Number 1984-78, makes it quite clear that Judge Thomas Kelly violated impartiality of decision making by hearing this matter ex parte:
 
“DIGEST: It is not ethical for an attorney to communicate ex parte with a trial judge on the merits of a contested matter decided by the judge and on review by a higher court if the matter may come again before the same trial judge.  Such a matter is "pending" before the trial judge. Attorneys engaging in such conduct violate their duty to protect the impartiality of the decision-making process and their duty of fairness owed to opposing counsel.” 
AUTHORITIES INTERPRETED: Rule 7-108(B) of the Rules of Professional Conduct of the State Bar of California.
 
“Attorneys have a duty to protect the impartiality of the decision-making process. Improper ex parte contacts erode public confidence in the fairness of the administration of justice. This public confidence is "the very cement by which the system holds together." (In re Jonathan S. (1979) 88 Cal.App.3d 468, 471 [151 Cal.Rptr. 810, 812].) Improper ex parte contacts also violate a duty of fairness owed to opposing counsel. They prevent opposing counsel from effectively performing his role as an attorney. (Heavey v. State Bar (1976) 17 Cal.3d 533 [551 P.2d 1238, 131 Cal.Rptr. 406].) The ex parte rule is, in essence, "a rule of fairness meant to insure that all interested sides will be heard on an issue." (Heavey, supra, at p. 559.)
Although some review proceedings may require a trial judge to be a witness during the review of a matter decided by him, a judge is never like other witnesses. His role as an impartial decision-maker demands that his future impartiality be protected. Access to him as a witness is, therefore, controlled by rule 7-108(B). In Roberts v. Commission on Judicial Performance, supra at p. 747, the California Supreme Court went so far as to say that a judge's ex parte communications with a real party in interest were improper, even though the judge, himself, was a party respondent to the proceeding. “it is improper for a judge to communicate ex parte with the real party in interest even though he is also a party respondent, a similar communication by an attorney is certainly improper when the judge's role is solely that of a witness. The fact that the trial judge may be a witness in a review proceeding does not justify ex parte contacts.”

CA STATE BAR FORMAL OPINION NO. 1984-82

Rule 7-108(B) of the Rules of Professional Conduct provides in pertinent part:

"RULE 7-108. CONTACT WITH OFFICIALS.

(B) A member of the State Bar shall not directly or indirectly, in the absence of opposing counsel, communicate with or argue to a judge or judicial officer, upon the merits of a contested matter pending before such judge or judicial officer except in open court; nor shall he, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or judicial officer concerning the merits of a contested matter pending before such judge or judicial officer. This rule shall not apply to ex parte matters."

This provision is based in substantial part on the American Bar Association's Disciplinary Rule 7-110(B), which is designed to safeguard the fairness and impartiality of a tribunal and the orderliness of its procedures These rules are also intended to permit an attorney to function effectively while assuring that all litigants and lawyers have equal access without the undue advantage of ex parte communications. (See Heavey v. State Bar (1976) 17 Cal.3d 553 [131 Cal.Rptr. 406,409]; Annotated Code of Professional Responsibility (American Bar Foundation, 1979) at page 376-7.)

 

Neither rule 7-108(B) nor its ABA counterpart expressly cover administrative proceedings. Nor has any specific authority been found on the application of these rules to adjudicatory proceedings before administrative agencies. Furthermore, it must be noted that California rule 7-108(B) differs substantially from ABA Disciplinary Rule 7-110(B) in one respect which is highly material to the present inquiry: while the California rule refers to "judge or judicial officer," the ABA rule refers to the "judge or official before whom the proceeding is pending."2 The new ABA Model Rules of Professional Conduct are even broader in that the comparable provisions of rule 3.5(b) prohibits ex parte contact with "officials."3 This narrowing of the rule in California must be read as intentional, although the purpose of the restriction is unclear. In normal parlance among lawyers, a "judge" is a presiding officer of a court of record and a Judicial officer is an officer of the judicial (not the executive) branch of government. However, while the specific issue here considered was not addressed, the California Supreme Court in Andrews v. Agricultural Labor Relations Board (1981) 28 Cal.3d 781, 790-794 [171 Cal.Rptr. 590], consistently referred to an administrative law hearing officer under the Agricultural Labor Relations Act as a "judicial" officer. In that case, the court noted that there is no preemptory basis for disqualification of hearing officers similar to Civil Code section 170(5) applicable to judges, and the court refused to hold that "a mere appearance of bias is ground for the disqualification of a judicial officer."

It has been recognized in California that both state and local administrative agencies may exercise judicial power. And in Fremont Indemnity Company v. Workers Compensation Appeals Board (1984) 153 Cal.App. 3d 964 [200 Cal.Rptr. 762], the court determined that referees appointed by the Workers Compensation Appeals Board are officers of a judicial system performing judicial functions and are therefore not permitted to initiate ex parte communication with an independent medical examiner. While the Fremont Indemnity decision was predicated upon the fact that the "Workers Compensation Appeals Board is a tribunal of limited jurisdiction, with those powers conferred upon it by the Constitution and the statutes of California..." This statement would also be true of all adjudicatory proceedings conducted under the California Administrative Procedures Act. In holding that the Board, when exercising adjudicatory functions is bound by the due process clause of the Fourteenth Amendment, the court stated that due process requires that:

"All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal . . ." Fremont Indemnity, at p. 971 of 153 Cal.pp.3d.

While Fremont Indemnity did not involve ex parte contact by an attorney with the workers compensation appeals judge appointed to hear the case, the principles enunciated are equally applicable to such contact.

 

5. Recusal With Cause

CCP: 170:  “(4) In the event that grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding but before the judge has completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge.”

“If a judge is disqualified as a matter of law, every order entered by him is as equally void under the new law as it was under the old, and no reason appears why the parties should be forced to trial before a disqualified judge, only to have the judgment set aside when it later appears that as a matter of law the judge was disqualified.”  Briggs v. Superior Court of Los Angeles County, 215 Cal. 336, 10 P.2d 1003 (Cal. 03/31/1932)

Clearly Judge Kelly issues the Order without any consideration of the best interests of the children and without even reading my declaration as he was unaware that a hearing was scheduled for a week from the date of the ex parte hearing as clearly stated in my declaration.  Judge Kelly was recused with cause, thus setting aside his order. 

 

6. Stevens Ruling Made In Absence of Petitioner in without Subject Matter Jurisdiction

 

Judge Stevens ruling on February 27th 2003, stating that the Kelly Order was upheld, was made after Judge Stevens ordered the Bailiff to force me out of court when I politely started to give my “Offer of Proof” as to the reasons Judge Stevens was biased against me.  No order may be passed without a party being present, consequentially, any approval or affirmation of the Kelly Order made by Judge Stevens on that day without me present does not legally hold and is void especially since Judge Stevens was and continues to act without subject matter jurisdiction on these matters as Judge Stevens refused to allow multiple CCP 170.1 Motions to dismiss him to be properly heard.

 

103.)                    COMMISSIONER TRILLA E. BAHRKE also denied my right to prove case theory relating to the Placer County Sheriffs and District Attorneys Office conspiracy with the Santa Cruz County Sheriffs and District Attorneys Office.  Proving the conspiracy is and was critical to my defense as it proved motive for prosecution to falsely prosecute Defendant.  The Court Denied Defendant’s right to argue this theory, as is clearly evident in the transcript, show below.  Also clear in the transcript is that the Court’s Commissioner is actually acting as council to the prosecution, see the Commissioners arguing of the case in the last line of the included transcript below “THE COURT:  Well, it is hearsay.”  In numerous places throughout the trial the Commissioner argues the prosecutions case, reveling blatant and outrageous conspiracy between the Commissioner and the Prosecutor.  Clearly the Commissioner did not provide the right to a fair and impartial trial to Defendant.  [See CT., VI, p 106-108:

         THE DEFENDANT:  The reason I object to that, and may the record show, is that we can establish that the District Attorney in Placerville (sic) has been cooperating with the District Attorney in Santa Cruz, and the theory based on that the legal precedent is that the District Attorney in Santa Cruz is trying to cover up the malpractice of the police shooting at me. 

         THE COURT:  So --

         THE DEFENDANT:  And it is in the interest of the District Attorney who is operating in the interest of the local law enforcement to attempt to make me look bad to justify shooting at me.

         THE COURT:  Are you intending to introduce anything from Santa Cruz County in this case? 

         MR. CATTRAN:  Not at all. 

         THE DEFENDANT:  Your Honor, the only thing I am going -- would introduce would be the Prosecution's -- what is it -- the continuation reports.

         THE COURT:  That officer is not subpoenaed to testify.  Have you subpoenaed him? 

         THE DEFENDANT:  I have not subpoenaed anyone.  I am just looking at the evidence, which is in the continuation report.

         THE COURT:  Okay.  Are you intend- -- 

         That's --

         MR. CATTRAN:  Tredennick.

         THE COURT:  Are you calling him? 

         MR. CATTRAN:  No.

         THE COURT:  We are not going to talk about Santa Cruz. 

         THE DEFENDANT:  But I can submit the continuation report as evidence, Your Honor.

         THE COURT:  On what grounds? 

         THE DEFENDANT:  On the ground it is related to this case.  It says what the police said happened.

         THE COURT:  Well, it is hearsay. 

 

 

104.)                    It is a fact, that COMMISSIONER TRILLA E. BAHRKE, as well as her associate District Attorney CHRISTOPHER CATTRAN did willfully and unlawfully keep palpable evidence from the jury, holding your in propria persona petitioner up to strict construction of the law; in direct violation of law:

There are decisions in virtually every federal circuit that generously proclaim that pro per petitions should be construed liberally and that pro per petitioners should be held to less stringent standards than lawyers.  See, e.g., Price v. Johnston (1948) 334 U.S. 266, 292 TA \l "Price v. Johnston (1948) 334 U.S. 266, 292" \s "Price v. Johnston (1948) 334 U.S. 266, 292" \c 1 ; Chase v. Crips (10th Cir. 1975) 523 F.2d 595, 597 TA \l "Chase v. Crips (10th Cir. 1975) 523 F.2d 595, 597" \s "Chase v. Crips (10th Cir. 1975) 523 F.2d 595, 597" \c 1 ; Curtis v. Illinois (7th Cir. 1975) 512 F2d 717 TA \l "Curtis v. Illinois (7th Cir. 1975) 512 F2d 717" \s "Curtis v. Illinois (7th Cir. 1975) 512 F2d 717" \c 1 ; Ham v. North Carolina (4th Cir. 1973) 471 F.2d 406, 407 TA \l "Ham v. North Carolina (4th Cir. 1973) 471 F.2d 406, 407" \s "Ham v. North Carolina (4th Cir. 1973) 471 F.2d 406, 407" \c 1 ; Hairston v. Alabama (5th Cir. 1972) 465 F.2d 675, 678 TA \l "Hairston v. Alabama (5th Cir. 1972) 465 F.2d 675, 678" \s "Hairston v. Alabama (5th Cir. 1972) 465 F.2d 675, 678" \c 1  n5; Turrell v. Perini (6th Cir. 1969) 414 F.2d 1231, 1233 TA \l "Turrell v. Perini (6th Cir. 1969) 414 F.2d 1231, 1233" \s "Turrell v. Perini (6th Cir. 1969) 414 F.2d 1231, 1233" \c 1 ; Montgomery v. Brierly (3rd Cir. 1969) 414 F.2d 552 TA \l "Montgomery v. Brierly (3rd Cir. 1969) 414 F.2d 552" \s "Montgomery v. Brierly (3rd Cir. 1969) 414 F.2d 552" \c 1 ; Pembrook v. Wilson, (9th Cir. 1966) 370 F.2d 37, 40; Whittaker v. Overholster (D.C. Cir. 1962) 299 F.2d 447, 448 TA \l "Whittaker v. Overholster (D.C. Cir. 1962) 299 F.2d 447, 448" \s "Whittaker v. Overholster (D.C. Cir. 1962) 299 F.2d 447, 448" \c 1 .  See also Haines v. Kerner (1972) 404 U.S. 519 TA \l "Haines v. Kerner (1972) 404 U.S. 519" \s "Haines v. Kerner (1972) 404 U.S. 519" \c 1  (concerning allegations in a pro per civil rights complaint).

 

105.)                    It is a fact, that COMMISSIONER TRILLA E. BAHRKE, as well as her associate District Attorney CHRISTOPHER CATTRAN did willfully, with malice and aforethought, intentionally impede, stop and frustrate, and did obfuscate in every manner, my ability to present evidence to the jury:

The Supreme Court has clearly held that a defendant has a due process right to adduce evidence in his defense. (Rock v. Arkansas (1987) 483 U.S. 44, 53- 56; TA \l "Rock v. Arkansas (1987) 483 U.S. 44, 53- 56;" \s "Rock v. Arkansas (1987) 483 U.S. 44, 53- 56;" \c 1  Crane v. Kentucky (1986) 476 U.S. 683, 690. TA \l "Crane v. Kentucky (1986) 476 U.S. 683, 690." \s "Crane v. Kentucky (1986) 476 U.S. 683, 690." \c 1 ) In light of this rule, it necessarily follows that a corollary right to an instruction on the defense theory is also required. Indeed, absent an appropriate instruction, the right to present evidence would be entirely meaningless. (United States v. Escobar De Bright, supra, 742 F.2d 1196, 1201-1202; "[p]ermitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal.")

 

They fully knew and understood, and had “knowledge of the law” as well as of the facts in this matter, and did willfully violate my right to present a defense, and evidence—as they knew I was vindicated and my evidence and substantive proofs, did in fact, show my innocence and STEFFAN TICHATSCHKE and ANAMARIA BOUSTRED’s guilt.

106.)                    Finally, it is a fact, that even though Assistant District Attorney CHRISTOPER CATTRAN, had the duty to prove every element of the crime, he failed to do so.  It is a fact, that every crime must contain 3 basic elements:  A Mens Rea; an Actus Reus, and a Corpus Delecti.  There was in fact, no Mens Rea, Actus Reus, nor was there a Corpus Delecti.

107.)                    It is a fact, that I did put in a substantive seventy four page CALJIC Jury instruction motion at great effort to me, and, said “Commissioner”, Ms. COMMISSIONER TRILLA E. BAHRKE, did in bad faith, with no good faith to any party in this matter, did throw out the complete set of jury instructions which were formerly filed into the matter 72-002045:  “[N]othing results in more cases of reversible error than mistakes in jury instructions." (People v. Thompkins (1987) 195 Cal.App.3d 244, 252 TA \l "People v. Thompkins (1987) 195 Cal.App.3d 244, 252" \s "People v. Thompkins (1987) 195 Cal.App.3d 244, 252" \c 1 .).”  [See Exhibit 03—Seventy Four Page Jury Instructions by Clive F. Boustred].

This was in fact, merely a three card Monty game to Ms. BAHRKE.  I was to at great effort produce my substantial case to the jury, then; at the end where the law would have vindicated my rights, she unlawfully switched procedure and obstructed justice and refused to allow the jury access to correct law and tools in which to set me free.  Yet, she had knowledge of the law and of the facts of this matter, and said petitioners jury instructions did in fact, formally notice her of the law and her substantive duty owed to me:

It has been widely recognized that the trial court has a duty to correct defective instruction requests arising from the trial court's ultimate responsibilities to assure that the jury is correctly instructed. (See U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1132 TA \l "U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1132" \s "U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1132" \c 1  [trial court erred in failing to correct defendant’s defective instruction on necessity]; People v. Castillo (CA 1997) 16 C4th 1009, 1016 [68 CR2d 648] TA \l "People v. Castillo (CA 1997) 16 C4th 1009, 1016 [68 CR2d 648]" \s "People v. Castillo (CA 1997) 16 C4th 1009, 1016 [68 CR2d 648]" \c 1  [even when a trial court instructs on a matter on which it has no sua sponte duty to instruct, it must do so correctly]; People v. Fudge (CA 1994) 7 C4th 1075, 1110 [31 CR2d 321] TA \l "People v. Fudge (CA 1994) 7 C4th 1075, 1110 [31 CR2d 321]" \s "People v. Fudge (CA 1994) 7 C4th 1075, 1110 [31 CR2d 321]" \c 1  [judge must tailor instruction to conform with law rather than deny outright]; State v. Sawyer (HI 1998) 966 P2d 637, 642 TA \l "State v. Sawyer (HI 1998) 966 P2d 637, 642" \s "State v. Sawyer (HI 1998) 966 P2d 637, 642" \c 1  [trial court has the duty either to correct any defects or to fashion its own instructions]; Bailey v. Commonwealth (VA 2000) 529 SE2d 570, 584-85 TA \l "Bailey v. Commonwealth (VA 2000) 529 SE2d 570, 584-85" \s "Bailey v. Commonwealth (VA 2000) 529 SE2d 570, 584-85" \c 1  [when a principle of law is materially vital to a defendant, it is reversible error for the trial court to fail to correct a defective instruction or verdict form when the error is patent or the subject of a proper objection even if the defendant fails to proffer alternative instructions or verdict forms]; State v. Lambert (WV 1984) 312 SE2d 311 TA \l "State v. Lambert (WV 1984) 312 SE2d 311" \s "State v. Lambert (WV 1984) 312 SE2d 311" \c 1  [ultimate responsibility to ensure that jury is correctly instructed in criminal cases rests with the trial court].)

   This duty may require the trial court to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (See People v. Stewart (CA 1976) 16 C3d 133, 140 [127 CR 117] TA \l "People v. Stewart (CA 1976) 16 C3d 133, 140 [127 CR 117]" \s "People v. Stewart (CA 1976) 16 C3d 133, 140 [127 CR 117]" \c 1 ; see also Kass v. Great Coastal Express, Inc. (NJ 1996) 676 A2d 1099, 1107 TA \l "Kass v. Great Coastal Express, Inc. (NJ 1996) 676 A2d 1099, 1107" \s "Kass v. Great Coastal Express, Inc. (NJ 1996) 676 A2d 1099, 1107" \c 1  [because request as formulated by plaintiff omitted the standard of proof, the judge has the responsibility to determine the applicable standard of proof]; People v. Parsons (CO 1980) 610 P2d 93, 94 TA \l "People v. Parsons (CO 1980) 610 P2d 93, 94" \s "People v. Parsons (CO 1980) 610 P2d 93, 94" \c 1 ; State v. Bunce (NM 1993) 861 P2d 965 TA \l "State v. Bunce (NM 1993) 861 P2d 965" \s "State v. Bunce (NM 1993) 861 P2d 965" \c 1  [inadequate defense request on mistake of fact did not relieve trial court of obligation to correctly instruct on this defense theory]; Williams v. State (TX 1982) 630 SW2d 640, 643 TA \l "Williams v. State (TX 1982) 630 SW2d 640, 643" \s "Williams v. State (TX 1982) 630 SW2d 640, 643" \c 1  [although a specially requested charge may be defective, it still may serve to call the court's attention to the need to charge on a defensive issue]; Morse v. Commonwealth (VA 1994) 440 SE2d 145 TA \l "Morse v. Commonwealth (VA 1994) 440 SE2d 145" \s "Morse v. Commonwealth (VA 1994) 440 SE2d 145" \c 1  ["Trial court should have prepared its own instruction or required counsel to submit a new instruction that correctly defined the defense"]; State v. Dellinger (VA 1987) 358 SE2d 826 TA \l "State v. Dellinger (VA 1987) 358 SE2d 826" \s "State v. Dellinger (VA 1987) 358 SE2d 826" \c 1  [failure of defense counsel to offer a sexual abuse instruction was such plain error the trial court should have intervened to avoid prejudice to the defendant].)

 

       It is a fact, that this is a fatal flaw by the COUNTY OF PLACER and their court Commissioner—and that failure to remit jury instructions to the jury is reversible error:

The Ninth Circuit has held that per se reversal is required whenever the trial court fails to instruct on the defendant’s theory of the case. (Conde v. Henry, supra, 198 F.3d 734, 740-741 TA \l "Conde v. Henry, supra, 198 F.3d 734, 740-741" \s "Conde v. Henry, supra, 198 F.3d 734, 740-741" \c 1 ; United States v. Escobar De Bright, supra, 742 F.2d 1196, 1201-1202 TA \l "United States v. Escobar De Bright, supra, 742 F.2d 1196, 1201-1202" \s "United States v. Escobar De Bright, supra, 742 F.2d 1196, 1201-1202" \c 1 .)  See also:  “…[T]he longstanding rule is that the omission to instruct on an affirmative defense constitutes reversible error unless "‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given [jury] instructions.’” [Citation.]" (People v. Stewart, supra, 16 Cal.3d 133, 141 TA \l "People v. Stewart, supra, 16 Cal.3d 133, 141" \s "People v. Stewart, supra, 16 Cal.3d 133, 141" \c 1 ; accord, People v. Lee (1987) 43 Cal.3d 666, 675 TA \l "People v. Lee (1987) 43 Cal.3d 666, 675" \s "People v. Lee (1987) 43 Cal.3d 666, 675" \c 1 .

 

See also:

 

“…[C]ounsel should have the right to an instruction informing the jury that legal principles included in argument are to followed so long as they are not inconsistent with the court’s instructions. Indeed, the right to such an instruction is guaranteed by the federal constitution. (See Herring v. New York, supra (1975) 422 US 853, 858 [95 SCt 2550; 45 LEd2d 593] TA \l "Herring v. New York, supra (1975) 422 US 853, 858 [95 SCt 2550; 45 LEd2d 593]" \s "Herring v. New York, supra (1975) 422 US 853, 858 [95 SCt 2550; 45 LEd2d 593]" \c 1  ["‘the constitutional right of a defendant to be heard through counsel necessarily includes his right to have counsel make a proper argument on the ... applicable law in his favor.’ [Citation.]"]; see also Penry v. Johnson, supra(6/4/01, No. 00-6677) ____ US ____ [121 SCt 1910; ____ LEd2d ____] TA \l "Penry v. Johnson, supra(6/4/01, No. 00-6677) ____ US ____ [121 SCt 1910; ____ LEd2d ____]" \s "Penry v. Johnson, supra(6/4/01, No. 00-6677) ____ US ____ [121 SCt 1910; ____ LEd2d ____]" \c 1

 

108.)                    That said COMMISIONER, along with her associate, the Deputy District Attorney CHRISTOPER CATTRAN, they did proactively remove from the juries purview, virtually all evidentiary testimony, direct testimony, direct evidence, as well as any law contained in my CALJIC JURY INSTRUCTIONS (74 pages) which would have supported my theory of the case, of which the jury never received, in direct violation of the concise rule of law:

"No matter how lightly the court may regard the testimony offered on behalf of the defense, the question of its weight and the credibility of the witnesses is to be determined by the jury, properly instructed as to the law. Unless this is followed, a defendant is deprived of his constitutional right of a trial by jury." (Gallegos v. People (CO 1957) 316 P2d 884, 885 TA \l "Gallegos v. People (CO 1957) 316 P2d 884, 885" \s "Gallegos v. People (CO 1957) 316 P2d 884, 885" \c 1 ; see also State v. Joyner (CT 1992) 625 A2d 791, 805 TA \l "State v. Joyner (CT 1992) 625 A2d 791, 805" \s "State v. Joyner (CT 1992) 625 A2d 791, 805" \c 1  [criminal defendant has constitutional right to reveal facts to the jury regarding the mental condition of a witness which may reasonably affect the credibility of the witness].

 

109.)                    That it is a fact, that not allowing your in propria persona appellant litigant to place simple evidence into the trial of 72-002045 was a breach of good behavior by COMMISSIONER TRILLA E. BAHRKE.  She over-stepped her bounds of discretion and reason and applied a sick and twisted standard of law, outside the normal forms of trial:

EVIDENCE

“Blades knew, or reasonable should have known, that “judges cannot weigh evidence” or “issue directed verdicts” in United States District Courts as a matter of clearly established law, see Galloway v. United States, 319 U.S. 372 (1943); TA \l "Galloway v. United States, 319 U.S. 372 (1943);" \s "Galloway v. United States, 319 U.S. 372 (1943);" \c 1  also LaLonde v. County of Riverside, 204 F. 3d 947( 9th Cir. Feb. 25, 2000) TA \l "LaLonde v. County of Riverside, 204 F. 3d 947( 9th Cir. Feb. 25, 2000)" \s "LaLonde v. County of Riverside, 204 F. 3d 947( 9th Cir. Feb. 25, 2000)" \c 1  at n. 10: “10. The district court erred in basing its decision for summary judgment on its adverse factual findings against the plaintiff. The court should have determined whether the officers were entitled to qualified immunity as a matter of law on the basis of undisputed facts and, where material facts were disputed, on the plaintiff’s version of events. Considering the facts in this light, once the plaintiff established that material issues of fact existed, the court was required to submit the factual dispute to the jury. Thompson v. Mahre, 110 F. 3d 716, 719 (9th Cir. 1997) TA \l "Thompson v. Mahre, 110 F. 3d 716, 719 (9th Cir. 1997)" \s "Thompson v. Mahre, 110 F. 3d 716, 719 (9th Cir. 1997)" \c 1  (“[W]here there is a 02-5793 PLTFS MOTION TO STRIKE DOCKET NO. 11 page 11 genuine issue of fact on a substantive issue of qualified immunity, ordinarily the controlling principles of summary judgment and , if there is a jury demand and a material issue of fact, the Seventh Amendment, require submission to a jury.”) Alternatively, we could view the district judge’s sua sponte actions as constituting a bench trial on the issues he decides. Id. In such case,

our analysis and result would be the same.”

It is a fact, that COMMISSIONER TRILLA E. BAHRKE, had broad discretion to allow my evidence in the trial.  Her overt acts and criminality in refusing to allow evidence into the trial, was a breach of good behavior, and a violation of her oath of office and her public bonding and her duty to me.  Her malicious acts and/or omissions were a clear unjust obstruction of justice and it was outside the normal forms of trial[32] and a clear showing of abuse:

“A trial court has broad discretion in deciding whether to allow hearsay evidence under Rule 803 (24) TA \l "Rule 803 (24)" \s "Rule 803 (24)" \c 4 . This Court will not overturn the exercise of that discretion absent a clear showing of abuse. State v. Zimmerman, 121 Idaho 971, 974, 829 P.2d 861, 864 (1992). TA \l "State v. Zimmerman, 121 Idaho 971, 974, 829 P.2d 861, 864 (1992)." \s "State v. Zimmerman, 121 Idaho 971, 974, 829 P.2d 861, 864 (1992)." \c 1  See also State Dep't of Health & Welfare v. Altman, 122 Idaho 1004, 1007, 842 P.2d 683, 686 (1992). TA \l "State Dep't of Health & Welfare v. Altman, 122 Idaho 1004, 1007, 842 P.2d 683, 686 (1992)." \s "State Dep't of Health & Welfare v. Altman, 122 Idaho 1004, 1007, 842 P.2d 683, 686 (1992)." \c 1

 

It is a fact, that denying evidence by bad faith acts of lawlessness, and strict construction, committed under color of law, and under color of authority, is in fact a Brady Violation:

He argues that withholding this allegedly exculpatory information violated the prosecution's duty of disclosure under Brady v. Maryland, 373 U.S. 83, 87 (1963). TA \l "Brady v. Maryland, 373 U.S. 83, 87 (1963)." \s "Brady v. Maryland, 373 U.S. 83, 87 (1963)." \c 1  See also Grube v. State, 134 Idaho 24, 27, 995 P.2d 794, 797 (2000) TA \l "Grube v. State, 134 Idaho 24, 27, 995 P.2d 794, 797 (2000)" \s "Grube v. State, 134 Idaho 24, 27, 995 P.2d 794, 797 (2000)" \c 1 ; State v. Gardner, 126 Idaho 428, 432-33, 885 P.2d 1144, 1148-49 (Ct. App. 1994) TA \l "State v. Gardner, 126 Idaho 428, 432-33, 885 P.2d 1144, 1148-49 (Ct. App. 1994)" \s "State v. Gardner, 126 Idaho 428, 432-33, 885 P.2d 1144, 1148-49 (Ct. App. 1994)" \c 1 . The duty to disclose material exculpatory evidence known to the State arises only with respect to evidence that is both favorable to the accused and material either to guilt or punishment. Brady, 373 U.S. 83; State v. Beorchia, 135 Idaho 875, 882, 26 P.3d 603, 610 (Ct. App. 2001 TA \l "State v. Beorchia, 135 Idaho 875, 882, 26 P.3d 603, 610 (Ct. App. 2001" \s "State v. Beorchia, 135 Idaho 875, 882, 26 P.3d 603, 610 (Ct. App. 2001" \c 1 ); Ramirez v. State, 119 Idaho 1037, 1040, 812 P.2d 751, 754 (Ct. App. 1991). TA \l "Ramirez v. State, 119 Idaho 1037, 1040, 812 P.2d 751, 754 (Ct. App. 1991)." \s "Ramirez v. State, 119 Idaho 1037, 1040, 812 P.2d 751, 754 (Ct. App. 1991)." \c 1  Evidence is "material" for purposes of this analysis if there is a reasonable possibility that, had the evidence been available to the defense, the result of the trial would have been different. United States v. Bagley, 473 U.S. 667, 682 (1985) TA \l "United States v. Bagley, 473 U.S. 667, 682 (1985)" \s "United States v. Bagley, 473 U.S. 667, 682 (1985)" \c 1 ; State v. Holden, 126 Idaho 755, 757, 890 P.2d 341, 343 (Ct. App. 1995) TA \l "State v. Holden, 126 Idaho 755, 757, 890 P.2d 341, 343 (Ct. App. 1995)" \s "State v. Holden, 126 Idaho 755, 757, 890 P.2d 341, 343 (Ct. App. 1995)" \c 1 ; Gardner, 126 Idaho at 436, 885 P.2d at 1152.   State v. Albert, 138 Idaho 284, 62 P.3d 208 (Idaho App. 10/22/2002) TA \l "State v. Albert, 138 Idaho 284, 62 P.3d 208 (Idaho App. 10/22/2002)" \s "State v. Albert, 138 Idaho 284, 62 P.3d 208 (Idaho App. 10/22/2002)" \c 1  

 

VIII
CONCLUSION

110.)                    That the original matter being held against me, was by violation of court order by plaintiff’s ANAMARIA BOUSTRED along with her lover and adulterer STEFFAN TICHATSKE and it is a fact, that they have unclean hands in this matter and did in fact, precipitate the event(s) at hand.  Had they not violated the court order of July 12, 2002—then; no altercation would have ever ensued.

111.)                    The substantive law I have proffered is prima facia that I in fact, committed no crime.  That by right and perfect right, I had the right, and the duty to defend, my name, my honor, my family, my home and my children.  Their safety was paramount—and the court order of July 12, 2002 recognized that, and was issued IN THE BEST INTERESTS OF THE CHILD.

112.)                  That I have in the first instance, filed with the court a VERIFIED CRIMINAL COMPLAINT on March 10, 2003 against said contemnors who are in overt and wilful violation of a known court order, which precipitated said event.  All courts and their District Attorney’s in this matter, refuse to recognize that sworn and subscribed document made before Almighty God, and as such—without addressing that due process of law, consideration, all other court cases finding against your petitioner in this matter, are null and void, in ab initio.  Whereas, it is a fact, that court hearing and trial of COUNTY OF PLACER, case number 72-002045 is factually a void judgment.

113.)                    I attempted in good faith to enter the courts within Placer County as a pro se litigant, and was miserably failed—as neither leniency or the spirit of the law was accorded to me.  Said COMMMISSIONER TRILLA E. BAHRKE, did unlawfully hold me up to stricti jurissimi, and the most sadistic and narrow and evil construction of the law possible.  As this brief shows, she has factually engaged in an ongoing enterprise to deny me my substantive rights as a father.  It is clear, that her continued bad faith and unlawful acts and/or omissions, were outside her discretion, and were extrajudicial.

114.)                    That the acts and/or omissions of the COUNTY OF PLACER, along with its COMMISSIONER TRILLA E. BAHRKE, and her surrogate attorney, the Deputy District Attorney CHRISTOPHER CATTRAN, were a plan bad faith attempt to enforce an alien and treasonous form of law, which is in direct violation to the Constitution of California, 1849.

115.)                   It is a fact, that said contemnors COUNTY OF PLACER, along with its COMMISSIONER TRILLA E. BAHRKE, and her surrogate attorney, the Deputy District Attorney CHRISTOPHER CATTRAN, along with STEFFAN  TICHATSCHKE, as well as ANNAMARIA BOUSTRED, have conspired to promote evil as a system of law, with the assurances that the courts of the STATE OF CALIFORNIA will support their unlawful acts and/or omissions by using color of law and color of authority.

116.)                    That there is a clear agenda, to show your petitioner, that contrary to his rights and  secured liberties and in direct opposition to his status, that said contemnors are “sending a message” that there is no more law; that there is no lawful protection for fathers whom deem to protect their children; that the state will no longer uphold the sanctity of the marriage relation, in direct opposition to their sworn duty, their oath of office, and their public bonding; as well as a direct affront to the good and wholesome laws which protect the innocent and the expense of the guilty party.[33]

117.)                   It is a fact, that this matter is being compiled for a full challenge on appeal and other interlocutory motions and pleadings will further be submitted into the courts of the State of California in this matter as well as in the United States.


 

 

IX
PRAYER FOR RELIEF

 

Comes now your petitioner, the alleged defendant and the accused and greatly aggrieved party in this matter Clive Frank Boustred whom comes before Almighty God as well as the above mentioned court seeking substantive justice, as well as redress of grievances in this matter, who hereby prays for the following relief:

118.)                    That the COUNTY OF PLACER Superior Court Case, number 72-002045 be overturned.

119.)                  That the COUNTY OF PLACER Superior Court Case, number 72-002045 and any and all related criminal accusations and records made against me be expunged from the record.

120.)                  That the COUNTY OF PLACER  Superior Court Case, number 72-002045 any part of this matter be overturned.

121.)                  That an order go forth from this court, that the INITIAL SWORN AND SUBSCRIBE AND VERIFIED CRIMINAL COMPLAINT SO LAWFULLY FILED IN THIS MATTER WITHIN THE COUNTY OF SANTA CRUZ, be heard and that those charges be formally filed and contemnors STEFFEN TICHATSCHKE, and ANNAMARIA BOUSTRED be held for trial on all counts in that matter.

122.)                  That I be paid for my unlawful arrest and time spent in jail for no crime committed and all associated costs.

123.)                  That this court produce a full investigation to go out against COMMISSIONER TRILLA E. BAHRKE, and for the court to show cause why she did not allow an in propria persona litigant, liberal construction of the laws.

124.)                  That this court produce a full investigation to go out against COMMISSIONER TRILLA E. BAHRKE, and for the court to show cause why she refused to submit an in propria persona litigant the right to submit evidence and their theory of the case at trial.

125.)                  That this court produce a full investigation to go out against COMMISSIONER TRILLA E. BAHRKE, and for the court to show cause by what authority she pretends to have which allows her to refuse CALJIC Jury and other Special Jury Instructions to be submitted to a jury?

126.)                  That any and all “parole” and/or “probation” requirements against me, be stricken and expunged from the record, in ab intitio.

127.)                  That if this APPEAL is denied, that this court remit to me written findings of facts and conclusions of law which show palpable legal findings under law supported by the facts and remit them to me within ten (10) days of such decision.

128.)                  That this court remit to me any further justice and/or relief that it deems fair, just, necessary and proper.

Dated: March 2nd, 2004                                         ________________________________

                                                                                    Clive Frank Boustred, Sui Juris

210 Suncrest Dr.

Soquel, CA 95073

+1 (408) 889-4351

Clive Frank Boustred

In Propria Persona, Sui Juris

210 Suncrest Dr.

Soquel, CA 95073

+1 (408) 889-4351


 

IN AND FOR THE COUNTY OF PLACER[34]

MAY TERM

 

Clive Boustred,

                                    Petitioner(s),

            Vs.

THE PEOPLE OF THE STATE OF CALIIFORNIA,

                                    Respondent,

           

     CASE NO.   72-002045

 

     DECLARATION IN SUPPORT OF

            PETITIONER’S OPENING BRIEF

 

 

I, Clive Frank Boustred, declare and swear the following truths and facts that:

1.      I am the Petitioner in the above-entitled matter.

2.      That I am in fact, In propria persona, sui juris.

3.      I represent that the facts and feelings expressed in my Memorandum of Points and Authorities and throughout this document are true and correct and sincerely held.

4.      I am the accused and aggrieved party in this matter.

5.      That I have read the foregoing document and know and understand its contents and agree to all the items contained therein.

6.      That it is reasonable and just that this court remit to me the justice I seek by way of Appeal for good and substantive cause shown.

7.      That I have committed no crime, and that I have the substantive right, as a father to my children, to protect and defend them from any threat or attack or danger, whatsoever.

8.      That I have a spotless criminal record—and am currently engaged in a separation and/or divorce which gives rise to these current matters.

9.      That I do fully intend to APPEAL this matter into the upper Federal courts if remedy is not accomplished here, and thereby, I hereby demand a formal findings of facts and conclusions of law within 10 days.

 

Dated: March 2nd, 2004                                         _________________________________

                                                                                    Clive Frank Boustred, Sui Juris

210 Suncrest Dr.

Soquel, CA 95073

+1 (408) 889-4351

 

 

 

 

 


 

Clive Frank Boustred

In Propria Persona, Sui Juris

210 Suncrest Dr.

Soquel, CA 95073

+1 (408) 889-4351

 

THE APPEALS COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF PLACER[35]

MAY TERM

THE SUPERIOR APPEALS COURT OF THE STATE OF CALIFORNIA

 

Clive Boustred,                                

                                    Plaintiff(s),

            Vs.

THE PEOPLE OF THE STAE OF CALIFORNIA,

                                    Respondent,

           

     CASE NO. 

            Re: Sup. Ct. Case No. 72-002045

 

  ORDER FOR APPELLATE RELIEF

 

 

For good cause shown, this court hereby orders the immediate release of Clive Frank Boustred in granting the above-mentioned prayer for relief from COUNTY OF PLACER Superior Court Case number 72-002045.  Said case is hereby reversed for the cases legally shown by petitioner.  For the above mentioned and stated reasons, this ORDER hereby issues as a matter of law, and said defendant Clive Frank Boustred is thereby released from any and all commitment, that all criminal records against Clive Frank Boustred relating to this case be expunged from the record and his Verified Criminal Complaint first filed in the COUNTY OF SANTA CRUZ, in this matter, must be formally heard as STEFFAN TICHATSCHKE, and ANNAMARIA BOUSTRED must now be held for trial in that original matter.

DATED:

SEAL:                                           DATED BY MY HAND

                                                JUDGE OF THE SUPERIOR COURT

                                                COUNTY OF Placer

                                                STATE OF CALIFORNIA

CLERK OF THE COURT

VERIFICATION

 

County of Placer                              ]

                                                            ]  ss.

State of California                            ]

 

I, Clive Frank Boustred, being the undersigned, declare under penalty of perjury as follows:

 

That the afore-going Document(s), Affidavit(s), Declaration(s), and/or Materials, Id., including referenced and/or attached documents, and/or duplicates of such documents are exacting copies of the originals in my/or my counsel’s (specifically not American Bar Association, or professional “Attorney’s”) possession.  That I have read the foregoing document(s) and attachments, and know and understand their contents, and having personal knowledge, know them to be true.  As to those matters submitted therein upon information and/or belief, as to those matters, I also believe them true.

 

Executed this 2nd Day of May, in the Year of Our Lord and Savior Jesus the Christ Two-Thousand-Four.

 

SEAL:                                                 _____________________________

                                                            Clive Frank Boustred – AT LAW

                                                            In Propria Persona, Sui Juris

                                                            Santa Cruz Judicial District

                                                            210 Suncrest Dr.

Soquel, California

                                                            [Zip Exempt]

 

SUBSCRIPTION

 

Subscribed this second day of May, under exigent circumstances, before Almighty God, in the Year of Our Lord and Savior, Jesus the Christ, Two-Thousand-Four.

 

 

SEAL:                                                 _____________________________

                                                            Clive Frank Boustred – AT LAW

                                                            In Propria Persona, Sui Juris

                                                            Reserving All Rights, Giving Up None


 

In the Appellate Court, In and For the County of Placer[36]

May Term

Clive Boustred,                                ]     CASE NO. ______________

                                                ]     RE: Case No. 72-002045

                       Appellant/Petitioner    ]     CERTIFICATION OF SERVICE/

     vs.                                       ]     AFFIDAVIT OF

                                               ]     PROOF OF SERVICE

THE PEOPLE OF THE STATE OF CALIFORNIA          ]

                       Respondents             ]    

_______________________________________________]     [CCP § 1013 and § 2015.5]

I, the undersigned hereby certify and declare that I am over the age of 18 years, and not a party to the within entitled cause of action; and, Further, hereby deposes and says: that on the date signed below, I did serve UNDER AUTHORITY OF APPELLANT/PETITIONER the attached document named:

1.)  CLIVE BOUSTRED OPENING BRIEF    78 Pages Including Proof of Service Page

_______________________________________________________4 EXHIBITS ATTACHED_

The aforesaid documents were served in the following manner:

____By personal service IN COURT.  I did personally deliver the above-described documents at the address, or addresses captioned below:

____By the U.S. Postal Service having knowledge of the United States Mail Post

 

paid certified envelope, sealed by my hand at _______________________.

Certified Number __________________________________

____By phone communication transmission [FAX], the material aforementioned on-line was sent at a total of ______ transmitted pages to  Tel.#(   )    -  

____By sealed envelope, hand enclosed by me and mailed to:

ANAMARIA BOUSTRED

By lawful Service to her Attorney District Attorney Bradford R. Fenocchio

PRESIDING JUDGE OF THE

PLACER SUPERIOR COURT

101 Maple Street,
Auburn, CA 95603

(530) 889-6550

- Filed In Court -

Bradford R. Fenocchio

Placer County District Attorney

11562 B Avenue

Auburn, CA 95603

(530) 889-7000

(530) 889-7129 fax

STEFFAN TICHATSKE

By lawful Service to her Attorney District Attorney Bradford R. Fenocchio

TRILLA E. BAHRKE

Post Office Box 5669

2501 North Lake Blvd.

Tahoe City, CA 96145

(530) 889-4000

- Filed In Placer Court -

CHRISTOPHER CATTRAN

P.O. Box 5609

Tahoe City, CA  96145

 - By lawful Service to Placer District Attorney -

Further, I declare under penalty of perjury knowing the laws thereof within the State of California that the foregoing is true and correct and that these documents were served by me personally as stated above and/or mailed and sealed as stated above within the California Republic.

DATED: May 3, 2004                ______________________________________

______AM/PM                         Name: ROBERT LINDSAY          

                                                                                                P.O BOX 256

Livermore, California, TEL.  530-877-1265


 

[1] This court has appellate jurisdiction of this matter under Superior Appeals Court of the State of California for the County of Placer shall be concurrent with and equivalent to the Placer County District court in Term as created in the Constitution for the state of California 1849 at Article VI, section I et seq., TA \l "Constitution for the state of California 1849 at Article VI, section I" \s "Constitution for the state of California 1849 at Article VI, section I" \c 7  with its full Judicial Powers, not the inferior Legislative powers courts of the United States Amendment Fourteen due process.

 

[2] Natural Person

 

Human being, as distinguished from artificial persons or corporations recognized by the law.

Person

 

A person in law, includes both a natural person, i.e., a human being, and an artificial person, i.e., a corporation. In strict sense, in law, a person is any being capable of having rights and duties and is of two classes only, namely, natural person and legal person. A natural person is a human being who has the capacity for rights and duties. A corporation is a legal person.. See First National Bank of Boston v Belluth, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 TA \l "First National Bank of Boston v Belluth, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707" \s "First National Bank of Boston v Belluth, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707" \c 1 . Unborn children are not persons for the purposes of the Fourteenth Amendment to the Federal Constitution. See Roe v Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 TA \l "Roe v Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147" \s "Roe v Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147" \c 1 . However, for the purposes of statutes governing actions for wrongful death, a viable fetus has been held to be a person. See Rice v Rizk, Ky.453 S.W.2d 732 TA \l "Rice v Rizk, Ky.453 S.W.2d 732" \s "Rice v Rizk, Ky.453 S.W.2d 732" \c 1 . For a contrary view see Lawrence v Craven Tire Co., 169 S.E.2d 440, 210 Va. 138. §1-201(29) of the U.P.C. defines the word as follows: an individual, a corporation, an organization, or other legal entity. The word has been statutorily defined as follows: "Person" includes individual, partnership, and corporation, but does not include governmental unit. 11 U.S.C. §101(30) TA \l "11 U.S.C. §101(30)" \s "11 U.S.C. §101(30)" \c 2 . An individual, a corporation, a partnership, an association, a joint-stock company, a trust, any unincorporated organization, or a government or political subdivision thereof. As used in this paragraph the term "trust" shall include only a trust where the interest or interests of the beneficiary or beneficiaries are evidenced by a security. 15 U.S.C. §77(b)(2) TA \l "15 U.S.C. §77(b)(2)" \s "15 U.S.C. §77(b)(2)" \c 2 . An individual, a corporation, a partnership, an association, a joint-stock company, a business trust, or an unincorporated organization. 15 U.S.C. §78(c)(9). An individual or company. 15 U.S.C. §79(b)(1) TA \l "15 U.S.C. §79(b)(1)" \s "15 U.S.C. §79(b)(1)" \c 2  "Person" and "whoever" mean an individual, partnership, committee, association, corporation, or any other organization or group of persons. 18 U.S.C. §591(g). The term "person" and the term "whoever" include any individual, corporation, company, association, firm, partnership, society, or joint-stock company. 18 U.S.C. §917(1) TA \l "18 U.S.C. §917(1)" \s "18 U.S.C. §917(1)" \c 2 . Any employee, or agent of the United States or any State or political subdivision thereof, and any   individual, partnership, association, joint-stock company, trust, or corporation. 18 U.S.C. §2510(6). "Person" includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers. 29 U.S.C. §403 (d) TA \l "29 U.S.C. §403 (d)" \s "29 U.S.C. §403 (d)" \c 2 . An individual, a corporation, an organization, or other legal entity. U.C.C. §1-201(29) TA \l "U.C.C. §1-201(29)" \s "U.C.C. §1-201(29)" \c 4 . "Person" includes an individual or an organization. U.C.C. §1-201(30). A natural person or an organization. 12 C.F.R. §226.2(v).

[3] Father cannot alienate his right to the Custody and control of his child.  People ex rel Barry v. Mercien 3 Hill 399 TA \l "People ex rel Barry v. Mercien 3 Hill 399" \s "People ex rel Barry v. Mercien 3 Hill 399" \c 1

[4] See Court Transcript, Vol. I, pg 47. (Hereinafter CT either VI or VII then page citation.)  [See also:  CT, V. I, p. 62:  “DEFENDANT:  “Your Honor, I am happy to present to the Court a certified signed copy of the Jury 12th order, and we can ask Mr. Tichatschke if he is aware of the order.”]

[5] “In awarding custody of a minor child on granting a divorce, the best interest of the child is the primary consideration.  Recognition will be given to the truism that maternal affection is more active and better adapted to the care of a child than paternal affection.  However, this rule has no application where the mother's past conduct and apparent dislike for the confining duties of motherhood support a contrary conclusion.”  Peck v. Peck (1959) 16 Ill.2d 268, 157 NE2d 249, 73 ALR2d 723 TA \l "Peck v. Peck (1959) 16 Ill.2d 268, 157 NE2d 249, 73 ALR2d 723" \s "Peck v. Peck (1959) 16 Ill.2d 268, 157 NE2d 249, 73 ALR2d 723" \c 1

[6] See CT, VI, p. 48.

[7] See CT Vol. I, p. 60. Ms. BAHRKE, make unsolicited motions for the plaintiffs: “COURT:  …This is being objected to, the back of this card, as being hearsay?”   MR. CATTRAN:  “Yes, your honor.”  [SEE ALSO:  CT, Vol. I, p. 62:  THE COURT:  “Any objection to that, Mr. Cattran?”  MR. CATTRAN (waking up):  “Certainly.”

[8] Please judicially note and place on the record:  “It was not an abuse of discretion to order the custody of minor children changed from the mother to the father where the evidence showed an adulterous cohabitation of the mother with another man prior to the entry of an interlocutory decree of divorce from the father; nondisclosure to the court, at the time of the interlocutory decree, of the mother's pregnancy by her paramour; cohabitation by the wife and her paramour as husband and wife after the entry of the interlocutory decree and their failure to inform the children of their unmarried status; and the birth, before entry of the final decree, of an illegitimate child conceived before the entry of the interlocutory decree.”   Stuart v. Stuart, (1962) 209 Cal.App.2d 478, 25 Cal.Rptr. 893 TA \l "Stuart v. Stuart, (1962) 209 Cal.App.2d 478, 25 Cal.Rptr. 893" \s "Stuart v. Stuart, (1962) 209 Cal.App.2d 478, 25 Cal.Rptr. 893" \c 1 .

 

[9] Defendant demanded Sua Sponte rights outright on the record, and the Commissioner sitting in the above-entitled cause, openly and willfully refused to instruct on defendant’s Sua Sponte rights.

[10] Note W&I Code 17404:  “The parent who has requested or is receiving support enforcement services of the local child support agency shall not be a necessary party to the action but may be subpoenaed as a witness.”

[11] [T]here is no immunity from the service of a subpoena. "A subpoena is not an arrest, though there are        circumstances in which disobedience to its command may give rise to an arrest" (People ex rel. Hastings v. Hofstadter, 258 N. Y. 425, 429).

[12] In instructing the jury, the trial court has an obligation to define those terms which have a "`technical meaning peculiar to the law.' [Citations.]" (People v. Kimbrel, supra, 120 Cal.App.3d 869, 872.) Thus, when appellate counsel reviews the instructions given to the jury, it is important to look for words whose meaning might be less than obvious to a layperson. If a technical term is employed in defining the elements of a crime or a defense, it is manifest that the failure to define the term may result in reversible error.

[13] [See also: CT. VII, p. 323-324:  “         THE DEFENDANT:  Why are you striking out the second to the last paragraph, Your Honor? 

         THE COURT:  Because there is no evidence that your character has been discussed among those who know you. 

         THE DEFENDANT:  Tichatschke discussed my character. 

         THE COURT:  Discussed among those who know you.

         Do you think there is enough to give that instruction? 

         MR. CATTRAN:  The third paragraph? 

         THE COURT:  Yes. 

         MR. CATTRAN:  No.  He is saying that Tichatschke talked about it.  I mean, what that paragraph says is if the character -- if the defendant's character as to his certain traits has not been discussed among those who know him you may infer from the absence of discussion that his or her character in those respects is good.

         There is no evidence that Mr. Boustred's character has not been discussed amongst people who know him.

         THE DEFENDANT:  I believe that should be left in. 

         THE COURT:  I am going to strike that.

         THE DEFENDANT:  You are striking that? 

         THE COURT:  Yes.

         THE DEFENDANT:  I object with exception.”  ]

[14] I want it judicially noted, and on the record, that this whole altercation comes during a time of divorce:  “In view of this section, father of minor child, an industrious man of good habits having a comfortable home and willing and able to care for his minor child, was entitled to it, as against a guardian who had been appointed without his consent.”  In re Schwartz, (1916) 154 P. 304, 171 C. 633 TA \l "In re Schwartz, (1916) 154 P. 304, 171 C. 633" \s "In re Schwartz, (1916) 154 P. 304, 171 C. 633" \c 1 .

 

[15] CCP § 446  "Every pleading SHALL be subscribed by the party of his or her attorney.  When the state, any county thereof, city, school district, public agency, or public corporation, or any officer of the state, or of any county thereof, city, school district, district, public agency, or public corporation, is his or her official capacity, is plaintiff, the answer shall be verified...

 

"When the complaint is verified, the answer shall be verified.  "In all cases of a verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge except as to the mattes which are therein stated on his or her information or belief, and as to those mattes that he or she believes it to be true; and where a pleading is verified, it shall be by the affidavit of a party...

 

When the verification is made on behalf of a corporation or public agency by any officer thereof, the attorney's or officers affidavit shall state that he or she has read the pleading and that he or she is informed and believes that matters therein to be true and on that ground alleges that the mattes stated therein are true.

[16] "We are satisfied that a wife who lives a life of shame, yielding her person to the embraces of different men, has no claim upon the husband she has disgraced, to support or maintenance.  Her course of life forfeits all claim to the right of a wife.   We do not regard the decision in the case of Cox v. Cox, 25 Ind. 202 TA \l "Cox v. Cox, 25 Ind. 202" \s "Cox v. Cox, 25 Ind. 202" \c 1 , as opposing to the conclusions we have stated.  A woman who [lives] a lewd life occupies a very different position from one who retains her chastity, but treats her husband with cruelty...It would be against public policy, and contrary to justice, to compel a husband to contribute to the support of a wife who had deserted him for another, and who had brought shame upon him by lascivious conduct so gross as to bring her down among courtesans.

 

...The doctrine of the case of Stock v. Stock, 11 Phil. 324 TA \l "Stock v. Stock, 11 Phil. 324" \s "Stock v. Stock, 11 Phil. 324" \c 1 , Applies here with controlling force.  'Buy such a course she throws off alike her allegiance to her husband and the law, and forfeits the right to demand support from the former, or assistance from the latter to compel him to render it.'  This is a conclusion supported alike by law, good morals, and public policy."  Spaulding v. Spaulding, 133 Ind. 122 TA \l "Spaulding v. Spaulding, 133 Ind. 122" \s "Spaulding v. Spaulding, 133 Ind. 122" \c 1 .

Cited in American State Reports, by A.C. Freeman, Vol. XXXVI (36), San Francisco, Bancroft & Witney Co., 1894, p. 534 TA \l "American State Reports, by A.C. Freeman, Vol. XXXVI (36), San Francisco, Bancroft & Witney Co., 1894, p. 534" \s "American State Reports, by A.C. Freeman, Vol. XXXVI (36), San Francisco, Bancroft & Witney Co., 1894, p. 534" \c 3 .

[17] It is a fact, that through the UCCJA, that: a. The UCCJA makes comity a public policy of this state.  (C)(2) (3) Section 8 (Va. Code §20-131), a public-policy ("clean hands") provision that the courts should not so act as to aid or encourage child snatching and other opportunistic behavior.”

 

[18] Note the bearing on this matter:  In Kettelle v. Kettelle, 11 Cal.App. 310, 294 P. 453 (1st Dist., Div., 1, 1930) TA \l "Kettelle v. Kettelle, 11 Cal.App. 310, 294 P. 453 (1st Dist., Div., 1, 1930)" \s "Kettelle v. Kettelle, 11 Cal.App. 310, 294 P. 453 (1st Dist., Div., 1, 1930)" \c 1  Hearing Den., Conduct of the mother after the divorce "including acts and omissions" tending to show that the child would be better off with the Father. 

   In Phillips v. Phillips, 48 C.A.2d 404, 119 P.2d 736 (3d Dist., 1941) TA \l "Phillips v. Phillips, 48 C.A.2d 404, 119 P.2d 736 (3d Dist., 1941)" \s "Phillips v. Phillips, 48 C.A.2d 404, 119 P.2d 736 (3d Dist., 1941)" \c 1 , the fact that the custodial mother took employment as waitress and bartender in a cafe and kept the child there a substantial part of the time.  pp. 976, 977.

[19] Horsely v. Horsely (77 Cal.App.2d 442; 175 P.2d 580) TA \l "Horsely v. Horsely (77 Cal.App.2d 442; 175 P.2d 580)" \s "Horsely v. Horsely (77 Cal.App.2d 442; 175 P.2d 580)" \c 1   "....Appellate courts have nevertheless consistently held that the discretion with which the trial courts are invested in such matters is a legal discretion, the exercise of which can be neither capricious nor arbitrary.  But which must reflect the use of discriminating judgment within the bounds of reason and controlled by legal principles, the application of which will, in cases like the one now before us, tend toward the conservation fo the highest and best interests of such minor children.  pp. 446, 447.

[20] From:  Handbook of The Law of Torts, by William L. Prosswer, Sec. Ed., © 1941, West Publishing Co., St. Paul, Minn., p. 684 TA \l "Handbook of The Law of Torts, by William L. Prosswer, Sec. Ed., © 1941, West Publishing Co., St. Paul, Minn., p. 684" \s "Handbook of The Law of Torts, by William L. Prosswer, Sec. Ed., © 1941, West Publishing Co., St. Paul, Minn., p. 684" \c 3

[21] SEE:  (Burden of Proof, See 115, 500 et. Seq.)

Civil Action see CCP $ 459

Criminal Action See PC 963 TA \l "PC 963" \s "PC 963" \c 4

CRC Superior Court Rule 208 et seq.

[22] This means that Mr. TICHATSCHKE, when he knew he was in violation of the Ten Commandments, and beyond that, knew he was in violation of the court order, then—at that point, the cause for any act and/or omission beyond that point he is culpable for.  “See: (6 C.J.S. Assault and Battery, par. 38 et seq.) “The general rule is that every person is presumed to intend the natural and probable consequences of his acts. The true rule is that intent is the gist of the action only where the battery was committed in the performance of an act not otherwise unlawful. . .”  Lopez v. Surchia, 112 Cal. App. 2d 314, 246 P.2d 111 (Cal.App.Dist.2 07/21/1952)


 

[23] Cited from:  American La & Proc., LaSalle Extension University, Vol. 14, § 20, p. 18.

[24] Reference Constitution of California 1849, Article I, § 8, and § 21.  Note: “A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.  The right to subpoena is specifically secured by Amendment the Sixth: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witness against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.  [PROPOSED:  September 25th, 1789; ratified December 15th, 1791]”

 

 

[25] “The philosophy of all these cases is based upon the early rule of In re Campbell, 130 Cal. 380 [62 P. 613], that the right of a parent to the use of a minor child is a right of property of which a parent cannot be deprived unless the court finds that he or she is "unfit."  Booth v. Booth, 69 Cal. App. 2d 496, 159 P.2d 93 (Cal.App.Dist.1 06/08/1945)

[26] This in fact, receives protection under the Constitution for California 1849, Art. I, Sec. 1 TA \l "Constitution for California 1849, Art. I, Sec. 1" \s "Constitution for California 1849, Art. I, Sec. 1" \c 7 : “"All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property; and pursuing and obtaining safety and happiness." And Constitution for the United States 1787-1791: “Amendment the Fifth: “Section 1.  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."  Stated concisely by settled law: “The United States Supreme Court noted that a parents right to the ‘the companionship, care, custody and management of his or her children’ is an interest ‘far more precious’ than any property right.”  May v. Anderson, 345 U.S. 528, 533; 73 S.Ct. 840, 843, (1952).

[27]Fitness to have custody of a minor child requires more than affection and ability to feed, clothe, and house the child properly.  It also requires an environment that will not be detrimental to the child's character and morals”  Reynolds v. Reynolds (1957) 149 Cal.App.2d 409, 308 P2d 921 TA \l "Reynolds v. Reynolds (1957) 149 Cal.App.2d 409, 308 P2d 921" \s "Reynolds v. Reynolds (1957) 149 Cal.App.2d 409, 308 P2d 921" \c 1 .

 

[28] California Civil Code: § 22.2 TA \l "California Civil Code: § 22.2" \s "California Civil Code: § 22.2" \c 4 :  "Common law of England; rule of decision.  The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State."

 

[29] Griswold v. Hollywood Turf Club, 106 Cal. App. 2d 578, 235 P.2d 656 (Cal.App.Dist.2 09/19/1951) TA \l "Griswold v. Hollywood Turf Club, 106 Cal. App. 2d 578, 235 P.2d 656 (Cal.App.Dist.2 09/19/1951)" \s "Griswold v. Hollywood Turf Club, 106 Cal. App. 2d 578, 235 P.2d 656 (Cal.App.Dist.2 09/19/1951)" \c 1

[30] This factual contract, is a perfect right, a vested right and secured liberty under the Constitution of California 1849: Article I, Section 16, and Article I, Section 10 of the Constitution for the United States, 1787-1791: “Obligations of Contracts.”

[31] This doctrine extends elsewhere (See: See Redondo v. State, 380 So. 2d 1107, 1108 TA \l "Redondo v. State, 380 So. 2d 1107, 1108" \s "Redondo v. State, 380 So. 2d 1107, 1108" \c 1

(Fla. 3d DCA 1980) and as I am the fountainhead of my children’s existence, that I provide for them, that I discipline them, that I pay all their needs, the law, in assigning me as natural guardian, extends this priviledge to wherever an act would extend into my home and damage, attack or ruin it.

 

[32] Outside good sensibilities and exercise of good reason.  See: State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989) TA \l "State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989)" \s "State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989)" \c 1

[33] "By the civil law, the child of parents divorced is to be brought up by the innocent party, at the expense of the guilty party XE "child of parents divorced is to be brought up by the innocent party, at the expense of the guilty party:Ridley's View" ."  Ridley's View, part 1, ch. 3, sect. 9, cites 8th Collation.  Vide, generally, 1 Blackstone's Comm. 440. – Bouvier’s Law Dictionary, 1856 ed.

 

[34] The Superior Court of the State of California for the County of Placer shall be concurrent with and equivalent to the Placer County court in Term as created in the Constitution for the state of California 1849 at Article VI, section I with its full Judicial Powers, not the inferior Legislative powers courts of the United States Amendment Fourteen due process.

[35] The Superior Court of the State of California for the County of Placer shall be concurrent with and equivalent to the Placer County court in Term as created in the Constitution for the state of California 1849 at Article VI, section I with its full Judicial Powers, not the inferior Legislative powers courts of the United States Amendment Fourteen due process.

[36] The Superior Court of the State of California for the County of Placer shall be concurrent with and equivalent to the County of Placer District court in Term as created in the Constitution for the state of California 1849 at Article VI, section I with its full Judicial Powers, not the inferior Legislative powers courts of the United States Amendment Fourteen due process.