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Sherman v. Yolo County Sheriff

February 9, 2010

JOSEPH SHERMAN, PETITIONER,
v.
YOLO COUNTY SHERIFF, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on March 20, 2004, in the Yolo County Municipal Court on misdemeanor charges of interfering with lawful business at a public agency (California Penal Code § 602.1(b)) and obstructing or intimidating business operators or customers (California Penal Code § 602.1(a)). He seeks federal habeas relief on the following grounds: (1) the evidence admitted at his trial was insufficient to support his convictions; (2) the trial court violated his Sixth Amendment right to a speedy trial; (3) the trial court improperly failed to give certain jury instructions; (4) he was subjected to unreasonable search and seizure, in violation of the Fourth Amendment; (5) the trial court improperly excluded evidence, including evidence that he was subjected to "invidious discrimination" and vindictive prosecution; and (6) his rights to a fair trial, an impartial jury, due process, and equal protection were violated in connection with his sentencing and appeal. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

PROCEDURAL AND FACTUAL BACKGROUND*fn1

YOLO COUNTY PUBLIC LIBRARY [Count 1, PC 602.1(b), Interfering with lawful business at a public agency]

The People called three witnesses: Hazel Sampson, library customer; Ellen Brow, Coordinator for the library; James Johnstone, Manager of the library; and Officer Chudomelka, Davis Police Department.

Ms. Sampson was called to testify by the People.

Ms. Sampson testified that she was at the Davis branch of the Yolo County Library on November 25, 2003 in the afternoon to use a computer. All stations were occupied when she arrived. Ms. Sampson explained that the process for obtaining a station was that, if all the stations were occupied, the person would place his or her name on the waiting list. As systems became available, the first person on the list would take the station of the person whose time had expired. If all were occupied and there was a waiting list, a person using the station would have one hour from the time they signed in before they would have to leave. If there were available stations, and no other patron was waiting, the person may stay at the station until it was needed by someone else.

Ms. Sampson further testified that she was the first person on the waiting list and all stations were in use when she arrived. At that time, she noted an individual, later identified by Ms. Sampson as the defendant in court, had exceeded his allotted time. Ms. Sampson was forced to wait in line for an extended period of time and eventually had to use another computer terminal. Ms. Sampson testified that this other computer did not have Microsoft Word software. Ms. Sampson then wrote a note to the librarian regarding the incident and the note was later admitted into evidence. (People's Exh. 1) Defendant, acting in Pro Per, cross-examined Ms. Sampson. Defendant asked Ms. Sampson if she understood the process at the library. Ms. Sampson answered yes. When the defendant asked if there were other individuals waiting for a computer, Ms. Sampson indicated that there were, however that most had left the area when he began to argue with the library employees. Defendant then asked if he in fact had not exceeded his time, and Ms. Sampson answered that he had exceeded the time. When the defendant asked Ms. Sampson whether or not he, in fact, acted like a perfect gentleman throughout the entire time at the library, Ms. Sampson answered he did not. Ms. Sampson stated that she did not ask the Defendant directly to use the computer but spoke to the librarian instead.

Ms. Brow was then called to testify for the People.

Ms. Brow testified that she was a coordinator at the Davis branch of the Yolo County Library and was working in the same capacity in the afternoon of November 25, 2003. Ms. Brow identified the defendant as the person in the library who she contacted that day. Ms. Brow testified regarding the policies for computer use at the library and the written policies were clearly posted in the computer area. Pursuant to the library policy, the computers were on a first-come, first-served basis and that each person was entitled to an hour of time on the computer. Ms. Brow further testified that each person was required to sign in and indicate the time they started to use the computer on the sign-in board. After the initial sign-in, the person could not go back for any reason and change their start time on the board. Ms. Brow added that if all stations were occupied, a patron is supposed to put his or her name on a waiting list for the next available station. Ms. Brow also testified that if there were no patrons waiting, a person using a station could stay there as long as they needed, or until another patron arrived, but could not change their start time. A copy of the rules was identified by Ms. Brow and later introduced into evidence. (People's Exhs. 3, 4)

On the afternoon in question, Ms. Brow received a complaint from a patron who never got the chance to use a computer and left the library because the defendant did not relinquish the terminal. After receiving the complaint, she approached the defendant at approximately 4:10 PM and informed him that his hour was up and he should relinquish the computer to other patrons waiting in line. Ms. Brow waited for a few minutes and observed the defendant changing his start time on the board. The defendant had a start time of 2:50 PM and the defendant changed the time to 4:10 PM. Ms. Brow then approached the defendant to explain to him that altering the time on the board was prohibited. Ms. Brow testified that the defendant immediately became angry and argumentative, stating that he was not going to leave because he had files saved on that particular computer. Ms. Brow informed the defendant that there were rules as to the time and use of the computers at the library. Defendant became verbally abusive and said he would not leave the station. Ms. Brow stated that defendant frightened most of the patrons in the area and most of them left as a result of defendant's behavior. Ms. Brow then notified Mr. Johnstone for assistance.

Mr. Johnstone called the police at approximately 4:15 PM. When police officers arrived at the library, defendant insisted that he would not leave the premises. After repeated unsuccessful attempts by the officers and library employees to get defendant to leave, Mr. Johnstone placed the defendant under citizen's arrest for disrupting and failing to leave a business.

Defendant then cross-examined Ms. Brow. In response to defendant's questions, Ms. Brow testified regarding the rules of computer use at the library. Mr. Sherman asked Ms. Brow to identify a copy of the rules and Ms. Brow identified them as the rules of the library. Mr. Sherman asked if a patron had to leave the computers if there were other stations available. Ms. Brow testified that ordinarily that was the case, however, in this case no stations were available until Mr. Sherman's behavior caused many to leave. Mr. Sherman then asked Ms. Brow if it were not true that he acted like a perfect gentleman during their contact. Ms. Brow testified that it was absolutely not true that he acted like a gentleman.

Mr. Johnstone, Manager of the library, was then called to testify by the People.

Mr. Johnstone testified that he was working in the library on November 25, 2003. Ms. Brow contacted Mr. Johnstone at approximately 4:00 PM and requested his presence in the computer area because of the defendant's behavior. Mr. Johnstone also received a note from Ms. Sampson regarding the defendant's failure to leave the computer terminal after one hour. When Mr. Johnstone arrived at the computer area, he observed the defendant being verbally abusive to Ms. Brow. Mr. Johnstone then testified that he approached the defendant, and based upon the information from Ms. Brow and the note from Ms. Sampson, told the defendant that he had to leave the library because he was in violation of library policies. Mr. Sherman remained verbally abusive and told Mr. Johnstone that it was a public library and he did not have to leave, and would not leave. Mr. Johnstone told the defendant that if he did not leave, he would have to call the police and have him arrested. Mr. Sherman refused to leave. Mr. Johnstone testified that he then called the police to assist in the situation at approximately 4:20 PM. Officers arrived at approximately 4:30 PM and defendant was still occupying the computer terminal.

At that time, defendant indicated that he was going to stay until around 5:00 PM. Mr. Johnstone and the officers waited in the computer area until the indicated time. Mr. Johnstone then re-approached the defendant and requested the defendant to leave the library without getting arrested. In response, defendant started yelling and refused to leave the library. Mr. Johnstone was forced to turn off the computer. After switching off the computer, Mr. Johnstone again offered the defendant the opportunity to leave the property. Defendant again refused. Mr. Johnstone subsequently placed defendant under citizen's arrest for disrupting a business. Officer Chudomelka of the Davis Police Department was called to testify by the People.

Officer Chudomelka testified that he is a trained police officer working for the City of Davis, and that he was on duty and in full uniform driving a police vehicle at approximately 4:20 PM on November 25, 2003. Officer Chudomelka responded to a disturbance at the Yolo County Public Library at approximately 4:30 PM. Upon arrival, the officer obtained a statement from Mr. Johnstone. Mr. Johnstone requested the officer to ask the defendant to leave the library because of his behavior. Officer Chudomelka asked the defendant to leave on several occasions but the defendant refused. Officer Chudomelka and Mr. Johnstone waited until 5:10 PM to see if the defendant would leave voluntarily, but the defendant stayed. Mr. Johnstone and Officer Chudomelka again asked the defendant to leave the terminal so he would not get arrested. Defendant began to argue said he was not leaving unless he was arrested and taunted the officers to take him to jail. Mr. Johnstone subsequently signed a citizen's arrest form and the defendant was taken into custody.

ALBERTSON'S SUPERMARKET [Count 2, PC 602.1(q) [sic], Obstructing or intimidating business operators or customers]

The first witness called by the People was Mr. Kenneth Ellis, Manager of Albertson's grocery store located at 1900 Anderson Road in the City of Davis, Yolo County. Mr. Ellis testified that when he was working on September 14, 2005 at approximately 1:00p.m., he was approached by three customers regarding a man, later identified by Mr. Ellis in court as the defendant, Joseph Arch Sherman, outside the store stopping and harassing customers. Mr. Ellis testified that the customers complained about the defendant being obnoxious and provoking, and was stopping and attempting to sell them an Albertson's gift car when they were entering the store. Mr. Ellis was told that the defendant was aggressively trying to entice them to purchase the gift card, and when they refused, defendant would shout at them.

As a result of these complaints, Mr. Ellis went to the store entrance to see if the defendant was still present. Mr. Ellis observed the defendant standing approximately six feet in front of the Albertson's entrance. The defendant was aggressively trying to sell an Albertson's gift card to a customer entering the store. However, when the customer refused, the defendant became loud and began to shout at the customer.

Mr. Ellis then approached the defendant at the front of the store and informed him that he could not be at the store harassing customers. He also informed the defendant that Albertsons gift cards were not supposed to be sold by private persons. The defendant began to argue loudly with Mr. Ellis, stating that he had a right to be at the front of the store because it was a public place. Over a period of approximately ten minutes, Mr. Ellis repeatedly requested the defendant to leave the premises but the defendant refused. The defendant continued to argue with Mr. Ellis by quoting the Bible and the Penal Code. After numerous unsuccessful attempts to get the defendant off the property, Mr. Ellis told the defendant that the police would be notified. The defendant advised Mr. Ellis to contact the police.

After Officer Chudomelka from the Davis Police Department arrived at the location, the officer gave the defendant several opportunities to leave the area without getting arrested, but the defendant refused. Mr. Ellis subsequently placed the defendant under citizen's arrest.

The defendant, acting in Pro Per, then cross-examined Mr. Ellis. The defendant asked Mr. Ellis if he recalled his exact location at the front of the store. Mr. Ellis testified that the defendant was approximately six feet from the Albertson's entrance. When asked by the defendant if he had acted in a respectful manner and was not harassing customers, Mr. Ellis said he had not, and that he was aggressive with customers and interfering with their entry into the store.

Davis Police Officer Chudomelka was then called to the stand by The People. Officer Chudomelka testified that he arrived on the scene at approximately 1:30 PM and contacted the defendant. Upon arrival, Officer Chudomelka contacted Mr. Ellis regarding the disturbance. Officer Chudomelka testified that Mr. Ellis pointed out the defendant as the person bothering customers. Officer Chudomelka then contacted the defendant regarding the complaint and told him the store manager wanted him off the premises. The defendant then argued with the officer and refused to leave the area and stated that he had a right to be there because it was a public place. Officer Chudomelka offered the defendant three opportunities to leave the premises without getting arrested but the defendant refused. Defendant became angry and argumentative, and began to cast insults and quote the scripture. The defendant told Officer Chudomelka that Chudomelka would lose his job. Defendant then told the officer to arrest him. Mr. Ellis subsequently placed the defendant under citizen's arrest.

At this point, the Prosecution rested and Mr. Sherman testified on his own behalf.

APPELLANT'S TESTIMONY AS TO BOTH COUNTS 1 and 2 [Count 1, PC 602.1(b) and (a)]

Defendant took the stand on his own behalf and testified in a narrative fashion as follows: Defendant argued that his constitutional rights were violated, and that he was being harassed by the Davis Police Department. . . .

Mr. Sherman testified that he had not bothered anybody at the library, that he did not see Hazel Sampson, and that he had resisted Officer Chudomelka because Officer Chudomelka had no right to arrest him in a public place. Mr. Sherman maintained that his behavior ...


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