Court of Appeal No. A156874 in the SUPREME COURT of the STATE of CALIFORNIA DAVID DALEIDEN,1 Petitioner, V. the SUPERIOR COURT

Court of Appeal No. A156874

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DAVID DALEIDEN,1 Request for Immediate Stay to Join in Stay Petitioner, Granted in Related Case S255319 for Preliminary Hearing set for 04/22/2019 v.

THE SUPERIOR COURT OF On April 25, 2019 SAN FRANCISCO COUNTY, Respondent; Supreme Court No.______THE PEOPLE,2 Real Party in Interest. Court of Appeal No. A153060

Superior Court of California, County of San Francisco, Dept. 23 Case No. 2502505 Judge: Christopher Hite Tel. No.: (415) 551-0309

PETITION FOR REVIEW After Decision by Court of Appeal, First Appellate District, Division One

1 Pursuant to Cal. Rules of Court (“CRC”), Rule 8.504(b)(6), Petitioner titled his Petition identically to the title used by the subject order of the Court of Appeal

2 Rather than include “The People of the State of California,” as the Real Party in Interest, Petitioner has titled his Petition for review identically to the title appearing on the subject order of the Court of Appeal, pursuant to CRC, R. 8.504(b)(6).

Steve Cooley & Associates Steve Cooley, State Bar No. 56789 Brentford J. Ferreira, State Bar No. 113762 5318 E. 2nd Street, #399 Long Beach, California 90803 Telephone: (562) 400-8578 E-mail: [email protected]

Attorneys for Defendant David Daleiden

TABLE OF CONTENTS

PETITION FOR REVIEW ...... 7

REQUEST FOR IMMEDIATE STAY ...... 8

APPROPRIATENESS OF REVIEW ...... 9

ISSUES PRESENTED FOR REVIEW ...... 10

STATEMENT OF THE CASE AND THE FACTS...... 10

ARGUMENT ...... 13

I THIS COURT SHOULD INVOKE ITS ORIGINAL JURISDICTION...... 13

II MARSY’S LAW CANNOT BE CONSTRUED TO ALLOW INTERVENTION BY VICTIMS IN A CRIMINAL

CASE 14

III THE INTERPRETATION OF MARSY’S LAW BY THE COURT BELOW BASED ON PP’S MOTION TO

INTERVENE EFFECTS AN UNCONSTITUTIONAL REVISION OF THE CALIFORNIA CONSTITUTION

THROUGH THE INITIATIVE PROCESS ...... 18

IV THE COORDINATION BETWEEN NAF, PP, AND THE ATTORNEY GENERAL TO PREVENT A PUBLIC

PROSECUTION IS EVIDENCE OF A DISCRIMINATORY PROSECUTION AND REQUIRES DISMISSAL OF

THIS CASE ...... 19

V RECUSAL OF THE ATTORNEY GENERAL’S OFFICE IS REQUIRED ...... 25

VI THE SUPERIOR COURT’S DECISIONS TO PERMIT MR. DALEIDEN’S ACCUSERS TO TESTIFY

ANONYMOUSLY AND TO SEAL EVIDENCE AFTER THE HEARING VIOLATE BOTH DEFENDANTS’ AND

THE PUBLIC’S RIGHTS TO A PUBLIC PRELIMINARY HEARING ...... 28

VII CONSIDERATION OF THE FEDERAL CIVIL INJUNCTION CONTINUES TO DEPRIVE MR. DALEIDEN

OF A PUBLIC PRELIMINARY HEARING ...... 30

CONCLUSION ...... 33

CERTIFICATE OF COMPLIANCE ...... 34

APPENDIX A...... 35

TABLE OF AUTHORITIES

CASES

Arcara v. Cloud Books, Inc., (1986) 478 U.S. 697, 707, 106 S. Ct. 3172, 3178, 92 L. Ed. 2d 568, 578 ...... 24

Atl. Coast Line R. Co. v. Bhd. of Locomotive Engineers, 398 U.S. 281, 287 (1970) ...... 31

Baluyut v. Superior Court (1996) 12 Cal. 4th 826, 832 ...... 22

Denny’s, Inc. v. Cake, 364 F.3d 521, 531 (4th Cir. 2004)...... 31

Dix v. Superior Court (1991) 53 Cal. 3d ...... 15, 16, 17, 18

Furnish v. Bd. of Med. Examiners of Cal., 257 F.2d 520, 522-23 (9th Cir. 1958) ...... 31

Hicks v. Miranda (1975) 422 US 332 (1975) ...... 32

Hill v. Martin, 296 U.S. 393, 403 (1935) ...... 31

Legislature v. Eu, (1991) 54 Cal. 3d 492, 500...... 13

Miller v. Superior Court (1985)168 Cal. App. 3d 376, 382...... 22

Monster Beverage Corp. v. Herrera, No. EDCV 13-00786-VAP (OPX), 2013 WL 12131740, at *10 (C.D. Cal. Dec. 16,

2013) ...... 31

NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal. 4th 1178, 1206–07 ...... 28

Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal. App. 4th 471, 505 ...... 32

People v. Pompa-Ortiz (1980) 27 Cal. 3d 519, 526 ...... 28

Planned Parenthood of Greater Tex. Family Planning & Preventative Health Servs. v. Smith, 2019 U.S. App. LEXIS

1616, *40 ...... 23

Press-Enter. Co. v. Superior Court of California for Riverside Cty.) (1986) 478 U.S. 1, 13-14 ...... 28, 30

Raven v. Deukmejian (1990) 52 Cal.3d 336, 340 [276 Cal.Rptr. 326, 801 P.2d 1077] ...... 13, 18

Summit Bank v. Rogers (2012) 206 Cal. App. 4th 669, 691 ...... 24

Terminiello v. Chicago (1949) 337 U.S. 1, 4 ...... 25

Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975) ...... 31

Weatherford v City of San Rafael (2017) 2 Cal. 5th ...... 17

Younger v. Harris (1971) 401 U.S. 37, 43-44 ...... 32

STATUTES

28 U.S.C. § 2283 ...... 31

Penal Code Section 632(a) ...... 11

RULES

California Rules of Court, Rule 29(a) ...... 9

California Rules of Court, Rule 8.116 ...... 8

California Rules of Court, Rule 8.504(b)(6) ...... 1

REGULATIONS

Government Code section 26500 ...... 9

CONSTITUTIONAL PROVISIONS

Cal. Const. art. 1, § 28 ...... 15

California Constitution, Article V, section 13 ...... 9

Court of Appeal No. A156874

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

DAVID DALEIDEN,3 Petitioner, Supreme Court No.______

v. Court of Appeal No. 156874 Superior Court of California, County of San Francisco, Dept. 23 THE SUPERIOR COURT OF Judge: Christopher C. Hite SAN FRANCISCO COUNTY, Tel. No.: (415) 551-0322 Respondent; Superior Court of California, County THE PEOPLE,4 of San Francisco, Dept. 23 Case Nos. Real Party in Interest. 2502505 & 17006621 Judge: Christopher C. Hite Tel. No.: (415) 551-0309

PETITION FOR REVIEW

TO THE HONORABLE CHIEF JUSTICE TANI GORRE CANTIL-SAKAUYE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:

David Daleiden, Petitioner in the above-entitled action, through his attorneys, Steve Cooley and Brentford J. Ferreira, hereby petitions this Court for review of the order denying Petitioner’s request that the Court of Appeal exercise its original jurisdiction to prevent the

3 See note 1, supra. 4 See note 2, supra.

unconstitutional intervention of non-party special interest groups in his criminal prosecution under a blatant misapplication of Marsy’s Law. The April 15, 2019 order of the Court of Appeal is attached as Appendix A. The Attorney General of California (AG)’s enthusiastic support for the intervention of the National Abortion Federation (NAF) and Planned Parenthood (PP) in Petitioner’s criminal case has compromised the integrity and impartiality of the highest prosecutorial agency in California and provides dramatic new evidence to support Petitioner’s discriminatory prosecution claim, as to which the Superior Court improperly denied an evidentiary hearing. This Court recently stayed the preliminary hearing in Petitioner’s case to consider his co-Defendant’s appeal on the basis of the denial of the evidentiary hearing alone. But the Superior Court’s erroneous interpretation of Marsy’s Law presents a second, equally significant question of first impression warranting this Court’s immediate review.

REQUEST FOR IMMEDIATE STAY

Pursuant to California Rules of Court (“CRC”), Rule 8.116, by reason of the February 14, 2019, Order of the Superior Court, and by reason of the April 15, 2019 summary denial of the Verified Petition for Writ of Mandate, or Other Appropriate Relief (“Writ Petition”) by the Court of Appeal, First District, and the stay order already entered by this Court in co- defendant Sandra Susan Merritt’s Petition for Review, S255319, a stay is necessary. The case should have proceeded to an evidentiary hearing to determine whether all charges should be dismissed as brought due to a discriminatory prosecution, or whether at a minimum, the Attorney General should be recused from prosecuting all charges against Daleiden and Merritt due to the Attorney General’s Office’s serious conflicts of interest. The AG’s support of NAF and PP’s intervention in Daleiden and Merritt’s preliminary hearing confirmed those conflicts of interest, and the Superior Court’s February 14, 2019 order permitting NAF and PP’s intervention in substantial part made the threat to Daleiden and Merritt’s constitutional rights imminent and urgent. Daleiden therefore respectfully requests

that this Court extend the immediate stay already granted in Case No. S255319 to the closely related issues presented in this petition.

APPROPRIATENESS OF REVIEW

Review of the Court of Appeal’s decision in the instant case is warranted, consistent with Rule 29(a), California Rules of Court because “it appears necessary to secure . . . uniformity of decision [and] the settlement of important questions of law.” Among the “important questions of law” at stake here are the following issues of first impression:

(1) The proper application of Marsy’s Law.

Interpreting Marsy’s Law to permit NAF and PP to intervene in Petitioner’s criminal prosecution directly contravenes California Constitution, Article V, section 13 and Government Code sections 26500. Thus, allowing the Superior Court’s holding to stand would effect an impermissible revision of the California Constitution through the initiative process.

In addition, interpreting Marsy’s Law to allow the AG to cede his authority to victims and third parties would compromise the prosecutorial autonomy and impartiality to which all defendants are constitutionally entitled. The proper application of Marsy’s Law is thus a matter of critical importance statewide, to District Attorneys and defendants alike.

(2) The propriety of coordination between the AG and self-interested third parties.

The AG’s advocacy for NAF and PP’s intervention is unprecedented. Under this Court’s precedents, the evidence presented of an invidious, discriminatory prosecution and of conflicts of interest requiring recusal of the AG should, at a minimum, have led to an evidentiary hearing in the trial court on these issues. Now that the AG has taken to advocating openly for the interests of self-interested third parties, the case should simply be dismissed by this Court.

ISSUES PRESENTED FOR REVIEW

1. Does an interpretation of Marsy’s Law that permits substantial intervention by self- interested third parties in a criminal case effect an impermissible revision of the California Constitution by the initiative process?

2. May third parties and alleged victims be allowed to intervene in a criminal case to litigate issues of closing the preliminary hearing, screening evidence from public view, discovery and the scope of cross-examination, as opposed to being heard on bail or at sentencing on restitution?

3. Does the AG’s advocacy for NAF and PP’s intervention so clearly evince a conflict of interest and/or discriminatory prosecution that this case must be dismissed?

STATEMENT OF THE CASE AND THE FACTS

Mr. Daleiden is a self-employed investigative journalist who founded the Center for Medical Progress (CMP), “a group of citizen journalists dedicated to monitoring and reporting on medical ethics and advances,” whose mission statement attests: We are concerned about contemporary bioethical issues that impact human dignity, and we oppose any interventions, procedures, and experiments that exploit the unequal legal status of any class of human beings. We envision a world in which medical practice and biotechnology ally with and serve the goods of human nature and do not destroy, disfigure, or work against them.

(http://www.centerformedicalprogress.org/about-us/.) On April 5, 2016, the California Attorney General served a search warrant at the home of David Daleiden and seized, among other things, videos relating to fetal tissue procurement that are the subject of a Federal Preliminary Injunction. On July 20, 2016, Daleiden’s defense counsel met with Deputy Attorney General Johnette Jauron and the Presiding Judges of the San Francisco Superior Court Teri Jackson and John K. Stuart, in order to discuss consolidating litigation in San Francisco. The attorneys agreed that all litigation would occur in San Francisco Superior Court. The

presiding judges ordered DAG Jauron, over her objection, to make all the seized evidence available to criminal defense counsel to search for privileged material. Defense counsel already possessed the videos for purposes of investigating the case against Mr. Daleiden. DAG Jauron did not seek a protective order for the materials to which criminal defense counsel were given access.

On March 28, 2017, the Attorney General’s Office issued a press release containing an un-filed 15-count felony complaint and an arrest warrant including a previously sealed affidavit charging David Daleiden and Susan Merritt with illegally making video recordings of 14 people, allegedly in violation of Penal Code Section 632(a), as well as one felony count of conspiracy to violate Penal Code Section 632(a). The 14 alleged victims, listed as Does 1-14, either were in attendance at a 2014 NAF meeting in San Francisco or met with Daleiden at public restaurants. On January 22, 2019—a mere few weeks before the preliminary hearing was due to begin, NAF filed a request to intervene by letter to the Superior Court. The Superior Court issued a tentative ruling in an email on January 24, 2019, denying in part permission to file the letter. That same day, the Attorney General sent the Superior Court an email urging it to reconsider NAF’s request to intervene based on Marsy’s Law. (Ex. 3 collectively.)4 On January 25, 2019, PP filed a “wild non-party brief”—a motion to intervene seeking to litigate a laundry list of issues in the criminal case. This motion was not filed under seal and publicly listed the names of four of the Does. It contained declarations

4 All references to Exhibits are to those filed in the Court of Appeal.

from those four Does as well as a Request for Judicial Notice of documents from the parallel civil cases in Federal District Court. (Ex. 4.) On January 27, 2019, Mr. Daleiden emailed a Motion to Dismiss or Recuse for Attempted Interference by Derek Foran in the Preliminary Hearing and Answer to the Court’s Tentative Ruling. (Ex. 5.) On January 28, 2019, the Attorney General filed a Motion to Seal Certain Exhibits and Declaration of Robert Morgester. (Ex. 6.) The Attorney General attached copies of the four declarations obtained by PP but with the Does names redacted. On January 28, 2019, this case took an ominous turn when NAF asserted in state court that it had the right to defend a federal preliminary injunction in Petitioner’s state criminal proceeding. NAF had already succeeded in obtaining a federal contempt sanction in excess of $200,000 against Petitioner and his defense counsel for publishing materials on defense counsel’s website that had been released to defense counsel by the Presiding Judge of the San Francisco Superior Court. On February 11, 2019, the trial court asked for the Attorney General’s position on the requested interventions, to which DAG Jauron responded: “I believe it’s their right to do so, Your Honor, and I think that’s an important decision that the Court has to make.” (Ex. 9 R.T. 2/11/19 p. 17.) The trial court allowed the intervenors PP and four Does to withdraw the public filing of the documents containing the Does’ names and substitute sealed and redacted versions. (R.T. 2/11/19 p. 11:12-12:5.) On February 14, 2019, the Superior Court issued a written ruling on the above motions. (Ex. 10, Superior Court Order.) Although it purported to deny the improper requests by third parties to intervene in this criminal prosecution, the court—urged by the AG—nevertheless allowed four of the complaining witness Does and PP to insert themselves into this criminal prosecution under Marsy’s Law: “[T]he Court is not granting a motion to intervene as a party into the proceedings, but just simply allowing the Intervening Parties to be heard regarding the rights of the alleged victims in this case

during the preliminary hearing.” (Ex. 10 at 18-20.). The court then proceeded to issue a number of rulings based on PP’s motion to intervene. (Ex. 10 at 20-23.) It also relied on evidence submitted by PP when considering the AG’s attempts to disable Defendants’ defense. (Ex. 10 at 13, 15, 17.)

And although the Superior Court claimed not even to have considered NAF’s letter brief because “NAF does not represent any of the Does . . . nor . . . any witness that may be called to testify . . . [and] NAF is not itself alleged as a victim . . .,” (Ex. 10 at 23.), the court nevertheless relied on the federal injunction NAF had asked it to consider—an injunction that arose from a lawsuit to which no alleged victim in this case is a party— when imposing multiple constraints on Petitioner’s defense. (Ex. 10 at 13, 17, 20.) Thus, despite supposedly “not considering” NAF’s letter brief, the Superior Court granted the third party considerable relief. ARGUMENT I THIS COURT SHOULD INVOKE ITS ORIGINAL JURISDICTION

The Attorney General, four Does, PP, NAF, and the trial court have construed Marsy’s Law as allowing third parties to intervene in a criminal prosecution. Such a radical change in California criminal procedure has no support in existing case law and would effect an impermissible revision of the California Constitution.

Although this Court “customarily decline[s] to exercise” its original jurisdiction, (Legislature v. Eu, (1991) 54 Cal. 3d 492, 500.), it does make exceptions when “the issues are of great public importance and should be resolved promptly,” id. (quoting Raven v. Deukmejian (1990) 52 Cal.3d 336, 340 [276 Cal.Rptr. 326, 801 P.2d 1077]). The prospect of a tacit revision of the State Constitution permitting third parties (at least those who are powerful enough to exert influence over the AG) to encroach on the AG’s exclusive control of felony criminal case litigation is indisputably an issue “of great public importance.” (Ibid.)

Moreover, because the preliminary hearing at issue would already be occurring were it not for this Court’s last-minute stay, the Superior Court’s improper revision of the California Constitution—if left uncorrected—will result in the immediate deprivation of a criminal defendant’s right to a public hearing and the public’s right of access to criminal processes. Therefore, the questions presented here “should be resolved promptly.” (Ibid.) II MARSY’S LAW CANNOT BE CONSTRUED TO ALLOW INTERVENTION BY VICTIMS IN A CRIMINAL CASE

The trial court below purports to have denied intervention by the four Does and third-party entities PP and NAF. However, its decision on their motions to intervene actually considered and ruled on all of PP and NAF’s arguments, most notably, that their own interests in secrecy and damage control should trump the public’s interest in transparency and Petitioner’s rights as a criminal defendant, and that they should be spared further public scrutiny of the conduct of their members and affiliates by the application in state criminal court of a federal civil injunction imposing an extraordinary prior constraint on Petitioner’s speech. PP presented a litany of legal issues supported by a memorandum of points and authorities, a request for judicial notice, and the declarations of the Does that they purport to represent in the criminal case simultaneously with their pursuit of an almost-identical civil case in Federal Court. Specifically, PP asked the Superior Court to impose the following constraints on Petitioner’s criminal preliminary hearing:

1. Prohibit the public display of the videos at issue. 2. Strictly limit defendants’ cross-examination to the scope of the direct examination. 3. Restrict the cross-examination to the facts of the case—the events surrounding the recordings, and the witnesses’ credibility. 4. Prohibit questions about fetal tissue and abortion procedures.

5. Protect against the disclosure of the victim-witnesses’ personal information and any information that could reveal the victim-witnesses’ home addresses and other personal identifying information that could jeopardize their safety. 6. Prohibit questioning that intrudes upon the attorney-client privilege or the work product doctrine. 7. Permit counsel for the victim-witnesses to interpose objections during testimony that touches on the concerns raised in this Motion.

Although it purported to deny PP’s request to intervene, the Superior Court allowed its motion to be filed and granted most of its requests. (See Ex. 10 at 11-23; see also supra p. 8-9.) Similarly, although the Superior Court claimed not even to have considered NAF’s letter brief because NAF was wholly unconnected to the criminal proceeding, it nevertheless granted NAF considerable relief at Petitioner’s expense. (Ex. 10 at 13, 17, 20; see also supra p. 8-9.) Intervention by any other name is still intervention.

At the January 28 hearing, neither would-be intervenor was able to cite any precedent for its extraordinary request to intervene as a non-party in a criminal prosecution. Counsel for PP represented to the Superior Court that there is “not a lot of case law [for legal grounds to intervene] because it rarely happens,” citing only Marsy’s Law. (R.T. at 41:26-28 to 42:1.) Likewise, NAF’s counsel claimed that “Subsection 1 [of Marsy’s Law] is all we need.” (R.T. p. 46:24-25.) NAF’s counsel also acknowledged, however, that “[w]e didn’t find anything that allowed us to intervene . . .” (R.T. p. at 60:14-18.) There is no law that permits intervention by private parties in a criminal case, precisely because fundamental constitutional principles forbid it. Since the 2008 amendment to the Victim’s Bill of Rights, Cal. Const. art. 1, § 28, this Court has reaffirmed the fundamental principle found in Dix v. Superior Court (1991) 53 Cal. 3d 442, that parties in a criminal prosecution include the prosecutor and named defendants, to the exclusion of all others with no right to intervene. The Court in Dix concluded that a victim of a crime, even one who had been threatened with future harm by the defendant, id. at 451, had “no standing to challenge the application of

[Penal Code] section 1170(d)5 to [the defendant’s] sentencing,” (id. at 450.) The Court explained the fundamental bases for its holding:

Except as specifically provided by law, a private citizen has no personal legal interest in the outcome of an individual criminal prosecution against another person. Nor may the doctrine of “public interest” standing prevail over the public prosecutor’s exclusive discretion in the conduct of criminal cases.

The parties to a criminal action are the People, in whose sovereign name it is prosecuted, and the person accused [citations]). The prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor. (Gov. Code, §§ 26500, 26501; see Cal. Const., art. V, § 13.)

* * * Exclusive prosecutorial discretion must also extend to the conduct of a criminal action once commenced. “In conducting a trial a prosecutor is bound only by the general rules of law and professional ethics that bind all counsel.” ([Citations].) The prosecutor has the responsibility to decide in the public interest whether to seek, oppose, accept, or challenge judicial actions and rulings. These decisions, too, go beyond safety and redress for an individual victim; they involve “the complex considerations necessary for the effective and efficient administration of law enforcement.” There is no place in this scheme for intervention by a victim pursuing personal concerns about the case.

(Dix v. Superior Court, supra, 53 Cal. 3d at 451–52 (emphasis added) (internal citations omitted) (fifth alteration in original). Explaining that Article 1, Section 28 does not grant victims open-ended access to judicial remedies for enforcing rights thereunder, the Court continued:

[I]t is obvious that many recent legislative declarations about the “rights” of felony victims have been intended primarily as moral and philosophical abstractions…[but they] do not suggest an intent to alter criminal practice fundamentally by giving victims standing to intervene in ongoing criminal cases.

5 All further statutory references are to the Penal Code unless otherwise indicated.

(Id. at 452 (italicized emphasis in original).) Then the Court continued to explain what rights felony victims do have: The Constitution and statutes do accord individual felony victims certain ‘rights’ of a more specific and personal nature. These include the ‘right’ to restitution in appropriate circumstances, and to receive notice, appear, and state views in connection with disposition and sentencing. (Id. at 453 (citations omitted).) And finally, the Court observed that “recognition of citizen standing to intervene in criminal prosecutions would have “‘ominous’” implications,” because “[i]t would undermine the People’s status as exclusive party plaintiff in criminal actions, interfere with the prosecutor’s broad discretion in criminal matters, and disrupt the orderly administration of justice.” (Id. at 453-54.) Dix clearly precludes NAF and PP’s attempts to interfere in this prosecution. If there were any doubt of that fact, this Court recently resolved it in Weatherford v City of San Rafael (2017) 2 Cal. 5th 1241. There, the Court explained,

Notwithstanding the arguments for broad “public interest” standing, though, we have continued to recognize the need for limits in light of the larger statutory and policy context. For instance, in Dix v. Superior Court (1991) 53 Cal. 3d 442, [citation], we rejected the petitioner’s claim that a private citizen had either a “‘beneficial interest’” or public interest standing to challenge a criminal defendant’s resentencing. (Id. at p. 451 [citation].) Though the petitioner-victim argued that the prosecutor’s decisions in the resentencing proceeding implicated a “‘public duty,’” we rejected the invitation to infringe upon a core aspect of prosecutorial discretion. (Id. at p. 453, [citation].) Even if one might plausibly understand a prosecutor’s duties under the law as public, construing public interest standing to authorize such suits would be at odds with both the executive decision making role of prosecutors, as well as the deference we ordinarily afford them. . . .

(Weatherford v. City of San Rafael, 2 Cal. 5th at 1248–49 (citations omitted).)

Thus, California case law leaves no room for third parties—even powerful political entities like the would-be intervenors in this case—to exert influence over the conduct of a criminal proceeding via motions to intervene or any other mechanism. The Superior Court’s decision to respond to many of NAF and PP’s

improper arguments, and even grant many of their self-interested requests, was egregious error.

III THE INTERPRETATION OF MARSY’S LAW BY THE COURT BELOW BASED ON PP’S MOTION TO INTERVENE EFFECTS AN UNCONSTITUTIONAL REVISION OF THE CALIFORNIA CONSTITUTION THROUGH THE INITIATIVE PROCESS

The initiative process may be used to amend the California Constitution but may not be used revise it. Any measure that makes a substantial change in governmental responsibility amounts to a revision, which requires the more formal deliberative process of a constitutional convention:

We have stated that, apart from a measure effecting widespread deletions, additions and amendments involving many constitutional articles, “even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also . . . .

(Raven v. Deukmejian (1990) 52 Cal. 3d 336, 351-352.)

NAF, PP, and the Attorney General all advocated for the ability of both non-party corporations and victims to intervene in this case. While describing its ruling as something less than intervention, the trial court nevertheless allowed PP to intervene on behalf of four victims whom they purported to represent in addition to their own corporate representation in Federal District Court. Interpreting Marsy’s Law to permit such victim intervention would effectively revise—not merely amend—the California Constitution, which this Court has unequivocally interpreted to preclude such intervention. See Dix, supra, at pp. 451-42 (“The parties to a criminal action are the People, in whose sovereign name it is prosecuted, and the person accused [citations]). The prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor. . .

There is no place in this scheme for intervention by a victim pursuing personal concerns about the case.”).

Because it would upend a fundamental understanding of the prosecutorial function, the interpretation of Marsy’s Law urged by the Attorney General, NAF and PP and accepted by the Superior Court amounts to a revision of the California Constitution. But such a revision cannot have been effected—as Marsy’s Law was—by the initiative process. Therefore, the Superior Court’s holding as to NAF and PP’s intervention motion is unconstitutional and must be reversed.

IV THE COORDINATION BETWEEN NAF, PP, AND THE ATTORNEY GENERAL TO PREVENT A PUBLIC PROSECUTION IS EVIDENCE OF A DISCRIMINATORY PROSECUTION AND REQUIRES DISMISSAL OF THIS CASE

There is no longer any doubt that NAF, PP, and the AG are cooperating to preserve and expand the injunction obtained by NAF in Federal District Court. The AG has not brought an honest, impartial criminal case against Petitioner for violating Penal Code section 632. He has brought this case as a political favor to PP and its sister organization, NAF, in order to silence Petitioner and prevent the public from learning more about the abuses and crimes involved in late-term abortions and the fetal organ resale industry. During a hearing in Federal District Court (Judge Orrick) on a Motion to Dissolve the Preliminary Injunction, counsel for NAF (Derek Foran) made the following authoritative assertions about this criminal case in which his client is in no way involved:

FORAN: There is going to be motion practice over this. I guarantee it, 100 percent. The attorney general’s going to move for a protective order with respect to the discrete number of videos that are subject to this Court’s injunction that are in any way relevant in the criminal case. That’s going to happen in advance of the preliminary hearing. NAF is going to be heard on that motion. I can guarantee the Court that.

We will go in. There’s going to be certain restrictions that the attorney general’s going to seek with respect to the manner and mode and means in which this material is published in court. And the attorney general is going to seek a prohibition on David Daleiden turning around and making another preview video--

JUDGE ORRICK: So, what you're telling me is that maybe this problem will be addressed--

FORAN: That's exactly right. The Court may never have to deal with anything because it’s going to be put in front of Judge Hite. I guarantee it.

(Ex. 2, Reporter’s Transcript 10/5/18 p.25:3-23, Exhibit 1.) On December 20, 2018, the Attorney General filed the motion Mr. Foran foretold, seeking to prevent the public from seeing the video evidence presented at Petitioner’s public preliminary hearing and further seeking to keep the public from knowing the names of Petitioner’s accusers when they take the witness stand to testify against him. On January 22, 2019, Mr. Foran sent a letter by e-mail entitled “People v. Daleiden (No. 2502505): Nonparty NAF’s Statement in Support of Sealing Confidential Materials Subject to Federal Preliminary Injunction.” The court below issued a tentative ruling by email rejecting the NAF letter. The very same day, the AG emailed the court below urging reconsideration of that rejection.

As to the affirmative defenses and the sealing of the video evidence, I would like the Court to reconsider the rejection of Mr. Foran’s letter brief. Under Marsy’s Law, the California Constitution article I, § 28, section (b) now provides victims with a number of enumerated rights. The rights include:

To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.

Cal. Const. art. I, § 28 (b)(4).

Cal. Const., art. I, § 28(c)(1) provides, “A victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the rights enumerated in subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter of right. The court shall act promptly on such a request.”

Mr. Foran is a representative of the victim’s Does 1-96 and his letter constitutes a request for the assistance of both this Court and my office for the enforcement of his rights under the above-quoted provision.

(Email dated 1/24/19 from DAG Johnette Jauron.)

On January 25, 2019, PP filed another “wild non-party brief” seeking to intervene to litigate a laundry list of issues in the criminal case. On February 11, 2019, the Attorney General was asked by the court below:

JUDGE HITE: . . . Ms. Jauron, let me ask you this. What is your position with regards to the Court accepting into -- or allowing redacted portions of the -- or allowing any of the third party motions to intervene at this point?

MS. JAURON: I believe it’s their right to do so, Your Honor, and I think that’s an important decision that the Court has to make”

(R.T. 2/11/19 p. 17:18-24.).

Any pretense of impartiality in bringing this case against these defendants solely to pursue the privacy interests of the Does has been shattered by the coordinated efforts of

6 As the Superior Court rightly discerned, Mr. Foran does not represent any alleged victim in this case, see Sup. Ct. Order at 23, making his confidence at being able to litigate NAF’s interests in the context of this prosecution especially extraordinary and indicative of improper coordination with the Attorney General.

NAF, PP, and the Attorney General to actually litigate this criminal case as a team. The interests of NAF and PP are far different than those of the Does. NAF and PP are pursuing civil cases in Federal District court against Mr. Daleiden based on the same videos and the same statute—section 632. This gives them an obvious incentive to intervene in the criminal case, since a conviction here would preclude relitigation of section 632 in their Federal civil cases. “Any issue necessarily decided in a primary criminal prosecution is conclusively determined as to the parties or their privies if it is involved in a subsequent civil action.” (Miller v. Superior Court (1985)168 Cal. App. 3d 376, 382.) This Court considered a case of collaboration between a prosecutor and an alleged victim that had brought a related civil suit against the criminal defendant in People v. Eubanks (1996) 14 Cal.4th 580. In Eubanks, the Supreme Court upheld a Superior Court’s determination that financial contributions to the district attorney’s investigation by the plaintiff in a related civil suit had created a conflict of interest for the prosecutor, and further that—as a matter of law—it would not have been an abuse of discretion to conclude that such a conflict of interest “was so severe as to make fair treatment of the defendants unlikely.” Eubanks, 14 Cal. 4th at 584 (emphasis in original). The impropriety here runs even deeper than a mere financial conflict of interest. Here, the AG has not merely accepted assistance from NAF and AG; he has also actively solicited and argued for the intervention of third parties who are unapologetically acting in their own political and financial interests in a state criminal prosecution. This is the only case in the history of California where a prosecutor has championed the intervention of a self-interested third party in a criminal case. Had the district attorney in Eubanks invited the lawyers representing the victim in the parallel civil suit to participate in the criminal case by intervening and filing motions giving their legal opinion of the case on issues such as trade secrets, the Court in Eubanks would have been faced with a conflict of interest so severe as to require dismissal as a discriminatory prosecution, not just recusal. (See Baluyut v. Superior Court (1996) 12 Cal. 4th 826, 832.)

NAF and PP are both plainly desperate to prevent further publication of Petitioner’s videos on the internet and television. NAF has even obtained an injunction in its federal civil case against publication of certain videos. Their filings make no secret of the fact that their interest in intervening here is to suppress the public airing of incriminating video footage at the public preliminary hearing. With the AG’s help, they seek to protect and expand the federal injunction in order to insulate NAF and PP from the public backlash that followed the initial release of several videos containing evidence of illegal procurement and sale of fetal organs and intact fetal bodies obtained by criminal conduct—partial-birth abortions, unconsented-to changes in abortion procedures, and the failure to treat babies born alive after unsuccessful abortion procedures. NAF and PP are also conflicted by the financial repercussions they may face if Petitioner’s video footage is made public. Based upon Petitioner’s recordings, the 5th Circuit recently set aside an injunction preventing the State of Texas from terminating Medicaid payments to Planned Parenthood. (Planned Parenthood of Greater Tex. Family Planning & Preventative Health Servs. v. Smith, 2019 U.S. App. LEXIS 1616, *40.) PP and NAF’s substantial financial stake in suppressing Petitioner’s videos directly conflicts with the public’s interest in transparency. In short, NAF and PP do have a great deal to fear from the disclosure of the video evidence in this lawsuit. But none of those interests aligns with the People of California’s interest in seeing justice done. Rather, this joint effort to suppress honest undercover journalism is an invidious discriminatory prosecution. In this age of smart phones, YouTube, Periscope and security cameras, there can be no reasonable expectation of privacy for conversations carried on in public places such as restaurants and hotels. Penal Code section 632 must be construed for what was originally intended-private telephone calls and conversations carried on in private not public spaces. Case searches and Public Records Requests to the Attorney General have determined that there is only one prosecution of a journalist being conducted in the entire United States for

making undercover video recordings in public places—this prosecution—despite the fact that undercover videos are aired on the internet and television every day. The true purpose of this prosecution is the infringement of Petitioner’s First Amendment rights in order to punish politically disfavored speech by keeping it secret. “[C]ourts have stated that when the discrimination is based on sex, religion, union membership, or the assertion of First Amendment rights, the selective enforcement is unjustifiable (Murgia v. Municipal Court, supra, 15 Cal.3d at p. 302 (membership in United Farm Workers); United States v. Oaks (9th Cir. 1974) 508 F.2d 1403, 1404 (assertion of free speech rights); United States v. Berrios (2d Cir. 1974) 501 F.2d 1207, 1211 (assertion of First Amendment rights); United States v. Falk (7th Cir. 1973) 479 F.2d 616, 618-622 (assertion of First Amendment rights); United States v. Steele (9th Cir. 1972) 461 F.2d 1148, 1150-1152 (exercise of First Amendment rights); United States v. Crowthers (4th Cir. 1972) 456 F.2d 1074, 1078-1079 (exercise of First Amendment rights of speech and assembly).)” (People v. Garner (1977) 72 Cal. App. 3d 214, 217, see also Arcara v. Cloud Books, Inc., (1986) 478 U.S. 697, 707, 106 S. Ct. 3172, 3178, 92 L. Ed. 2d 568, 578.) In her opposition to the motion to dismiss, DAG Jauron admitted that Mr. Daleiden was singled out for prosecution under Penal Code 632 based on his point of view, on the content of his completed edited videos. “Moreover, several of those recordings were edited to enhance their shock value, and published online along with the victims’ personal identifying information. Not surprisingly, the edited videos incited anger and violence both to the victims themselves and to the community at large.” (People’s Response in Opposition to Defendants’ Motion to Recuse & Dismiss Exhibit 7, P. 16, ll. 7-10.) The Attorney General admits that this prosecution was brought based on the content of the videos. That is blatant viewpoint discrimination in violation of the First Amendment. The content-based weaponization of Penal Code section 632 “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” (Summit Bank v. Rogers (2012) 206 Cal. App. 4th 669, 691 (quoting

Davenport v. Washington Ed. Assn. (2007) 551 U.S. 177, 188).) “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” (Terminiello v. Chicago (1949) 337 U.S. 1, 4.) The fact that the AG has not just condoned but has actively facilitated and worked to further a targeted campaign to suppress Defendants’ First and Sixth Amendment’s rights in order to further the interests of third parties more than satisfies the Eubanks standard for recusal. The even more striking fact that powerful special interest groups on one side of a bitterly contentious political debate have co-opted state criminal justice officials to further their own political and financial agenda necessitates dismissal of this misbegotten case. The fact that the Attorney General improperly sought the intervention points to the failure of his office to maintain the impartiality required of a prosecutor and the discriminatory, selective nature of this now hopelessly conflicted prosecution. The failure of the Attorney General to resist intervention does not validate the intervention that was allowed and is ominous for other prosecutors and defendants who will be faced with similar requests under the auspices of Marsy’s Law. Lawyers for wrongful death plaintiffs will seek intervention in murder cases. Lawyers for special interest groups such as Mothers Against Drunk Driving and the Sierra Club will seek to intervene in noteworthy drunk driving and environmental crimes cases. Financial institutions with pending civil actions for fraud will seek to intervene in criminal fraud cases. V RECUSAL OF THE ATTORNEY GENERAL’S OFFICE IS REQUIRED

Recusal is required when there is a manifest conflict of interest between a purported victim and the prosecuting agency. In Eubanks, this Court upheld recusal where a wealthy Silicon Valley company had paid for the services of a forensic accountant in aid of a prosecution for conspiracy to steal trade secrets. (Eubanks, 14 Cal. 4th at 584.)

However, Eubanks’s holding was not limited to monetary assistance:

[A] prosecutor may have a conflict if institutional arrangements that link the prosecutor too closely to a private party, for example a victim, who in turn has a personal interest in the defendant's prosecution and conviction. As Judge Friendly put it in Wright v. United States,[2d Cir.1984)] 732 F.2d [1048], at page 1056, a prosecutor ‘is not disinterested if he has, or is under the influence of others who have, an axe to grind against the defendant’ (Italics added.) The tie that binds the prosecutor to an interested person may be compelling though it derives from the prosecutor’s institutional objectives or obligations.” (Id. at p. 596.) NAF and PP have an ax to grind against Mr. Daleiden, whose reporting embarrassed them, implicated them in criminal activity, and threatened their financial solvency. At the January 28, 2019, hearing Mr. Foran actually lost his temper, berated counsel for Mr. Daleiden personally, and had to be admonished to direct his comments to the court not counsel. See R.T. 1/28/19 pp. 62:11-63:4 (“THE COURT: Counsel, first of all, direct your arguments to me. And, counsel, why don’t you move back.”). As illustrated by that episode, NAF’s interest in closing the preliminary hearing has nothing to do with seeing justice done or protecting the public, or any other interest that the Attorney General might legitimately share. As even the Superior Court acknowledges (oddly, right after granting a request for Does to testify anonymously), the intervenors’ purpose can’t be to secure anonymity for the Does, because “most if not all of the Does are known to the public.” (Ex. 10 at 15.) Rather, the intervenors’ interest is in perpetuating the federal injunction that is temporarily protecting NAF’s members (including PP) from the reputational harm they will incur when even more evidence of gruesome misconduct is exposed. Thus, both NAF and PP proposed screening the public from viewing the videos, sealing the videos after the preliminary hearing, keeping the Does names secret while they testified, limiting cross-examination of the Does in order to preclude affirmative defenses. PP went further requesting that the trial court:

4. Prohibit questions about fetal tissue and abortion procedures.

6. Prohibit questioning that intrudes upon the attorney-client privilege or the work product doctrine.

7. Permit counsel for the victim-witnesses to interpose objections during testimony that touches on the concerns raised in this Motion.”

Again, all of these requests serve NAF and PP’s purposes of shielding the conduct its affiliates and employees from public scrutiny directly at the expense of the public’s right to transparency and access to criminal proceedings. And yet the AG requested that the trial court grant PP’s intervention, and the trial court did—granting all but the last of these requests in substantial part. The AG even copied the declarations of the four Does from PP’s motion and placed them in his own Motion to Seal the Videos. Indeed, while Mr. Foran at least admitted that he represented NAF not the Does, the AG—in an email requesting that the Superior court accept NAF’s intervention—erroneously asserted that Mr. Foran represented Does 1 through 9.

To actively facilitate the interference of third parties who are seeking their own political and economic advantage at the expense of the public and criminal defendants is an inexcusable breach of the public trust. As discussed above, had the District Attorney in Eubanks allowed the intervention of the lawyers in the parallel civil suit to actively litigate his criminal case, recusal of the District Attorney would not have been sufficient. Dismissal is the only adequate remedy for a prosecution so thoroughly tainted by discriminatory bias.

VI THE SUPERIOR COURT’S DECISIONS TO PERMIT MR. DALEIDEN’S ACCUSERS TO TESTIFY ANONYMOUSLY AND TO SEAL EVIDENCE AFTER THE HEARING VIOLATE BOTH DEFENDANTS’ AND THE PUBLIC’S RIGHTS TO A PUBLIC PRELIMINARY HEARING

Mr. Daleiden has an undisputed right to a public preliminary hearing under California law. (People v. Pompa-Ortiz (1980) 27 Cal. 3d 519, 526.) According to the United States Supreme Court, the public also has a First Amendment right to witness such hearings and obtain information from such hearings. (See Press-Enter. Co. v. Superior Court of California for Riverside Cty.) (1986) 478 U.S. 1, 13-14 (“The considerations that led the Court to apply the First Amendment right of access to criminal trials . . . and the selection of jurors . . . lead us to conclude that the right of access applies to preliminary hearings as conducted in California.”); see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal. 4th 1178, 1206–07. (noting the Supreme Court’s holding in Press-Enterprise Co. that “preliminary hearings ‘are sufficiently like a trial’ so as to justify the same treatment under the First Amendment”) (quoting Press-Enter. Co., 478 U.S. at 12).) Analyzing the differences between a preliminary hearing and a trial, the Supreme Court concluded that they “do not make public access [to a preliminary hearing] any less essential to the proper functioning of the proceedings in the overall criminal justice process.” (Press-Enter. Co., 478 U.S. at 12). In fact, to the contrary, the Supreme Court noted that the absence of a jury, long recognized as ‘an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge,’ . . . makes the importance of public access to a preliminary hearing even more significant. (Id. at 13 (emphasis added) (internal citation omitted).) The Supreme Court observed further that public access to preliminary hearings “plays a particularly significant role in the actual functioning of the process,” because the preliminary hearing is “often the final

and most important step in the criminal proceeding” and in many cases provides “the sole occasion for public observation of the criminal justice system.” (Id. at 11-13.) Therefore, denying public access to a preliminary hearing makes it difficult for the public “to accept what they are prohibited from observing,” and “frustrate[s] . . . the community therapeutic value of openness.” (Id. at 13 (internal quotation marks and citations omitted).) This case provides a textbook example of the considerations that led the Supreme Court to find a First Amendment right of public access to a preliminary hearing. This prosecution been overtly politicized since its inception. Xavier Becerra personally injected himself into this case even before he was Attorney General by issuing a press release in March of 2016 in which he disparaged Mr. Daleiden and Ms. Merritt and announced his belief in their guilt. https://web.archive.org/web/20160909015901/https://becerra.house.gov/press- releases/chairman-becerra-at-beginning-of-womens-history-month-its-ironic-that-house- gop-still-attacks-womens-rights-pursues-planned-parenthood-witch-hunt/. Most recently Mr. Becerra has actually sponsored a fundraising campaign for PP to fight the changes made to Title X limiting federal funding to PP. https://actionnetwork.org/forms/stop-the-title-x-gag- rule?source=TitleXPP&referrer=group-planned-parenthood-affiliates-of-california The AG has openly supported intervention by powerful third parties who have made no secret of their determination to punish Mr. Daleiden both by bringing an avalanche of non-meritorious civil litigation against him and by persuading the California AG to file these politically-motivated charges and then interfering at every possibly juncture in this criminal prosecution. Not surprisingly, one tactic by which they seek to handicap Mr. Daleiden is precisely by shielding key elements of the supposedly “public” preliminary hearing—i.e., the identities of his accusers and core evidence of his supposed guilt—from public scrutiny. The need for publicity as a “safeguard against the corrupt or overzealous prosecutor” is palpable in this case.

Moreover, the determination of the intervenors to disadvantage Petitioner at all costs is a symptom of the unusually politicized environment in which this case arises— right at the epicenter of one of the most contentious, polarizing controversies of our time. Therefore, there is also an especially great need for transparency and the “community therapeutic value of openness” in this proceeding. The Superior Court’s decisions to conceal from the public the identities of Petitioner’s accusers and key evidence of his alleged guilt fly in the face of the constitutional principles enshrined in Press-Enterprise Company and should therefore be reversed. VII CONSIDERATION OF THE FEDERAL CIVIL INJUNCTION CONTINUES TO DEPRIVE MR. DALEIDEN OF A PUBLIC PRELIMINARY HEARING

The Federal District Court made clear to Petitioner that he believes his preliminary injunction applies to the state criminal proceedings. I emphasize two things. One Judge Hite has absolute right and freedom to do what he wants to protect, with respect to those materials, that will afford Mr. Daleiden his Fifth Amendment rights. That’s number one. Number two it’s not your choice. It’s not the defendant’s choice to violate the preliminary injunction. (R.T. 10/3/18 p. 23:21-24:1 attached to Ex.2.) Asked if Petitioner could comment on and republish any enjoined materials that were used as evidence against him in the criminal case, Judge Orrick responded that even as to videos that had become public in the criminal case, Petitioner would still have to obtain his blessing before commenting on or republishing the disclosed videos. (R.T. 10/3/18 pp. 24-25.) Therefore, videos played in the public preliminary hearing would remain subject to the civil preliminary injunction even if the Superior Court placed no restriction on their republication or was silent on the subject. Judge Orrick presumes to require that the Superior Court affirmatively allow the republication of videos, even after they have been shown in open court, if Petitioner (or presumably his state court counsel) wishes to comment on the videos or replay them for the media—this, despite the fact that the state

court has no jurisdiction to police the Federal injunction, just as the Federal Court has no jurisdiction over the state criminal case.7 However, the existence of the federal injunction should not be allowed to infringe on the public nature of a state court proceeding especially where an entity not bound by the injunction, the AG, intends to air enjoined videos at the preliminary hearing. The statement by the Superior Court that it was considering sealing only the federally enjoined materials after the preliminary hearing, thus preventing public comment on their content and shielding them from the press, is flatly at odds with California law on the sealing of documents. Once the videos have been shown at the preliminary hearing they are part of a public state criminal case. Any attempt by the Federal Court to re-impose its injunction after the videos have been placed in evidence in a subsequent state court criminal proceeding would violate the abstention doctrine of Younger v. Harris (1971) 401 U.S. 37,

7 The Federal Court’s expectation that the state criminal court (and parties thereto) comply with its injunction violates the Federal Anti-Injunction Act. “A court of the United States may not grant an injunction to stay proceedings in a State court except” in three circumstances, none of which applies here. 28 U.S.C. § 2283. This prohibition “is comprehensive. It includes all steps taken or which may be taken in the state court or by its officers from the institution to the close of the final process.” Hill v. Martin, 296 U.S. 393, 403 (1935); see Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975). Nor may Federal courts issue injunctions, like the one in this case, that tie the hands of parties to a state court proceeding: “It is settled that the prohibition of § 2283 cannot be evaded by addressing the [injunction] to the parties” instead of the state court itself. Atl. Coast Line R. Co. v. Bhd. of Locomotive Engineers, 398 U.S. 281, 287 (1970); Furnish v. Bd. of Med. Examiners of Cal., 257 F.2d 520, 522-23 (9th Cir. 1958) (same). “[T]he Act’s prohibition on enjoining state court proceedings applies to any such proceeding pending at the time the federal court acts on the request for injunctive relief, regardless of when the state court action was filed.” Denny’s, Inc. v. Cake, 364 F.3d 521, 531 (4th Cir. 2004); see also Monster Beverage Corp. v. Herrera, No. EDCV 13-00786- VAP (OPX), 2013 WL 12131740, at *10 (C.D. Cal. Dec. 16, 2013) (identifying circuit split on applicability of § 2283 depending on whether state or federal case was filed first and siding with Denny’s and majority of circuits), aff’d, 650 F. App’x 344 (9th Cir. 2016).

43-44 (noting the “vital consideration, the notion of ‘comity,’ that is, a proper respect for state functions” that provides the “underlying reason for restraining courts of equity from interfering with criminal prosecutions”). Moreover, any attempt by the Federal Court to re-impose its injunction simply because it existed prior to the filing of the state criminal case has been answered by Hicks v. Miranda (1975) 422 US 332 (1975). In Hicks the District Court refused to abstain, and the Supreme Court found that it had committed error, even though “[w]hen they filed their federal complaint, no state criminal proceedings were pending against appellees by name.” (Id. at 348-49.) A clarifying decision by this Court is necessary if defense counsel are to litigate this case without the fear of another contempt sanction in Federal Court. Fortunately, there is no need to enter into a dispute between the federal and state courts in order to issue such a decision. California law makes it clear that, once evidence has been publicly presented, it cannot be sealed. (See, e.g., Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal. App. 4th 471, 505.) That is reason enough to reverse the Superior Court’s decision to seal the video evidence after the preliminary hearings.

CONCLUSION

Intervention in criminal cases by non-parties, even alleged victims, is constitutionally prohibited. The Superior Court’s interpretation of Marsy’s Law as allowing such intervention effects an impermissible revision of the California Constitution by the initiative process. The AG and District Attorneys’ exclusive control of the litigation of felony criminal cases is a fundamental tenet of constitutional governance. The coordination between the Attorney General, NAF, and PP to bring about such third-party intervention in this case is evidence of discriminatory prosecution and a conflict of interest requiring recusal of the AG. The various parties that are engaged in litigating this case are hopelessly conflicted. The case must be dismissed, or the Attorney General must be recused.

DATE: April 25, 2019 Respectfully submitted,

STEVE COOLEY BRENTFORD FERREIRA

Brentford Ferreira, Attorneys for David Daleiden

CERTIFICATE OF COMPLIANCE

Counsel of Record hereby certifies that pursuant to Rule 8.504(d)(1) of the California Rules of Court, the enclosed Petition for Review is produced using 13-point Roman type including footnotes and contains approximately 8,255 words, which is less than the 8,400 words permitted by this rule. Counsel relies on the word count of the computer program used to prepare this brief.

Brentford J. Ferreira

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APPENDIX A

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

DAVID DALEIDEN, A156874 Petitioner, (San Francisco County v. Super. Ct. No. 2502505) SUPERIOR COURT FOR THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest.

BY THE COURT:

The petition alleges that this felony matter has not yet proceeded to a preliminary hearing. (Petn., p. 14, para. XVI.) Consequently, it appears the challenged ruling was rendered by a magistrate. Therefore, the petition for writ of mandate and accompanying stay request are denied without prejudice to being refiled in the superior court. (See People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 802-805 [superior court is an “appropriate court of appeal” in writ proceedings involving the disqualification of a magistrate because the superior court generally has jurisdiction to review matters involving magistrates, who are inferior to the superior court]; see also Magallan v. Superior Court (2011) 192 Cal.App.4th 1444, 1453 [“The superior court is the court with jurisdiction to review the actions of a magistrate and issue a writ of mandate to a magistrate.”]; cf. Super. Ct. San Francisco County, Local Rules, rule 16.13(B) [“Petitions for writs of mandate or prohibition in felony cases filed before indictment or information must be filed in Room 101 at the Hall of Justice and presented to the Criminal Supervising Judge in Department 22.”].)

Date: ______04/15/2019 ______P.J.

Before: Humes P.J., Margulies J., and Sanchez, J.

CERTIFICATE OF SERVICE

Pursuant to the stipulation of the parties, I certify that on April 25, 2019, I served the foregoing Petition for Review on the following parties/entities as follows by electronic mail through truefiling:

Nicolai Cocis Attorney at Law 38975 Sky Canyon Dr., Suite 211 Murrieta, CA 92563 [email protected]

Horatio G. Mihet, Esq.* Vice President of Legal Affairs & Chief Litigation Counsel Liberty Counsel PO Box 540774 Orlando, FL 32854 [email protected]

Johnette Jauron Deputy Attorney General eCrime Unit California Department of Justice 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 [email protected]

Hon. Christopher Hite Department 23 San Francisco Superior Court 850 Bryant St. San Francisco, CA 94103 [email protected]

Max Alfaro Deputy Clerk, Division 1 Court of Appeal, 1st Appellate District 350 McAllister St.

______

San Francisco, CA 94102 [email protected]

Courtesy copies were also served by email through truefiling.com on:

Derek Foran Attorney at Law Morrison and Foerster LLP 425 Market St. San Francisco, CA 94105 [email protected]

Matthew Umhofer Attorney at Law Spertus, Landes and Umhofer 1990 S. Bundy Dr., Suite 705 Los Angeles, CA 90025 [email protected]

I further certify that I am over 18 years old and not a party to this action.

Dated: April 25, 2019, at Long Beach, California

______/s/______Brentford Ferreira

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