ROMAN RAYMOND POLANSKI, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE et al., Real Parties in Interest, 180 Cal. App. 4th 507

Opinion ZELON, J. In another

chapter of what surely must be one of the longest running sagas in California criminal justice history, Roman Polanski, a fugitive since 1978, asked the trial court to exercise its discretionary authority to dismiss the criminal prosecution against him that has been pending since 1977. The trial court declined to consider Polanski’s request until Polanski submitted to the court’s jurisdiction by returning to the United States and appearing in court. Polanski asks this court to compel the trial court to dismiss the action or, at least, to conduct an evidentiary hearing on Polanski’s request.

We conclude that the trial court did not abuse its discretion in applying the fugitive disentitlement doctrine and refusing to consider dismissing the action. In so doing, we do not disregard the extremely serious allegations of judicial and prosecutorial misconduct that have been brought forward, but urge the parties to take steps to investigate and to respond to the claims. FACTUAL AND PROCEDURAL BACKGROUND I. Information Established by the Documentary Record, 1977-1978 The limited documentary record of the proceedings in this case furnishes little insight into the serious issues presented by this matter.

Roman Polanski was indicted by a grand jury in March 1977 on six counts: furnishing a controlled substance to a minor (Health & Saf. Code, § 11380, subd. (a)); a lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288); unlawful sexual intercourse (§ 261.5); rape by use of drugs (§ 261, subd. (3)); perversion (§ 288a, subds. (a), (c)); and sodomy (§ 286, subds. (a), (c)). Polanski initially pleaded not guilty. The district attorney’s office agreed to a plea bargain with Polanski at the request of the family of the victim, Samantha Geimer, who was 13 years old at the time of the offense.

In light of Geimer’s age and fears about the trauma that an extremely high profile trial would cause for her, Geimer’s family, through counsel, advocated strongly for a plea bargain to protect her from further harm. On August 8, 1977, Polanski changed his plea from not guilty to guilty on count 3, unlawful sexual intercourse.

In the course of his plea, Polanski acknowledged that the trial court would determine whether he would receive a felony or misdemeanor sentence; that his punishment could range from probation, to up to one year in county jail, to 20 years in state prison; and that the judge would not determine Polanski’s sentence until he had received a report from the probation department and heard the arguments of counsel. The trial court then instituted mandatory proceedings to determine whether Polanski was a mentally disordered sex offender.

The court appointed two psychiatrists to evaluate Polanski and set a further hearing for the mentally disordered sex offender hearing. The hearing was scheduled for September 19, 1977. On September 19, 1977, the trial court conducted a hearing and determined that Polanski was not a mentally disordered sex offender. The court acknowledged that it had read and considered the probation report in the case and asked whether there was any legal cause why judgment should not be pronounced. Polanski’s trial counsel, Douglas Dalton, answered that there was no legal cause why judgment should not be pronounced.

The court invited Dalton to argue on sentencing, and Dalton argued that Polanski should be given probation as recommended by the probation department. Deputy District Attorney Roger Gunson argued that Polanski should receive time in custody.

After identifying various considerations that the court would incorporate into its sentencing decision, the court stated, “This Court, i[n] sentencing the defendant, will do so upon the basis of fitting the punishment to the crime, yet at the same time weighing all of the circumstances surrounding the incident, including the defendant’s background and lack of criminal record, and all factors in mitigation and aggravation of the offense, [f] It is the judgment of this Court that the defendant be committed to the custody of the Department of Corrections at its prison facility in Chino, California, where he will be confined for a period of 90 days and undergo a diagnostic evaluation, pursuant to the provisions of [section] 1203.03 of the Penal Code. [][] The purpose of the Court in ordering the in-depth diagnostic study is better to enable the Court to reach a fair and just decision as to the sentence to be finally or eventually imposed. [][] The defendant will be returned here 90 days hence for further proceedings.” Neither Polanski nor the People objected to the diagnostic study order.

The court stayed the execution of the diagnostic study for 90 days to permit Polanski to complete a film he was directing, stating that the stay would “certainly” not extend past 90 days, “if it could be avoided.” The diagnostic study, dated January 25, 1978, contained recommendations that Polanski be placed on probation. On February 1, 1978, Polanski failed to appear in court for a scheduled sentencing hearing and a bench warrant was issued for his arrest. Dalton filed a verified statement of disqualification for cause of the trial judge, Judge Laurence Rittenband, on February 14, 1978.

On February 21, 1978, Judge Rittenband filed a verified answer to the disqualification statement in which he denied bias but consented to the transfer of the matter. II. Allegations of Judicial Misconduct Known to or Knowable by Polanski at the Time of His Flight Here we diverge from the indisputable facts of what has gone before in this matter to allegations presented by Polanski in documents filed with the courts in 1978, 2008 and 2009 concerning events that occurred prior to Polanski’s flight from the United States immediately before the February 1, 1978 sentencing hearing.

These allegations—and they must be termed “allegations” because no court has ever held an evidentiary hearing and made factual findings concerning their veracity—are in many cases supported by considerable evidence, including declarations from both Prosecutor Gunson and Defense Counsel Dalton. Some of these allegations were disputed by Judge Rittenband in 1978 in his response to the disqualification papers Dalton filed, and this account of the preflight events is included below as well.

To the extent that these allegations are true—and from the documentary evidence filed with this court, it appears to this court that there is a substantial probability that a court conducting an evidentiary hearing would conclude that many, if not all, are true—they demonstrate malfeasance, improper contact with the media concerning a pending case, and unethical conduct. A.

Allegations of Judicial Misconduct at a Preorder In-chambers Meeting with Counsel, September 1977 Under penalty of perjury, Dalton and Gunson have both described an unreported in-chambers meeting among the trial judge, Dalton, Gunson, and probation officer Irwin Gold prior to the trial court’s order referring Polanski for the diagnostic study. In a 1978 verified answer to the disqualification papers, the trial judge responded to some of the then aired allegations of judicial misconduct.

Douglas Dalton, 1978: “On September 16, 1977, prior to ordering this very diagnostic study, Judge Rittenband stated to Deputy District Attorney Roger Gunson, Probation Officer Irwin Gold and defense counsel Douglas Dalton in his chambers that the diagnostic study at Chino would constitute the defendant Polanski’s punishment and that there would be no further incarceration. (In fact, at the time of the September 16, 1977, meeting, he stated he expected a favorable report from Chino.) [f] Deputy District Attorney Gunson and Probation Officer Gold had stated in this September 16, 1977, meeting that the use of a [section] 1203.03 study as punishment was an improper utilization of that provision.

Nevertheless, the Judge stated that he would use this method of incarceration rather than the county jail because Polanski would be safer at Chino than in the county jail. Judge Rittenband stated that 60 days at Chino would be sufficient time in custody to constitute the defendant’s punishment.” Dalton further stated that “Judge Rittenband told defense counsel Dalton that at the hearing he should argue for probation, that Deputy District Attorney Gunson should argue for incarceration, and that then the Judge would order the diagnostic study pursuant to

Section 1203.03 of the Penal Code.” Douglas Dalton, 2008: “Several days before September 19, 197 [7], the date scheduled for the Probation Hearing and Sentencing, Judge La[u]rence Rittenband told Deputy District Attorney Roger Gunson, Deputy Probation Officer Irwin Gold, and me that he had already decided to send Mr. Polanski to prison for a ‘diagnostic study’ under

section 1203.03 of the Penal Code as his complete punishment under the plea if the prison returned a favorable report and the press were not told of the agreement. [][] Judge Rittenband neither sought nor listened to any opinions or recommendation of the parties present. Not only had the minor’s family urged that Mr. Polanski not serve any time in prison, but the probation report also recommended a sentence of probation only.” According to Dalton, “Deputy District Attorney Gunson and Deputy Probation Officer Gold both objected to the use of Penal Code

section 1203.03 as punishment, stating that it was an improper and illegal use of the provision. Judge Rittenband disregarded their objections. Notwithstanding the fact that he had already made up his mind and pre-determined the result, Judge Rittenband directed Deputy District Attorney Gunson and me to engage in the charade of arguing our respective positions at the Probation and Sentencing Hearing on September 19, 197[7].” Roger Gunson, 2009: “After Mr. Polanski’s plea in August 1977, Judge Rittenband informed both Mr. Polanski’s lawyer, Douglas Dalton, and me that Mr. Polanski would be sent to Chino State Prison under Penal Code

section 1203.03 as his punishment. At that time, I told Judge Rittenband that the diagnostic study was not designed to be used as a sentence, but Judge Rittenband said that he was going to do it anyway.” Judge Rittenband: “I had a discussion in chambers with Dalton and Roger Gunson, the Deputy District Attorney, about possible sentences. I told them and the probation officer, who was present, that I would not follow the probation officer’s recommendation for straight probation and that I felt time in custody was indicated.

I indicated that I was concerned that Polanski might be the subject of an attack in the County Jail by other jail inmates who traditionally dislike child molesters and that I instead would commit Mr. Polanski to the state prison at Chino for a 90-day diagnostic study. At that time, I stated I wanted such a study to assist me in determining what sentence to impose on Polanski.” B.

Trial Court’s Alleged Declaration of Decision to Impose Additional Punishment and to Require Polanski to Waive His Rights to Fight Subsequent Deportation; Alleged Refusal to Consider Evidence to be Adduced at Sentencing Hearing Douglas Dalton, 1978: “On or about January 30, 1978, Judge Rittenband met in his chambers with Deputy District Attorney Roger Gunson and defense counsel Douglas Dalton.

Judge Rittenband stated that the diagnostic study from California Institution for Men, which recommended probation, was the worst he had ever seen and a complete whitewash of the defendant and that he had determined to send him back to prison.” Dalton alleged that the trial court had hatched a plan to make the court look tough on Polanski, but with unpublicized relief coming later provided that Polanski left the country: “On January 30, 1978, at the meeting described in his chambers with Deputy District Attorney Gunson and defense counsel Dalton, Judge Rittenband had stated that he intended to send Polanski to state prison pursuant to

Section 1168 of the Penal Code and then permit him to be released after the expiration of 48 days upon the condition that he would voluntarily agree to be deported from the United States.

Section 1168 of the Penal Code would permit the Judge to retain his jurisdiction to modify the sentence within 120 days.[] Deputy District Attorney Gunson and defense counsel Dalton had been told by the Judge that neither the Judge, Dalton, nor Gunson need explain to them (the newsmen) that

Section 1168 of the Penal Code would permit the Judge to modify the sentence within 120 days, and tha[t] the sentence he would pronounce in open court would state only th[at] Polanski was sentenced to state prison for the term prescribed by law.” According to Dalton, the parties reconvened in chambers the following day to meet again with the trial court. “Another meeting was held in chambers on January 31, . . . 1978, with Judge Rittenband and attended by Roger Gunson, Douglas Dalton, and Lawrence Silver, the attorney for the involved girl and her family.

Discussions had taken place regarding the defense possibly having an evidentiary hearing in order to endeavor to change the current position of the Judge. Judge Rittenband expressed his then existing opinion that there was nothing which could be produced by the defense that would influence him regarding his intended sentence. Judge Rittenband further stated that he had not believed either Polanski or DeLaurentiis at the evidentiary hearing regarding the Munich trip[] and that DeLaurentiis was ‘so slick’ and only giving his testimony to try to help his friend for which he did not blame him.

The Judge further stated that he would not permit any additional time for the defense to decide whether or not they wanted such a hearing or to prepare for the hearing prior to sentencing despite repeated requests by Dalton for more time for this purpose. Deputy District Attorney Gunson stated that if Judge Rittenband wanted to give Polanski 48 more days in custody that he should sentence him to 90 days in the county jail and give him credit for the 42 days which Polanski had served while undergoing the diagnostic study at Chino.

Judge Rittenband stated that the appearance of a state prison sentence must be maintained for the press and for this reason he would not consider any county jail sentence.” Dalton alleged that he told the court “that he needed additional time to consult with his client regarding the evidentiary hearing. Judge Rittenband stated that the press expected a hearing on the following day and that they were going to have one.

During these conversations, Judge Rittenband took a telephone call which he identified as being from Bill Farr[,] a reporter for the Los Angeles Times [,] and stated that he advised Farr that the hearing was going forward on the following day. The Judge further stated that at the hearing on the following day, February 1, 1978, that Dalton should vigorously argue for no further incarceration and that Gunson should then argue against probation and for a sentence of incarceration. Following the arguments of counsel, the judge would make his own statement and the state prison sentence would be imposed.

Gunson pointed out that the question of the hearing should be resolved before the Judge imposed a sentence.

Judge Rittenband stated that he would, nevertheless, make his remarks and impose the sentence and that if Dalton and his client Polanski still wanted a hearing that they could have one within ten days in the form of a motion for a new trial. (This, of course, meant that the hearing would follow the statement of the Judge and the imposition of the sentence that then would be known to the press and the public.) In addition, Judge Rittenband told defense counsel Dalton that if he conducted the hearing at a motion for a new trial there would be no assurance that Polanski would be released in 48 days upon the conditions the Judge had previously outlined, i.e., the voluntary agreement to deportation.

Judge Rittenband further stated that if the defense decided not to hav[e] such a hearing they would be permitted to withdraw the motion fo[r] a new trial and Polanski would be committed to the state prison and the agreement about the 48 days would still be in effect.” According to Dalton, he and Gunson each resolved not to participate in the charade ordered by the trial court: “Following the meeting with the Judge, Deputy District Attorney Gunson, defense counsel Dalton and attorney Silver discussed what had occurred at the meeting with the Judge in chambers, and both Gunson and Dalton stated that they would not permit themselves to act out the roles assigned to them by the Judge in such a staged proceeding which was for the benefit of the press and with the result already predetermined by the Judge.” Douglas Dalton, 2008: After Polanski submitted to the diagnostic study ordered by the trial court, “Judge Rittenband reneged on his promise that Mr.

Polanski would serve no further time in custody, giving as his sole reason that he had been the subject of ‘criticism.’ The Judge never identified the source or nature of the ‘criticism,’ and no such ‘criticism’ appeared in the probation report or diagnostic study, which both recommended probation for Mr. Polanski.” Dalton alleged that “Judge Rittenband announced to counsel that he now intended to send Mr.

Polanski to prison for the second time under the following conditions: (1) that he serve 48 additional days in prison; (2) that he would not be permitted to have a hearing on this additional sentence; (3) that he agree to waive his rights to a deportation hearing and agree to ‘voluntarily deport himself;’ and (4) that no hearing would be permitted until after the imposition of the prison sentence and that even more serious consequences could be expected if a hearing were held, [f] At no time did the assigned prosecutor, Deputy District Attorney Gunson, request any of the above conditions.

Both Deputy District Attorney Gunson and I objected to Judge Rittenband’s denial of Mr. Polanski’s right to a hearing prior to sentencing. However, Judge Rittenband summarily rejected our arguments without any suggestion of legal authority to support the sentence and conditions that he intended to impose. The Judge also instructed Mr. Gunson and me to argue as though we were unaware of his intentions, and not to expose this information to the press.” Roger Gunson, 2009: “After Mr. Polanski’s release from Chino, Judge Rittenband told Mr.

Dalton and me that he intended to impose a further term of incarceration upon Mr. Polan[sk]i.” Judge Rittenband, 1978: “On or about January 27, the court received the diagnostic study and recommendation by the California Department of Corrections at Chino. Mr. Polanski, having returned to Los Angeles, was supposed to report on Monday, January 30. On January 30, Mr. Dalton and Mr. Gunson came to my chambers to discuss the report.

I told them that I had carefully read it and that I felt it was superficial, replete with many inaccuracies and factually unsupported conclusions, and was conspicuous more for what it failed to report than what it did report. I believe I used the word ‘whitewash’. I stated that there was absolutely no mention in the report of any discussions which the counsellors [¿z'c] and psychiatrists at Chino had with Mr. Polanski relating to the serious and aggravated charges of rape by drugs and alcohol, sodomy, and oral copulation of the 13-year-old victim.

I believe I pointed out to them that a statement in the report ‘that throughout the experience (with the victim) Mr. Polanski seems to have been unaware that he was involving himself in a criminal offense, an isolated instance of naivete, unusual in a mature sophisticated man’, was one of the most fatuous statements in a diagnostic report that I have ever read. I told Mr. Dalton that I did not propose to follow the recommendations which were for straight probation without any additional time in custody. [][] I then stated that an appropriate sentence would be for Mr.

Polanski to serve out the remainder of the 90-day period for which he had been sent to Chino, provided Mr. Polanski were to be deported by the Immigration and Naturalization Bureau, by stipulation or otherwise, at the end of the 90 days. I expressly stated that I was aware that the court lacked authority to order Mr. Polanski deported directly or as a condition of probation. However, based on the facts before me, I believed that the safety and welfare of the citizens of California required that Mr. Polanski be kept out of circulation for more than 90 days. However, since Mr.

Polanski is an alien who had pleaded guilty to

an act of moral turpitude, I believe that the interests of the citizens of California could be adequately safeguarded by a shorter jail term if Mr. Polanski would thereafter absent himself from the country.” C.

Allegations of Judicial Preoccupation with Public Response Concerning the Stay and Judicial Statements to the Press While the Case Was Pending Douglas Dalton, 1978: Dalton alleged that as early as June 1977, the trial court was speaking to the press about the pending Polanski case. “In the June 6, 1977, issue of People magazine, the Judge was quoted as saying, ‘I’ve handled other celebrity cases and this just doesn’t look like anything other than a routine rape case to me.’ When asked if the defendant would be able to receive a fair trial in Los Angeles, Judge Rittenband replied: [ft] ‘People here are more sophisticated than anywhere else in the country and from what I’ve been able to gather, public opinion is divided on who is at fault.

There are those who think Polanski a devil, and others who wonder why a mother would let her 13-year old daughter go around with a 43-year old film director anyway.’ ” Dalton asserted that after a photograph of Polanski at Oktoberfest in Munich appeared in a newspaper in late September 1977, “Judge Rittenband expressed great consternation to Deputy District Attorney Gunson and defense counsel Dalton over the appearance of this

article and the criticism it engendered of him, and he advised them both tha[t] he wanted defendant Polanski immediately to return to court.” Dalton alleged that the trial court gave an interview to the Herald Examiner newspaper in which he stated that Polanski could be on his way to prison that weekend.

According to Dalton’s representation of the contents of the newspaper article, the trial court stated in the interview, “I didn’t know then (at the time of granting [the] stay) that the picture would be impossible to finish in 90 days,” and “I do feel that I have very possibly been imposed upon.” Although the transcript of this hearing is not in the record, it appears not to be disputed that the trial court convened a hearing concerning whether Polanski’s visit to Munich was in connection with a business matter and whether the stay should be dissolved.

Dalton alleged in 1978 that prior to that hearing, the trial court “advised Gunson and Dalton that he had been criticized in the press and by others for his action in granting the stay in the first place, and that he would not under any circumstances grant any additional stays.” Douglas Dalton, 2008: After “a picture of Mr. Polanski appeared in the Santa Monica Evening Outlook Newspaper carrying a false caption that Mr.

Polanski had ‘popped over to Munich for rest and relaxation,’ ” the trial court indicated an intent to dissolve the stay on the diagnostic study. “In an interview with Marilyn Beck of the Herald Examiner, Judge Rittenband stated that Mr. Polanski ‘could be on his way to prison by the weekend.’ ” Judge Rittenband, 1978: “At no time was I swayed by public clamor or considerations of personal popularity or by apprehension of unjust criticism.” D.

Allegations of Ex Parte Communications and Consideration of Matters Outside the Record In the 1978 verified statement of disqualification for cause, Dalton alleged that “On several occasions in the presence of Gunson and Dalton, Judge Rittenband has referred to mail which he has received criticizing him for granting the stay to Polanski to work on the film; for permitting Polanski to go to Europe; and for ordering the diagnostic study.

Judge Rittenband indicated he read these letters and was concerned about them.” Dalton believed that a file of these letters was maintained in Judge Rittenband’s department and stated that he would ask at the hearing that the file be marked as an exhibit to the statement of disqualification.

According to Dalton, “Both Deputy District Attorney Gunson and defense counsel Dalton have stated to the Judge that it was improper to consider such ex parte communications.” Furthermore, Dalton alleged that “[p]rior to the defendant’s commitment to Chino for the diagnostic study, Judge Rittenband advised counsel for the defense and for the prosecution that he had heard from a friend of his that there had been an

article in a London newspaper approximately eight to ten years ago stating that Polanski had been involved in a similar incident with a minor female in London and had been forced to leave that country because of the occurrence. Gunson was told by Judge Rittenband to look into the matter. Thereafter he reported back to Judge Rittenband that he had found no factual record to support that such an event had occurred. Dalton stated his client denied that any such event had occurredf.] Judge Rittenband made a phone call to his friend in the presence of both Dalton and Gunson and said that the person still insiste[d] such an

article had appeared in a London paper. Counsel for the defendant complained that it was improper for the Judge to consider such reports outside the record.” Dalton also alleged that on another occasion, the trial court “stated to Roger Gunson and Douglas Dalton that he believed that one Henri Sera had put Polanski in touch with the girl involved in the present case for the specific purpose of Polanski having a sexual contact with her.

Gunson advised the Judge that his office had thoroughly investigated that possibility, and their investigation had concluded that there was nothing to substantiate that Henri Sera contacted the family or the girl so that Polanski could have sexual relations with her. Despite this assertion by the District Attorney Gunson, on or about January 30,[] 1978, in a conference in chambers, Judge Rittenband stated to Roger Gunson and Douglas Dalton that he still believed that Sera had made arrangements for Polanski so that the defendant could have a sexual relationship with the girl.” III.

Alleged Conduct After Flight, Prior to Statement of Disqualification Dalton alleged that within days after Polanski’s flight, Judge Rittenband held a press conference. Dalton asserted that the judge discussed the in-chambers meetings he had with counsel and disclosed that he “had told the attorneys that his intention at that time was to sentence the defendant to state prison and release him in 48 days if he agreed to voluntary deportation.” According to Dalton, at the news conference on February 6, 1978, Judge Rittenband stated, “I’m not unhappy he’s out of the country.

His conduct in this case is such that it would warrant his leaving the country.” Dalton further alleged that the judge said, “I then discussed with them [counsel] what I might do, and among that was the—my thought that I would see that Mr. Polanski spend additional time in prison. The length of time, of course, would depend on whether or not there would be a deportation or if not deported involuntarily he would agree with the Director of Immigration to consent in writing to leaving the country in which case any balance of his stay in prison would be cut short.” IV.

Polanski’s Subsequent Opportunity to Return Without Further Incarceration Douglas Dalton, 2008: “[S]ometime in 1997, I requested that Mr. Gunson appear in Department 100, the presiding criminal department, so I could request assignment of the Polanski case to a new judge to discuss a potential resolution of the matter. The case was assigned to Superior Court Judge Larry Fidler. Mr. Gunson and I were given the court file which we took to Judge Fidler’s courtroom. Nothing was said to us that any part of the court file, was missing. Judge Fidler recognized both of us and invited us into his chambers.

No court reporter or stenographer was present at the ensuing meetings between Judge Fidler, Mr. Gunson, and me that followed over the next several weeks. I explained to Judge Fidler my purpose in requesting the meeting, and he stated that he had some recollection of the case from 1977 and the problems regarding Judge Rittenband.

Judge Fidler agreed to take the case, even though he could easily have declined to accept handling what he knew to be a controversial matter in which he could expect criticism.” Dalton stated, “Judge Fidler made no representation of what he would have done had he handled the case originally, but only that he believed that a commitment made by a Judge of the Court should be fulfilled. Thus, after several meetings and a full review of the factual material, Judge Fidler stated that he would honor the agreement made by Judge Rittenband that the period of incarceration for Mr.

Polanski while undergoing the diagnostic study would constitute the full and complete punishment, [f] After considering the materials we submitted and after discussions with Mr. Gunson and me, Judge Fidler advised us that, if Mr. Polanski returned to Los Angeles, he would allow Mr. Polanski to be booked and immediately released on bail, require Mr. Polanski to meet with the probation department, order a probation report, conduct a hearing, and terminate probation without Mr.

Polanski having to serve any additional time in custody.” Dalton continued, “Judge Fidler stated that due to the widespread public interest in the case and the lack of awareness regarding what had occurred in 1978, the sentencing proceedings should be televised in order that wide public coverage could be afforded for the benefit of the public understanding.” Dalton consulted with Polanski and Polanski’s agent.

According to Dalton, the prospect of televising the proceedings was a deal breaker, and Polanski elected not to return to the United States even with this assurance of no incarceration: “Given the prospect of another huge media event and the changed personal circumstances of Mr. Polanski, which included a stable marriage and two young children, it was Mr. Polanski’s decision not to resurrect this 20-year old case at that time for another worldwide televised media event.” V.

Evidence of Misconduct by a Member of the District Attorney’s Office Revealed After Polanski’s Flight The film Roman Polanski: Wanted and Desired, released in 2008, contained interviews from a number of persons involved in the Polanski case, including Dalton and Gunson. It also featured excerpts from an interview with a former deputy district attorney named David Wells. Wells claimed he had initially handled the case for the district attorney’s office but that the case was taken from him because he “was too close to the investigation” and had become a potential witness by engaging in conversations with Polanski.

In an interview with the filmmakers, Wells described himself as disappointed that the Polanski case was taken from him. “I wanted to try that case because all of us like some measure of publicity, and this is the way you get it in the D.A.’s office, trying major cases or publicity cases.” Although Wells was not the prosecutor on the Polanski matter, he claimed to have been “privy to almost everything that went on in that case[,] being assigned to that court as the calendar deputy. I was in the court every day.

So Rittenband’d ask me questions about the thing because he counted on me, or whoever his favorite D.A. was at the time, to advise him on what the—what the law was, criminal law. He was very good at civil law, but criminally, he left that to his D.A.s to—to do.” He described Judge Rittenband as saying to him, “ ‘Look, I don’t know anything about criminal law, don’t want to know. Just don’t get me reversed on appeal.

You do whatever you want to do, just don’t get me reversed.’ That was his theory.” Wells claimed to have been “as good [a friend with Judge Rittenband] as anybody can be,” even discussing the judge’s girlfriends with him. Wells said that he used to “kid with him a lot. He took me to Hillcrest [Country Club] for lunch every once in a[] while.

And in that respect I knew him and I could talk to him.” According to Wells, he was not involved with Polanski’s plea, but he felt strongly about it: “I know I was very miffed the way it turned out because my feeling was the guy belonged in state prison.” Wells was “pretty vocal about that,” to the point where he “was told by the [district attorney’s] office, ‘It’s not your case anymore.’ ” Wells described himself as feeling that Polanski’s offense was “reprehensible and I felt that he should have gone to state prison, and I would have insisted on a state prison sentence.” Wells described ex parte communications he had with Judge Rittenband while the matter was pending before him. “Rittenband had asked me about it.

And I said, ‘Judge,’ I said, ‘You know, you’re gonna give this guy probation.’ [ft] He said, ‘No, no. I wanna send him to jail.’ [ft] I said, ‘You’ll never do it because the first thing that’s gonna happen when you sentence him, he’s gonna appeal it. And it’s gonna go all the way up to the State Supreme Court—he has the money—and he’ll take it to the U.S. Supreme Court, if he thinks he can.” Wells claimed to have been the architect of the plan to use a diagnostic study referral as a nonappealable punishment.

According to Wells, Judge Rittenband asked, “ ‘Well what am I gonna do’—or ‘What should I do?’ ” Wells allegedly responded, “And I said, ‘You know what you should do is send him up for a 90-day observation because that’s probably more time than you’re gonna give him anyway because you’re a softy on sentencing.’ ” Wells reported that the court asked, “ ‘Well what will that do?’ [f] And I said, ‘It’s not a final sentence. You can’t appeal it. He has to go.’ ” Wells said, “And so that’s what Rittenband did.

He made his own decision up, but, you know, I told him it’s not a final sentence.” Wells also claimed in the interview to have called the court’s attention to the photograph of Polanski in Munich and to have characterized it as a direct insult to Judge Rittenband: “I took it in to Rittenband because I figured it was something he ought to see. [f] And what I told him was, I said, ‘You know, Judge, you’ve made so many mistakes, I think, in this case. Look at [this]. He’s giving you the finger. He’s flipping you off.

And here’s the way he’s doing it.’ And I said, ‘Haven’t you had enough of this?’ ” According to Wells, the court responded, “ ‘What?

What?’ ” and “ ‘He’s not gettin’ away with that.’ ” Wells said, “And then, of course, then he exploded, what happened happened.” Wells drew a distinction between provoking Judge Rittenband with the Polanski photograph and “sitting down and talking about sentencing on a case or the trial tactics, which would be unethical,” although he thought that, “In retrospect, it would have probably been better to let it sit because I’d be waiting like a big spider or Rittenband would, and if he saw the picture and Roman Polanski didn’t know about it and he slammed him with a sentence, he’d be in trouble.” Both Gunson and Dalton have denied, in written statements made under penalty of perjury, any knowledge of these alleged ex parte contacts between Wells and the trial judge at the time that they allegedly occurred.

Counsel for Polanski has also communicated to this court that Wells has since “in part recanted” his statements but this is not established by the record supplied to this court. VI. Legal Proceedings Subsequent to Film Revelations In late 2008, Polanski’s counsel filed a request in Department 100, before Judge Peter Espinoza, asking that the trial court, on its own motion, dismiss the action against Polanski in furtherance of justice.

That request was based on the allegations of judicial misconduct that had been known to Polanski in 1977 and 1978; on Wells’s revelations in the film; on allegations that the district attorney’s office and the court committed misconduct in 2008 when they denied, in response to the Polanski film, that Judge Fidler had insisted in 1997 negotiations that the proceedings would be televised if Polanski returned; and on Geimer’s expressed wishes that the matter be concluded. Geimer filed a declaration and requested the court to dismiss the action.

In January 2009, Polanski’s counsel filed a verified statement of disqualification seeking to disqualify the entire Los Angeles Superior Court from hearing the Polanski matter, in which counsel alleged that one judge (Judge Fidler) had personal knowledge of disputed evidentiary facts in the case; that the court’s public information office had expressed the court’s predetermination of issues before the court; and that the court was biased against Polanski’s counsel. This statement was stricken on the ground that it demonstrated on its face no legal basis for disqualification.

On February 17, 2009, the trial court heard argument and issued its written order. The court ruled that Polanski must be present at any proceeding regarding his case, pursuant to the outstanding bench warrant and

section 977, and it also concluded that under the fugitive disentitlement doctrine, Polanski was not entitled to request affirmative relief from the court while he remained at large. The trial court extensively discussed the policy considerations underlying the fugitive disentitlement doctrine and their application in the context of the Polanski matter, and relied on principles of enforceability, deterrence, encouragement of surrender, the protection of the court’s dignity, attempts to gain an advantage over the court, and delay.

It concluded that Polanski forfeited his right to approach the court for affirmative relief by remaining outside the jurisdiction of the court. Expressly stating that it did not reach the substantive merits of Polanski’s claims, the court denied what it called “the motion to dismiss” without prejudice, but stayed the order to permit Polanski to return and submit to the court’s jurisdiction. The court orally granted a stay of the order until May 7, 2009. On May 4, 2009, Polanski’s counsel advised the trial court that Polanski would not appear at the hearing set for May 7.

The court, on May 7, ordered that its previously stayed order take immediate and full effect. On July 7, 2009, Polanski’s counsel filed a petition for writ of mandate in this court, asking as principal relief that we compel the trial court to dismiss the action. On July 8, 2009, this court requested that the People serve and file opposition to the writ petition on or before July 24, 2009.

We received the requested opposition on July 24; on July 30, 2009, this court issued an order to show cause why the trial court should not be compelled to vacate its orders and to set the matter for an evidentiary hearing, without requiring Polanski to be present, to determine whether the case should be dismissed in furtherance of justice. After briefing was completed but before the matter was set for oral argument, it came to the court’s attention that Polanski had been arrested in Switzerland in connection with the pending criminal action.

Polanski’s counsel soon thereafter asked for expedited oral argument in this matter because Polanski had been apprehended, while the district attorney’s office advocated dismissing the writ proceeding as moot for the same reason. We requested and received supplemental briefing on the People’s assertion that Polanski’s anticipated plan to oppose extradition constitutes a forfeiture of the right to request relief from this court.

This court also received Geimer’s request to this court to dismiss the matter for the purpose of finality and to end the disruption, trauma, and personal invasion that she suffers whenever public interest resurges in the case. DISCUSSION I. Standing The People contend that this petition should be dismissed because Polanski lacks standing to bring it. The People begin with the language of

section 1385, which confers authority to move to dismiss an action in the interest of justice upon two parties, the trial court and the prosecutor. It is well established that “a defendant does not have a right formally to make a motion before a magistrate [or judge] to dismiss a complaint in furtherance of justice under

section 1385. By its terms,

section 1385 provides for the magistrate [or judge] to exercise his or her authority to dismiss on this basis only on ‘his or her own motion or upon the application of the prosecuting attorney.’ (§ 1385, subd. (a).) It is settled, however, that a defendant may ‘informally suggest’ that the magistrate [or judge] consider dismissal on the magistrate’s [or judge’s] own motion. (People v. Smith (1975) 53 Cal.App.3d 655, 657 [126 Cal.Rptr. 195] [with reference to a trial court]; accord, People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 137 [262 Cal.Rptr. 576] [same]; see Rockwell v.

Superior Court (1976) 18 Cal.3d 420, 441-442 [134 Cal.Rptr. 650, 556 P.2d 1101] [same].)” (People v. Konow (2004) 32 Cal.4th 995, 1022 [12 Cal.Rptr.3d 301, 88 P.3d 36], fn. omitted.) The People acknowledge that the defendant in a criminal matter has the authority to ask the trial court to consider dismissal in the furtherance of justice and that the court must entertain the request. Indeed, they cite the decision in People v.

Carmony (2004) 33 Cal.4th 367 [14 Cal.Rptr.3d 880, 92 P.3d 369] (Carmony), which provides, “A defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under

section 1385. But he or she does have the right to ‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.’ [Citation.] And ‘[w]hen the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to him by the Legislature and grant a dismissal in the interests of justice.’ [Citation.]” (Id. at p. 375.) In Carmony, moreover, the Supreme Court held that “the defendant’s inability to move to dismiss under

section 1385 should not . . . preclude him or her from raising the erroneous failure to do so on appeal.” (Id. at p. 376 [holding that a defendant may appeal the decision not to dismiss a prior conviction under § 1385].) Although we are here considering a petition for writ relief rather than an appeal, the People have not offered, nor do we discern, any principled basis under

section 1385 for distinguishing between the two forms of appellate relief. Based on Carmony, we identify no impediment to appellate review of the trial court’s ruling on Polanski’s invitation, whether it is termed a motion or an informal request, to the trial court to dismiss the matter. The People’s contention that “[b]ecause he lacked standing to bring the motion, there are no arguable issues on appellate review before this Court and the Petition should be dismissed; he cannot seek appellate review of a motion he could not bring in the first place,” contravenes the holding of Carmony and is not meritorious. The People contend, however, that if the limitation on who may seek dismissal under

section 1385 “is to have any meaning at all, it must apply to this defendant who is a fugitive . . . .” Conflating standing and equitable disentitlement, the People seek to bootstrap the concept of fugitive disentitlement to the idea of no defense standing from the language of

section 1385 and conclude that “the concept of requiring a court to dismiss a case [on] its own motion in the furtherance of justice cannot be reconciled with a fugitive who flouts the authority of that same court.” If we properly understand the People’s claim, they assert both that Polanski lacks the authority to informally request the court to dismiss his case until he returns to the jurisdiction, and that we lack the authority to review any trial court decision on such an informal request. Although presented as a

section 1385 standing argument, this contention is at its core an argument for the application of the equitable doctrine of fugitive disentitlement. The People have not, nor have we, identified any authority making an exception for fugitives to the Supreme Court’s ruling in Carmony that a trial court’s

section 1385 determination is reviewable. (Carmony, supra, 33 Cal.4th at p. 376.) We do not hold that a trial or appellate court is barred from considering a defendant’s fugitive status in considering a

section 1385 request or an appeal or writ therefrom; we simply observe that nothing in

section 1385 or its interpretive decisional law precludes this court from considering the instant petition. As far as fugitive disentitlement, which shall be discussed in far greater depth below, the doctrine remains an equitable one, and we are aware of no authority compelling any court to disentitle a fugitive defendant by determining that he lacks standing for the purposes of seeking appellate review of a court’s decision under

section 1385. II. Mootness)Appellate Disentitlement The People, by letter filed October 9, 2009, have advocated that we dismiss Polanski’s petition for writ of mandate on mootness grounds. According to the People, because the sole issue presented in this matter, as set forth in the order to show cause, was whether the trial court should be compelled to order an evidentiary hearing without requiring Polanski to be physically present, the arrest of Polanski and the pending extradition proceedings have mooted the issue. If Polanski does not fight extradition, the People argue, then his physical presence will promptly be secured and he may make a

section 1385 request in person. If he fights extradition, then by this conduct he forfeits the right to invoke the jurisdiction of the court. “A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief.” (Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503 [1 Cal.Rptr.3d 207].) We do not agree that Polanski’s arrest and detention moot this case. We do not know whether Polanski will in fact be extradited and are given to understand that he is at present fighting extradition.

Polanski’s recent apprehension in Switzerland could potentially result in mooting the issue of a hearing in his absence: Polanski could appear in a California court at some point, either because he assents to extradition or because his opposition proves unsuccessful. But even before Polanski was detained, the possibility, albeit remote, that Polanski could appear in court existed, and the existence of that possibility did not moot the issue.

Certainly the arrest in Switzerland significantly increased the possibility that Polanski would appear in the superior court, but in the absence of actual extradition, we cannot say that the question of Polanski’s entitlement to a hearing in his absence has been rendered moot. Polanski is still not here and shows no signs of appearing anytime soon, so the question of whether he is entitled to relief from afar has not been rendered “ ‘abstract or academic’ ” by subsequent events, nor is there any indication that a decision in Polanski’s favor would now be “without practical effect.” (People v.

Herrera (2006) 136 Cal.App.4th 1191, 1198 [39 Cal.Rptr.3d 578].) Although the People characterize their argument as concerning mootness, in fact they advocate appellate application of the fugitive disentitlement doctrine.

As the People put it, “It was an affront to the authority of this Court and of the superior court for Petitioner to say that he should not have to voluntarily get on a plane and surrender himself to this Court’s jurisdiction in order to have his dismissal motion heard; it is an even more egregious affront and a waiver of the issue presented, to affirmatively fight return to the jurisdiction of this Court while seeking relief from it at the same time.” While there is no constitutional bar to forcing a fugitive to decide between fighting extradition and obtaining legal benefits that are denied to fugitives (see U.S. v.

Catino (2d Cir. 1984) 735 F.2d 718, 723 [not unconstitutional to require a defendant to choose between fighting extradition and gaining the benefit of the statute of limitations]), Polanski’s resistance to extradition does not automatically “disentitle” us from considering his petition. (U.S. v.

Gonzalez (9th Cir. 2002) 300 F.3d 1048, 1051 [because fugitive disentitlement “is an equitable doctrine, application is discretionary”].) Because of the very serious allegations of judicial and prosecutorial misconduct raised by Polanski in this matter and their implications for the integrity of the criminal justice system, we decline the People’s request to apply the disentitlement doctrine to Polanski’s petition for writ of mandate and instead consider it on its merits. (See Eisler v.

United States (1949) 338 U.S. 189, 196 [93 L.Ed. 1897, 69 S.Ct. 1453] (dis. opn. of Jackson, J.) (Eisler) [“I do not think we can run away from the case just because Eisler has.”].) HI. Timeliness The People next argue that this petition should be dismissed because it was filed 61 days after the date that the trial court’s ruling became final.

While conceding that “a one-day delay by itself is not significant,” the People argue that the delay was unreasonable and unjustified, warranting dismissal. “A filing period of 60 days is typically recognized, but a petition filed after 60 days will not be denied unless the respondent can show prejudice. [Citations.]” (Good v.

Superior Court (2008) 158 Cal.App.4th 1494, 1505, fn. 9 [71 Cal.Rptr.3d 125].) We decline to dismiss the petition on timeliness grounds because the People have not identified any prejudice from the filing of this writ petition on July 7, 2009, rather than on July 6, 2009; because the delay in filing the petition was truly minimal; and because any court interest in holding fast to the timeliness principle against a nonprejudicial one-day incursion is far outweighed by the interest in considering the grave judicial and prosecutorial misconduct alleged here. IV.

The Trial Court Did Not Abuse Its Discretion When It Ruled That Polanski Was Subject to the Fugitive Disentitlement Doctrine A. The Fugitive Disentitlement Doctrine: History and Policies “That the court, independent of statutory authority, has power to dismiss the appeal of an appellant who is a fugitive from justice has long been accepted as a proper exercise of the jurisdiction of the appellate courts of this state.” (People v. Clark (1927) 201 Cal. 474, 477 [259 P. 47].) The fugitive disentitlement doctrine dates back to 1880 in California with People v.

Redinger (1880) 55 Cal. 290 (Redinger), in which the Supreme Court dismissed an escaped defendant’s appeal because “[i]t would be a farce to proceed in a criminal cause, unless the Court had control over the person charged, so that its judgment might be made effective.” (Id. at p. 298.) The California disentitlement doctrine is frequently explained in these terms: “A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.” (MacPherson v.

MacPherson (1939) 13 Cal.2d 271, 277 [89 P.2d 382].) The disentitlement doctrine is equally venerable on the federal level. In 1876, in Smith v.

United States (1876) 94 U.S. 97 [24 L.Ed. 32], the United States Supreme Court declared, “It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render.” (Id. at p. 97.) The defendant’s escape “does not strip the case of its character as an adjudicable case or controversy,” but “it disentitles the defendant to call upon the resources of the Court for determination of his claims.” (Molinaro v.

New Jersey (1970) 396 U.S. 365, 366 [24 L.Ed.2d 586, 90 S.Ct. 498].) A variety of justifications have been advanced in support of the fugitive disentitlement rule. One, of course, is enforceability. “[S]o long as the party cannot be found, the judgment on review may be impossible to enforce.” (Degen v.

United States (1996) 517 U.S. 820, 824 [135 L.Ed.2d 102, 116 S.Ct. 1777] (Degen), superseded in the civil forfeiture context by 28 U.S.C. § 2466; see also Redinger, supra, 55 Cal. at p. 298.) Another is a sense of unclean hands: the “abstract principle that a fugitive forfeits the right to invoke the jurisdiction of the courts to review a judgment that the fugitive flouts. [Citations.]” (People v.

Kubby (2002) 97 Cal.App.4th 619, 623 [118 Cal.Rptr.2d 588] (Kubby).) Courts have also grounded the disentitlement doctrine in the affront to the justice system arising from a fugitive’s appropriation to himself or herself of the power to dictate the ultimate result of the criminal proceedings.

One California court has articulated this concern as follows: “Defendant’s flight from the court’s jurisdiction makes a mockery of the justice system because it places the misdemeanant, rather than the courts, in the position of determining whether to submit to the court’s judgment.” (Kubby, supra, 97 Cal.App.4th at p. 626.) In Allen v.

Georgia (1897) 166 U.S. 138, 141 [41 L.Ed. 949, 17 S.Ct. 525], the United States Supreme Court observed that if a fugitive is not barred from pursuing an appeal while absent, “he is put in a position of saying to the court: ‘Sustain my writ and I will surrender myself, and take my chances upon a second trial; deny me a new trial and I will leave the State, or forever remain in hiding.’ We consider this as practically a declaration of the terms upon which he is willing to surrender, and a contempt of its authority, to which no court is bound to submit.

It is much more becoming to its dignity that the court should prescribe the conditions upon which an escaped convict should be permitted to appear and prosecute his writ, than that the latter should dictate the terms upon which he will consent to surrender himself to its custody.” This need to vindicate the integrity of the judicial system has been considered, under some circumstances, so significant that the disentitlement doctrine has been imposed on a nonfugitive defendant who has signaled by his conduct that he will only accept a decision in his favor. In People v.

Brych (1988) 203 Cal.App.3d 1068 [250 Cal.Rptr. 402], the appellant had served his sentence and lawfully emigrated from the United States, but his appeal remained pending. (Id. at p. 1075.) Brych refused to communicate with his counsel or to divulge his whereabouts. (Id. at p. 1077.) The Court of Appeal concluded that the disentitlement doctrine should apply even though the appellant was not a fugitive, because the court could not be sure it was making a decision that could be enforced; because the legal issues were no longer tethered to an available litigant; and because the appellant would accept only an outcome agreeable to him.

The court wrote, “Appellant thus has placed himself in the enviable position of being able to decide unilaterally whether to return to the United States in the event this court reverses his conviction and the district attorney determines a retrial is feasible. We cannot reasonably assume that, if ordered to return to this jurisdiction for retrial, appellant would learn of such order and return voluntarily, or that he could be compelled to return.

Such an approach on appellant’s part to the present appeal is inherently offensive to the judicial process.” (Ibid.) The disentitlement doctrine “serves an important deterrent function” (Ortega-Rodriguez v.

United States (1993) 507 U.S. 234, 242 [122 L.Ed.2d 581, 113 S.Ct. 1199] (Ortega-Rodriguez)): it discourages the felony of escape and encourages voluntary surrenders. (Degen, supra, 517 U.S. at p. 824.) Disentitlement also “ ‘promotes the efficient, dignified operation’ of the courts.” (Ibid.) Finally, in appropriate cases, disentitlement protects the people from prejudice by the passage of time in the event of a reversal on appeal. (Ortega-Rodriguez, at p. 249 [disentitlement may be “an appropriate response” where “a long escape ... so delay[s] the onset of appellate proceedings that the Government would be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal”]; People v.

Kang (2003) 107 Cal.App.4th 43, 51 [131 Cal.Rptr.2d 447] (Kang).) B. The Balance of Equitable Considerations Fugitive disentitlement, however much it may advance legitimate policies (U.S. v. Veliotis (S.D.N.Y. 1984) 586 F.Supp. 1512, 1515 (Veliotis)), is not an automatic rule but a discretionary tool of the courts that may only be applied when the balance of all equitable concerns leads the court to conclude that it is a proper sanction for a party’s flight. (U.S. v.

Van Cauwenberghe (9th Cir. 1991) 934 F.2d 1048, 1054 (Van Cauwenberghe) [“The disentitlement doctrine ... is not one of jurisdictional dimensions, but rather one based on equitable considerations.”].) The doctrine is a blunt weapon, not appropriate in every matter in which a party has fled criminal prosecution. For instance, the United States Supreme Court held that the trial court was not justified in striking the filings of a claimant in a civil forfeiture action and granting

summary judgment against him because of his failure to appear in a related criminal prosecution. (Degen, supra, 517 U.S. at pp. 821, 825.) The Supreme Court considered all the justifications for the doctrine and concluded that the balance of the equitable concerns clearly did not tip in the direction of disentitlement.

First, the defendant’s absence posed no risk of delay or frustration in determining the merits of the forfeiture claims. (Id. at p. 825.) Second, the property in question was secure and any ultimate judgment would clearly be enforceable. (Ibid.) Third, although there existed a legitimate concern that the criminal prosecution of the defendant might be compromised by his participation in the forfeiture case, the trial court could manage and minimize any impact on the criminal matter by finely tailored rulings rather than a flat ban on participation. (Id. at pp. 825-826.) Although the interests in redressing the affront to the courts of the defendant’s flight and the need to deter flight by others were “substantial,” “disentitlement is too blunt an instrument for advancing them.” (Id. at p. 828.) The Supreme Court acknowledged its “disquiet at the spectacle of a criminal defendant reposing in Switzerland, beyond the reach of our criminal courts, while at the same time mailing papers to the court in a related civil action and expecting them to be honored.” (Degen, supra, 517 U.S. at p. 828.) Uncomfortable though the Supreme Court was at the prospect of Degen litigating a civil forfeiture action while avoiding criminal prosecution, “A court-made rule striking Degen’s claims and entering

summary judgment against him as a sanction . . . would be an arbitrary response to the conduct it is supposed to redress or discourage.” (Ibid.) A careful balance of the equities mandated that the fugitive disentitlement doctrine not be applied: “There would be a measure of rough justice in saying Degen must take the bitter with the sweet, and participate in the District Court either for all purposes or none. But the justice would be too rough. A court’s inherent power is limited by the necessity giving rise to its exercise.

There was no necessity to justify the rule of disentitlement in this case; to strike Degen’s filings and grant judgment against him would be an excessive response to the concerns here advanced.” (Id. at p. 829.) Similarly, in Ortega-Rodriguez, supra, 507 U.S. 234, the United States Supreme Court considered the equities of mandating the dismissal of an appeal of a defendant who fled the jurisdiction of a district court but was recaptured before appealing.

The court ruled that the fugitive disentitlement doctrine could not be applied under these circumstances because the balance of the equitable concerns did not support it: “the justifications we have advanced for allowing appellate courts to dismiss pending fugitive appeals all assume some connection between a defendant’s fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response.

These justifications are necessarily attenuated when applied to a case in which both flight and recapture occur while the case is pending before the district court, so that a defendant’s fugitive status at no time coincides with his appeal.” (Id. at p. 244, fn. omitted.) Enforceability would not be a concern, because the recaptured defendant would be within the control of the appellate court throughout the appeal and issuance of judgment. (Ibid) The efficient operation of the appellate process would not be advanced by dismissing appeals filed after former fiigitives are recaptured, because legal matters relating to the escape most likely would have been litigated at the time of recapture. (Id. at p. 245.) The dismissal of a former fugitive’s appeal would not protect or advance the dignity of the appellate court, and trial courts may defend their own dignity. (Id. at pp. 245-246.) Moreover, a rule “allowing] an appellate court to sanction by dismissal any conduct that exhibited disrespect for any aspect of the judicial system, even where such conduct has no connection to the course of appellate proceedings . . . would sweep far too broadly, permitting, for instance, this Court to dismiss a petition solely because the petitioner absconded for a day during district court proceedings, or even because the petitioner once violated a condition of parole or probation.” (Id. at p. 246.) Finally, such a broad disentitlement rule would not advance the principle of deterrence any more effectively than would a more limited rule: “Once jurisdiction has vested in the appellate court, . . . then any deterrent to escape must flow from appellate consequences, and dismissal may be an appropriate sanction by which to deter.

Until that time, however, the district court is quite capable of defending its own jurisdiction. While a case is pending before the district court, flight can be deterred with the threat of a wide range of penalties available to the district court judge.” (Id. at p. 247.) “Accordingly,” ruled the Supreme Court, “we conclude that while dismissal of an appeal pending while the defendant is a fugitive may serve substantial interests, the same interests do not support a rule of dismissal for all appeals filed by former fugitives, returned to custody before invocation of the appellate system.

Absent some connection between a defendant’s fugitive status and his appeal, as provided when a defendant is at large during ‘the ongoing appellate process,’ [citation], the justifications advanced for dismissal of fugitives’ pending appeals generally will not apply.” (Ortega-Rodriguez, supra, 507 U.S. at p. 249.) California courts, too, have declined to apply the disentitlement doctrine when the equities did not support it.

In Kang, supra, 107 Cal.App.4th at page 48, the Court of Appeal addressed the question of whether a former fugitive whose initial appeal had been dismissed could pursue an appeal anew after his recapture.

Considering the factors traditionally evaluated in the disentitlement analysis, the court concluded that it should decide Kang’s appeal on its merits. (Id. at p. 51.) Enforceability was no longer a problem, because Kang was back in custody. (Ibid.) Moreover, “[i]t may be true that Kang flouted the authority of the trial court when he failed to appear for sentencing and became a fugitive, but disentitlement of Kang to foreclose appellate review is not desirable. If it is essential to vindicate judicial authority, the prosecution may charge Kang with failure to appear pursuant to Penal Code

section 1320.5, although the penalty for that crime pales in comparison with the sentence imposed by the trial court. Put in perspective, disentitlement is largely symbolic.

Also, any consideration that dismissal discourages escape is speculative at best.” (Id. at pp. 51-52.) The court considered the most significant factor to be the impact that Kang’s fugitive status had on the appellate process: his appeal could have been combined with that of his codefendants had he been present. (Id. at p. 52.) The court questioned whether there would be prejudice to the government because “it would be impossible to convene a new trial due to the unavailability of witnesses and other evidence,” but found no evidence of prejudice. (Ibid.) The court concluded, “Even though Kang’s fugitive status precluded consolidation of his appeal with his codefendants’ appeals, which resulted in the loss of an efficient disposition of these related appeals, that is an inadequate basis by itself to disallow appellate review.” (Ibid.) In a noncriminal context, courts routinely decline to disentitle litigants on the basis of contempt, fugitive status, or noncompliance with court orders when the issues raised by the litigant entail interests beyond the personal of the individual petitioner, such as the welfare of minor children or overarching issues of public interest and policy.

The California Supreme Court, in the divorce case Hull v. Superior Court (1960) 54 Cal.2d 139 [5 Cal.Rptr. 1, 352 P.2d 161], confirmed the disentitlement doctrine but noted that the court need not disentitle a petitioner if the public interest will be better served by handling the matter on its merits: “A court should have the right to deny its processes and aid to one who stands in contempt or is in contempt of its orders. One who has wilfully refused to comply with the mandate of a court cannot then compel that court to do his bidding.

But it must be remembered that even though the moving party has been adjudicated in contempt, the court is not required to bar entry of the final decree, but such action remains within the trial court’s discretion. If the court determines that the public interest will be better served by finally and permanently dissolving the marital status it is entirely within its power to do so. [Citation.]” (Id. at p. 146.) Similarly, in Smith v.

Smith (1955) 135 Cal.App.2d 100 [286 P.2d 1009], the Court of Appeal refused to apply the disentitlement doctrine against an absconding father because, inter alia, his appeal raised questions of the best interests of the minor children involved. As the court explained, “The personal rights of the parties are by no means the sole subject of judicial concern.” (Id. at p. 107; see also Dupes v.

Dupes (1919) 43 Cal.App. 67, 69 [184 R 425] [declining to dismiss mother’s appeal in a dissolution matter based on “consideration for the welfare of the minors and of their probable ultimate disposition, as well also the interest the state has in the maintenance of the marital state”].) C. Standard of Review The trial court’s ruling on a request for dismissal in the furtherance of justice under

section 1385 is reviewed for an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) As the application of the disentitlement doctrine is abundantly within the court’s discretion (see, e.g., People v.

Buffalo (1975) 49 Cal.App.3d 838, 839 [123 Cal.Rptr. 308]; Van Cauwenberghe, supra, 934 F.2d at pp. 1054-1055), we review the trial court’s refusal to consider exercising its discretionary authority to dismiss the action on the basis of this doctrine for an abuse of that discretion. “Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (People v.

Hovarter (2008) 44 Cal.4th 983, 1004 [81 Cal.Rptr.3d 299, 189 P.3d 300].) “The abuse of discretion standard is ‘deferential,’ but it ‘is not empty.’ [Citation.] ‘[I]t asks in substance whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts [citations].’ [Citation.]” (People v.

Giordano (2007) 42 Cal.4th 644, 663 [68 Cal.Rptr.3d 51, 170 P.3d 623] (Giordano).) “ ‘Obviously the term is a broad and elastic one [citation] which we have equated with “the sound judgment of the court, to be exercised according to the rules of law.” [Citation.]’ [Citation.] Thus, ‘[t]he courts have never ascribed to judicial discretion a potential without restraint.’ [Citation.] ‘Discretion is compatible only with decisions “controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice . . . .” [Citation.]’ [Citation.] ‘[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’ [Citation.]” (People v.

Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 [60 Cal.Rptr.2d 93, 928 P.2d 1171] (Alvarez).) Review for an abuse of discretion gives appropriately broad latitude to the trial court with respect to discretionary decisions that involve balancing equitable considerations. The trial court’s “ ‘decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (Alvarez, supra, 14 Cal.4th at p. 978.) D.

Denying the Request for Dismissal and Applying the Fugitive Disentitlement Doctrine Was Not an Abuse of Discretion We have thoroughly reviewed the record of the proceedings in this matter as well as the allegations made by Polanski of serious misconduct by the original judge and a member of the district attorney’s office.

Even though the allegations, if ultimately found to be true, present a very significant systemic issue of injustice and misconduct, we cannot conclude that the trial court abused its discretion here in precluding Polanski from affirmatively seeking relief from the trial court until he submitted to its jurisdiction. Contrary to Polanski’s argument, the trial court did not simply deny Polanski’s request for relief because of his status as a fugitive, without weighing any equitable factors.

To the contrary, the court exercised its discretion in reaching its conclusion, and its thoroughly considered ruling was in no respect arbitrary, capricious, or patently absurd. 1. Factors Considered by the Trial Court Many of the traditional reasons for applying the disentitlement doctrine are present here. Above all, as the trial court recognized, Polanski has engaged in exactly the kind of conduct that the disentitlement doctrine is designed to combat—seeking relief from the courts while “insulating [himself] from the consequences of an unfavorable result.” (Antonio-Martinez v.

INS (9th Cir. 2003) 317 F.3d 1089, 1093.) If the trial court had acceded to Polanski’s request that the criminal proceedings be dismissed, he would of course have accepted that ruling. But under the preapprehension circumstances facing the trial court when it ruled, the court lacked any ability to enforce any judgment it might render if it declined to dismiss the action— because a dissatisfied Polanski would simply remain abroad.

This is the “ ‘heads I win, tails you’ll never find me’ ” (ibid.) dynamic that arises when a fugitive seeks to undercut criminal proceedings against himself or herself without subjecting himself or herself to the criminal justice system. This fundamental enforceability problem is at the core of the disentitlement doctrine. (Redinger, supra, 55 Cal. at p. 298.) We recognize that Polanski argues that his flight was warranted and necessary, but his actions are nonetheless the archetypal conduct warranting disentitlement. Moreover, as the trial court observed, the doctrine’s motivating aspect was applicable here.

One intent of the doctrine is to encourage voluntary surrenders (Degen, supra, 517 U.S. at p. 824) by dangling the carrot of review before runaway litigants, to be delivered when the litigant returns to the jurisdiction. A trial court possesses few options for inducing a fugitive who has left the jurisdiction to voluntarily return, and denying Polanski relief until he returned to California by denying the request without prejudice to a future request struck a balance between punishing Polanski for leaving and offering him the opportunity to seek relief as soon as he honored the court’s order to appear.

The trial court also considered the deterrent aspect of the fugitive disentitlement doctrine, usually one of the less explored considerations in the doctrine’s application. Although some courts have expressed skepticism that the disentitlement doctrine serves a deterrent purpose (see Kang, supra, 107 Cal.App.4th at p. 52 [“any consideration that dismissal discourages escape is speculative at best”]), the trial court observed that the long-standing public fascination with this case increased its deterrent potential.

Polanski’s claim that there is no potential deterrent effect here because any other defendant in Polanski’s shoes would react as Polanski did both underestimates other defendants’ abilities to identify legal alternatives to flight and fails to consider the possible general deterrent effect on defendants who do not believe themselves to be victims of irremediable misconduct.

We cannot gainsay the trial court’s reasoned conclusion that the public interest and media coverage of all developments in this matter would tend to increase the potential deterrent effect on others of refusing to grant Polanski relief unless he returns to California and appears in court. Another consideration weighed in the balance by the trial court was the court’s ability to protect its own dignity from a litigant who defies the court’s authority.

We need not add our voice to the chorus of courts that have expressed indignation at the prospect of a fugitive litigant demanding affirmative relief from the courts while remaining safely ensconced outside the jurisdiction and protected from an adverse decision, but we note that this was a proper consideration for the trial court, which is entitled to and empowered to protect its own dignity.

This interest is not paramount—were there no other factors weighing in favor of disentitlement, we believe that the interest in self-protection alone could not merit reliance on the doctrine—but here it is one factor among many that support disentitlement.

Polanski contends that justifying disentitlement on the basis of protecting the court’s dignity is unreasonable because the court’s conduct prompted his flight, but as we will discuss further, post, Polanski could have availed himself of mechanisms for raising his allegations of judicial misconduct short of being disrespectful of the entire judicial process by fleeing.

The trial court also rejected Polanski’s argument that he was not flouting the process of the law or attempting to obtain a tactical advantage over the court, noting that the very court that set forth the concept of an attempt to obtain a tactical advantage described it as being in a position “to await the judicial result and return if it is favorable or to remain a fugitive if it is not.” (Katz v. U.S. (9th Cir. 1990) 920 F.2d 610, 612, abrogated on other grounds in Lozada v. Deeds (9th Cir. 1992) 964 F.2d 956.) That, as the trial court saw, is exactly what Polanski tried to do here.

Polanski claims that he was not seeking a tactical advantage because he was “not challenging his judgment,” but Polanski clearly attempted to see if he could secure complete relief without risk: He filed his request asking the court to exercise its discretion under

section 1385 to dismiss the criminal prosecution against him and wipe the slate clean (People v. Barro (2001) 93 Cal.App.4th 62, 67 [112 Cal.Rptr.2d 797] (Barro)), and when that request yielded no benefit, he advised the court that he would not return during the stay of the ruling on the

section 1385 request, a stay ordered expressly to allow Polanski to return for a hearing on the merits. Clearly Polanski did not surrender to California authorities prior to his arrest in Switzerland. Finally, the court considered how long Polanski had waited before requesting the dismissal of the charges and the prejudice resulting from the delay. Polanski’s delay appears to have been unjustifiable under the facts of the case. Polanski may not have known of the alleged contacts between Wells and Judge Rittenband until 2008, but he was well aware of the misconduct he alleges by Judge Rittenband in 1977 and 1978.

Without minimizing the seriousness of the misconduct that Wells appears to have revealed in his 2008 interviews, the core of the alleged injustice in this matter is Judge Rittenband’s conduct.

If Wells’s account is true, Judge Rittenband was ushered along a path of iniquity by an officer of the court with a personal axe to grind and no hesitation to engage in unethical ex parte communications and devise illegal, nonappealable sentences to circumvent the defendant’s due process and sentencing rights—but it remains Judge Rittenband who imposed an improper punishment, said he would renege on the punishment agreement, threatened to sentence Polanski to prison with unlawful conditions for his release, and engaged in improper conduct with the media and others not involved in the matter.

Polanski knew about all this judicial conduct at the time of his flight, but did not seek dismissal of the prosecution for more than 30 years. During that time, many of the players have retired and the judge alleged to have compromised the justice system has died. Polanski’s delay in seeking relief when he had all the information he needed to make a case of judicial misconduct has negatively impacted the justice system’s ability to ascertain the truth here, for we will never be able to hear Judge Rittenband’s full account of events and are left with only a short written document from 1978. 2.

The Availability of Legal Remedies Other Than Flight Polanski argues that the trial court should be precluded from invoking the disentitlement doctrine to deny him relief today because his absence resulted from the original trial judge’s own misconduct in failing to abide by the sentencing agreement and threatening Polanski with additional incarceration coupled with illegal deportation conditions. Even in light of our fundamental concern about the misconduct that has been alleged here with significant evidentiary support, flight was not Polanski’s only option. It was not even his best option.

From the record Polanski has provided to this court, at the time he fled Polanski knew what he needed to know to make a case for a violation of due process, and at all times in this matter, he has had means at his disposal other than flight by which he could have obtained relief. a. Remedies Available to Polanski as of January 31, 1978 Contrary to his hyperbolic claim that he was “provoked (indeed, compelled)” to flee the country to escape an illegal sentence, there is no evidence that Polanski was without a remedy when he fled in 1978. Polanski appears t

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