Continuing The Motion To Continue
by Bruce McEwen, April 13, 2011
If Mendo’s newest judge wasn’t so thrilled with the implications of the Wuerfel case, it would have been resolved by now. The new judge is the recently seated Honorable Ann Moorman, who, according to someone who knows her pretty well, Fifth District Supervisor Dan Hamburg — these two go wayyy back — has her cap set for the state appellate courts. A stint as a Superior Court judge is just a notch on this ambitious woman’s gunbelt, according to Hamburg who told me as much last summer at the Boonville Fair when Hamburg and Ms. Moorman were still both running for the offices they now hold.
Consider this remark, from the first time she was handed the Wuerfel case: “If I were to grant the motion — which I agree has merit — I’d be overturned in a heartbeat by the appeals court.”
Maybe, but to us slobs out here this kind of thinking is insider stuff. What we want to know is this: Is this Wuerfel guy, as his supporters claim, in the marijuana business to bring clean water to Indians or is he merely one more large-scale grower putting a politically correct gloss on tax-free free enterprise? The clean water for Indians angle kinda patronizes the Indians and kinda assumes us slobs are pretty dumb, too, if you ask me, but nobody did so it's back to business.
This is a high-profile case and the lawyers involved are as aware of the publicity surrounding it as Judge Moorman was. The main man — Mark Wuerfel, both defendant and lawyer — had to be scolded by the judge for addressing the journalists and other concerned constituency in the room, rather than the court.
“Address your comments to me, Mr. Wuerfel — not the gallery!” the judge insisted at one point.
Also on hand were the new DA, David Eyster, and the newly appointed Deputy State Attorney General, Brian Newman, former Mendo Deputy DA, back in Ukiah for the Wuerfel matter from his new job in Sacramento. Previously, the Wuerfel case had been handled by Deputy DA Rayburn Killion who, since the media fire got so hot, was relegated to a seat in the pews, where he hung his head dejectedly and occasionally moaned audibly when his involvement was mentioned regarding a filing of charges against the former DA.
DA Eyster was there to wash his hands of the whole mess, and AG Newman was present in the capacity of the fellow who will have to take Eyster’s place if the DA is removed from the case.
At any rate, it was a long, confused ordeal with a lot of important people, or at least highly paid people, strut-ting around the room.
Judge Moorman wondered why her simple directions and requests could not be carried out. And, by the way, where’s the co-defendant, Mrs. Dana Wuerfel?
“She’s in South Korea, your honor,” her lawyer, Justin Petersen said. “Could she be excused today?”
It should be noted here that the Petersens, father and son, are masters of the delay. Petersen Senior even came to court one day wearing an eye patch, claiming he couldn't see well enough to read court papers. The day after hell freezes over a local judge will crack down on them.
Judge Moorman had made it clear in the previous hearing that she waned the co-defendant present today.
“I won’t be excusing her in future,” the judge said in a voice indicating that she meant it.
“But, your honor,” attorney Mark Wuerfel cut in slyly, pacing in a semicircle so as to wink and grin at some folks in the gallery, “Your honor, she’s going to visit her sister in South Korea.”
“She’s excused for today,” Judge Moorman repeated, a little more loudly than necessary.
“Now, we’re here today on a motion to recuse the DA’s office. I’d ordered filings to occur, which, in some part they did. But courtesy copies were not supplied to the court.”
Deputy AG Newman said, “I apologize. It won’t hap-pen again.”
Yes it will. It happens all day every day in courtrooms all over America as the simplest matters are deliberately confused by the self-interested and tax-funded.
“Now, as to any issues challenging the validity of these proceedings — none were received, correct?”
DA Eyster said, “There was a motion filed and a reply this morning in opposition.”
Moorman: “Now, I’m going to take up this issue of a 1050”—
Petersen: “I have a declaration to file, your honor.”
Moorman: “This case has a number of records missing. Mr. Wuerfel, I’m going to admonish you. Whenever you file anything in this court you are to supply courtesy copies to the judge.”
Wuerfel: “May I respond?”
Moorman: “No, you may not. Now, I don’t think we need to clear-cut the forests, but I do want courtesy copies of these filings.”
Wuerfel: “The clerk won’t accept my filings, your honor!” He tries to present a sheaf of pages to Madam Clerk. She gives him a blank look.
Moorman: “Why don’t you approach my clerk, Mr. Wuerfel?” He should have asked permission before hand. Now the clerk is about to accept the pages. … But the AG objects.
Newman: “I object to these late filings, judge.”
Wuerfel (in a hoarse voice): “But I was in the hospital, yesterday, your honor. I’ve been snowed in for days. We’ve got four feet of wet snow. Four trees came down across the road. Look at these pictures! Here’s a statement from my doctor.”
Rancho Wuerfel is in the legendary wilds of Spy Rock, north east of Laytonville.
Moorman: “I’m going to allow the filing, and make note of the objection.
Petersen: “Shall we also file the objection to the 1050, now, your honor?”
Moorman: “Umm… yeah, alright. The record shall reflect that the reply brief of the opposition to the AG has been filed. Now, I’m prepared to hear from both sides on this 1050; though I’m not inclined to grant it.”
A 1050 is a motion to continue. It’s how lawyers pad their bills. Without it, they’d have to stay and finish the job they’re hired to do, just like the rest of us.
Moorman: “Mr. Petersen, if you are the moving party—”
Petersen: “Your honor, I’ve not seen the reply…”
Newman: “Mr. Wuerfel purports to be filing, but he’s not permitted to file pleadings even though he’s a lawyer. He—”
Moorman: “That’s an argument that goes to the pleading…”
Petersen: “The reply; I have not received the reply. The one being filed now. I can argue once I get the reply.”
Moorman: “The motion to recuse has on its heading The Law Offices of Richard J. Petersen. So it’s my understanding that because the People are on the heading, they are the people submitting the filing… So. Mr. Wuerfel signed the motion. Has Ms. Wuerfel…, uh, if she’s in pro per, not have to be present?”
Petersen: “In Judge Brown’s court she was not expected to be present.”
Moorman frowns archly at this comment.
Petersen: “…I don’t know why. Once she gets back from out of the country, she can be here.”
Moorman: “I have to legally recognize this motion. This motion cannot be recognized on her behalf when she’s not here.”
Wuerfel: “I have a written document. Signed by her.”
Moorman: “I’ll reflect on that. But I’m not—”
Wuerfel: “I’ve been snowed in. I’ve been sick. I couldn’t get out of Twin Rocks Ranch. Four trees came down. I’m sick as a dog. An act of God. I don’t know what it is. I’ve done the best I can. This is the only reason these papers are late.”
Moorman: “Please address your comments to me, Mr. Wuerfel, not to the gallery! Mr. Newman hasn’t been given anything. Mr. Eyster was just handed a copy. Now, we are going to take up whether this hearing will be continued. I’m well aware of the weather conditions in the county. I’m very concerned with Mr. Wuerfel’s health, so I’m going to look at this doctor’s report.”
Wuerfel (hoarsely): “Thank you, your honor. Yester-day was hospital-day; today is court-day.”
Moorman: “I have in hand this doctor’s report and these photographs… I have no reason to disbelieve you… In fact, I do believe he was snowed in. This document from the hospital is dated April fourth…”
Wuerfel: “I was diagnosed with bronchitis, your honor.” A wee sniffle by way of punctuation, and just as I was beginning to wonder how far Wuerfel could push his snowed-in and sniffles excuses before the bailiff broke out the barf bags, our District Attorney nicely expressed my skepticism.
Eyster: “Ha! I don’t see any diagnosis! These papers are merely patient educational materials!”
Moorman “So… it reflects you’ve been to the hospital… and you’re obviously sick. Mr. Petersen, what are your requests?”
Petersen: “To be moved back a week. After having spoke with Mr. Wuerfel today, I’d ask for another week. The forecast is for more snow this week.”
Eyster: “We’re fully briefed, your honor.”
Newman: “I was not served with a 1050 Motion to Continue.”
Moorman is incredulous: “That appears to be the case.”
Newman has to take a call. He gets permission to step out of the courtroom. He’s been stationed in Crescent City where the Public Defender was recently elected District Attorney.
In the interim, I run up to Department H to see what’s going on with Boonville’s Lights Out Gang, the three East Bay thugs who grabbed 18 pounds of love drug from four Boonville growers at Guerrero’s Tire Shop last January. The East Bay bandidos then drove south with their headlights off, perhaps thinking that if their lights were off the cops wouldn't see them. The cops did see them in Windsor, maybe because the Lights Out Gang forgot to pull the paper bags down over their heads.
Defendant Bonner, the youngest of the three pot thieves, is out on bail. He has no criminal history. It was his mom's car the Lights Out Gang drove to Boonville. Mom and Dad make all their son's court appearances. They can't understand how their son managed to get involved in an armed pot robbery in — Where's that place, Boonville?
The other two Lights Out guys, Mr. Ford and Mr. Patterson, are parolees, old hands at State Pen in-and-outs. They're being held at Low Gap.
I hunt down former Assistant DA Beth Norman, catch her stealing away for lunch, and ask what happened? Put over for another week, she said.
Meanwhile, back at Twin Rocks Ranch, come to find out, Mr. Wuerfel was offered a deal by the DA to make all his legal troubles go away. At first Wuerfel agreed, but then, no, he comes into court and goes back on the deal. Which is why Judge Moorman’s tiny courtroom was packed with media and onlookers and nobody was aware that a homicide sentencing had just finished up downstairs.
Moorman: “Mr. Petersen, because you are not the first string in preparing the motion, and the court hasn’t read the reply brief, I’m going to grant a short continuance until tomorrow.”
Newman: “I have to be in Crescent City tomorrow, and it’s not properly before the court because we were not served.”
Eyster: “It’s replete with hearsay, so I have an objection. I could go line and verse on the 1050 motion.”
Moorman: “I understand, and I do not want you to go line and verse, but I cannot ignore the evidence in the room, Mr. Wuerfel’s health. I’m ready to rule.”
Petersen: “Your honor, I can’t respond.”
Eyster: “The DA and AG have like interests. He [Petersen] admits Mr. Wuerfel is the preparer of the motion.”
Moorman: “I’m going to deny the motion to continue; I’m going to give counsel seven days, to April 12th, to submit anything else. After that I’m going to rule on the paper. Mr. Wuerfel. Mr. Petersen, you are on notice. Any further motion on the motion to recuse must be in by the 12th. Now, we don’t have to cut down the forests, but I would like the courtesy copies…”
Eyster: “I’d like to address the court.”
Newman went out into the hall with his cell phone again.
Eyster: “A 41-page reply is beyond the needs of the court.”
Moorman: “I believe I am accommodating Mr. Petersen’s request to review the reply.”
Eyster: “I have one further request regarding these status conferences. I’d ask the court not to accept these status conferences in future.”
At this point Mr. Wuerfel spiraled back down into the long history of the case going back to the alleged break-in of his office, the seizing of his files, the bad weather, his bronchitis, South Korea and, for all I know, the Giants-Dodgers series.
Round and round it went. The day was gone, it was time to go, the motion to continue would have to be continued.
Appointment With Destiny
Phillip West met his fate on Highway 128. Like that fellow in the famous story who had an appointment with death in another town, West wasn’t supposed to be at the place that eventually killed him.
His driver’s license had been suspended and he wasn’t supposed to be driving at all. But by a fluke, a last-minute decision, there he was coming around a blind curve when he ran dead-on into Ms. Destiny Rhodes.
Destiny's destiny was to live, West's was to become permanently disabled.
Destiny Rhodes wasn’t supposed to be there, either. Her license was also suspended. And, after she was flown to the Emergency Room in Santa Rosa with her broken legs and given heavy doses of painkillers, she confessed to having smoked a joint just before that awful collision with Mr. Phillip Allen West, a kid at age 28 with big plans.
Ms. Rhodes was charged with gross vehicular man-slaughter of the negligently intoxicated type.
It happened back in late September of 2008 and in the words of the prosecutor, Deputy DA Matt Hubley, “the case has taken a lot of time,” he said, “because it required an in-depth analysis by the Multi-Disciplinary Experts of the CHP’s investigative team.
What the CHP's experts concluded, Hubley said, “Was that in their opinion anyone else would have done pretty much the same thing” Ms. Rhodes had done when she swerved into the oncoming lane instead of piling into the bank on her side of the road. Also, the tests showed that Ms. Rhodes didn’t have enough marijuana in her system to have affected her judgment significantly. Basically, she had a 50-50 chance when she rounded a curve and found a vehicle stopped in the road waiting to make a left turn: She could swerve right, into the bank for a certain crash injuring or killing herself, or she could swerve left into the on-coming lane, with the hope that nobody was coming at her. Her decision to risk a head-on was judged to have involved only “ordinary negligence.”
Which killed young Mr. West who just happened at that moment to fill the lane Ms. Rhodes had entered.
Hubley said, “So the prosecution would move to amend the complaint in count one to misdemeanor manslaughter. This collision involves a vehicle that was stopped in the roadway. Ms. Rhodes crossed the center-line to go around, and struck the oncoming vehicle. There was an admission by Ms. Rhodes to smoking marijuana some 10 to 15 minutes before the collision, but the Department of Justice said it wasn’t sufficient to qualify as impairment. It was the opinion of the investigating team that her act was not grossly negligent, and based on those reasons, we’d ask the court to reduce the charges to a misdemeanor.
Judge Henderson said, “Based on those statements, the court will grant the motion to reduce the charges to manslaughter not amounting to a felony and involving only ordinary negligence. Does defense stipulate to the amended complaint?”
“Yes,” Ms Rhodes told her lawyer, Carly Dolan of the public defender’s office.
“We do, your honor,” Ms. Dolan said.
Henderson said, “How do you plea then, to the charge 192.C.3 of the Vehicle Code?”
“No contest,” Ms. Rhodes said.
“Any reason why sentencing should not proceed at this time?”
Mr. Hubley said, “Ms. Cynthia Hernandez would like to address the court.”
The victim’s widow came forward.
She said, “Phil and I were married for 14 years. We shared a son together. He was killed on Highway 128 only days before his 28th birthday. Zack, our son, wasn’t with him due to a last minute decision. Phil was a veteran, a construction worker, a good father and a good friend who’d give you the shirt off his back. And he could always make you laugh. That was just the way he was. He was the son of a single mom. He loved the Chicago Cubs, the Chicago Bears and the Iowa Cornhuskers. He had four siblings and was uncle to 18 nephews and nieces. They will surely miss Uncle Phil. As a father to Zachary they were inseparable… his life has been damaged beyond repair. He was an honor student, planned to be a writer or criminal profiler, but after his father’s death he began to miss classes and his grades fell to .75. He was able to graduate, but now has no plans for the future, he can’t see why he should even try, his grief turned to depression and he became suicidal. For a while I was afraid to come home, afraid of how I’d find him. The worst part of this whole ordeal was the day Ms. Rhodes went on in court about how she’d like to get out of jail to go to her son’s doctorate graduation. Phil was not there for his son’s graduation from high school. All I want is that you will not drive impaired again. That’s all Phil would want… Phil was very forgiving. Thank you.”
Mr. Hubley also had some letters he read. One was from Phillip West’s youngest sister. This letter demonstrated the sister’s indignation that Ms. Rhodes was let out of jail last fall just before Thanksgiving, that someone had said she didn’t have any priors when it was well known that her driver's license had been suspended because of a DUI and speeding ticket. “When you get behind the wheel of a car we expect you to be sober!”
The other letter was from West’s mother. This letter was also very indignant in tone. “You were behind bars for eight months; my grandson is still behind emotional bars to this date! … My son’s rights were disregarded,” it ended.
Ms. Dolan said, “This case has had a strange history. My client was fully insured at the time and it was originally a negligence case, rather than impairment. Then when the experts pointed out that the decision to swerve left rather than right didn’t matter, the charges changed to impairment. My client was in the hospital and under the influence of pentatol when she said she’d smoked marijuana, and it should be pointed out that Mr. West was driving on a suspended license, as well—”
Judge Henderson interrupted Ms. Dolan to remind her that the now late Mr. West was not on trial.
Dolan said her client was very sorry for what happened to Mr. West, but it was not a result of her having been impaired, just as the experts ruled. She hoped everyone could heal and move on.
Henderson said, “I’m going to sentence the defendant to the maximum jail time of one year. And the maximum fine of $205.”
She’d already been in jail one year and 34 days. The judge also gave her 45 days for driving on a suspended license. She would have to go back to jail for an additional 11 days. Case closed.
* * *
Kevin Brunelle of Fort Bragg is off to prison for shooting Curt Crowder, also of Fort Bragg. Lots of homicides in Mendocino County the past couple of years, two of them not yet prosecuted. There have been so many murders lately the local press didn’t even bother with Brunelle case. I go to the courthouse almost every day, and I still can’t keep up with all the killings in blood-soaked Mendo! The Brunelle matter was handled so quietly, I didn’t even know it was going on.
It went so quietly that very little is known about it beyond that Kevin Brunelle went to Curt Crowder’s Walnut Street apartment on a mid-March Monday night about a quarter to 10pm and shot Crowder dead. Brunelle turned himself in the next day, walking into the Fort Bragg Police Department barefoot. He pled to the killing, admitted the use of a gun (which adds more time automatically) and, with the help of Deputy Public Defender Carly Dolan, got 16 years in state lock-up. Rumor has it that Curtis Crowder was selling his dope* customers short, and that’s all I heard, and I hope I'm not libeling a dead man, but I’m pretty sure Mr. Brunelle hadn’t first complained to the Better Business Bureau and then gone to the Fort Bragg Chamber of Commerce in hopes of getting the problem amicably resolved.
* It may strike the reader as an overly fastidious distinction, but drug dealers and most users would never refer to marijuana as ‘dope’ or a ‘bag of dope.’ These terms are generic only insofar as they refer to methamphetamine or heroin; and, most commonly, the former.