CONFORMED COPY

ORIGINAL FILED
1 Superior Court of California
County of Los Angeles

2
APR-3 2017
3
Sherri R. Carter, Executive Officer/Clerk
By Stan Kadohata, Deputy
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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

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CLARA SHORTRIDGE FOLTZ CRIMINAL JUSTICE CENTER

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9 ) CaseNo.:A334139
PEOPLE OF THE STATE OF CALIFORNIA
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Plaintiff,
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v.
ORDER ON SUBMITTED MATTERS
12 ROMAN RAYMOND POLANSKI

13 Defendant.

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On February 21, 2017, Defendant Roman Polanski filed a "Motion to Unseal the
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February 26, March 9 and March 12, 2010 Sworn Testimony of Deputy District Attorney Roger
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Gunson." On March 6, 2017, Defendant filed an Ex Parte Motion Requesting Order Re:
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People's Position on Custody. On March 17, 2017, the Defendant filed a pleading entitled:
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Defendant Polanski's Reply to DA's Opposition to his Request to the Court to Enforce its
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Promise to Mr. Polanski and Sentence in Conformity to California Law; Request to be Sentenced
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in Absentia.1
23

24 It is noted that after the March 20, 2017 hearing, counsel for Mr. Polanski attempted to communicate with
the court byemail and tosend pleadings to the court by email. Email is not a permissible means of dealing with the
25 court or filing pleadings under the Rules of Court unless specifically authorized by the judge presiding in the
matter. No such authorization has been given. (See Cal. Rule of Court, rule 2.118(a).) In thisinstance, the court
26 will consider the pleadings filed after the hearing and identified as "Supplemental Argument." However, so that

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On March 20, 2017, ahearing was held in Department 100 of the Los Angeles Superior
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Court, Judge Scott M. Gordon presiding. The People were represented by Deputy District
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Michele Hanisee. Defendant, who was not present, was represented Harland W. Braun, Esq.2
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BACKGROUND

5 Charges. Plea & Sentence

6 Polanski was indicted in March 1977 on six felony countsfurnishing a controlled

7 substance to aminor, committing alewd or lascivious act on achild under the age of 14,
8 unlawful sexual intercourse, rape by use of drugs, oral copulation, and sodomy. Later that year,
9 Polanski pled guilty to one count of unlawful sexual intercourse with aminor (Pen. Code,
10 261.5). Polanski agreed that the trial court would determine whether he would receive afelony
11 or misdemeanor sentence, that his punishment could range from probation, to up to one year in
12 county jail, to 20 years in state prison, and that the judge would not determine his sentence until
13 he had received a report from the Probation Department and heard the arguments ofcounsel.
14 The court ordered that Polanski be committed to the custody of the CDCR at its facility in Chino
15 for a period of 90 days in order to undergo a diagnostic evaluation. He was released from the
16 Chino facility after 42 days with recommendation that he be granted probation. (Polanski v.
17 Superior (2009) 180 Cal.App.4th 507,511-518 (Polanski).)
18 there be no doubt about the issue, counsel and Polanski are ordered not to communicate further with the trial judge
or the court in this matter by email.
19
Itshould benoted that Mr. Braun indicted that he was "appearing 977" for the Defendant. He is not. Penal Code
20 section 977 provides in pertinent part: "in all cases in which a felony is charged, the accused shall be personally
present atthe arraignment, at the time ofplea, during the preliminary hearing, during those portions ofthe trial when
21 evidence is taken before the trier offact, and at the time of the imposition ofsentence. The accused shall be
personally present atall other proceedings unless he orshe shall, with leave ofcourt, execute in open court, a written
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waiver ofhis or her right to be personally present, as provided by paragraph (2). [H] (2)The accused may execute a
written waiver ofhis orher right to be personally present, approved by his orher counsel, and the waiver shall be
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filed with the court. However, the court may specifically direct the defendant to be personally present at any
particular proceeding or portion thereof."
24

In this matter, Defendant was ordered toappear incourt on February 1, 1978, and a warrant was issued for his arrest.
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That order for Defendant to appear still stands and therefore Penal Code section 977 does not apply in this matter.
26 All undesignatedstatutory references are to the Penal Code.
 1 On February 1,1978, Polanski failed to appear in court for a sentencing hearing, and a
2 bench warrant was issued for his arrest. Three days later, Polanski's trial counsel, Douglas

3 Dalton, filed a statement of disqualification of Judge Laurence Rittenband. The judge filed a
4 verified answer to the disqualification statement in which he denied bias but consented to the
5 transfer of the matter. Polanski has remained a fugitive from justice since 1978. (Polanski,

6 supra, 180 Cal.App.4th at pp. 514, 526.)

7 2008 Motion for Dismissal

8 In 2008, Polanski filed a motion seeking dismissal of the case, in the furtherance of

9 justice pursuant to section 1385, asserting various allegations of judicial and prosecutorial

10 misconduct. On February 17, 2009, after a hearing, Supervising Judge PeterEspinoza denied

11 Polanski's request for dismissal finding that he: (1) was required to be personally present at any

12 proceeding regarding his case in light of hisoutstanding bench warrant and section 977; (2)was

13 not entitled to request affirmative relieffrom the court while he remained at large under the

14 Fugitive Disentitlement Doctrine;4 and (3) forfeited his right to seek affirmative relief while

15 remaining outside of the court'sjurisdiction. The court stayed execution of the order for 30 days

16 in order to provide Polanski the opportunity to submit to the court's jurisdiction. However, on

17 May 4, 2009, Dalton advised the court that Polanski would not appear at the scheduled hearing.

18 Thereafter, the court ordered that its previously stayed order take immediate and full effect.

19 (Polanski, supra, 180 Cal.App.4th at p. 526.)

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Polanski challenged Judge Espinoza's order via a petition for writ of mandate filed with

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the Court of Appeal. The appellate court denied his petition, concluding this court did not abuse

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4"The fugitive disentitlement doctrine dates back to 1880 in California with People v. Redinger (1880) 55
Cal. 290, in whichour Supreme Court dismissed an escapeddefendant's appeal because '[i]t would be a farce to
24 proceed in a criminal cause, unless the Court had control over the person charged, so that its judgment might be
made effective.' [Citation.] The California disentitlement doctrine is frequently explained in these terms: 'A party
25 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 attitudeof contempt to legal orders and processesof the courts of this state.' [Citation.]" (Polanski, supra,
26 180 Cal.App.4th at p. 531.)

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its discretion in applying the fugitive disentitlement doctrine and refusing to consider his request
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for dismissal on the merits. (Polanski, supra, 180 Cal.App.4th 507.)
3 2014 Motion for Public Evidentiary Hearing
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On December 15, 2014, Polanski filed amotion for a"public evidentiary hearing'
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to resolve various allegations of misconduct in his underlying case. Defendant's motion asked
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the court: "1. Whether, after aproper balancing of the equities, the fugitive disentitlement
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doctrine should be applied. 2. Whether the pervasive prosecutorial and judicial misconduct in
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this case warrants dismissal of the action under Penal Code Section 1385. 3. Whether Polanski
9 has already served his proscribed sentence under the judicial promise of Judge Rittenband and
10 whether the principal factual bases asserted in the DOJ's extradition requests are false and the
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DA has known and knows they are false. 4. Whether sanctions are appropriate. Whether other
12 curative actions are warranted." On December 23, 2014, Supervising Judge James R. Brandlin
13 denied the motion, finding that Defendant was not entitled to an evidentiary hearing to resolve
14 his allegations ofjudicial and prosecutorial misconduct while he was afugitive from justice, and
15 that he had no right, statutory or otherwise, entitling him to an evidentiary hearing regarding his
16 allegations of misconduct. (Polanski, supra, 180 Cal.App.4th at p. 531 [Polanski is not entitled
17 to avail himself of this court's power to hear his demands while he openly stands in contempt of
18 alegal order from this very court]; Excelsior College v. Cal. Bd ofRegisteredNursing (2006)
19 136 Cal.App.4th 1218,1238 [right to an evidentiary hearing exists only by statute, regulation or
20 rule, or if aliberty interest is implicated].) In denying the motion, Judge Brandlin found
21 Polanski forfeited his right to avail himself of the authority of the court under the fugitive
22 disentitlement doctrine. Polanski did not appeal this order.
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CURRENT PROCEEDINGS
2 February 2017 Motion to Unseal

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On February 21, 2017, Polanski, represented by Mr. Braun, filed a new motion to unseal the
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2010 sworn testimony of DDA Gunson.5 In subsequent pleadings and in the hearing on this
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matter, Defendant's counsel requested that this motion be taken off calendar. The request was
6 taken off calendar pursuant to Defendant's request. It must be noted that in Defendant's
7 pleadings filed after the initial request to unseal the testimony ofDDA Gunson, Defendant
8 expressly and repeatedly stated that he wished to take the Motion to Unseal the testimony of
9 DDA Gunson off-calendar. At the hearing in this matter on March 20, 2017, Defendant clearly
10 indicated that he wished to take this motion off calendar. The court granted Defendant's request
11 to take his Motion to Unseal the Testimony of DDA Gunson off-calendar.
12 March 2017 Motion Requesting Order Regarding the People's Position on Custody
13 On March 6, 2017, Polanski filed amotion requesting an order directing the District
14 Attorney to inform the court and counsel ofher position on the issue ofwhether or not Polanski
15 would be subject to additional custody time if and when he returns to the court for sentencing.
16 The People filed an opposition to this motion the next day. Polanski filed areply to the People's
17 opposition on March 8, 2017, asserting essentially the same points set forth in the original
18 motion. Polanski asserts that he wishes "to focus only on the critical issue in his case" and
19 therefore make "consideration of the sordid procedural history of this case unnecessary."
20 (Declaration filed March 8,2017, at p. 3, U2.) Specifically, Polanski seeks an order from the
21 court, stating he "would appreciate ifthe Los Angeles County District Attorney informed the
22 [c]ourt and counsel whether it contends that Roman Polanski owes any additional time in
23 custody as part of his eventual sentence, and ifit believes he does, it would be appreciated ifit
24

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In January 2010, Polanski, then represented by Manatt, Phelps &Phillips, filed an application for
conditional examination of former Deputy District Attorney Roger Gunson, pursuant to section 1336, subdivision
(a). On February 5, 2010, Judge Espinoza ordered aclosed and conditional examination ofGunson pursuant to
26 sections 1335 through 1345.
 1 would tell the [c]ourt and counsel the rationale for such a belief." (Proposed Order submitted

2 with Motion filed March 6, 2017.)

3 Polanski's motion is deficient in several respects. First, the motion is not accompanied

4 by a memorandum of points and authorities. "All motions must be ... accompanied by points

5 and authorities." (People v. Laws (1981) 120 Cal.App.3d 1022,1033.) Polanski's legal

6 argument is improperly embedded in his declaration. (See In re Marriage ofHeggie (2002) 99

7 Cal.App.4th 28,30, fn. 3 ["proper place for argument is in points and authorities, not
8 declarations"].) In this matter, this omission is more than failure to adhere to proper legal form.
9 There is no authority presented by Defendant to support the orderfor the requested relief. The
10 People have unambiguously stated their desire to avoid discussing any substantive issues
11 regarding Polanski's case until he is physically present in the court's jurisdiction. The District
12 Attorney is actingwell within her discretion to decline to state a position to a defendant absent
13 from court and in warrant status. Without any cited authority, there is no provision for the court
14 to order the request relief. Additionally, Polanski is not entitled to avail himself of this court's

15 power to hear his demands while he openly stands in contempt of a legal order from this very
16 court. (Polanski, supra, 180 Cal.App.4th at p. 531.)

17 Thus, Defendant's request in this matter is DENIED.

18 March 2017 Request for Court toAcknowledge its Promise and Respect the Principle of Comity
19 On March 10, 2017, Polanski filed a motion titled "Request for Court to Acknowledge its
20 Promise to Roman Polanski and to Respect the Principle of Comity to Honor the Judgment of the
21 Courts of the Republic of Poland." The People filed an opposition to this motion on March 16,
22 2017. Polanski alleges that in 1977 Judge Rittenband promised him that if he went to state

23 prison to submit to a diagnostic study pursuant to section 1203.03, that the diagnostic study
24 would satisfy the custody requirement of his ultimate sentence. (Motion filed March 10, 2017, at

25 p. 4.) Polanski requests the court to find this allegation to be true, and also to find that he has

26 already served his sentence for this case. Polanski further requests that this court honor the
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judgment of aPolish court declining to extradite him, and asserts that this Polish decision
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contains factual findings that would assist this court, were it to adopt them under the principle of
3 comity. (Motion filed March 10, 2017, at p. 9-10.)
4
As previously noted by this court and the Court of Appeal, under the fugitive
5 disentitlement doctrine, Polanski cannot avail himself of the court while standing in contempt of
6 it. (Polanski, supra, 180 Cal.App.4th at p. 531.) Defendant argues that the fugitive
7 disentitlement doctrine does not apply by phrasing his requests in away that he is not seeking
8 any affirmative relief from the court. However, in order to acknowledge the promise that
9 Polanski claims was made to him and to declare that he has already served his sentence, the court
10 would both need to make factual findings in accordance with his requests. Affirmative relief is
11 defined as "the redress or benefit... that aparty asks of acourt." (Simke, Chodos, Silberfeld &
12 Anteau, Inc. v. Athans (2011) 195 Cal.App.4th 1275,1286, citing Black's Law Diet. (6th ed.
13 1999) p. 1293, col. 2.) The request made Defendantacknowledgment of apurported promise
14 and application ofthe Polish court's findingsclearly constitute affirmative relief. As described
15 herein, the fugitive disentitlement doctrine prevents Polanski from obtaining the relief he desires
16 until he presents himself in the court's jurisdiction.
17 Polanski also asks the court to respect the principle of comity regarding adecision made
18 on October 30, 2015, by Presiding Judge Dariusz Mazur, of the Regional Court in Krakow, Third
19 Criminal Division, in Poland. "Comity refers to the spirit of cooperation in which adomestic
20 tribunal approaches the resolution of cases touching the laws and interests of other sovereign
21 states [1f] '"By the courtesy ofnations, whatever laws are carried into execution, within the
22 limits of any government, are considered as having the same effect everywhere, so far as they do
23 not occasion aprejudice to the rights of the other governments, or their citizens." (Societe
24 Nationale Industrielle Aerospatiale v. U.S. Dist. Court (1987) 482 U.S. 522, 543, fn. 27.)
25 The judicial act performed by the Polish court was to refuse to extradite Polanski to the United
26 States. However, what the Defendant requests in his motion is not for the court to adopt or

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recognize the Polish court's ruling, but to recognize and adopt factual findings made by the
2 Polish court within the Polish court's opinion.
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The notion of comity originates in civil law and operates by consent. (See Bank of
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Augusta v. Earle (1839) 38 U.S. 519, 556-557; Hilton v. Guyot (1895) 159 U.S. 113, 143.) The
5 term comity represents "'the obligation of nations to give effect to foreign laws when they are
6 not prejudicial to their own rights and interests.'" (Hilton v. Guyot, supra, at p. 144.) In
7 California, courts "may, but are not required to, execute the judgment of aforeign nation as a
8 matter of comity." (In re Stephanie M. (1994) 7Cal.4th 295, 314.) Comity is discretionary and
9 can be denied or extended. (Ibid.) As indicated above, Polanski does not request this court to
10 respect a Polish statute, nor even a Polish judgment, but to adopt a limited a factual finding made
11 in a Polish court regarding his extradition. The subject matter ofthe request relates to a matter
12 which this court has not had the opportunity to make afactual findings or receive testimony
13 because Defendant refuses to avail himself of the court's jurisdiction. The Court of Appeal has
14 held that when the findings ofthe trial court are supported by substantial evidence, there is no
15 need to adopt findings ofother jurisdictions superseding them. (Keegan v. Kaufman Bros.
16 (1945) 68 Cal.App.2d 197, 204.) In this case there has never been a trial, nor any kind of
17 evidentiary hearing. The defendant may not use his fugitive status to obtain findings from a
18 decision from a Polish court to bind this court, from which he fled.

19 The Defendant's requests in his March 2017 Motion Requesting Order Re: People's
20 Position on Custody are DENIED.

21 In several ofhis pleadings, Defendant requests the court to indicate findings and opinions
22 in advance of the probation and sentencing hearing in this matter. To the extent Defendant's
23 motions can be construed as requests for the court to issue advisory opinions, they are denied.
24 "The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this
25 court." (People ex rel. Lynch v. Superior Court (1970) 1Cal.3d 910, 912 citing Hill v. Hill
26 (1947) 79 Cal.App.2d 368.) In People v. Ybarra (1988) 206 Cal.App.3d 546, 549, the Court of
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Appeal refused to rule on whether afelony conviction could be used to enhance sentencing for a
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future offense, stating that adecision would "at most constitute an advisory opinion," and
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reiterating the "well-settled rule that courts should 'avoid advisory opinions on abstract
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propositions of law.'" (Quoting In re William M. (1970) 3Cal.3d 16, 23, fn. 14.) The argument
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that "guidance would be potentially useful to legislative, governmental or law enforcement
6 entities in discharging their duties is an insufficient reason to disregard the prohibition on
7 advisory opinions." (People v. McKay (2002) 27 Cal.4th 601, 628.)
8 Request for Sentencing in Absentia

9 On March 17, 2017, Polanski filed a response to the People's opposition to Polanski's
10 request for the court to respect its promise and the principle of comity. This response contains a
11 new request (that this court sentence him in absentia pursuant to section 1193, subdivision (a).)
12 It is well settled that the court need not consider new issues raised for the first time in areply
13 brief. (Sierra Club v. City ofOrange (2008) 163 Cal.App.4th 523, 548.) However, the court is
14 exercising discretion to consider Defendant's requests.
15 Defendant argues that the Court of Appeal stated in 2009: "Based on the oral arguments
16 of counsel, this court would not expect any objection to be made if Polanski should request to be
17 sentenced in absentia."6 (Polanski, supra, 180 Cal.App.4th at p. 546, fn. 27.) Polanski has
18 understood this to mean that the People have agreed to sentencing in absentia. He is incorrect.
19 The decision to sentence Polanski in absentia is left to the discretion ofthe court in the interest of
20 justice. ( 1193, subd. (a).) Even after reasonable diligence has failed to produce the defendant,
21 the court may still elect, in the interest ofjustice, not to sentence him in absentia. (People v.
22 Williams (1944) 24 Cal.2d 848, 853.) The People have stated strong opposition to this request,
23 arguing they have aright to present evidence and arguments in aprobation and sentencing
24 hearing with Defendant present.

25
his lanSuage from the Court of Appeal opinion was not an express holding or part of its disposition An
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47P i?HPinin deS "0t Sta"d fr 3prPsition not exPressly considered by the court. (People v. Harris (1989)

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Defendant previously filed asimilar request for sentencing in absentia in this court,
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which was denied on January 22, 2010 by Judge Espinoza. (People v. Polanski (Super. Ct. Los
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Angeles County, 2010, No. A334139, Order of Jan. 22, 2010.) The court took into account the
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appellate opinion and determined, in the interest ofjustice, that Polanski could not be sentenced
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in absentia. (Ibid.) The doctrines of collateral estoppel and res judicata bar parties from
6 relitigating issues that have already been argued and decided. (See People v. Gephart (1979) 93
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Cal.App.3d 989, 997.) The doctrine of res judicata is applicable to criminal cases. (People v.
8 Beltran (1949) 94 Cal.App.2d 197, 205.) As ageneral rule, one trial judge cannot reconsider an
9 order of another trial judge, as doing so places the second judge in the role of aone-judge
10 appellate court. (People v. Riva (2003) 112 Cal.App.4th 981, 991.) This issue has already been
11 decided by this court. The fugitive disentitlement doctrine as described and found applicable to
12 this matter in several prior rulings further supports adenial of this request.
13 Thus, Defendant's request to be sentenced in absentia is DENIED.
14 In addition to the reasons described above, it must be noted that on January 5, 2009, Mr.
15 Polanski, though counsel, filed aVerified Statement of Disqualification of the Los Angeles
16 Superior Court, and all of its judges, based upon the same matters raised in the present motions
17 and requests. By order dated January 9, 2009, the Los Angeles Superior Court of Judge Peter
18 Espinoza, struck Mr. Polanski's Verified Statement of Disqualification. On January 20, 2009,
19 Mr. Polanski, though counsel, filed a Petition for Writ ofMandate, Prohibition or Other
20 Appropriate Writ challenging the determination of the question of disqualification and seeking a
21 stay of proceedings. On February 2, 2009, the Court of Appeal summarily denied the
22 petition. No review ofthat ruling was sought by the Supreme Court.
23 Normally, such summary denials by the Court ofAppeal do not constitute law ofthe
24 case, and do not establish any legal precedents or factual determinations. Frisk v. Superior Court
25 (2011) 200 Cal.app.4th 402,415-416. However, adenial of apetition for writ of mandate
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challenging the determination of the question of disqualification "is on the merits and constitutes
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law of the case." Frisk v. Superior Court, supra. As the Court of Appeal in Frisk explained:
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"Because writ relief is the only authorized mode ofappellate review for
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peremptory [and for cause] challenges, our decision, in contrast to routine summary
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denials, is binding on the parties, and cannot be revisited on asubsequent appeal.
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(Harvard-Westlake, supra, [D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th
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836]... at p. 850.) As such, we judge the petition on its procedural and substantive
8 merits, and our determination whether to grant or deny the petition "is necessarily on the
9 merits." (Leone v. Medical Board (2000) 22 Cal.4th 660, 670 [94 Cal. Rptr. 2d 61, 995
10 P.2d 191] (Leone); see Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1172-1173 [103
11 Cal. Rptr. 3d 509]; see discussion in People v. Medina (1972) 6Cal.3d 484, 492 [99 Cal.
12 Rptr. 630, 492 P.2d 686] (Medina) [distinguishing writ denials where the Court of
13 Appeal issues a "written opinion which decides the merits"].)"
14 In addition, the Legislature has provided that a party cannot continue to raise the same
15 grounds in repeated statements unless new grounds "are first learned of or arise" after the first
16 statement was filed. Code of Civil Procedure 170.4(c)(3). The court finds that after a
17 consideration of all the evidence and arguments made in the instant motions no such new
18 grounds have been asserted.

19 Mr. Polanski, through counsel, has filed the current motions which are similar to
20 previously filed motions, and are based upon the same factual and legal arguments previously
21 presented to the court and denied by other judges, and the Court ofAppeal. No sufficient or
22 compelling basis for reconsideration ofthese issues by the undersigned has been
23 presented. Moreover, counsel for defendant has not presented sufficient credible, admissible
24 evidence or legal arguments to warrant the relief requested.
25 Defendant, through counsel, filed the current motions which are similar to previously
26 filed motions, and are based upon the same factual and legal arguments previously presented to

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.he court and denied by otherjudges, along with the Court ofAppea,. TTrere is no sufficient or
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compiling basis for reconsideration of these issues. Moreover, counse. for Defendant has not
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presented sufficient credible, admissible evidence or lega! arguments to warrant the requested
4 relief.

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Defendant's motions and corresponding requests are therefore DENIED.
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7 Dated: H-^-n SCOTT MGORDON

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SCOTT M.GORDON ^ttT. L/J>.
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Judge of the Superior;^
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 Send copy of order to:

Harland Braun, Esq.

BRAUN & BRAUN LLP
10250Constellation Blvd., Suite 1020
Los Angeles, CA 90067

4 Michele Hanisee, Deputy District Attorney

Major Crimes Division
5 211 W. Temple Street, Suite 1100
Los Angeles CA 90012
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