Metropolitan News-Enterprise


Tuesday, January 10, 2017


Page 1


C.A. Orders Judge to Consider Trial-by-Telephone


By a MetNews Staff Writer


The Fifth Court of Appeal, acting on orders from the state Supreme Court, yesterday remanded a case to the trial court to determine if a civil action by a San Quentin inmate, serving a life sentence, can be conducted by telephone.

Fresno Superior Court Judge Kristi Culver Kapetan had dismissed the action brought by inmate Paul C. Hamilton on April 21, 2014, and the Court of Appeal affirmed on May 4, 2015.

The California Supreme Court sent the Fifth District an order reading:

“The above entitled case is transferred to the Court of Appeal, Fifth Appellate District, for reconsideration in light of the Attorney General’s concession that the trial court improvidently dismissed [appellant’s] complaint because the court could have allowed him to appear for trial by telephone. (Cal. Rules of Court, rules 3.670(f)(3), 8.528(d).)”

Rule 3.670(f)(3) provides:

“The court may permit a party to appear by telephone at a [trial]…if the court determines that a telephone appearance is appropriate.”

Rule 8.528(d) authorizes the Supreme Court, after granting review, to “transfer the cause to a Court of Appeal without decision but with instructions to conduct such proceedings as the Supreme Court orders.”

Changed Position

The Fifth District jurists—in an opinion signed by Acting Presiding Justice Gene Gomes and Justices Steven Kane and Charles Poochigian—expressed puzzlement over the concession by the Office of Attorney General in the Supreme Court.

“[T]he Attorney General’s concession before the California Supreme Court was a reversal of the position previously argued in our court,” they said. The jurists recited that in the respondent’s brief filed in 2014 in the Court of Appeal, that office said:

“The Attorney General’s respondents’ brief that was filed in our court in November 2014 stated (adding emphasis):

“At the April 21, 2014 trial, the court specifically noted that [appellant] had been allowed to appear at pretrial proceedings by telephone. The trial court also considered [appellant’s] suggestion of trial by telephone but properly rejected it. Individuals are not allowed to appear for civil trials by telephone. (Cal. Rules of Court, rule 3.670(e)(1)(A).) Personal appearances are required at trials and other proceedings where witnesses are expected to testify. (Ibid.)”

Postponement Until Release

A-trial-by-telephone was one of the alternatives for conducting trials in which an inmate is a party set forth by the California Supreme Court in Wantuch v. Davis (1995) 32 Cal.App.4th 786. Another was waiting until the inmate was released.

Yesterday’s opinion noted:

“On the issue of deferring the trial until after appellant was released from prison, the court determined and appellant agreed that was not a viable option. In April 2014, appellant was 65 years old. He was serving a life sentence and, in his own words, ‘I’m never getting out from the time that I have.’ He also stated that deferring the trial until after he was released was not an option.”

In ordering a remand the Court of Appeal observed that use of a telephone might be more practical now than when the trial court made its decision in 2014, explaining:

“We note that appellant did not have counsel on his appeal before this court, but does have appellate counsel now. If he has retained trial counsel, that could affect the trial court’s consideration of how a trial might be conducted.”

The opinion instructed:

“If the court determines that a trial may be reasonably conducted, the motion to dismiss shall be denied. If the court determines that a trial cannot reasonably and feasibly be conducted with appellant appearing for trial by telephone or in any other feasible manner consistent with the principles enunciated in Wantuch, supra, 32 Cal.App.4th 786, the motion to dismiss shall be granted.”

Hamilton claims in his action that excessive force was used against him at Pleasant Valley State Prison, where he was previously housed.

The case is Hamilton v. Yates, F069608.

Hamilton was represented by Robert Cooper of of the Los Angeles office of Wilson, Elser, Moskowitz, Edelman & Dicker. Deputy Attorneys General Vickie P. Whitney and Tyler V. Heath acted for the government.


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