Metropolitan News-Enterprise


Monday, February 28, 2005


Page 1


C.A. Chides Judge Over Jailing of Man Who Gave Clerk Hard Time


By KENNETH OFGANG, Staff Writer/Appellate Courts


Orange Superior Court Judge Pamela Iles violated the due process rights of a probationer when she revoked his bail and jailed him without a hearing and without his attorney present, apparently because he was uncooperative with the judicial assistant, the Fourth District Court of Appeal has ruled.

“Placing petitioner in jail, denying him bail, and scheduling a hearing a month hence constituted a de facto revocation of his probation without satisfying any of the due process requirements demanded upon such revocation,” Justice William Rylaarsdam wrote for the court.

“Penal Code section 1203.2, subdivision (b) empowers the court to revoke probation on its own motion,” the justice explained. “But the section requires that the court give notice of its motion to the probationers and their attorneys of record.  There is no evidence that the public defender who represented petitioner at the time of his plea withdrew or was discharged.  No notice was given either to petitioner or to his lawyer.”

The court, which had ordered Bryan Wagner freed pending further proceedings  after he filed his habeas corpus petition, granted a writ Thursday and ordered the case sent to another Superior Court judge for further proceedings.

Wagner alleged in his petition that he was serving three years of probation for misdemeanor spousal battery when he appeared before Iles in December 2002 to request modification of the terms concerning certain payments that he had to make.

The judge, he said, referred him to a judicial assistant, who later told the judge that he was unwilling to make the required payments. Without making further inquiry of him, Wagner alleged, Iles ordered him taken into custody and set a hearing for a month later.

Iles, who retained private counsel to respond to the petition after the District Attorney’s Office—which did not have an attorney present, it explained, because of a policy of not having attorneys in misdemeanor courts unless evidentiary hearings were required—declined to do so.

The judge’s counsel responded that the defendant’s probation “was lawfully revoked for his failure to appear and provide proof of enrollment” in a drug program or to present a doctor’s explanation as to why he was continuing to use prescribed narcotics, and that the court had properly ordered the defendant to make the payments.

The Court of Appeal appointed Kern Superior Court Judge Roger D. Randall as a factfinder. Randall reported that while Wagner had indeed failed to appear as scheduled, a warrant for his arrest had been recalled when he appeared two days later.

The dispute with the judicial assistant, Randall found, was over whether the defendant was going to pay a court-ordered $1,000 donation to Laura’s House, a battered women’s shelter. The judicial assistant told the judge that she could not work with the defendant because he was uncooperative and the told the bailiff to take him into custody.

The deputy public defender appointed to represent the defendant was not in court at the time, Randall explained, and the judge told Wagner “he was going into custody because he was not cooperating,” the factfinder said.

Rylaarsdam, writing for the Court of Appeal, said Iles’ claim that the defendant was jailed for not appearing and for not bringing a doctor’s note were unsupported by the record; that the jailing violated due process, and that the judge should not have ordered the defendant to contribute to a specific charity.

“According to Judge Randall’s findings, all the court did was tell petitioner he would be taken into custody because he was not willing to cooperate with the judicial assistant and, when he inquired why he was taken into custody, she merely replied that he was in violation of his probation,” the justice wrote. “This did not satisfy the court’s duty to afford due process to petitioner.”

The justice acknowledged that under California law, the judge had the right to order the defendant to contribute to a battered women’s shelter, and that the statute is silent as to how the recipient is to be chosen. But ordering a contribution to a specific shelter chosen by the judge violates the Code of Judicial Ethics, by lending the prestige of the judicial office to a particular organization and by involving the judge in “fund raising.”

Rylaarsdam suggested that a proper procedure in this case might be to have defendants contribute to a fund administered by members of the court who are not directly involved in domestic violence cases. 

The justice went on to say that Iles had become personally embroiled in the case, contrary to “her function as a dispassionate fact finder,” and that it was necessary for her to bow out of the case.

The case is In re Wagner, 05 S.O.S. 1076.


Copyright 2005, Metropolitan News Company