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(NOTE: The following is a re-transcribed copy of the transcript of the May 17th,
2001 hearing for Martin Berg. It is not an official transcript and is not guaranteed
to be correct in all details.)
SUPERIOR COURT OF CALIFORNIA
COUNTY OF NAPA
The HONORABLE W. SCOTT SNOWDEN, Judge
--oOo--
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs. No. CR103337
MARTIN PAUL BERG
Defendant.
___________________________________________)
--oOo--
REPORTER'S TRANSCRIPT OF PROCEEDINGS HAD AT TIME OF REFERRAL FOR PC 1203.03
DIAGNOSTIC
--oOo--
Napa, California
Thursday, May 17, 2001
1:30 O'Clock P.M.
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Reported By:
KAREN R. KRONQUEST, RPR
CSR No. 7482
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KAREN R. KRONQUEST, CSR No. 7482
1111 Third Street, Room 230
Napa, California 94559
(707) 253-4481, ext. 290
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A P P E A R A N C E S
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FOR THE PEOPLE: GARY A. LIEBERSTEIN
District Attorney
County of Napa
931 Parkway Mall
Napa, CA 94559
FOR THE DEFENDANT: MERVIN C. LERNHART, JR.
Attorney at Law
845 Jefferson Street
Napa, California 94559
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THURSDAY, MAY 17, 2001 1:30 O'CLOCK P.M.
--oOo--
The above-entitled cause came regularly this day for hearing before the Honorable
W. SCOTT SNOWDEN, Judge.
GARY A. LIBERSTEIN, District Attorney, County of Napa, 931 Parkway Mall, Napa,
California 94559, appeared as counsel on behalf of the People.
MERVIN C. LERNHART, JR., Attorney at Law, 845 Jefferson Street, Napa, California
94559, appeared as counsel on behalf of the Defendant.
The HONORABLE W. SCOTT SNOWDEN, Judge.
KAREN R. KRONQUEST, RPR, CSR No. 7482, Official Shorthand Reporter for the County
of Napa was duly present and acting.
The following proceedings were then and there had and taken, to wit:
P R O C E E D I N G S
THE COURT: People versus Berg. The defendant is present, both counsel are here.
One thing I want to make of -- well, first of all, I've received and read the
Probation report and I think that what's gonna happen this afternoon, unless
somebody has something I don't know about, is gonna be pretty perfunctory.
But I do want to say I've been getting a lot of correspondence directed to the
Court and it is, of course, improper for a Court to receive such correspondence.
And I understand the passion with which people view certain sorts of cases and
the passion with which people view this case, but receiving such correspondence
puts the Court in a big -- puts me, as a judge, in a very difficult position.
And what I'm gonna do is direct that copies of the correspondence be provided
to both counsel.
And I'm going to ask the District Attorney because most of these letters seem
to support his end of the table as opposed to the Defense end of the table,
I'm going to ask you to respond to each of them, if you would, on behalf of
the court, Mr. Lieberstein. And perhaps you will be able to explain to these
well-meaning people that it's simply not appropriate for me to receive or read
requests from nonparties to an action as to how the Court should carry out its
functions.
I'm not saying anybody has done anything wrong by making the effort, but I need
to make it clear that it's not proper for me to read or consider such correspondence.
Someone has a hand up and I'm afraid, I -- not being a party to the action,
I can't have -- I can't hear from you.
MR. MOYER: But I just wanted to ask a question about the law in general.
MR. LIEBERSTEIN: I can talk to you afterwards.
THE COURT: Okay.
The District Attorney will talk to you after court's over.
MR. MOYER: Thank you.
MR. LIEBERSTEIN: Your Honor, is it appropriate, if someone was going to address
such a letter should address it to the Probation Department in making a recommendation;
as I understand Probation receives letters and makes copies for both counsel
when they are in favor of the People's position or in favor of the Defendant's.
THE COURT: Well, certainly a person can send a letter to the Probation Department
if they want to and what the Probation Department does with it, I won't presume
to opine on. However, it would not surprise me to hear Defense counsel saying
the law is pretty specific on what the Court can take into consideration, and
in fact what the -- what kinds of communications can be addressed to the Court.
And the answer is legally filed briefs, legally appropriate arguments and victim
impact statements and that's pretty much it, in addition to Probation reports
and other official reports.
MR. LERNHART: Your Honor, I don't -- I can't give the Court the code section
numbers, but my understanding of the law is that the law relating to the --
to sentencing and Probation reports permits certain input in the form of letters
to the Probation officer relating to victims and victims' relatives. But I don't
believe that it would permit the Court to consider -- maybe which is what you
just got through saying, but I don't think it would permit the Court to consider
letters sent to the Probation officer as proper input for sentencing.
THE COURT: That is what I just said.
MR. LERNHART: And what I would ask that -- I would object -- I think it would
be inappropriate for the public, whatever their view is, whether it would support
a particular view in sentencing and that might favor the defendant or might
favor the Prosecution to in effect lobby the Probation officer with their --
what they view as the proper disposition.
THE COURT: Well, that may be the case, but I don't think the Court -- I don't
think I as a judge can be telling people that they can't write letters to anybody.
I can tell them that if they write a letter to me I can't properly read it and
that it would be improper, that it -- that it would be improper for me to read
it and I can't take its contents into consideration in judging a case, but I
don't want to go beyond that to purport to curtail what somebody in a free society
can do with his or her stationary.
MR. LIEBERSTEIN: I think the ultimate -- and I was just seeking some clarification
from the Court. Ultimately the Court is going to hear legal arguments from counsel
at the time of sentencing and if either counsel makes an inappropriate argument
and the proper objection is made, the Court will rule on that. The Court will
look at recommendations of Probation that will include recommendation from California
Department of Corrections following return from a 1203.03 that the Court is
going to pronounce today.
MR. LERNHART: Your Honor, I --
MR. LIEBERSTEIN: And any briefs that either counsel file. So I think -- I agree,
I don't know how we can control letters written to who they're written to, certainly
if letters are written to myself I'm going to take whatever legal position of
advocacy that I believe is appropriate in writing this case and that would be
based on all the factors of this case and what I deem to be appropriate at the
time of sentencing.
So I -- I understand the public interest in this case as well and I just --
I guess what I'm saying for the record is I think Mr. Lernhart's been practicing
law longer than I have and this Court certainly has, and we know that the factors
that this Court considers at the time of sentencing will be those that are legal
and appropriate.
MR. LERNHART: Your Honor, I'm -- I agree in principle about what Mr. Lieberstein
just said. However, I think -- I don't think it appropriate that a Probation
officer receive letters from third parties. The Probation officer's recommendation
is an important component that the Court considers in sentencing. And while
I have -- I believe and have faith in our Probation officers to put aside as
best as possible to do so unsolicited letters, nevertheless, it sometimes is
difficult to put aside something once you've read it.
I'm wondering if it would be appropriate for letters that were sent to Probation
to be held until after sentencing rather than to give them to the Probation
officer preparing the report. And I would -- I don't know it's appropriate to
make such a motion at this time because Probation isn't here, but I really do
have -- I've seen -- there's been a large number of letters and e-mails and
correspondence from local people, from people as far away as the east coast,
Canada, and some of these letters appear to be similar in the sense that they
may represent some sort of concerted effort by interested groups. I don't believe
that those are the sorts of things that a Probation officer ought to be subjected
to for the reasons I've just said.
THE COURT: There's another thing I need to -- we haven't finished the first
part of the discussion, but let me respond to that and then I'll finish the
first part of the discussion, because there's another thing I -- another sort
of two things I need to tell you. The first -- but in response to that, that
may be the case, but I don't think pronouncements by me from where I'm pronouncing
are a way to deal with it.
In other words, I don't think a judge ought to be telling a Probation Department
what mail it can read or not read. I think it would be that a judge would rule
on a request that a Probation officer's report be disqualified on the basis
that it had been unduly affected by political lobbying and a request that another
Probation report be prepared by somebody who hadn't been subjected to that political
lobbying. I could rule on that. Whether I'd grant it or deny it, I have no idea.
But I don't think for me to say something here and now, much less make orders
here and now is appropriate. But I'd be willing to hear more.
MR. LERNHART: I agree. I don't think -- for one thing, I think Probation would
have to be here. But I -- if the Prosecution was suggesting that letters be
sent to Probation rather than to the Court, if that was what Mr. Lieberstein
was thinking of when he mentioned Probation, I have the concerns that I've just
generally stated.
MR. LIEBERSTEIN: I was thinking out loud, your Honor, about answering all the
letters by myself. The source of my comment could have been the Court saying
I would be responding to every single one, so I may have been looking for options.
THE COURT: You may decline to do that. I may put together a simple letter saying
that it's not proper for a court to read or consider ex parte communications
about a case and thank the writer for taking the trouble to write and apologizing
for the fact that I can't be of more service or something like that. And that's
fine. If that's the way it should be.
MR. LIEBERSTEIN: I certainly was not suggesting to Mr. Lernhart or the Court
the court recommend something that would be deemed legally improper.
THE COURT: Among those letters, as I was -- I didn't read them, but I flipped
through them. I saw two things that need to be mentioned to you. One came from
an organization in St. Helena which operates a shelter that my wife and I have
had -- I don't know whether you want to call it adopting animals business dealings,
but that kind of relationship with. And I have on one -- it's an organization
called "We Care." And I have on one occasion gone to a fundraiser,
fund raising auction event for this organization and I believe a couple of years
ago I sent them a check at Christmas time for some modest amount of a contribution.
Secondly, one of the letters came from a person I know fairly well who lives
in St. Helena and is the wife of an even older friend of mine. A woman named
Betsy Holzhauer.
Now I'm not subjectively concerned about whether either of those -- about either
of those things having happened as far as my own view of my ability to impartially
judge the case. I'm not worried about being affected by either of those things
myself. But I clearly think it's something that ought to be disclosed to the
two of you. Underscoring again the reasons why people -- it's unfortunate that
people don't know how improper it is to write letters to judges that are hearing
cases.
MR. LERNHART: Your Honor, I understand that the Court is going to direct that
the letters the Court has received be provided to counsel.
THE COURT: Correct.
MR. LERNHART: And I assume that that would include the two letters the Court
has just referred to.
THE COURT: There were two letters on the letterhead of the organization -- of
the We Care organization. So there would be three: One from Ms. Holzhauer and
two on the letterhead of the We Care organization. So but -- so the answer to
your question is yes, but there are actually three such letters.
MR. LERNHART: Your honor, I'm --I've had many dealings with this Court and I
have the utmost respect for the Court's ability to be fair and impartial. However,
I would ask to reserve any response to the Court's disclosures until after I've
had an opportunity to review the letters. All the letters, including the letters
from the persons that the Court has -- or the organization the Court has referred
to.
THE COURT: Entirely acceptable, and you'll want to talk to your client about
it as well.
MR. LERNHART: That's correct, your Honor.
THE COURT: My question, then, would be whether you wish to continue this matter
just so that that inquiry can go forward or whether you wish to proceed with
the rather perfunctory task that the Court was going to have undertaken today,
had these other matters not arisen.
MR. LERNHART: Your Honor, I would ask that the record reflect that defendant
reserves whatever right he would have to object or take some sort of legal action
in regard to the information in the letters and the Court's disclosure, and
with the understanding that that is reserved, the defendant -- I would prepared
to go ahead today with the referral to -- the 1203.03 referral.
THE COURT: That's fine. And entirely acceptable.
MR. LIEBERSTEIN: The People likewise, your honor, would like to proceed. I,
too, have practiced for almost 16 years in front of this Court and am comfortable
the People will receive a fair and impartial hearing from this Court.
THE COURT: Thank you.
Then going to the matter before the Court, I have received the Probation officer's
recommendation and report and have read it. The recommendation is in accordance
with the understandings that were reechoed at the time the plea was entered
that before any sentencing occurs that the defendant would be referred to the
Probation Department for a diagnosis and evaluation for a period not to exceed
90 days pursuant to the provisions of Penal code section 1203.03. And unless
either counsel has any other matter you would like to raise, I'm prepared to
do that.
MR. LIEBERSTEIN: Just to correct a misstatement, your honor, referral to the
Department of Corrections, rather than the Probation Department for 1203.03.
THE COURT: Oh, did I say that? State Department of Corrections -- the defendant
is to be referred to the State Department of Corrections for diagnosis and evaluation
under section 1203.03 of the Penal code.
MR. LIEBERSTEIN: And I would concur that that's in accordance with the pleas
reached on April 11th of this year before this Court and, quite frankly, very
consistent with the Probation officer's recommendation and statements made in
the Probation report.
I would ask the Court to the extent that you have the ability to request that
the diagnostic center do a full diagnostic, which includes the full psychological
background as well as the correctional counseling aspect.
THE COURT: I was going to ask you that. I don't do a lot of criminal calendar
these days and there was a time when a Court's request for psychological evaluation
had at least some impact as to whether such was performed. Is that --
MR. LERNHART: Your Honor, I would join in that request and I think the Court's
request would have impact, and I notice that some of the more recent reports
that I've seen sometimes either have a minimum or I think even in some instances
no psychological evaluation, so I would join in that request.
THE COURT: I will direct that the transmittal to the Department of Corrections
include a request from the Court for inclusion of a psychological evaluation
as a part of 1203.03 report.
Then unless either counsel has anything else, I do hereby suspend proceedings
under section 1203. You have a look on your face before I say that.
MR. LERNHART: Your Honor, I received this report -- there's no objection to
the timing of the report. I received the report yesterday or the day before,
but I did file under a separate letterhead a psychological evaluation requesting
that it accompany the Probation report and other material along with the --
for the 1203 evaluation. And the Court doesn't have its file right before it,
but that's in the Court's file and should be there and I would ask that that
go to CDC along with the Probation report.
MR. LIEBERSTEIN: I know of no legal objection at this point, your Honor. I have
reviewed the full study and I would not render an objection at this point.
THE COURT: That's not an uncommon procedure under circumstances like this. So
you're -- it was Dr --
MR. LERNHART: Podboy.
THE COURT: Dr. Podboy? You're asking that Dr. Podboy's report accompany the
transmittal materials to the Department of Corrections?
MR. LERNHART: That's correct, your Honor.
THE COURT: I will grant that request.
Section 1203.03 of the Penal Code, then, is hereby invoked and the case is suspended
pursuant to the provisions of that section and the defendant is remanded to
the custody of the Department of Corrections of the State of California for
diagnosis and evaluation for a period not to exceed 90 days.
The matter will be taken off calendar and will be restored to calendar upon
the defendant's return from the Department of Corrections at which time what
will happen is that the matter is then re-referred to the Probation Department.
The Probation Department reviews the report that the Department of Corrections
files with the Court and makes a supplemental sentencing recommendation to the
Court and then the matter comes back into court for imposition of sentence.
MR. LIEBERSTEIN: Your Honor, the defendant's no bail status would appear to
remain with his remand and be in effect when he was return to Napa County subject
to further court proceedings?
THE COURT: I had not remembered exactly what his custodial status was. He is
currently being held without bail?
MR. LIEBERSTEIN: He is.
THE COURT: That will continue to be the status.
MR. LIEBERSTEIN: Thank you, your Honor.
THE COURT: Okay.
Then I don't know what the date will be, because we don't know how long the
defendant will actually be at the Department of Corrections. The law only provides
that is not to be more than 90 days. So sometime in the next few months the
defendant will return to court and the matter be re-referred to Probation at
that time.
MR. LIEBERSTEIN: Thank you, your Honor.
MR. LERNHART: Thank you, your Honor.
THE COURT: Thank you.
(The proceedings were concluded.)
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