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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN THE COUNTY OF SANTA CLARA

APPELLATE DIVISION

PEOPLE OF THE STATE OF CALIFORNIA, 18AP002333


Plaintiff and Respondent,
v. (Trial Ct. No.
VICTOR MERAS, C1769315)
Defendant and Appellant.

APPELLANT'S OPENING BRIEF

Appeal from a Judgment of Conviction


The Honorable Richard Loftus, Judge

Jonathan Grossman 154452


Staff Attorney
Sixth District Appellate Program
95 S. Market Street, Suite 570
San Jose CA 95113
(408) 241-6171; fax (408) 241-2877
jonathan@sdap. org

Attorney for Appellant


Victor Meras
2
TABLE OF CONTENTS

TABLE OF CONTENTS . .. .................... . ............ -i-

TABLE OF AUTHORITIES . ..... .. . .. . . . .. . . . ...... . ... .... -iii-

APPELLANT'S OPENING BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF APPEALABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENTOFTHECASE . ............. . ..................... 1

STATEMENTOFTHEFACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3

I. TRIAL COUNSEL WAS INEFFECTIVE FOR MOVING TO


DISMISS THE ALLEGATIONS BECAUSE THE PROTECTIVE ORDERS
WERE UNLAWFUL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Petitioner was Entitled to Effective Assistance of Counsel to


Pursue Defenses Before Pleading . . . . . . . . . . . . . . . . . . . . 3

B. Trial Counsel Failed to Seek or be Prepared to Argue Dismissal


of the Contempt Charges Due to There not Being a Lawful
Comi Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C.. There Could be no Tactical Reason for Failing to Seek to


Dismiss the Contempt Charges . . . . . . . . . . . . . . . . . . . . . 13

D. Failure to Move to Dismiss was Prejudicial . .. .. . . . . . . . 13

II. THECOURT'SORDER THAT APPELLANTSTAY AWAYFROM


THE BOARD WAS UNCONSTITUTIONALLY VAGUE AND
OVERBROAD, AND IT AMOUNTED TO PRIOR RESTRAINT OF FREE
SPEECH .......... . . .. .... ... ... . .. . .. . .... . . . ........... 14

CONCLUSION 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 16

- I -
TABLE OF CONTENTS (CONTINUED)

CERTIFICATION OF WORD COUNT ... . . . . . .... . .......... . . 17

DECLARATION OF SERVICE BY E -MAIL AND U.S. MAIL . . . . . . ... .. .. . 18

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TABLE OF AUTHORITIES

CASES

Anderson v. Superior Court (1998)


68 Cal.App.4th 1240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Broadrick v. Oklahoma (1973)


413 U.S. 601 ... . .. ..... . . ........ . ..... . .......... 8,15

Citizens United v. Federal Elec. Com. (20 10)


558 U.S. 310 .......... . ........... . ......... . ... .. .. 11

Hassell v. Bird (2018)


5 Cal.5th 522 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Hili v. Lockhart (1985)


474 U.S. 52 ....... .. ....... .. ..... .. ... . .... . .... . .. 14

Hinton v. Alabama (2014)


571 U.S. 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

In re Cassil (1995)
37 Cal.App.4th 1081 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

In re E.O. (2010)
188 Cal.App.4th 1149 .. .. . . . .. .. . . ... .... . .. .. .. . ..... 10

In re Ivey (2000)
85 Cal.App.4th 793 . . .. . .. . . . ..... .. ................ 6,14

In re Jones (1996)
13 Cal.4th 552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

In re Sheena K. (2007)
40 Cal.4th 875 7,15
'

In re Williams (1969)
1 Cal.3d 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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TABLE OF AUTHORITIES (CONTINUED)

In re Wilson (1992)
3 Cal.4th 945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Lockhartv. Fretwell (1993)


506 U.S. 364 .......... . ...... .. . ..... ............... 14

Organization for a Better Austin v. Keefe (1971)


402 U.S. 415 . .. .... ... ..... . ............. .. ......... 12

Padilla v. Kentucky (20 10)


559 U.S. 356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v: Asbury (1985)


173 Cal.App.3d 362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

People v. Gonzalez (1996)


12 Cal.4th 804 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. Harrisson (2005)


134 Cal.App.4th 637 .... .. .. ............. .. ......... 8, 15

People v. Johnson (1993)


20 Cal.App.4th 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Ledesma (1987)


43 Cal.3d 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

People v. Leon (20 10)


181 Cal.App.4th 943 ... . . ... .. .............. .. ...... . . 10

People v. Maguire (1998)


67 Cal.App.4th 1022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Perez (2009)


176 Cal.App.4th 380 .... . . . .. . . . . . .. . . .... ....... . .. 8,10

People v. Pope ( 1979)


23 Cal.3d 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

-IV-
TABLE OF AUffiORITIES (CONTINUED)

People v. Selga (2008)


162 Cal.App.4th 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Williams ( 1999)


21 Ca1.4th 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Young ( 1956)


138 Cal.App.2d 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Presley v. Georgia (20 10)


558 U .S. 209 . . .. . ................ ... . . ... . .. . .. .. . .. 10

Reno v. Flores (1993)


507 U .S. 292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Smith v. Lewis (1975)


13 Cal.3d 349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Smith v. M ahoney (9th Cir. 2010)


611 F.3d 978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Strickland v. Washington (1984)


466 U .S. 668 . .... .. . . . . .. . .... . .................. 3,4, 13

United Siates v. Hook (6th Cir. 1986)


781 F.2d 1166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Williams (2008)


553 U.S. 285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CONSTITUTIONS

California Constitution
art. I, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . ..... ..... . . . . .. . . . 11
art. I, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . ..... ..... . . . . .. . . . 11
art. I,§ 7 . ........................ . . .. . .... . . . . . .. . 7,15
art. I, § 15 . . . . . . . . . . . . . . . . . . . . . . . . ..... ..... . . . . .. 3,7, 15

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TABLE OF AUTHORITIES (CONTINUED)

United States Constitution


First Amendment ... ........... . ......... .. ... .... . . 7,11
Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Fomteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7,15

STATUTES

Govenunent Code
§ 54950 .. . .......... .. ............. . ... .. .... ..... . 12
§ 54952 ......... .. ........ . ... . . .............. .. . . . 12
§ 54953 . ... ..... .. .. ................. . .... . ........ 12
§ 54954.3 ... . . ... . . ..... . ........................... 12

Penal Code
§ 166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6
§ 1466 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

- Vl-
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN THE COUNTY OF SANTA CLARA

APPELLATE DIVISION

PEOPLE OF THE STATE OF CALIFORNIA, 18AP002333


Plaintiff and Respondent,
v. (Trial Ct. No.
VICTOR MERAS, C1769315)
Defendant and Appellant.

APPELLANT'S OPENING BRIEF

STATEMENT OF APPEALABILITY

This is an appeal from the judgment following a plea of no contest. It

is appealable under Penal Code section 1466, subdivision (b)(1).

STATEMENT OF THE CASE

A complaint was filed on July 24, 2017. (CT 1-2.) As amended, it

alleged appellant committed four counts of contempt (Pen. Code, § 166, subd.

(a)(4)) by not staying at least 300 yards away from Cindy Chavez, David

Cortese, James Williams, and David Leon on or about June 6, 20 17 as required

by orders "lawfully issued by a court." (CT 3-5.)

On March 26, 2018, appellant pled no contest to count one. The

remaining three counts and an alleged violation of probation were dismissed.

He was placed on two years informal probation and ordered to serve four days

with credit for four days. As a condition of probation, the court ordered he

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stay 200 yards away. (CT 37.)

A notice of appeal was filed on April3, 2018. (CT 38-39.)

STATEMENT OF THE FACTS

Appellant has been a civil social activist, which includes political

activism and speaking at local government meetings, and is also known as

Victorius Alexander. (CT 10.) According to the police report in the cowt file,

appellant was ordered to stay 300 yards away from board of supervisor

meetings and ce1tain members ofthe board (Cindy Chavez and David Cortese)

and certain members of the county staff (James Williams and David Leon).

Rhonda Schroeder, 1 who was the division manager of board operations at the

Office of the Clerk and knew appellant from prior board meetings, was outside

the County Administration Building on personal business at about 11 a.m. on

June 6, 2017. (CT 10.) Three of the people protected by the orders were at

the board meeting, except Leon who was on the tenth floor. (CT 10.)

Sclu-oeder reported she saw appellant parked across the street from the San

Jose Police Department and walked to the County Re-Entiy Center. (CT 9.)

The program manager of the Re-Entry Center said appellant had

checked in on May 30 but did not make an appointment, and so he was not

receiving services. (CT 9-10.) It was determined appellant was 135 yards

1
Schroeder' s name was redacted from the police report in the court
file, but the People's Motions in Limine identify her. (CT 29.)

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from the County Administration Building, which included the District

Attomeys Office. (CT 12.)

ARGUMENT

I. TRIAL COUNSEL WAS INEFFECTIVE FOR MOVING TO


DISMISS THE ALLEGATIONS BECAUSE THE PROTECTIVE
ORDERS WERE UNLAWFUL.

F~r appellant to be guilty of contempt for violating a court order, there

must be a lawful court order. The protective orders were not lawful. Trial

counsel was ineffective for not moving to dismiss the case based on the orders

being unlawful.

A~ Petitioner was Entitled to Effective Assistance of Counsel to


Pursue Defenses Before Pleading.

The right to effective assistance of counsel is guaranteed by the Sixth

and Fourteenth Amendments to the United States Constitution and by article

I, section 15 of the California Constitution, entitling a defendant to "the

reasonably competent assistance of an attorney acting as his [or her] diligent,

conscientious advocate." (People v. Ledesma (1987) 43 Cal.3d 171, 215;

Strickland v. Washington (1984) 466 U.S. 668, 684.) This is measured by

objective standards of reasonableness under prevailing professional norms.

(Strickland, at p. 688.)

In order to show ineffective assistance of counsel, it must be shown that

( 1) counsel's representation was deficient in that it fell short of prevailing

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professional standards of reasonableness; and (2) there is a "reasonable

possibility that but for counsel's errors, the result of the case would have been

different." (Strickland, supra, 466 U.S. atp. 687.) On appeal, it must also be

shown that there was no reasonable explanation for trial counsel's conduct.

(People v. Pope (1979) 23 Cal.3d 412, 426.)

Trial counsel has a duty to know the law. (In re Wilson (1992) 3 Cal. 4th

945, 955-956 [ineffective for failing to do legal research to exclude evidence];

United States v. Hook (6th Cir. 1986) 781 F.2d 1166, 1172, fn. 8.) " An

attomey' s ignorance of a point oflaw that is fundamental to his case combined

with his failure to perform basic research on that point is a quintessential

example of unreasonable performance under Strickland." (Hinton v. Alabama

(2014) 571 U.S. 263, 274; Smith v. Lewis (1975) 13 Cal.3d 349, 358.)

"Criminal defense attomeys have a duty to investigate carefully all defenses

of fact and law that may be available to the defendant . . . Counsel should

promptly advise his client of his rights and take all actions necessa1y to

preserve them." (Pope, supra, 23 Cal. 3d at p . 425, intemal quotation marks

omitted.) Thus, trial counsel has a duty to make meritorious motions that

would have an effect on the case (Wilson, at pp. 955-956) and to make proper

objections. (In re Jones (1996) 13 Ca1.4th 552, 571-573 ; People v. Asbury

(1985) 173 Cal.App.3d 362, 365-366).

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A defendant is also entitled to the effective assistance of counsel before

deciding whether to plead guilty or no contest. (Padilla v. Kentucky

(2010) 559 U.S. 356, 364 ["Before deciding whether to plead guilty, a

defendant is entitled to ' the effective assistance of competent counsel.' "].)

"Before entering his plea, [a defendant is] 'entitled to rely upon his counsel to

make an independent examination of the facts, circumstances, pleadings and

laws involved and then to offer his informed opinion as to what plea should

be entered.' [Citation.] The attorney's role in investigating the facts and

researching the applicable law prior to advising the petitioner to plead

becomes particularly important because of the serious consequences of a guilty

plea[, which] ... is itself a conviction." (In re Williams (1969) 1 Cal. 3d 168,

175.) Thus, counsel has been found to be ineffective for failing to investigate

and challenge charges that could be defeated. (People v. Maguire (1998) 67

Cal.App.4th 1022, 1028 ["Defense counsel have the obligation to investigate

all defenses, explore the factual bases for defenses [citation] and the applicable

law. [Citation]."]; People v. Young (1956) 138 Cal.App.2d 425 [counsel not

prepared to proceed]; Smith v. Mahoney (9th Cir. 2010) 611 F.3d 978, 986-
,
989.)

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B. Trial Counsel Failed to Seek or be Prepared to Argue
Dismissal of the Contempt Charges Due to There not Being
a Lawful Court Order.

Trial counsel failed to move to dismiss the charges on the ground the

comt orders were invalid. Penal Code section 166, subdivision (a)(4) states

it is a misdemeanor when the defendant engages in"[w]illful disobedience of

the terms as written of any process or comt order or out-of-state court order,

lawfully issued by a court, including orders pending trial." (Emphasis added.)

"As a general rule, the elements of contempt include (1) a valid order, (2)

knowledge of the order, (3) ability to comply with the order, and (4) willful

failme to comply with the order." (In re Ivey (2000) 85 Cal.App.4th 793, 798,

citing Anderson v. Superior Court (1998) 68 Cal.App.4th 1240, 1245 and In

re Cassil (1995) 37 Cal.App.4th 1081, 1087.) There must be valid orders.

(Pen. Code, § 166, subd. (a)(4); People v. Gonzalez (1996) 12 Cal.4th 804,

816-819.) A "person to whom an injunction applies is not baned from

collaterally attacking the injunction' s validity in a contempt proceeding.

(People v. Gonzalez (1996) 12 Cal. 4th 804, 818.)" (Hassell v. Bird (2018) 5

Cal.5th 522, 553, fn. 3 (cone. opn. ofKiuger, J.).)

Although the lawfulness of the protective orders is an element the

prosecution must prove at trial, it is also a pme issue of law which a court

could consider before trial. In this respect, the issue is similar to whether an

offense occuned within the statute of limitations, which could be challenged

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in a pretrial motion to dismiss as well as at trial. (Cf. People v. Williams

(1999) 21 Ca1.4th 335, 341.)

There were two set of protective orders. One was from criminal case,

case no. C1516422. 2 The second set of protective orders came from civil court

in case nos. 17CH007411 through CH007414. In each case, the court ordered

appellant to stay 300 yards away from the board of supervisor meetings and

the four named people. (CT 6, 9.)

The orders were overbroad. The Fourteenth Amendment to the United

States Constitution and article I, sections 7 and 15 of the California

Constitution guarantee no person shall be deprived oflife, liberty, or property

without due process of law. (In Sheena K. (2007) 40 Cal.4th 875, 890.)

"[T]he right to be free from Government confinement ... is the very essence

of the lib~rty protected by the Due Process Clause." (Reno v. Flores (1993)

507 U.S. 292, 346.) "First Amendment overbreadth doctrine, a statute [or

order] is facially invalid if it prohibits a substantial amount of protected

speech." (United States v. Williams (2008) 553 U.S. 285, 292.) A court order

2
Appellant was also on probation in cases nos. C1368704, C1516422,
C1634024, C1509055, and C1363599. Following a violation of probation,
a similar ·stay away order was made as a condition of probation, which were
challenged on appeal in case nos. 17AP002214, 17AP002215, 17AP002216,
17AP002244, 17AP002283 . However, violating a condition ofprobation cannot
be grounds for contempt. (People v. Selga (2008) 162 Cal.App.4th 113, 120;
People v. Johnson (1993) 20 Cal.App.4th 106, 111.)

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"is constitutionally overbroad when it substantially limits a person's tights and

those limitations are not closely tailored to the purpose of the condition.

[Citation.] It is not enough to show the govemment' s ends are compelling; the

means must be carefully tailored to achieve those ends. A state may restrict

a constitutional right, but only when the resttiction is nanowly drawn ....

Since laws regulating expression pose a particular danger of abuse, they are

carefully scrutinized. [Citation.]" (People v. Harrisson (2005) 134

Cal.App.4th 637, 641-642; accord, Broadrick v. Oklahoma (1973) 413

U.S. 601, 612.)

The distance of 300 yards was too sweeping. "Many courts [and

county services] are located in govemment complexes that house a vatiety of

public agencies. These may include a county law library; a public defender's

office . .. . " (People v. Perez (2009) 176 Cal.App.4th 380, 385.) The board

of supervisors meets at 70 West Hedding Street in San Jose. (CT 9.) The

County Administration Building was where most of the county's services are

located, including the District Attorney' s Office. Within 300 yards are the San

Jose Police Department, and the County Re-Entry Center, which provided

rehabilitative services for former inmates. (CT 9, 12.) Also within 300 yards

were Hall of Justice (the main criminal comthouse), the Main Jail, the Public

Defenders Office, the Alternative Defenders Office, the Civic Center Parking

Garage, the Almy National Guard recruitment station, and the county tax

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collector. Appellant could be found to have violated the orders simply because

he was required to attend court, went to the police to report a crime, consulted

with his lawyer, found himself arrested, or went to the County Re-Entry

Center for services.

This was also in the county civic center, an area where political

demonstrations have been held. A main line of the light rail system ran within

300 yards, as did major bus lines and main streets. The Guadalupe Freeway

(State Route 87) came within 300 yards of the County Administration

Building. Petitioner could be found to violate the orders simply by driving

down a limited-access freeway, though he would be in no position to access

the board of supervisors or the protected parties. His ability to simply get

around was greatly hampered by the courts' orders.

It did not save the day that the board of supervisors normally met on

Tuesday mornings. It also had special meetings at any given time. Further,

the court ordered petitioner to stay away from board members and staff

members, There were committee meetings, and the named people had offices

at the County Administration Building. Leon, for example, was in an office

on the tenth floor. (CT 10.) Petitioner effectively could not be in the San Jose

county civic center while the building was open. He could be in violation of

the orders by being in the area after hours simply because a one of them was

working overtime.

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The protective orders banned petitioner from engaging in needed county

services. It also prohibited him from attending comt, even if he was a

defendant, witness, victim, or juror. A person cannot be banned from a comt

proceeding generally without cause particular to the fair administration of

justice in the comtroom. (Presley v. Georgia (2010) 558 U.S. 209, 213.) An

order, such as a condition of probation, banning a person from a county

courthouse, especially if he or she is a victim or witness, is unconstitutional

unless th~re is specific evidence that the proceedings would be unfair if the

person is present. (In re E.O. (2010) 188 Cal.App.4th 1149, 1153-1158;

People v. Leon (2010) 181 Cal.App.4th 943, 952-954; Perez, supra, 176

Cal.App.4th at p. 385.) The court's orders were infum because there was

never a suggestion appellant tried to intimidate a witness or otherwise tamper

with court proceedings.

The absurdity of the protective orders was illustrated by the facts of this

case. On the day in question, he was walking from a parked car to the Re-

Entry Center, where services for former inmates were offered. (CT 10.)

While he was not technically a client because he needed to make an

appointment (CT 9-10), for many indigent defendants without reliable phone

service, the only means of making an appointment was to appear in person to

do so. There was no evidence he was aware the board was meeting or that his

presence had anything to do with the board. His encounter on the street with

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a county employee who worked for the board occuned only because the

employee happened to step outside to tend to a personal matter. (CT 10.)

In setting probation, the comt in this case recognized the 300 yard

distance was too broad when it ordered as a condition of probation in this case

that appellant stay only 200 yards away so that he could benefit from services

at the Re-Entry Center, which are a little more than 200 yards from the County

Administration Building. (CT 37.)

The orders were overbroad also because they served as an unwananted

infringement on his right to petition, speech, and to assemble. These rights are

core political rights under the First Amendment. (See also Cal. Const., art. I,

§§ 2, 3.) "Premised on mistrust of governmental power, the First Amendment

stands against attempts to disfavor certain subjects or viewpoints. [Citations.]

Prohibited, too, are restrictions distinguishing among different speakers,

allowing speech by some but not others. [Citations.] As instruments to censor,

these categories are intenelated: Speech restrictions based on the identity of

the speaker are all too often simply a means to control content." (Citizens

Unitedv. Fed. Elec. Com. (2010) 558 U.S. 310, 340.) The First Amendment

did not permit banning appellant from board of supervisor meetings or even

picketing in front of a government building simply because he was often a

critic of government policy and had an oversized prop at one meeting.

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The protective orders amounted to an injunction prohibiting appellant

from speaking at county meetings or protesting at the county civic center. As

such it amounted to impetmissible prior restraint of protected speech. An

"injunction, so far as it imposes prior restraint on speech and publication,

constitutes an impermissible restraint on First Amendment rights."

(Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 418.) "Any

prior restraint on expression comes to this Court with a 'heavy presumption'

against its constitutional validity." (Jd. at p. 419.) In that case, an

organization was leafleting and picketing to create panic in the community of

nonwhites moving into the neighborhood. However distasteful or hurtful the

tactics were, the protesters engaged in free speech that could not be banned by

an injunction or a restraining order. (Ibid.)

The orders also violated state law. Under the Brown Act or Open

Meeting Law (Gov. Code, § 54950 et seq.), all county and city meetings must

be open to the public. (Gov. Code, § 54953, subd. (a).) This includes the

board of supervisors and its committees. (Gov. Code, § 54952, subd. (a) &

(b).) "Every agenda for regular meetings shall provide an opportunity for

members of the public to directly address the legislative body on any item of

interest to the public . . . " (Gov. Code,§ 54954.3, subd. (a).) The comt could

not fashion an order depriving appellant of this right.


I

The courts' protective orders were not valid.

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C. There Could be no Tactical Reason for Failing to Seek to
Dismiss the Contempt Charges.

Since a motion to dismiss the contempt charges would have been

granted, there was no tactical reason for not bringing the motion. This was not

a case where the defendant snatched up a favorable offer early in the

proceeding. The complaint was filed on July 24, 2017. (CT 1-2.) By January

18, 2018, violation of probation matters were pending in other cases where it

was recommended appellant be ordered to serve 45 days in jail and have the
I

term of probation extended. (CT 18-19.) March 26, 2018, was the day set for

jury trial. (CT 24.) This was the day appellant pled. (CT 37.) No written

motions in limine were submitted by trial counsel. The case had been pending

for nine months and was about to go to trial had appellant not pled. There

could be no satisfactory explanation why a motion to dismiss was never

brought.

D. Failure to Move to Dismiss was Prejudicial.

In order to show prejudice, "[t]he defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." (Strickland, supra, 466 U.S. at

p. 694.) In making this determination, "a court should presume, absent

challenge to the judgment on grounds of evidentiary insufficiency, that the

judge or jury acted according to law." (Ibid.) When there is a plea, the

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defendant must show he would not have pled had trial counsel acted

competently. (Hill v. Lockhart (1985) 474 U.S. 52, 59; Lockhart v. Fretwell

(1993) 506 U.S. 364, 369.)

There are only two possible defenses to contempt charges: (1) there

was not a willful failure to comply with the order, and (2) the order was not

lawful. (lvey, supra, 85 Cal.App.4th at p . 798.) Based on the police report,

a witness placed appellant within 300 yards of the board meeting. (CT 37.)

Trial counsel submitted no papers to the court suggesting he had any witnesses

to refute the allegation. Appellant complained on the day of trial that

witnesses had not been subpoenaed to testify. (2RT 303-304.) Appellant

waited nine months before pleading. This demonstrated he wished not to be

convicted but did so when conviction appeared to be inevitable. Had there

been a motion to dismiss the contempt charges because they were unlawful at

any point during the nine month pendency of the case, there would have been

nothing for appellant to plead to.

II. THE COURT'S ORDER THAT APPELLANT STAY AWAY


FROM THE BOARD WAS UNCONSTITUTIONALLY VAGUE AND
OVERBROAD, AND IT AMOUNTED TO PRIOR RESTRAINT OF
FREE SPEECH.

Even if the restraining orders were valid, the condition of probation that

appellant stay 200 yards from the board of supervisors and the four named

people was constitutionally overbroad. Although there was no objection to the

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conditions of probation, a claim that they are unconstitutionally vague or

overbroad based on undisputed facts can be raised on appeal. (Sheena K.,

supra, 40 Cal. 4th at pp. 885-887.) Again, the Fourteenth Amendment to the

United States Constitution and article I, sections 7 and 15 of the California

Constitution guarantee no person shall be deprived oflife, liberty, or property

without due process of law. (ld. at p. 890.) "A probation condition is

constituti'onally overbroad when it substantially limits a person's rights and

those limitations are not closely tailored to the purpose of the condition."

(Harrisson, supra, 134 Cal.App.4th at pp. 641-642; see also Broadrick, supra,

413 U.S. at p. 612.)

The court decided to order appellant stay 200 yards, instead of 300

yards, from the board and the protected people because certain services at the

Re-Entry Center would have been off limits to appellant for no just reason.

(2RT 314-315, 318-319.) As explained above, however, there were other

impmtant services that were still offlimits by the 200 yard order, and banning

appellant from the services make the order unconstitutionally vague and

overbroad. He still cannot go to the district attorneys office ifhe were a victim
i

or witness or had other lawful business there. He could not go to court at the

Hall of Justice. He could not go the San Jose Police Station or the county jail.

He would technically be in violation of probation just for being arrested. He

cannot use vital modes of transportation or demonstrate at the county center.

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Accordingly, the matter must be remanded for the comt to modify or strike the

order.

CONCLUSION

For the foregoing reasons appellant Victor Meras, also known as

Victorius Alexander, respectfully requests that this Court reverse the

judgment.

DATED: December 13, 2018

Respectfully submitted,
SIXTH DISTRICT APPELLATE PROGRAM

By:
Grossman
ey for Appellant
Victor Meras

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CERTIFICATION OF WORD COUNT

I, Jonathan Grossman, certify that the attached APPELLANT'S

OPENING BRIEF contains 3895 words.

Executed under penalty of perjwy at San Jose, California, on December

13, 2018.

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DECLARATION OF SERVICE BY E-MAIL AND U.S. MAIL

Case Name: People v. Meras Case No.: 18AP002333

I declare that I am over the age of 18, not a party to this action and my
business address is 95 S. Market Street, Suite 570, San Jose, California 95113.
On the date shown below, I served the within APPELLANT'S OPENING
BRIEF to the following parties hereinafter named by:

_x_ BY ELECTRONIC TRANSMISSION- I transmitted a PDF version


of this document by electronic mail to the party(s) identified on the
attached service list using the e-mail address(es) indicated.

Served electronically via E-Mail:


District Attorney' s Office
70 West Hedding, West Wing
San Jose; CA 95110
motions_dropbox@dao. sccgov.org

_x_ BY MAIL - Placing a true copy thereof, enclosed in a sealed envelope


with postage thereon fully prepaid, in the United States mail at San
Jose, California, addressed as follows:

Superior Court - Appeals


191 N. First Street
San Jose,~ CA 95110

Victor Meras
3306 Allen Way
San Clara, CA 95051

I declare under penalty of perjury the foregoing is true and correct. Executed
this I!; th day of December 2018, at San Jose, California.

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