AnonOrange
Gold Meritorious Patron
Graham submitted a pretty comprehensive motion yesterday that makes some very interesting claims. Besides the illegality of making such an attack, it turns out that they may have tried to falsify a survey and may have acquired the land where the attack took place using a fraudulent method to obtain a construction permit, which otherwise would have been denied, because the castle, and about 1/2 of Gold Base was constructed a flood plain.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF RIVERSIDE
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
v.
AnonOrange DOB:09/14/1956, Defendant.
Case No: SWM080760
DEFENDANT’S NOTICE OF MOTION AND MOTION FOR AN ORDER THAT DEFENDANT AND HIS AGENTS MAY ENTER UPON PRIVATE PROPERTY AND/OR DISPUTED LAND TO INSPECT AND MEASURE; DECLARATION OF GRAHAM E. BERRY IN SUPPORT THEREOF, EXHIBITS THERETO.
Trial Date: October 30, 2009
DATE: August 28, 2009
TIME: 9: A.M.
DEPT: S104
TO THE DISTRICT ATTORNEY OF RIVERSIDE COUNTY AND/OR HIS REPRESENTATIVE:
PLEASE TAKE NOTICE that on Friday the 28th day of August, 2009, at 9:A.M., or as soon thereafter as counsel may be heard in Department S104 of the Riverside Superior Court, South West Division, at 30755 Auld Road, Murrieta, CA 92563, Defendant through and by his counsel of record herein will and hereby does move this Honorable Court for an order permitting the Defendant and his agents (accompanied by any desirous representatives of The People) to have access to and to enter upon the unfenced roadside property that is in issue in this matter [for the purpose of inspecting, photographing, measuring and otherwise preparing for trial herein] and being collectively but inaccurately described as 19625 Highway 79, San Jacinto, CA 92583.
THIS MOTION will be made pursuant to California Penal Code section 1054-1054.7 and upon the grounds, inter alia: (1) that access for the purpose of inspecting and photographing this location is necessary for the presentation of a defense in this case; and (2) that this Court has an inherent discretion to control the proceedings before it.
THIS MOTION will be based on this notice of motion, on the attached declaration and memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as may hereafter be filed with the court or stated orally at the conclusion of the hearing on the motion, and on such oral and documentary evidence as may be presented at the hearing of the motion.
Dated: August 18, 2009 Respectfully submitted,
__________________
GRAHAM E. BERRY
Attorney for Defendant AnonOrange
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
This is a motion to allow the defense lawful access to the scene of the crime (s) charged herein in response to a citizen’s arrest that the defense will, among other things, argue was unlawful for a number of reasons and having a number of consequences (both criminal and civil) for those responsible for the unlawful assault, battery, imprisonments and serious continuing injuries to the accused herein.
More specifically, the accused AnonOrange is requesting a pre-trial discovery order permitting the accused and his agents (accompanied by any desirous representatives of The People) to have access to and to enter upon the unfenced roadside property that is in issue in this matter [for the purpose of inspecting, photographing, measuring and otherwise preparing for trial herein] and being collectively but inaccurately described as 19625 Highway 79, San Jacinto, CA 92583.
II. APPLICABLE FACTS
The international headquarters of the Church of Scientology is located on approximately 550 acres of land at Gilman Hot Springs outside of Hemet, California. Its actual street address is 19625 Highway 79, San Jacinto, CA 92583. It masquerades as the Golden Era Film Studios and that is one of its primary functions; to serve as a media production, manufacturing and distribution facility. For many decades, members of the public have protested the criminal conduct and human rights abuses of the Church of Scientology which has used various tactics (both lawful and unlawful) to try and stop or interfere with these first amendment protests wherever and whenever they occur.
The accused is one of the over nine thousand people who, since late January 2008, have been engaging in monthly and other global protests against Scientology crime and abuse in over 110 cities in over 42 countries around the planet. On a number of occasions the accused herein has been part of a smaller group protesting Scientology forced labor, human trafficking, violence, unlawful imprisonment at Scientology’s Gilman Hot Springs compound.
This high security compound is compared by many former high level Scientologists to a dangerous gulag where there is a tyranny of violence and other human and civil rights abuses. Some of this high security can be seen in the four photographs attached to the supporting declaration of Graham E. Berry (“the Berry declaration”) as Exhibit A. These photographs were taken in the vicinity of the Scientology security guard attack upon the accused herein.
Outside of the highly secured, guarded and electronically monitored Scientology compound is about 1.3 acres of unfenced unused property ostensibly set aside as a flood plain. See Berry Declaration Exhibit L. The flood plain is at the south east end of the Scientology properties in front of the main movie studio building which is colloquially called the Scottish Castle. This is also where the Scientology security guards attacked the accused herein. A photograph of Scientology security guard Danny Dunagin is attached to the Berry Declaration as Exhibit B.
Up until and including October 26, 2008, this relevant approx. 1.3 acre of unfenced vacant land was not properly posted with either the proper number, nature or positioned “no trespassing” signs as required by applicable law (Penal Code §§ 553, 554, 554.1, (But see, Penal Code §552.2 as applicable to “picketing” as herein occurred and Penal Code § 556.3 classifying improperly placed signs, as here, as being “a public nuisance”).
However, before, on and after October 26, 2008 Scientology altered the signage landscape and now, through recently submitted survey plans, appears to be attempting to commit a fraud upon the court in connection with the “no trespassing” signage that was improperly located on the property before and during the events in question on October 26, 2009. Scientology’s shenanagins with the number, size and location of “no trespassing signs” raises the affirmative defenses, among other things, of Mistake of Law and Mistake of Fact herein.
On October 26, 2008 the accused was one of about five people protesting the criminal conduct and human rights abuses of the Church of Scientology at the Gilman Hot Springs location. They were there from about 11-30 P.M. until about 3-00 P.M. when they prepared to depart. In accordance with long standing practice, the protestors parked their vehicles beside the road on an area frequently used for public parking (see Exhibit F hereto). They then proceeded to walk up and down both sides of Highway 79 with their picket signs.
Meanwhile, and for the duration of the protest, the Scientologists turned the road side water sprinklers on in order to soak them with water and to try and stop them protesting unlawful Scientology conduct. Similarly, the Scientologists blared a “tri-note” pipe organ, intended to be extremely annoying and unbearably loud at a measured 110-115 decibels from seven huge outdoor concert speakers note of dirge at excessive decibel levels from huge outdoor concert speakers situated up and down the side of Highway 79. Also, as was usual at the time, the Scientologists summoned the Riverside Sheriffs and the California Highway Patrol to disperse or arrest the protestors. The deputy sheriffs spent most of their afternoon closeted with the Scientologists upon their property. At one point Deputy Sheriffs spoke with the protestors and urged them, at the express request of the Scientologists, to move their protest down the road to the exact location where the accused was later subjected to an unlawful citizen’s arrest. This raises the additional affirmative defenses of implied consent, estoppel and/or entrapment.
At about 2-45 P.M. on October 26, 2008 the protestors decided to cease their picket and to leave. As they prepared to leave the Riverside Sheriff’s deputies departed the scientology compound and scene. The video evidence that will be shown at trial, and the testimony of the defense witnesses, will establish that the Scientology security guards who attacked and arrested the accused had been repeatedly lurking around and behind his parked vehicle throughout the entire picket. Just after the Riverside Sheriffs departed the scene, and as the accused was walking towards his car, one of the three Scientology security guards appeared again by the accused’s car and set a roadside flare right behind it. The tinder dry fire risk conditions had led to a county wide fire and flare ban that was in effect.
Alarmed by the disappearance of the Scientology security guard behind his parked vehicle, and the burning flare that was endangering both his car and the tinder dry land and adjacent mountain, the accused ran over to investigate about the grey Honda Accord parked about ¼ mile down Highway 79, to speak with Scientology security guard Matt Butler about his messing with the accused’s car, and to demand information as to why the flare was lit and positioned so dangerously. This raises the affirmative defense of provocation.
Clearly, in retrospect, the accused was being provoked, lured and entrapped by the Scientology security guards and their superiors who ostensibly included Scientology leader David Miscavige. Consequently, the affirmative defenses of provocation and entrapment will also be raised at the trial herein. At all times the accused reasonably believed that he was on public property. One of the main reasons for this was his knowledge of where the sign was located and which he did not venture beyond. He did not have any intention to trespass upon private property at all for any reason at all. If it turns out that he did make a de minimis intrusion upon unfenced improperly posted land then he acted accidentally without any criminal intent or negligence (Penal Code §195).
This is a further affirmative defense that the accused will assert at the trial herein. In addition, in all of the circumstances that the Scientology security guard had created, the accused was acting out of necessity.
While the accused was, or reasonably believed he was, on public access property the two other Scientology security guards drove up in front of him (Berry Declaration, Exhibit I) leapt out, shouted “you are trespassing” and, without giving him notice and a reasonable opportunity to leave the location [as mandated by Penal Code §602 (l) (1)], recklessly tackled him to the ground, dangerously wedged and pressured their knees into his back and neck while forcing his face and mouth into the desert sand, causing the accused great pain, panic, the fear of suffocation and death. Acting reflexively and without conscious thought or intent the accused must have bitten the hand that was causing him severe pain, injury and the fear of death. This clearly raises the affirmative defenses of justification and self-defense.
Eventually, after the other protestors intervened, the three Scientology security guards released the accused’s head and face from the desert dirt while they hog tied him with plastic handcuffs and detained him pending the return of the Deputy Sheriffs who had departed the scene just before the brutal attack. The accused now has serious permanent injuries, has spent two nights in jail, and he has spent about $6,000 to date in consequential costs [damages].
For many days and weeks after the brutal and unlawful attack upon the accused, the Riverside Sheriff’s Department refused to accept a complaint or incident report from him as to the assault, battery, false imprisonment and other criminal conduct directed by the Scientology security guards and their superior officers at the accused herein. The related videos and other documents demonstrating this have attracted world wide internet and other media condemnation of Riverside law enforcement actions and inactions herein, even by other local law enforcement personnel who have contacted me and expressed their outrage at what has been done to the accused to date.
Eventually, a Riverside Sheriff’s detective agreed to meet with the accused and his attorney and accept a criminal complaint. However it was not treated as a separate complaint but wrongly included within this matter as a Supplemental Report and consequently ignored despite its unequivocal analysis, conclusions and recommendation. Attached hereto as Exhibit J is a copy of that Supplemental Sheriff’s Department Report recommending that the three Scientology security guards who made [false] citizen’s arrests herein be prosecuted. To date not only has the Riverside District Attorney’s office refused to do so, instead continuing with a prosecution of the accused and real victim, but the evidence presented by the accused has been destroyed as set forth in Exhibit K. Similarly, Sheriff Stanley Sniff and Sheriff’s Senior Deputy Pete Lanham have also been requested to investigate the handling of these matters and they have failed to do so.
Clearly, some very disturbing developments appear to be taking place in these matters and this further supports the grant of the pending motion herein (and perhaps appropriate federal and civil action). Notwithstanding, the missing or “destroyed” evidence has now been replaced with further copies having been provided by the Defense.
On Friday August 7, 2009 the accused and his attorney met with the Deputy District Attorney currently assigned to this matter. See the supporting Berry declaration (“Berry declaration” ¶9. Among other things they discussed was the disputed issue of fact regarding the actual location of the accused in relation to the disputed and unmarked property line dividing the unfenced roadside highway and flood plain easement involved in the pending prosecution.
If this set of outrageous facts, regarding what really went down here, does not give rise to reasonable doubt upon multiple levels then it is hard to imagine what set of facts ever would. The continued prosecution of the accused in this case, and the failure to arrest and charge the three Scientology security guards as the January 14, 2009 “supplemental report to file #D0830041” [Exhibit J hereto] recommends, is a continuing embarrassment to Riverside County around the world of the Internet and in the over 110 cities at which there have been monthly protests against Scientology related crime and abuse, by up to 9,000 people at a time.
However outrageous the foregoing facts may appear there is much more. For example, the entirety of the land and adjacent land at issue herein may be unlawfully and fraudulently occupied by the Scientology enterprise (and giving rise to additional affirmative defenses herein). For example, the Scientology International Headquarters (see Exhibit C) was the subject of what appears to be a fraudulently obtained permit to occupy flood plain land that is subject to all sorts of geological, earthquake and flood plain reservations and restrictions. Indeed, the relevant FEMA map (see Exhibit L) indicates that the accused was attacked, arrested and imprisoned within an area that is part of a designated flood plain for the purpose of minimizing public and private losses due to flood conditions.
Accordingly, to comply with flood plain conditions the Scientology enterprise would have had to satisfy various stringent building and land use requirements as to building construction materials and practices, utility equipment materials and locations, and the removal of fill material. Even if the Scientology enterprise could have satisfied the multitude of stringent building and safety requirements and restrictions, it would have cost the organization many millions of dollars to do so. Instead, the available documentation indicates a potential fraud and hoax being perpetrated upon the public and (by extension) this court.
For example, the document attached hereto as Exhibit M indicates that the Church of Scientology owns the 19625 Highway 79 properties. However, at the foot of Exhibit M is a line titled ID Data with a legal description and property address of Merriwood Acres. On Exhibit N it can be seen that the Merriwood Acres property is located at 265510 Chestnut Drive, Hemet, CA 92544. Also attached as Exhibit N is a copy of the Assessors map for the 265510 Chestnut property. Attached as Exhibit O is a copy of a photograph of the Chestnut Drive property. Incredibly, the Scientology enterprise has appears to have used the building located at 265510 Chestnut Drive, Hemet to fraudulently represent to the authorities that there are no expensive flood plain building and property requirements that would otherwise be required on the giant Scientology base. If the Scientology enterprise is fraudulently occupying the relevant flood plain land then they have no legal right to oust the accused from that land in the manner that they did (even if he had been beyond the improper no trespassing sign which he was not). If this incredible prima facie fraud upon the government and the courts is indeed true, Scientology would not have been a lawful occupier as specifically required by Penal Code §602 (m) under which the accused has been charged, or under Penal Code §602 (l)under which the prosecutor has stated the accused may later be charged. Significantly, at no time did the accused willfully occupy any part of the relevant land continuously as required by Penal Code §602 (m) (2) and People v. Wilkinson (1967) 248 Cal.App. 2d Supp. 915, 917-919.
Finally, the prosecution has indicated that it may now contend that a lawful citizen’s arrest was made for an alleged Penal Code §602 (l) violation that occurred much earlier in the day (before or during the Sheriff’s long presence) and on property directly beside the highway where an allegedly posted no trespassing sign had been turned sideways and thus was “a public nuisance” by the Scientology enterprise in violation of Penal Code §556.3.
In all of the egregious circumstances herein, and since on the facts neither Penal Code §602 (l) or (m) applies herein, it is time for the District Attorney to exercise his discretion to end the prosecution of a non-existent trespass and unlawful citizen’s arrest that recklessly used excessive, dangerous and potentially physically crippling force and that actually caused serious permanent physical injury and substantial expense to the accused. In addition, the accused has spent two nights in jail already, posted $1,250 in cash for bail of which he loses over $250.00, major medical expenses that exceed $5,000 to date, has continuing permanent physical injuries requiring daily pain medication, and major defense costs such as survey fees.
III. ARGUMENT
This motion is made pursuant to the discovery provisions set forth in California Penal Code §§1054-1054.7 et seq. and the inherent jurisdiction of this court to control the proceedings before it. It is a motion for an order permitting Defendant and his agent’s access to enter upon the roadside unfenced property to inspect and to measure for a reasonable period of time upon a mutually convenient date. Attached hereto as Exhibit C is an annotated aerial photograph of Scientology’s International Headquarters at Gilman Hot Springs. The area to which access and accurate on the ground measuring is sought is shaded in red at the bottom left of Exhibit D. Attached hereto as Exhibit E is a copy of an August 6, 2009 letter from the accused’s expert witness surveyor herein (who will be called at trial) and who states that: (1) the Church of Scientology International Base grading plans prepared by the prosecution’s expert shows the Highway 79 right of way as 100 feet (50 feet each way from the center line); (2) that the location where the accused was [unlawfully] attacked and subjected to a [unlawful] citizen’s arrest using unreasonable and excessive force is about 45 feet from the center line of Highway 79 and therefore within the public right of way; and (3) that the pictures produced in discovery show that the [prosecutor’s] survey stakes that may have been placed “inaccurately” (e.g. to falsely indicate a highway easement of 100 feet by staking it for photographs at the 60 foot mark). Copies of those two [potentially misleading] pictures are attached hereto as Exhibits G and H. Clearly, the accused’s expert surveyor should have the opportunity to determine the accuracy or otherwise of the particular photographic and other evidence being relied upon by The People herein.
Attached hereto as Exhibit F is a copy of a survey map produced in discovery herein by The People and prepared by the expert surveyor witness of The People and regular surveyor for the Church of Scientology. Exhibit F, and previous survey maps prepared by this surveyor and used by the Church of Scientology, state and show a 100 foot highway easement despite The People [falsely] insisting that [on this occasion] it is only 60 feet. The People’s unfounded and knowing use of incorrect evidence may itself raise implications herein and elsewhere.
Attached hereto as Exhibits D (red shaded area lower left), G, H and I are photographs of the general area of unfenced roadside land (highway easement and flood plain easement) to which this motion seeks lawful access by court order in order to further photograph, inspect and measure.
In Hill v. Superior Court (1974) 10 Cal. 3d 812, the California Supreme Court held that “[A] motion for discovery by an accused is addressed to the sound discretion of the trial court, which has inherent power to order discovery in the interests of justice. … [and] the basis for granting pretrial discovery to a defendant is the fundamental principle that an accused is entitled to a fair trial.” Id. at p. 816. In Reyes v. Municipal Court (1981) 117 Cal.App.3d 771,775, the Second District stated that “[t]o generalize on the law of criminal discovery, an accused’s motion for discovery must be timely, must describe the information sought with reasonable specificity, and present a plausible justification for production of the items requested.” Citations omitted.
The Defendant’s “showing of ‘good cause’ or ‘plausible justification’” must be more than “conclusional” and must be adequate “to support judicially compelled access” to private property. Bullen v. Superior Court (Urioste) (1988) 204 Cal.App. 3d 22, 27. The outcome in Bullen is distinguishable on the facts. However, unlike Bullen, the access order being sought herein does not concern the private home of a murder victim. Instead, the access order being sought herein concerns unfenced and unused vacant roadside property of approx. 1.3 acres in size without gates, livestock or regular human or commercial activity. It is open to public view. Accordingly, there are no privacy or home intrusion issues that the Bullen court found present within the murder victims private home. Id. at 26.
In the case at bar both the prosecutor and defense counsel have discussed the wish of the defense to enter upon the relevant unfenced roadside land to most accurately pinpoint and measure where the alleged lawful attack on AnonOrange, the alleged unlawful battery upon Duignan, and the alleged criminal trespass by AnonOrange all took place. In this regard the defense has also urged the prosecutor to participate in the inspection in an effort to stipulate to the exact location of the incident and its distance in feet and inches from the center line of Highway 79. That location and measurement will be one of the issues of fact to be determined herein. However, the prosecutor and defense have concluded that since a third party, the complaining Church of Scientology International, owns and/or controls the unfenced roadside land in issue a court order would be required in order to avoid defendant, his counsel and surveyor experts being potentially subjected to another citizen’s arrest for an alleged trespass while engaged in the measuring and inspection and photographing described and requested herein.
Whether or not the accused was actually on private property (which is denied), and disregarding the separate pivotal issue involving a lack of the requisite reasonable notice and reasonable opportunity to leave (of which there was none), and disregarding the separate pivotal issue of whether the land was properly posted (which it was not), may be a matter of a mere few feet or inches. However, the relevant land of over one acre in size is unfenced roadside land that is privately owned beyond the highway and public roadside easement. It is a separately fenced parcel of land to the rest of the Scientology compound which is surrounded by high security fences, razor, motion detectors, microphones and cameras. See Exhibit A hereto.
The accused contends that Highway 79 is a 100 foot wide highway easement and that he was less than fifty feet from the center of Highway 79. The People (and the Church of Scientology) wrongly contend that Highway 79 is a 60 foot wide highway easement and that the accused was therefore engaged in protest activity upon private property. However, the flaw with the People’s contention is that their own survey map produced in discovery herein, and previous survey maps by the same surveyor, state expressly and unequivocally that it is a 100 foot highway easement (see Exhibit E hereto). An accurate measurement from the accused’s location at the time he was attacked without warning, pushed into the desert dirt, hog tied, kneed in the back and done serious injury is essential to his fair trial rights and the search for truth therein (see generally, Exhibits C, D, G- I).
The purpose of the access requested is specific and of short duration. Attached hereto as Exhibits D is a map of the area involved in the case at bar. The small parcel of unfenced roadside land has been shaded in red at the bottom left of the page. This land has no gates, buildings, livestock or other apparent commercial or human activity. Limited access of short duration to inspect, photograph and measure the actual and adjacent area to the location of the alleged unlawful battery or trespass at issue herein will not unduly interfere with anyone’s property or privacy rights. A time period of one to two hours should be quite adequate for the access, inspection and measuring requested.
IV. CONCLUSION
For the foregoing reasons the relief requested herein should be granted.
Dated: August 18, 2009 Respectfully submitted,
__________________
GRAHAM E. BERRY
Attorney for Defendant AnonOrange
DECLARATION OF GRAHAM E. BERRY
I, GRAHAM E. BERRY, declare and state as follows:
1. I am an attorney duly admitted to practice before all of the courts of the State of California. I have personal knowledge of the matters set forth herein and, if called upon to do so, I believe that I could and would competently testify thereto.
2. I am attorney of record for the accused AnonOrange herein.
3. This declaration is filed in support of the accused’s motion for an order permitting Defendant and his agents access to enter upon the roadside unfenced property to inspect and to measure for a reasonable period of time upon a mutually convenient date.
4. Attached hereto as Exhibit A are photographs of some of the high security measures that surround the area adjacent to where the accused was attacked by Scientology guards on October 26, 2008.
5. Attached hereto as Exhibit B is a photograph of Scientology security guard Danny Dunagin who was one of the three Scientologists who actually carried out the attack upon the accused herein.
6. Attached hereto as Exhibit C is an annotated aerial photograph of Scientology’s International Headquarters at Gilman Hot Springs. The area to which access and accurate on the ground measuring is sought is indicated at the bottom left of Exhibit C.
7. Attached hereto as Exhibit D is an annotated aerial photograph of Scientology’s International Headquarters at Gilman Hot Springs. The area to which access and accurate on the ground measuring is sought is indicated by the red shaded area at the bottom left of Exhibit D.
8. Attached hereto as Exhibit E is a copy of an August 6, 2009 letter from the accused’s expert witness surveyor herein (who will be called at trial) and who states that: (1) the Church of Scientology International Base grading plans prepared by the prosecution’s expert shows the Highway 79 right of way as 100 feet (50 feet each way from the center line); (2) that the location where the accused was [unlawfully] attacked and subjected to a [unlawful] citizen’s arrest using unreasonable and excessive force is about 45 feet from the center line of Highway 79 and therefore within the public right of way; and (3) that the pictures produced in discovery show that the [prosecutor’s] survey stakes that may have been placed “inaccurately” (e.g. to falsely indicate a highway easement of 100 feet by staking it for photographs at the 60 foot mark). Copies of those two [potentially misleading] pictures are attached hereto as Exhibits G and H. Clearly, the accused’s expert surveyor should have the opportunity to determine the accuracy or otherwise of the particular photographic and other evidence being relied upon by the People herein.
9. For many days and weeks after the brutal and unlawful attack upon the accused, the Riverside Sheriff’s Department refused to accept a complaint or incident report from him. The related videos and other documents demonstrating this have attracted world wide internet and other media condemnation of Riverside law enforcement actions and inactions herein, even by other local law enforcement personnel who have contacted me and expressed their outrage at what has been done to the accused to date. Eventually a Riverside Sheriff’s detective agreed to meet with the accused and his attorney and accept a criminal complaint. However it was not treated as a separate complaint but wrongly included within this matter as a Supplemental Report and consequently ignored despite its unequivocal analysis, conclusions and recommendation. Attached hereto as Exhibit J is a copy of that Supplemental Sheriff’s Department Report recommending that the three Scientology security guards who made [false] citizen’s arrests herein be prosecuted. To date not only has the Riverside District Attorney’s office refused to do so, instead continuing with a prosecution of the accused and real victim, but the evidence presented by the accused has been destroyed as set forth in Exhibit K. Clearly, some very disturbing developments appear to be taking place in these matters and this further supports the grant of the pending motion herein (and perhaps appropriate federal and civil action). Notwithstanding, the missing or “destroyed” evidence has now been replaced with further copies having been provided by the Defense.
10. Attached hereto as Exhibit F is a copy of a survey map produced in discovery herein by The People and prepared by the expert surveyor witness of The People and regular surveyor for the Church of Scientology. Exhibit F, and previous survey maps prepared by this surveyor and used by the Church of Scientology, expressly state and show a 100 foot highway easement despite the People insisting that [on this occasion] it is only 60 feet. The People’s unfounded and knowing use of incorrect evidence may itself raise implications herein and elsewhere.
11. Attached hereto as Exhibits C, D, G, H and I are photographs of the general area of unfenced roadside land (highway easement and flood plain easement) to which this motion seeks lawful access by court order in order to further photograph, inspect and measure.
12. On Friday August 7, 2009 the accused and I met with the Deputy District Attorney currently assigned to this matter. Among other things we discussed the disputed issue of fact regarding the actual location of the accused in relation to the disputed and unmarked property line dividing the unfenced roadside highway and flood plain easement involved in the pending prosecution.
13. Whether or not the accused was actually on private property (which is denied), and disregarding the separate pivotal issue involving a lack of the requisite reasonable notice and reasonable opportunity to leave, and disregarding the separate pivotal issue of whether the land was properly posted (which it was not), may be a matter of a few feet or inches. However, the land is unfenced roadside land that is privately owned beyond the highway and public roadside easement. The accused contends that Highway 79 is a 100 foot wide highway easement and that he was less than fifty feet from the center of Highway 79. The People (and the Church of Scientology) contend that Highway 79 is a 60 foot wide highway easement and that the accused was therefore engaged in first amendment activity upon private property. However, the flaw with the People’s contention is that their own survey map produced in discovery herein, and previous survey maps by the same surveyor, state expressly and unequivocally that it is a 100 foot highway easement (see Exhibit F hereto). An accurate measurement from the accused’s location at the time he was attacked without warning, pushed into the desert dirt, hog tied, kneed in the back and done serious injury is essential to his fair trial rights and the search for truth therein (see generally, Exhibits A, C, D, F, G, H – I).
14. The purpose of the access requested is specific and of short duration. Attached hereto as Exhibit D is a map of the area involved in the case at bar. The small parcel of unfenced roadside land has been indicated as shaded red at the bottom left of the page. This land has no gates, buildings, livestock or other apparent commercial or human activity. Limited access of short duration to inspect, photograph and measure the actual and adjacent area to the location of the alleged unlawful battery or trespass at issue herein will not unduly interfere with anyone’s property or privacy rights. See Exhibits A, C, D, F, G, H – I. A time period of one to two hours should be quite adequate for the access, inspection and measuring requested.
15. Also at issue herein is the additional apparent status of the relevant portion of land (sought to be accessed by order herein) as Flood Plain property and which appears to have been illegally permitted. Attached hereto as Exhibit L is a copy of certain relevant FEMA map pages. Attached a Exhibit M is a copy of a County Assessor’s record showing the Scientology International Headquarters property located at 19625 Gilman Springs Road to have ID Data locating it at Merriwood Acres. The document attached hereto as Exhibit M indicates that the Church of Scientology owns the 19625 Highway 79 properties. However, at the foot of Exhibit M is a line titled ID Data with a legal description and property address of Merriwood Acres. On Exhibit N it can be seen that the Merriwood Acres property is located at 265510 Chestnut Drive, Hemet, CA 92544. Also attached as Exhibit N is a copy of the Assessors map for the 265510 Chestnut property. Attached as Exhibit O is a photograph of the Chestnut Avenue, Hemet house which is apparently claimed to be the property subject to the flood plain building and land requirements and restrictions at 19625 Gilman Hot Springs Road.
I declare under penalty of perjury according to the laws of the State of California that the foregoing is true and correct.
Executed this 18th day of August, 2009 at Los Angeles, California.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF RIVERSIDE
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
v.
AnonOrange DOB:09/14/1956, Defendant.
Case No: SWM080760
DEFENDANT’S NOTICE OF MOTION AND MOTION FOR AN ORDER THAT DEFENDANT AND HIS AGENTS MAY ENTER UPON PRIVATE PROPERTY AND/OR DISPUTED LAND TO INSPECT AND MEASURE; DECLARATION OF GRAHAM E. BERRY IN SUPPORT THEREOF, EXHIBITS THERETO.
Trial Date: October 30, 2009
DATE: August 28, 2009
TIME: 9: A.M.
DEPT: S104
TO THE DISTRICT ATTORNEY OF RIVERSIDE COUNTY AND/OR HIS REPRESENTATIVE:
PLEASE TAKE NOTICE that on Friday the 28th day of August, 2009, at 9:A.M., or as soon thereafter as counsel may be heard in Department S104 of the Riverside Superior Court, South West Division, at 30755 Auld Road, Murrieta, CA 92563, Defendant through and by his counsel of record herein will and hereby does move this Honorable Court for an order permitting the Defendant and his agents (accompanied by any desirous representatives of The People) to have access to and to enter upon the unfenced roadside property that is in issue in this matter [for the purpose of inspecting, photographing, measuring and otherwise preparing for trial herein] and being collectively but inaccurately described as 19625 Highway 79, San Jacinto, CA 92583.
THIS MOTION will be made pursuant to California Penal Code section 1054-1054.7 and upon the grounds, inter alia: (1) that access for the purpose of inspecting and photographing this location is necessary for the presentation of a defense in this case; and (2) that this Court has an inherent discretion to control the proceedings before it.
THIS MOTION will be based on this notice of motion, on the attached declaration and memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as may hereafter be filed with the court or stated orally at the conclusion of the hearing on the motion, and on such oral and documentary evidence as may be presented at the hearing of the motion.
Dated: August 18, 2009 Respectfully submitted,
__________________
GRAHAM E. BERRY
Attorney for Defendant AnonOrange
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
This is a motion to allow the defense lawful access to the scene of the crime (s) charged herein in response to a citizen’s arrest that the defense will, among other things, argue was unlawful for a number of reasons and having a number of consequences (both criminal and civil) for those responsible for the unlawful assault, battery, imprisonments and serious continuing injuries to the accused herein.
More specifically, the accused AnonOrange is requesting a pre-trial discovery order permitting the accused and his agents (accompanied by any desirous representatives of The People) to have access to and to enter upon the unfenced roadside property that is in issue in this matter [for the purpose of inspecting, photographing, measuring and otherwise preparing for trial herein] and being collectively but inaccurately described as 19625 Highway 79, San Jacinto, CA 92583.
II. APPLICABLE FACTS
The international headquarters of the Church of Scientology is located on approximately 550 acres of land at Gilman Hot Springs outside of Hemet, California. Its actual street address is 19625 Highway 79, San Jacinto, CA 92583. It masquerades as the Golden Era Film Studios and that is one of its primary functions; to serve as a media production, manufacturing and distribution facility. For many decades, members of the public have protested the criminal conduct and human rights abuses of the Church of Scientology which has used various tactics (both lawful and unlawful) to try and stop or interfere with these first amendment protests wherever and whenever they occur.
The accused is one of the over nine thousand people who, since late January 2008, have been engaging in monthly and other global protests against Scientology crime and abuse in over 110 cities in over 42 countries around the planet. On a number of occasions the accused herein has been part of a smaller group protesting Scientology forced labor, human trafficking, violence, unlawful imprisonment at Scientology’s Gilman Hot Springs compound.
This high security compound is compared by many former high level Scientologists to a dangerous gulag where there is a tyranny of violence and other human and civil rights abuses. Some of this high security can be seen in the four photographs attached to the supporting declaration of Graham E. Berry (“the Berry declaration”) as Exhibit A. These photographs were taken in the vicinity of the Scientology security guard attack upon the accused herein.
Outside of the highly secured, guarded and electronically monitored Scientology compound is about 1.3 acres of unfenced unused property ostensibly set aside as a flood plain. See Berry Declaration Exhibit L. The flood plain is at the south east end of the Scientology properties in front of the main movie studio building which is colloquially called the Scottish Castle. This is also where the Scientology security guards attacked the accused herein. A photograph of Scientology security guard Danny Dunagin is attached to the Berry Declaration as Exhibit B.
Up until and including October 26, 2008, this relevant approx. 1.3 acre of unfenced vacant land was not properly posted with either the proper number, nature or positioned “no trespassing” signs as required by applicable law (Penal Code §§ 553, 554, 554.1, (But see, Penal Code §552.2 as applicable to “picketing” as herein occurred and Penal Code § 556.3 classifying improperly placed signs, as here, as being “a public nuisance”).
However, before, on and after October 26, 2008 Scientology altered the signage landscape and now, through recently submitted survey plans, appears to be attempting to commit a fraud upon the court in connection with the “no trespassing” signage that was improperly located on the property before and during the events in question on October 26, 2009. Scientology’s shenanagins with the number, size and location of “no trespassing signs” raises the affirmative defenses, among other things, of Mistake of Law and Mistake of Fact herein.
On October 26, 2008 the accused was one of about five people protesting the criminal conduct and human rights abuses of the Church of Scientology at the Gilman Hot Springs location. They were there from about 11-30 P.M. until about 3-00 P.M. when they prepared to depart. In accordance with long standing practice, the protestors parked their vehicles beside the road on an area frequently used for public parking (see Exhibit F hereto). They then proceeded to walk up and down both sides of Highway 79 with their picket signs.
Meanwhile, and for the duration of the protest, the Scientologists turned the road side water sprinklers on in order to soak them with water and to try and stop them protesting unlawful Scientology conduct. Similarly, the Scientologists blared a “tri-note” pipe organ, intended to be extremely annoying and unbearably loud at a measured 110-115 decibels from seven huge outdoor concert speakers note of dirge at excessive decibel levels from huge outdoor concert speakers situated up and down the side of Highway 79. Also, as was usual at the time, the Scientologists summoned the Riverside Sheriffs and the California Highway Patrol to disperse or arrest the protestors. The deputy sheriffs spent most of their afternoon closeted with the Scientologists upon their property. At one point Deputy Sheriffs spoke with the protestors and urged them, at the express request of the Scientologists, to move their protest down the road to the exact location where the accused was later subjected to an unlawful citizen’s arrest. This raises the additional affirmative defenses of implied consent, estoppel and/or entrapment.
At about 2-45 P.M. on October 26, 2008 the protestors decided to cease their picket and to leave. As they prepared to leave the Riverside Sheriff’s deputies departed the scientology compound and scene. The video evidence that will be shown at trial, and the testimony of the defense witnesses, will establish that the Scientology security guards who attacked and arrested the accused had been repeatedly lurking around and behind his parked vehicle throughout the entire picket. Just after the Riverside Sheriffs departed the scene, and as the accused was walking towards his car, one of the three Scientology security guards appeared again by the accused’s car and set a roadside flare right behind it. The tinder dry fire risk conditions had led to a county wide fire and flare ban that was in effect.
Alarmed by the disappearance of the Scientology security guard behind his parked vehicle, and the burning flare that was endangering both his car and the tinder dry land and adjacent mountain, the accused ran over to investigate about the grey Honda Accord parked about ¼ mile down Highway 79, to speak with Scientology security guard Matt Butler about his messing with the accused’s car, and to demand information as to why the flare was lit and positioned so dangerously. This raises the affirmative defense of provocation.
Clearly, in retrospect, the accused was being provoked, lured and entrapped by the Scientology security guards and their superiors who ostensibly included Scientology leader David Miscavige. Consequently, the affirmative defenses of provocation and entrapment will also be raised at the trial herein. At all times the accused reasonably believed that he was on public property. One of the main reasons for this was his knowledge of where the sign was located and which he did not venture beyond. He did not have any intention to trespass upon private property at all for any reason at all. If it turns out that he did make a de minimis intrusion upon unfenced improperly posted land then he acted accidentally without any criminal intent or negligence (Penal Code §195).
This is a further affirmative defense that the accused will assert at the trial herein. In addition, in all of the circumstances that the Scientology security guard had created, the accused was acting out of necessity.
While the accused was, or reasonably believed he was, on public access property the two other Scientology security guards drove up in front of him (Berry Declaration, Exhibit I) leapt out, shouted “you are trespassing” and, without giving him notice and a reasonable opportunity to leave the location [as mandated by Penal Code §602 (l) (1)], recklessly tackled him to the ground, dangerously wedged and pressured their knees into his back and neck while forcing his face and mouth into the desert sand, causing the accused great pain, panic, the fear of suffocation and death. Acting reflexively and without conscious thought or intent the accused must have bitten the hand that was causing him severe pain, injury and the fear of death. This clearly raises the affirmative defenses of justification and self-defense.
Eventually, after the other protestors intervened, the three Scientology security guards released the accused’s head and face from the desert dirt while they hog tied him with plastic handcuffs and detained him pending the return of the Deputy Sheriffs who had departed the scene just before the brutal attack. The accused now has serious permanent injuries, has spent two nights in jail, and he has spent about $6,000 to date in consequential costs [damages].
For many days and weeks after the brutal and unlawful attack upon the accused, the Riverside Sheriff’s Department refused to accept a complaint or incident report from him as to the assault, battery, false imprisonment and other criminal conduct directed by the Scientology security guards and their superior officers at the accused herein. The related videos and other documents demonstrating this have attracted world wide internet and other media condemnation of Riverside law enforcement actions and inactions herein, even by other local law enforcement personnel who have contacted me and expressed their outrage at what has been done to the accused to date.
Eventually, a Riverside Sheriff’s detective agreed to meet with the accused and his attorney and accept a criminal complaint. However it was not treated as a separate complaint but wrongly included within this matter as a Supplemental Report and consequently ignored despite its unequivocal analysis, conclusions and recommendation. Attached hereto as Exhibit J is a copy of that Supplemental Sheriff’s Department Report recommending that the three Scientology security guards who made [false] citizen’s arrests herein be prosecuted. To date not only has the Riverside District Attorney’s office refused to do so, instead continuing with a prosecution of the accused and real victim, but the evidence presented by the accused has been destroyed as set forth in Exhibit K. Similarly, Sheriff Stanley Sniff and Sheriff’s Senior Deputy Pete Lanham have also been requested to investigate the handling of these matters and they have failed to do so.
Clearly, some very disturbing developments appear to be taking place in these matters and this further supports the grant of the pending motion herein (and perhaps appropriate federal and civil action). Notwithstanding, the missing or “destroyed” evidence has now been replaced with further copies having been provided by the Defense.
On Friday August 7, 2009 the accused and his attorney met with the Deputy District Attorney currently assigned to this matter. See the supporting Berry declaration (“Berry declaration” ¶9. Among other things they discussed was the disputed issue of fact regarding the actual location of the accused in relation to the disputed and unmarked property line dividing the unfenced roadside highway and flood plain easement involved in the pending prosecution.
If this set of outrageous facts, regarding what really went down here, does not give rise to reasonable doubt upon multiple levels then it is hard to imagine what set of facts ever would. The continued prosecution of the accused in this case, and the failure to arrest and charge the three Scientology security guards as the January 14, 2009 “supplemental report to file #D0830041” [Exhibit J hereto] recommends, is a continuing embarrassment to Riverside County around the world of the Internet and in the over 110 cities at which there have been monthly protests against Scientology related crime and abuse, by up to 9,000 people at a time.
However outrageous the foregoing facts may appear there is much more. For example, the entirety of the land and adjacent land at issue herein may be unlawfully and fraudulently occupied by the Scientology enterprise (and giving rise to additional affirmative defenses herein). For example, the Scientology International Headquarters (see Exhibit C) was the subject of what appears to be a fraudulently obtained permit to occupy flood plain land that is subject to all sorts of geological, earthquake and flood plain reservations and restrictions. Indeed, the relevant FEMA map (see Exhibit L) indicates that the accused was attacked, arrested and imprisoned within an area that is part of a designated flood plain for the purpose of minimizing public and private losses due to flood conditions.
Accordingly, to comply with flood plain conditions the Scientology enterprise would have had to satisfy various stringent building and land use requirements as to building construction materials and practices, utility equipment materials and locations, and the removal of fill material. Even if the Scientology enterprise could have satisfied the multitude of stringent building and safety requirements and restrictions, it would have cost the organization many millions of dollars to do so. Instead, the available documentation indicates a potential fraud and hoax being perpetrated upon the public and (by extension) this court.
For example, the document attached hereto as Exhibit M indicates that the Church of Scientology owns the 19625 Highway 79 properties. However, at the foot of Exhibit M is a line titled ID Data with a legal description and property address of Merriwood Acres. On Exhibit N it can be seen that the Merriwood Acres property is located at 265510 Chestnut Drive, Hemet, CA 92544. Also attached as Exhibit N is a copy of the Assessors map for the 265510 Chestnut property. Attached as Exhibit O is a copy of a photograph of the Chestnut Drive property. Incredibly, the Scientology enterprise has appears to have used the building located at 265510 Chestnut Drive, Hemet to fraudulently represent to the authorities that there are no expensive flood plain building and property requirements that would otherwise be required on the giant Scientology base. If the Scientology enterprise is fraudulently occupying the relevant flood plain land then they have no legal right to oust the accused from that land in the manner that they did (even if he had been beyond the improper no trespassing sign which he was not). If this incredible prima facie fraud upon the government and the courts is indeed true, Scientology would not have been a lawful occupier as specifically required by Penal Code §602 (m) under which the accused has been charged, or under Penal Code §602 (l)under which the prosecutor has stated the accused may later be charged. Significantly, at no time did the accused willfully occupy any part of the relevant land continuously as required by Penal Code §602 (m) (2) and People v. Wilkinson (1967) 248 Cal.App. 2d Supp. 915, 917-919.
Finally, the prosecution has indicated that it may now contend that a lawful citizen’s arrest was made for an alleged Penal Code §602 (l) violation that occurred much earlier in the day (before or during the Sheriff’s long presence) and on property directly beside the highway where an allegedly posted no trespassing sign had been turned sideways and thus was “a public nuisance” by the Scientology enterprise in violation of Penal Code §556.3.
In all of the egregious circumstances herein, and since on the facts neither Penal Code §602 (l) or (m) applies herein, it is time for the District Attorney to exercise his discretion to end the prosecution of a non-existent trespass and unlawful citizen’s arrest that recklessly used excessive, dangerous and potentially physically crippling force and that actually caused serious permanent physical injury and substantial expense to the accused. In addition, the accused has spent two nights in jail already, posted $1,250 in cash for bail of which he loses over $250.00, major medical expenses that exceed $5,000 to date, has continuing permanent physical injuries requiring daily pain medication, and major defense costs such as survey fees.
III. ARGUMENT
This motion is made pursuant to the discovery provisions set forth in California Penal Code §§1054-1054.7 et seq. and the inherent jurisdiction of this court to control the proceedings before it. It is a motion for an order permitting Defendant and his agent’s access to enter upon the roadside unfenced property to inspect and to measure for a reasonable period of time upon a mutually convenient date. Attached hereto as Exhibit C is an annotated aerial photograph of Scientology’s International Headquarters at Gilman Hot Springs. The area to which access and accurate on the ground measuring is sought is shaded in red at the bottom left of Exhibit D. Attached hereto as Exhibit E is a copy of an August 6, 2009 letter from the accused’s expert witness surveyor herein (who will be called at trial) and who states that: (1) the Church of Scientology International Base grading plans prepared by the prosecution’s expert shows the Highway 79 right of way as 100 feet (50 feet each way from the center line); (2) that the location where the accused was [unlawfully] attacked and subjected to a [unlawful] citizen’s arrest using unreasonable and excessive force is about 45 feet from the center line of Highway 79 and therefore within the public right of way; and (3) that the pictures produced in discovery show that the [prosecutor’s] survey stakes that may have been placed “inaccurately” (e.g. to falsely indicate a highway easement of 100 feet by staking it for photographs at the 60 foot mark). Copies of those two [potentially misleading] pictures are attached hereto as Exhibits G and H. Clearly, the accused’s expert surveyor should have the opportunity to determine the accuracy or otherwise of the particular photographic and other evidence being relied upon by The People herein.
Attached hereto as Exhibit F is a copy of a survey map produced in discovery herein by The People and prepared by the expert surveyor witness of The People and regular surveyor for the Church of Scientology. Exhibit F, and previous survey maps prepared by this surveyor and used by the Church of Scientology, state and show a 100 foot highway easement despite The People [falsely] insisting that [on this occasion] it is only 60 feet. The People’s unfounded and knowing use of incorrect evidence may itself raise implications herein and elsewhere.
Attached hereto as Exhibits D (red shaded area lower left), G, H and I are photographs of the general area of unfenced roadside land (highway easement and flood plain easement) to which this motion seeks lawful access by court order in order to further photograph, inspect and measure.
In Hill v. Superior Court (1974) 10 Cal. 3d 812, the California Supreme Court held that “[A] motion for discovery by an accused is addressed to the sound discretion of the trial court, which has inherent power to order discovery in the interests of justice. … [and] the basis for granting pretrial discovery to a defendant is the fundamental principle that an accused is entitled to a fair trial.” Id. at p. 816. In Reyes v. Municipal Court (1981) 117 Cal.App.3d 771,775, the Second District stated that “[t]o generalize on the law of criminal discovery, an accused’s motion for discovery must be timely, must describe the information sought with reasonable specificity, and present a plausible justification for production of the items requested.” Citations omitted.
The Defendant’s “showing of ‘good cause’ or ‘plausible justification’” must be more than “conclusional” and must be adequate “to support judicially compelled access” to private property. Bullen v. Superior Court (Urioste) (1988) 204 Cal.App. 3d 22, 27. The outcome in Bullen is distinguishable on the facts. However, unlike Bullen, the access order being sought herein does not concern the private home of a murder victim. Instead, the access order being sought herein concerns unfenced and unused vacant roadside property of approx. 1.3 acres in size without gates, livestock or regular human or commercial activity. It is open to public view. Accordingly, there are no privacy or home intrusion issues that the Bullen court found present within the murder victims private home. Id. at 26.
In the case at bar both the prosecutor and defense counsel have discussed the wish of the defense to enter upon the relevant unfenced roadside land to most accurately pinpoint and measure where the alleged lawful attack on AnonOrange, the alleged unlawful battery upon Duignan, and the alleged criminal trespass by AnonOrange all took place. In this regard the defense has also urged the prosecutor to participate in the inspection in an effort to stipulate to the exact location of the incident and its distance in feet and inches from the center line of Highway 79. That location and measurement will be one of the issues of fact to be determined herein. However, the prosecutor and defense have concluded that since a third party, the complaining Church of Scientology International, owns and/or controls the unfenced roadside land in issue a court order would be required in order to avoid defendant, his counsel and surveyor experts being potentially subjected to another citizen’s arrest for an alleged trespass while engaged in the measuring and inspection and photographing described and requested herein.
Whether or not the accused was actually on private property (which is denied), and disregarding the separate pivotal issue involving a lack of the requisite reasonable notice and reasonable opportunity to leave (of which there was none), and disregarding the separate pivotal issue of whether the land was properly posted (which it was not), may be a matter of a mere few feet or inches. However, the relevant land of over one acre in size is unfenced roadside land that is privately owned beyond the highway and public roadside easement. It is a separately fenced parcel of land to the rest of the Scientology compound which is surrounded by high security fences, razor, motion detectors, microphones and cameras. See Exhibit A hereto.
The accused contends that Highway 79 is a 100 foot wide highway easement and that he was less than fifty feet from the center of Highway 79. The People (and the Church of Scientology) wrongly contend that Highway 79 is a 60 foot wide highway easement and that the accused was therefore engaged in protest activity upon private property. However, the flaw with the People’s contention is that their own survey map produced in discovery herein, and previous survey maps by the same surveyor, state expressly and unequivocally that it is a 100 foot highway easement (see Exhibit E hereto). An accurate measurement from the accused’s location at the time he was attacked without warning, pushed into the desert dirt, hog tied, kneed in the back and done serious injury is essential to his fair trial rights and the search for truth therein (see generally, Exhibits C, D, G- I).
The purpose of the access requested is specific and of short duration. Attached hereto as Exhibits D is a map of the area involved in the case at bar. The small parcel of unfenced roadside land has been shaded in red at the bottom left of the page. This land has no gates, buildings, livestock or other apparent commercial or human activity. Limited access of short duration to inspect, photograph and measure the actual and adjacent area to the location of the alleged unlawful battery or trespass at issue herein will not unduly interfere with anyone’s property or privacy rights. A time period of one to two hours should be quite adequate for the access, inspection and measuring requested.
IV. CONCLUSION
For the foregoing reasons the relief requested herein should be granted.
Dated: August 18, 2009 Respectfully submitted,
__________________
GRAHAM E. BERRY
Attorney for Defendant AnonOrange
DECLARATION OF GRAHAM E. BERRY
I, GRAHAM E. BERRY, declare and state as follows:
1. I am an attorney duly admitted to practice before all of the courts of the State of California. I have personal knowledge of the matters set forth herein and, if called upon to do so, I believe that I could and would competently testify thereto.
2. I am attorney of record for the accused AnonOrange herein.
3. This declaration is filed in support of the accused’s motion for an order permitting Defendant and his agents access to enter upon the roadside unfenced property to inspect and to measure for a reasonable period of time upon a mutually convenient date.
4. Attached hereto as Exhibit A are photographs of some of the high security measures that surround the area adjacent to where the accused was attacked by Scientology guards on October 26, 2008.
5. Attached hereto as Exhibit B is a photograph of Scientology security guard Danny Dunagin who was one of the three Scientologists who actually carried out the attack upon the accused herein.
6. Attached hereto as Exhibit C is an annotated aerial photograph of Scientology’s International Headquarters at Gilman Hot Springs. The area to which access and accurate on the ground measuring is sought is indicated at the bottom left of Exhibit C.
7. Attached hereto as Exhibit D is an annotated aerial photograph of Scientology’s International Headquarters at Gilman Hot Springs. The area to which access and accurate on the ground measuring is sought is indicated by the red shaded area at the bottom left of Exhibit D.
8. Attached hereto as Exhibit E is a copy of an August 6, 2009 letter from the accused’s expert witness surveyor herein (who will be called at trial) and who states that: (1) the Church of Scientology International Base grading plans prepared by the prosecution’s expert shows the Highway 79 right of way as 100 feet (50 feet each way from the center line); (2) that the location where the accused was [unlawfully] attacked and subjected to a [unlawful] citizen’s arrest using unreasonable and excessive force is about 45 feet from the center line of Highway 79 and therefore within the public right of way; and (3) that the pictures produced in discovery show that the [prosecutor’s] survey stakes that may have been placed “inaccurately” (e.g. to falsely indicate a highway easement of 100 feet by staking it for photographs at the 60 foot mark). Copies of those two [potentially misleading] pictures are attached hereto as Exhibits G and H. Clearly, the accused’s expert surveyor should have the opportunity to determine the accuracy or otherwise of the particular photographic and other evidence being relied upon by the People herein.
9. For many days and weeks after the brutal and unlawful attack upon the accused, the Riverside Sheriff’s Department refused to accept a complaint or incident report from him. The related videos and other documents demonstrating this have attracted world wide internet and other media condemnation of Riverside law enforcement actions and inactions herein, even by other local law enforcement personnel who have contacted me and expressed their outrage at what has been done to the accused to date. Eventually a Riverside Sheriff’s detective agreed to meet with the accused and his attorney and accept a criminal complaint. However it was not treated as a separate complaint but wrongly included within this matter as a Supplemental Report and consequently ignored despite its unequivocal analysis, conclusions and recommendation. Attached hereto as Exhibit J is a copy of that Supplemental Sheriff’s Department Report recommending that the three Scientology security guards who made [false] citizen’s arrests herein be prosecuted. To date not only has the Riverside District Attorney’s office refused to do so, instead continuing with a prosecution of the accused and real victim, but the evidence presented by the accused has been destroyed as set forth in Exhibit K. Clearly, some very disturbing developments appear to be taking place in these matters and this further supports the grant of the pending motion herein (and perhaps appropriate federal and civil action). Notwithstanding, the missing or “destroyed” evidence has now been replaced with further copies having been provided by the Defense.
10. Attached hereto as Exhibit F is a copy of a survey map produced in discovery herein by The People and prepared by the expert surveyor witness of The People and regular surveyor for the Church of Scientology. Exhibit F, and previous survey maps prepared by this surveyor and used by the Church of Scientology, expressly state and show a 100 foot highway easement despite the People insisting that [on this occasion] it is only 60 feet. The People’s unfounded and knowing use of incorrect evidence may itself raise implications herein and elsewhere.
11. Attached hereto as Exhibits C, D, G, H and I are photographs of the general area of unfenced roadside land (highway easement and flood plain easement) to which this motion seeks lawful access by court order in order to further photograph, inspect and measure.
12. On Friday August 7, 2009 the accused and I met with the Deputy District Attorney currently assigned to this matter. Among other things we discussed the disputed issue of fact regarding the actual location of the accused in relation to the disputed and unmarked property line dividing the unfenced roadside highway and flood plain easement involved in the pending prosecution.
13. Whether or not the accused was actually on private property (which is denied), and disregarding the separate pivotal issue involving a lack of the requisite reasonable notice and reasonable opportunity to leave, and disregarding the separate pivotal issue of whether the land was properly posted (which it was not), may be a matter of a few feet or inches. However, the land is unfenced roadside land that is privately owned beyond the highway and public roadside easement. The accused contends that Highway 79 is a 100 foot wide highway easement and that he was less than fifty feet from the center of Highway 79. The People (and the Church of Scientology) contend that Highway 79 is a 60 foot wide highway easement and that the accused was therefore engaged in first amendment activity upon private property. However, the flaw with the People’s contention is that their own survey map produced in discovery herein, and previous survey maps by the same surveyor, state expressly and unequivocally that it is a 100 foot highway easement (see Exhibit F hereto). An accurate measurement from the accused’s location at the time he was attacked without warning, pushed into the desert dirt, hog tied, kneed in the back and done serious injury is essential to his fair trial rights and the search for truth therein (see generally, Exhibits A, C, D, F, G, H – I).
14. The purpose of the access requested is specific and of short duration. Attached hereto as Exhibit D is a map of the area involved in the case at bar. The small parcel of unfenced roadside land has been indicated as shaded red at the bottom left of the page. This land has no gates, buildings, livestock or other apparent commercial or human activity. Limited access of short duration to inspect, photograph and measure the actual and adjacent area to the location of the alleged unlawful battery or trespass at issue herein will not unduly interfere with anyone’s property or privacy rights. See Exhibits A, C, D, F, G, H – I. A time period of one to two hours should be quite adequate for the access, inspection and measuring requested.
15. Also at issue herein is the additional apparent status of the relevant portion of land (sought to be accessed by order herein) as Flood Plain property and which appears to have been illegally permitted. Attached hereto as Exhibit L is a copy of certain relevant FEMA map pages. Attached a Exhibit M is a copy of a County Assessor’s record showing the Scientology International Headquarters property located at 19625 Gilman Springs Road to have ID Data locating it at Merriwood Acres. The document attached hereto as Exhibit M indicates that the Church of Scientology owns the 19625 Highway 79 properties. However, at the foot of Exhibit M is a line titled ID Data with a legal description and property address of Merriwood Acres. On Exhibit N it can be seen that the Merriwood Acres property is located at 265510 Chestnut Drive, Hemet, CA 92544. Also attached as Exhibit N is a copy of the Assessors map for the 265510 Chestnut property. Attached as Exhibit O is a photograph of the Chestnut Avenue, Hemet house which is apparently claimed to be the property subject to the flood plain building and land requirements and restrictions at 19625 Gilman Hot Springs Road.
I declare under penalty of perjury according to the laws of the State of California that the foregoing is true and correct.
Executed this 18th day of August, 2009 at Los Angeles, California.
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