B294993 PFR Henderson
B294993 PFR Henderson
B294993 PFR Henderson
ER.H., JE.H.
MOTHER AND FATHER
C/O 106 1/2 JUDGE JOHN AISO, #728
LA, CAL. [90012]
(626) 787-4135
[email protected]
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Petition for Rehearing and Supersedeas
TABLE OF CONTENTS
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Petition for Rehearing and Supersedeas
TABLE OF AUTHORITIES
Cases
Adoption of Alexander S. (1988) 44 Cal.3d 857 .............................. 8
Faretta v. California (1975) 422 U.S. 806 ....................................... 7
In re Barr (1952) 39 Cal.2d 25 ........................................................ 9
In re Carrie M. (2001) 90 Cal.App.4th 530................................... 10
People v Mayfield (1993) 5 Cal.4th 220 ........................................ 15
People v Pope (1979) 23 Cal.3d 412 .............................................. 15
Powell v. Ala. (1932) 287 U.S. 45..................................................... 9
Statutes
Gov. Code § 68081 .......................................................................... 13
Rules
Rules of Court, rule 8.204(c) .......................................................... 15
Rules of Ct. 8.268 ............................................................................. 6
Rules of Ct. 8.268(b)(1)(A) ............................................................... 6
Rules of Ct. 8.2688.500(c) ................................................................ 6
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Petition for Rehearing and Supersedeas
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
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Petition for Rehearing and Supersedeas
Not since the time our ancestors pressed their crossbows to
the skull of bonnie prince johny have Petitioners, two of the
People of California, ever dreamed of needing to use the right of
habeas corpus. We hereby do that now. What right does this court
have to tell free people that the government shall speak from
them? This new social policy of parens patriae for the best
interests of the children overreaches into the realm of the mighty
American family. The family privacy of Petitioners was breached
by a multiagency task force to solve a problem that did not exist.
Petitioners proved that the ruse to enter their home was ruled
unconstitutional by Judge Michael Villalobos of Alhambra Calif.
There was no evidence that Petitioners abused their children.
Petitioners had a religious right to teach their children how and
when it was appropriate to drink alcohol. Petitioners had a
religious right to drink alcohol, even when they were expecting a
child. Lastly, Petitioners had a right to proceed without the
assistance of government agents. The denial of this right was
hidden under the guise of respecting the court and by the pseudo
authority entitled “the best interest of the children”, however, the
trial court refuses to provide Petitioners with the transcripts and
case file. The real reason Petitioners are denied this habeas
corpus is because inside that record is evidence that the Los
Angeles County Courts are in cahoots with the SEIU and the
Democratic Party to kidnap and adopt poor children to the gay
community in an effort by the Chinese Government to control the
California population. We hereby give notice that this goes
against the United States Constitution and request that you
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Petition for Rehearing and Supersedeas
make yourselves clear on the summary dismissal of a family’s
right to be heard on habeas corpus concerning the parental rights
to at least one of their nine children. The trial court denies
Petitioners’ rights to examine the evidence being used in trial to
terminate Petitioners’ parental rights. The trial court denies
Petitioners’ rights to visitation and to develop a familial
relationship with their offspring. The trial court denies
Petitioners’ rights to subpoena and cross-examine the social
workers who prepared the reports that are being used against
Petitioners in trial. The trial court denies Petitioners’ rights to
appear in court and be heard without the assistance of
government agents. Petitioners are entitled to habeas corpus.
II. Background of the case
The matter captioned above was submitted for decision of
this court by Petitioners of a petition for writ of habeas corpus
filed by Petitioners on 01/11/2019, which is attached and marked
as Exhibit “A” (“Petition”), which is 18 pages. The issues
enumerated in the Petition were not addressed by briefing or by
oral argument. The decision of this court inferred inaccurate
statements that are not in the facts of this case.
The opinion and order described above are erroneous, and
founded on an erroneous construction of the record in that the
opinion and order set forth that Petitioners were claiming denial
of right to competent counsel, whereas, in fact, the record sets
forth, without conflict, that Petitioners claimed they were denied
their right to be heard in their defense. There is a difference.
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Petition for Rehearing and Supersedeas
Petitioners alleged in Petition that because the juvenile
dependency court forced Petitioners to accept legal representation,
Petitioners were denied the right to select the defense of their
choice and represent themselves in state proceedings. (See
Petition at p. 23.) Petitioners analogized that the protection for
self-representation in criminal matters found in Faretta v.
California (1975) 422 U.S. 806 applies equally to parents in
juvenile dependency matters. (Id. at p. 40.) Petitioners claimed
that the Petition was timely because the waiver rule did not
apply to the Petition due to the allegations that the officers of the
trial court perpetrated extrinsic fraud upon the Petitioners when
they conspired to deny Petitioners the right to proceed without
counsel and conspired to deny Petitioners the right to put up a
defense. Petitioners argued that the remedy for erroneous
deprivation of a defense is automatic reversal. (Id. at p. 45.)
III. The Law and Argument
A. Petitioners have a right to challenge the court of appeal's
misstatement of the facts and issues
If Petitioners are unhappy with the Court's disposition of
their writ petition, there are two possibilities for judicial relief: (1)
A petition for rehearing, which is authorized when the court of
appeals fails to hear the facts or issues presented; and (2) review
by a higher court. A petition for rehearing is ordinarily not a
prerequisite for a petition for review, but it is a necessity if the
petitioner wants to challenge the court's statement of the facts or
issues. (See Cal. Rules of Ct. 8.268; Rules of Ct. 8.2688.500(c).)
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Petition for Rehearing and Supersedeas
A party may serve and file a petition for rehearing within
15 days after the filing of the decision. (Cal. Rules of Ct.
8.268(b)(1)(A).) Since Petitioners challenge this court’s statement
of the facts or issues, Petitioners request a rehearing.
B. The court misstated the issues presented by Petitioners
The issues presented to the court concerning the denial of
the right to seek habeas corpus relief when a trial court denied
parents their right to present their defense at trial and proceed in
pro per has not yet been proposed or briefed by any party to the
proceeding, and therefore has not been heard by this court.
(1) This court's determination that Petitioners were not
entitled to be heard habeas corpus is in conflict with
California law.
The issue of whether Petitioners can be heard on habeas
corpus for denial of a parent’s right to present a defense in a
juvenile dependency case, on which the court based its opinion
and order, was not proposed or discussed by any party to this
proceeding in any of the briefs, nor was it addressed at oral
argument, nor did the parties express their views on it in any
other manner during this proceeding. The opinion and order
described above are based on the false legal premise that
Petitioners were arguing that they were denied their right to
effective assistance of counsel; whereas, in fact, Petitioners were
arguing that the trial court denied their right to defend. (See
Petition at p. 45.)
The Court’s decision was erroneously based the issue of
whether or not Petitioners have a right to challenge ineffective
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Petition for Rehearing and Supersedeas
assistance of counsel. This Court cited Adoption of Alexander S.
(1988) 44 Cal.3d 857, 866-868 as its reasoning for denying
Petitioners’ wishes for issuance of a writ of habeas corpus.
Ironically, when properly applied, Adoption of Alexander supports
Petitioners to right to be heard on habeas corpus. Petitioners
claim that the facts in their case should be analogized to support
issuance of the order to show cause because Petitioners claimed
that they were parents seeking custody of their children who are
living with others. This court has authority to allow a natural
parent lacking physical custody to bring an original action in
habeas corpus where a “parent seeks custody of a child living
with another.” (Adoption of Alexander S., (1988) 44 Cal.3d 857,
866.)
Adoption of Alexander S. also provides that Petitioners can
bring their petition to collaterally attack the trial court’s
jurisdiction. A petition for a writ of “habeas corpus may be
brought to collaterally attack a prior order where the court
issuing the prior order lacked jurisdiction.” (Id. at 867 citing In re
Barr (1952) 39 Cal.2d 25, 27.) Petitioners claimed in their
Petition that they challenge the original finding of the trial court
of jurisdiction over the parental rights of Children. Petitioners
presented the fact that they were denied their right to present
their defense at the jurisdiction phase of the case. The SCOTUS
has held that when it fails to afford a defendant “a reasonable
opportunity to defend”, a trial court loses its jurisdiction for
denying due process of law. (Powell v. Ala. (1932) 287 U.S. 45, 69.)
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Petition for Rehearing and Supersedeas
This court’s reliance on Adoption of Alexander is
sustainable only “where the trial court had jurisdiction to make
the adoption judgment.” Petitioners alleged that the trial court
lost personal jurisdiction over Petitioners’ parental rights when
the trial court denied Petitioners their right to proceed without
counsel. The SCOTUS has repeatedly held that the right to
defend is the foundation of the right to counsel. (Powell v. Ala.,
supra, 287 U.S. at 69)
By claiming that their rights to defend was usurped by the
trial court when the trial court forced Petitioners to accept
LADLINC representation, Petitioners presented sufficient facts
and evidence to trigger an order to show cause from this court.
Since this case falls within the subcategories allowed by the
decision in Adoption of Alexander, this court should issue the
order to show cause as to why the writ of habeas corpus should
not issue.
(2) This court misstated Petitioners claim to the right to
petition for a writ of habeas corpus.
This court committed the logical fallacy of substituting a
strawman argument instead of addressing the issue presented by
Petitioners. The court erroneously based its denial of Petition
based on the fact that Petitioners claim ineffective assistance of
counsel. Petitioners did not claim that they were denied the right
to competent counsel. Petitioners claimed that they were denied
the right to defend themselves, which is distinguished by the fact
that a person denied the right to competent counsel has very
little ground to stand on in their claim because the bar for
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Petition for Rehearing and Supersedeas
incompetent counsel is very high. A parent denied the right to
defend themselves is not analogous to a person who accepted
appointment of counsel because by accepting appointment of
counsel, a parent has chosen how they will be defended.
This court cited In re Carrie M. (2001) 90 Cal.App.4th 530
as their source for authority to deny Petitioners their right to be
heard on habeas corpus. In re Carrie M. is a case dealing with the
denial of habeas relief to a mother alleging ineffective assistance
of counsel, not a parent claiming their right to put up a defense.
The facts in the case at bar are distinguished from the facts in In
re Carrie M. The mother in the case In re Carrie M. had the
defense of her choice. Petitioners were denied that right, which
the SCOTUS has ruled is a substantial right. The Mother in the
case In re Carrie M. accepted the trial court appointment of
counsel, and the court was correct to determine that she
exercised her right to have defense presented. The court of appeal
correctly ruled that the mother got the defense that she wished
for. Not so in the case at bar. By forcing Petitioners to accept the
defense presented by mandated counsel, the trial court denied
Petitioners their right to litigate their rights and thereby the trial
court lost jurisdiction over Petitioners' person.
Adoption of Alexander S. is a case where parents of
Alexander S. presented in pro per a defense of the right to parent.
The facts in the case at bar are distinguished by the fact that
Petitioners were denied their right to present their defense in pro
per, which is the exact opposite of the facts in Adoption of
Alexander S. The touchstone fact is that the parents in Adoption
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Petition for Rehearing and Supersedeas
of Alexander S. should not be allowed to challenge the results
because they presented their defense to the trial court. Unlike
the parents in Adoption of Alexander S., the trial court denied
Petitioners their right to present their defense to the trial court.
Actually, Adoption of Alexander S. supports Petitioners argument
that the court should have granted Petitioners wishes to proceed
without an attorney, just like the court granted the parents’
wishes to defend their rights in Adoption of Alexander S.
(3) The court failed to consider the fact that the trial court
failing to give Petitioners notice of their right to petition
for habeas corpus
The trial court recently made the same mistake to deny
Petitioners their rights to proceed in pro per less than 60 days
ago, the trial court found that Petitioners have no right to litigate
their case in pro per. The record will show that the Hom. J.
McBeth ruled that Petitioners’ pro per appearance, their wishes
to cross-examine the DCFS witnesses, and the discovery of the
documents used in their case against Petitioners is all at her
discretion. This is at odds with the law.
This court ruled that Petitioners should have brought the
petition sooner, but ignored the fact that the trial court failed to
inform Petitioners of their right to request a writ. The record will
show that the only notice given to Petitioners concerning higher
court review was given in 2018. Denial of appeal due to the fact
that the appeal is late is one thing, but within the last 60 days,
the Court denied that Petitioners had the substantial right to
proceed without counsel and their right to defend themselves by
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Petition for Rehearing and Supersedeas
cross-examining witnesses and using the court’s subpoena power
to compel witnesses to testify.
(4) The court failed to address the issue of whether a
juvenile dependency court loses its jurisdiction when it
forces parents to accept legal representation.
Petitioners claimed that their right to timely brief the
Court on this issue was usurped by the court-mandated attorney
refusing to appeal the denial of right to proceed in pro per to
Petitioners, and the trial court refusing to inform Petitioners of
their right to file a petition for relief until 2018. (Id. at p. 32.)
By deciding the issues without allowing for briefing, this
court denied Petitioners their right to argue that there was no
grounds to deny Petitioners their right to proceed without legal
representation. The only disruption Petitioners created in the
trial court was the disruption of repeatedly objecting to the trial
court denying Petitioners' right to proceed in pro per.
This court cites Adoption of Alexander S. also may rely on
the allegation that Petitioners failed to avail their chance to raise
the issue of ineffective assistance of counsel in their recent
appellate briefs. Petitioners can provide proof that they had no
knowledge of their right to bring a petition for a writ of habeas
corpus until 2018. In their only appeal since the trial court
informed Petitioners that they had a right to petition for
extraordinary relief, Petitioners gave notice that they intended to
bring an habeas corpus action after they finished their appeal,
which briefing began before the trial court informed Petitioners of
their rights.
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Petition for Rehearing and Supersedeas
Petitioners believe that this court erred by finding that
Petitioners failed to raise the issue sooner when Petitioners
claimed that the only recently learned that they had a right to
bring an extraordinary petition. Petitioners claim that by the
trial court denying Petitioners their right to present a defense by
forcing Petitioners to submit to representation by LADLINC, the
trial court denied Petitioners their right to appeal because
LADLINC failed to appeal the trial court's denial of Petitioners'
right to present their own defense.
C. Petitioners are entitled to a rehearing.
In any appellate court, a party is entitled to rehearing if
the opinion decides the case on the basis of an issue not briefed
by the parties.
“Before the Supreme Court, a court of appeal, or the
appellate division of a superior court renders a decision in a
proceeding other than a summary denial of a petition for an
extraordinary writ, based upon an issue which was not
proposed or briefed by any party to the proceeding, the
court shall afford the parties an opportunity to present
their views on the matter through supplemental briefing. If
the court fails to afford that opportunity, a rehearing shall
be ordered upon timely petition of any party.”
(Cal. Gov. Code § 68081.) Because this court rendered their
decision based upon an issue which was not proposed or briefed
by any party to the proceeding, the law holds that this court shall
afford the Petitioners an opportunity to present their views on
the above issues through supplemental briefing.
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Petition for Rehearing and Supersedeas
Petitioners were not given any opportunity to present their
views, through supplemental briefing, on the issue described
above on which this court based its opinion and order as stated
above. Wherefore, petitioner respectfully requests that the
decision and order described above be vacated and set aside; that
petitioner be granted a rehearing of all issues of fact and law in
this proceeding; that at the rehearing, petitioner be permitted to
introduce new and additional evidence; that the action be
submitted only upon and after such supplemental briefing before
this court as is provided for by the Government Code of the State
of California; and that thereafter, upon submission of the cause,
this court issue its decision and order on the basis of issues
proposed, addressed, and fully briefed by the parties; and for any
other order as to the court seems just.
D. The trial court proceedings must be stayed
The trial court has no ability to proceed against the
parental rights of Petitioners because the issue is before this
court on the issues in the accompanying Writ of Mandate filed on
1/23/2019. The trial court has no authority to proceed against
Petitioners until the matter is heard by this Court. The trial
court must not exercise its jurisdiction in a way that interferes
with the appellate jurisdiction of the reviewing court. (See People
v Mayfield (1993) 5 Cal.4th 220 [holding that superior court
lacked authority to grant relief on claim that could have been
decided in court of appeal].)
E. Petitioners request consolidation
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Petition for Rehearing and Supersedeas
Habeas corpus is sometimes used together with a pending
appeal when the allegations require evidence outside the regular
appellate record. See People v Pope (1979) 23 Cal.3d 412, 426
(habeas used to litigate ineffective assistance of counsel claim
when evidence not in record; inquiry needed into reasons for
counsel's actions). The habeas petition may be filed in the same
court as the related direct appeal. The court may consolidate the
two cases. (See, e.g., People v. Frierson (1979) 25 Cal.3d 142;
People v Corona (1978) 80 Cal.App.3d 684, 706, fn. 10.)
F. The Petition was timely.
There is no statutory time limit to file a petition for a writ
of habeas corpus. The court has held that the passage of time
may be deemed procedural default. (See In re Sanders (1999) 21
Cal.4th 697, 703 [habeas petitions must be filed “reasonably
promptly”].) Petitioners claimed that the evidence would show
that until 2018, the trial court failed to advise Petitioners that
they had a right to seek extraordinary relief. Petitioners also
claimed that the evidence would show that this is the first
opportunity Petitioners have had to present the issue of denial of
right to present a defense to the court. Since Petitioners claimed
in Petition that their delay was justified and therefore
consideration of the merits of Petitioners’ claim is not barred, this
court should order a rehearing.
IV. Conclusion
If this rehearing is not granted, then this court is
effectively saying that California parents have no right to have
their defense heard in a juvenile dependency matter and no right
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Petition for Rehearing and Supersedeas
to be given notice of the right to appeal. Based on the foregoing,
this petition for rehearing should be granted.
I declare under penalty of perjury under California law of
that the foregoing is true and correct and that this Petition was
affirmed and signed on 2/6/2019.
Respectfully submitted,
By:
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Petition for Rehearing and Supersedeas