Mendocino County Today: Wednesday, Dec 31, 2014

• Hard Freeze Warning
• Fear of Deranged Mourners
• Weasel Lips
• Vengeful Protest Warning
• Catch of the Day
• Freedom of Speech
• Fear of Offspring
• Out Produced
• Low Fish Count

HARD FREEZE WARNING from the National Weather Service…

The coldest air of the season will impact northwest California
through Thursday morning with lows in the teens and 20s across
the interior. Then a gradual warming trend will take place through
the weekend.

FORT BRAGG UNIFIED SCHOOL DISTRICT LAWYER, Patrick Wilson, is quoted in the Associated Press story on the famous I Can't Breathe t-shirt controversy that Fort Bragg didn't want to engage in a threatened and expensive legal battle with a 1st Amendment lawyer. Wilson also said the Fort Bragg school administration he represents was worried about the effect on the town as it continues to mourn the murder by a crazed Oregon tweaker of Sheriff's deputy Ricky Del Fiorentino.

The concern is, you are in a packed auditorium, this is a polarizing issue and it’s about something that happened in New York,” he said. “I think it’s fine for people to protest about it, but emotions are still raw in that area.

PLEASE. Is the school district's mouthpiece suggesting a crazed Del Fiorentino mourner might run out on to the basketball court and attack the Mendocino girls?

THE FACT is the school administrations of both Fort Bragg and Mendocino threw their girl's basketball team (and one brave member of the boy's team) over the side along with the First Amendment.

From Press Democrat: "I Can't Breathe" Mendocino Team coach bows out:

http://www.pressdemocrat.com/news/3314221-181/mendocino-team-coach-avoid-confrontation

ALL THINGS TO ALL PEOPLE

Easily the most weasel-lipped comment on the t-shirt controversy naturally comes from our congressman, Jared Huffman:

I spoke last night with Fort Bragg School District Superintendent Chuck Bush, Mendocino County Superintendent Paul Tichinin, and Sheriff Tom Allman regarding the controversy surrounding the Fort Bragg High School basketball tournament.

I’m encouraged by the District’s decision to allow athletes and spectators to exercise legitimate First Amendment rights at the basketball tournament. I’m also grateful to hear that those choosing to express themselves through t-shirts or other statements have thus far been peaceful and respectful in their conduct. Non-violent First Amendment expression is part of the fabric of our country.

At the same time, it is important to remember that my constituents in Mendocino County are still grieving the loss of Deputy Sheriff Ricky Del Fiorentino who was shot and killed this year while protecting the community from a violent criminal. Sensitivities are high.

I call upon those expressing themselves on all sides of this issue to do so with restraint, nonviolence and respect for others.

WHAT? NO PHOTO OP? Stand by for a vicious personal attack. I don't know Bush, but his public remarks so far are not encouraging. I do Tichinin and, to be gentle about it, the fact that he functions as the educational leader for Mendocino County is a kind of ongoing, countywide joke. Versions of Tichinin, as this controversy has made clear, function as school administrators at Fort Bragg and Mendocino.

CALTRANS NOW WANTS $9,460.45 FROM WILL PARRISH. Big Orange now claims Parrish cost them that much in so-called wick drain rental for the days Parrish locked down to it at the under-construction, Willits Bypass.

PARRISH'S LATEST BILL from the bumbling state agency, represented locally by Paul Sequiera of the DA's office, is obviously an attempt to harass the enviro/writer and intimidate other protesters.

LOOK AT THE FIGURES Caltrans has previously laid on Parrish. In 2013 they claimed Parrish cost them $490k in construction delays. Then that number was quickly adjusted to precisely $481,155, then $150k in May of 2014. In 2014 the money was called “civil restitution” after the criminal trespass charges were plea bargained down to infractions. The restitution Caltrans wanted remained at $150k going in to this particular court restitution process. Then it was whittled down to $108k on the first day of the hearing.

AND NOW IT'S down to $9.460.45, meaning Caltrans picked and is picking numbers out of mid-air. But it's worse than that; the $9,460.45 figure has been cynically arrived at because, the “reasoning” probably goes, Parrish will either have to raise that amount, which is doable, or he'll have to refuse to pay and go to jail.

CALTRANS, the DA's office, court time — all this has cost a lot more than $9,460.45 Revenge is the point, not restitution. Revenge against the one guy and a warning to the rest.

* * *

HERE’S JUDGE BEHNKE’S STRAINED LOGIC for how he arrived at Parrish’s “restitution” in which it also appears Behnke should have cited and fined Caltrans for making false claims to the Court.

Superior Court Of Mendocino County.

The People of the State of California, plaintiff, versus William Edward Parrish, defendant.

Case # SCUK INNT 13-16663.

Order After Hearing On Restitution

This matter came on regularly for hearing to determine restitution on October 10, 2014 in Department B of the above entitled court. The people were represented by assistant District Attorney Paul Sequeira, the Department of Transportation was represented by attorney Derek Wong and the defendant was represented by attorney Omar Figueroa. Evidence both oral and documentary was presented and the matter was to be deemed submitted on the filing of post-hearing briefs. Defendants brief was due October 31 and the People's reply November 7. Defendant Parrish’s brief was filed on November 3, 2014. No closing brief was received from either the District Attorney or the Department of Transportation.

Analysis of Issues Presented

Number 1. The court is not required to wait until judgment is entered to set the amount of restitution.

As a preliminary matter the court determined that the restitution hearing could proceed over the defense objection that the court lacked jurisdiction to make an order under Penal Code section 1202.4 because no judgment had yet been entered. Pursuant to stipulation, a true copy of which is attached as exhibit A, the defendant entered a no contest plea to two misdemeanor counts of violation of Penal Code section 555, entering or remaining on a posted property without consent. These stipulations provided in relevant part that: "Restitution shall be reserved by the court to be determined at a later date." The actual Delayed Entry of Judgment form signed by the defendant indicated that he would "pay restitution in the amount of reserved." The court concluded from the wording of the stiplation that the parties consented to having the amount of restitution determined during the Delayed Entry of Judgment period. The court has wide latitude in determining when a restitution hearing may be set. (Cites case law.) Whether the order could be enforced prior to the entry of judgment may be another question. Defendants argument under (Cites case law) has merit. The defendant would not have a right to appeal the restitution order until judgment is entered. The court finds that the argument in favor of delaying enforcement of the award until entry of judgment should not preclude the court from determining the amount of restitution prior to entry of judgment.

Number 2. When judgment is pronounced at the expiration of the Delayed Entry of Judgment period, probation terms are not contemplated. Restitution is more properly awarded under Penal Code section 1202.4 rather than 1203.1.

The timing of the hearing in relation to entry of judgment also begs another question. Will court be awarding restitution as a condition of probation pursuant to the Penal Code section 1203.1 (discretion to award when the loss was not necessarily caused by the criminal conduct underlying the conviction), or according to the more limited (explicit and narrow) application of Penal Code section 1202.4? Obviously, there can be no probation until sentence is pronounced.

By statute, a violation of penal code section 555 may be charged as either an infraction or a misdemeanor. One of the terms of the stipulation was that sentence would be pronounced on infractions if the defendant successfully completed the terms of his deferred entry of judgment. If the defendant violated the terms of the delayed entry of judgment he could be sentenced on the misdemeanor violations. To date, there have been no alleged violations of the terms of the Delayed Entry of Judgment. At the time of the hearing the court was and still is operating under the assumption that the defendant will ultimately sustain criminal convictions. Should those convictions be misdemeanors a term of probation would be a likely result. Should the convictions be infractions, most likely the sentence would be a fine without probation. A non-probationary sentence would appear to limit the restitution award to narrow application of Penal Code section 1202.4.

According to the Bench Guide No. 83 on restitution, the Court has the authority to grant probation on infractions. The interplay between Penal Code sections 19.7 and 1203b supports that conclusion. In practice, however, this Court has never granted probation on an infraction. Although it seems unlikely that the stipulation of the parties contemplated that probation would be granted on infractions, the court can't discount that possibility completely since the complaint gave notice of that possibility in almost the exact language from the bench guide. The defendant probably completed his community service and has gone almost a year without violating the terms of the delayed entry of judgment so the likelihood that the ultimate convictions will be infractions seems high. The court will therefore likely be sentencing the defendant without the grant of probation. For purposes of this order the court will therefore apply the narrower application of Penal Code section 1202.4.

Number 3. The restitution sought by Caltrans exceeds what may be properly awarded under Penal Code section 1202.4.

At the hearing Caltrans submitted a dizzying array of spreadsheets, billing from contractors, rental receipts for equipment and the like suggesting that Caltrans incurred cost in excess of $150,000 as a result of delays in the project occasioned by Mr. Parrish’s occupation of a wick drain sticher on the construction site. Caltrans paid for workers who did not work and equipment that remained idle during Mr. Parrish’s occupation of the wick drain stitcher. Caltrans reimbursed the California Highway Patrol for "security" and for man lifts used by the CHP to extricate Mr. Parrish from the wick drain after approximately 11 days of occupation by Mr. Parrish. After some modifications to the exhibits offered Caltrans reduced the restitution sought to approximately $108,000. Even after reduction, the period for which the "costs" were sought included $7,581 for June 19, the day before Parrish occupied the drain, and $38,000 for CHP enhanced security services attributed to the protests.

Though a governmental entity may be a direct victim for purposes of a restitution award under Penal Code section 1202.4, recovery may generally not be had for the cost of investigating and apprehending persons accused of criminal activity. (Caselaw). However the participation of the CHP is characterized in this proceeding, ordering restitution to a governmental agency for the CHP’s monitoring and ultimate arrest/seizure of the defendant would run afoul of this principle. Thus $83,000 of the initially claimed $150,000 plus would be eliminated. Caltrans conceded that all but $38,000 of the $83,000 in reducing their claim to $108,000 at the hearing. The remaining $38,000 for CHP security is also excluded under (caselaw).

The court is still left with the unenviable task of trying to determine what compensable losses resulted from the crime for which the defendant was convicted. The process is complicated by the fact that Mr. Parrish was but one of a number of protesters involved in the relevant time period. Additionally, contractor’s (DeSilva’s) Exhibit 6 letter indicates that the state directed the contractor to standby with its crews to assist the state in removal of the protesters and/or move the equipment when the protesters were removed. Much of the cost sought by Caltrans is related to this delay. Caltrans continued to incur costs pursuant to this understanding with the contractor until after Parrish was removed from the drain stitcher.

No doubt Caltrans incurred some direct cost from Parrish’s commission of the two misdemeanor violations of the above section 555. Count two specifically involved trespass on June 20 to July 1. The evidence established that the wick drain stitcher occupied by Mr. Parrish was out of service on June 20, June 21, June 27 and June 28 as well as part of July 1, 2013 as a direct result of Mr. Parrish's occupation of the wick drain stitcher. The billing records in Exhibit 6 establish that Caltrans paid $2050.72 per day for the wick drain stitcher for each full day it was out of service. On July 1, the stitcher was out of service for part of the day and Caltrans incurred the cost of cleaning out (sanitizing) the wickdrain stitcher and restoring it to service after it had been occupied for the better part of 11 days. The cost appears to be assessed at $1,257.57.

The rental cost of $2,587 for each of the man lifts that were used to extricate Mr. Parrish are not direct costs because they were used by law enforcement as a tool to monitor and aid in Mr. Parrish’s apprehension by the CHP. The cost of lights that Caltrans rented to keep the site lit up at night are hard to characterize as direct costs of Mr. Parrish's crimes. The lights were apparently necessary because "workers" (the CHP officers monitoring Mr. Parrish) were on-site at night. Those costs are more properly part of the investigation and apprehension of Mr. Parrish as well as a result of Caltrans and the CHP wanting to deter other protesters from entering onto the site.

Many of the elements of damages for delay sought by Caltrans in the guise of criminal restitution resemble a complicated civil action between a government agency and a defaulting contractor. Whatever the court may order by way of criminal restitution in this case does not preclude Caltrans from seeking more in a civil action for the same claimed losses. Whatever the defendant might pay in the criminal restitution order would be set off against the civil judgment. The court is cognizant of the provisions of Penal Code Section 1202.4(a)(1) to the effect that a victim of a crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. Given the type of damages sought by Caltrans, however, a civil suit may be a more appropriate way to deal with issues concerning legal responsibility for payment of standby wages, equipment downtime and overhead to a contractor or subcontractor under the circumstances of this case. Parrish’s commission of trespass was only part of a larger protest and reaction to that protest that resulted in more widespread delay and expense.

Number 4. There are compelling and extraordinary reasons not to award the full amount claimed by Caltrans.

Parrish argues that there are compelling and extraordinary reasons why the court should not order full restitution in this case and instead should require the defendant to perform a specified amount of community service as authorized by Penal Code section 1202.4(n). The district attorney original filed charges against Parrish as infractions and when it did not resolve, elevated the charge to misdemeanors. The matter was ultimately resolved with a delayed entry of judgment on two misdemeanors but in all likelihood will be reduced to infractions before judgment is entered. Parrish’s crimes were committed as part of a wider protest against the construction of the Willits Bypass. There was significant public opposition to the project. Parrish took the protest to the level of criminal trespass violations. He took the risk of criminal prosecution and the risk that he would be ordered to pay restitution or sued for damages. He has been ordered to and has performed community service as a condition of the delayed entry of judgment. He has not violated the delayed entry of judgment terms. Parrish has no real prospect of actually being able to pay substantial monetary restitution or damages whether as a condition of probation or otherwise. With the people entering into a settlement for a delayed entry of judgment on two infractable misdemeanors, it is a bit incongruous to seek a six-figure restitution award. Taken together, these factors provide compelling reasons why the full restitution sought should not be awarded and should be limited in this proceeding as set forth below.

Restitution in the amount of $9,460.45 is ordered.

Limiting the restitution order to the direct cost from Parrish’s two misdemeanors, the court orders restitution in the amount of $9,460.45. The amount is calculated by adding the $1257.57 for the July 1 costs of returning the stitcher Parrish occupied to service to the $8,202.88 cost to Caltrans of renting a stitcher for the four days it would actually have been used had it not been occupied by Mr. Parrish.

The district attorney is directed to prepare a formal restitution order in favor of Caltrans for the amount of $9460.45.

John A. Behnke, Judge of the Superior Court, December 19, 2014.

CATCH OF THE DAY, Dec 30, 2014.

KELISHA ALVAREZ, Clearlake/Ukiah. Violation of court order. (Frequent flyer.)

ROBERT BOSCHE, Clearlake/Ukiah. Assault with deadly weapon other than firearm.

CRAIG BRADY, Ukiah. Probation revocation.

EMILIO CHRISP, Laytonville. Ex-felon with firearm, under the influence with a firearm, loaded firearm in public, concealed weapon in vehicle, possession of controlled substance.

MIGUEL GARCIA, Ukiah. Battery, touching intimate parts of another against their will, resisting arrest.

TROY IRICK, Ukiah. Under influence of controlled substance, failure to appear, resisting arrest.

MARINA MACDONALD, Willits. Possession of meth for sale, manufacture of controlled substance by chemical extraction.

SANDRA MAGANA-MORAN, White Swan, Washington/Ukiah. Possession of marijuana for sale, armed with firearm.

JESUS MEDINA-VALENCIA, Ukiah. Possession of marijuana for sale, armed with firearm.

JORGE NIETO, Willits. Probation revocation.

BRIAN RAMSEY, Willits. Torture, kidnapping by force or fear, false imprisonment, assault with a deadly weapon other than firearm, threats to commit crime resulting in death or great bodily injury, witness intimidation.

ELVIS SCARIONI, Ukiah. Violation of county parole.

TIMOTHY TOLOY, Ukiah. Drunk in public.

ERIK TORRES, Redwood Valley. Probation revocation.

TIFFANY WHITE, Willits. Domestic assault.

FREEDOM OF SPEECH

by Lucie Brock-Broido

If my own voice falters, tell them hubris was my way of adoring you.

The hollow of the hulk of you, so feverish in life, cut open,

Reveals ten thousand rags of music in your thoracic cavity.

The hands are received bagged and examination reveals no injury.

Winter then, the body is cold to the touch, unplunderable,

Kept in its drawer of old-world harrowing.

Teeth in fair repair. Will you be buried where; nowhere.

Your mouth a globe of gauze and glossolalia.

And opening, most delft of blue,

Your heart was a mess—

A mob of hoofprints where the skittish colts first learned to stand,

Catching on to their agility, a shock of freedom, wild-maned.

The eyes have hazel irides and the conjunctivae are pale,

With hemorrhaging. One lung, smaller, congested with rose smoke.

The other, filled with a swarm of massive sentimentia.

I adore you more. I know

The wingspan of your voice, whole gorgeous flock of harriers,

Cannot be taken down. You would like it now, this snow, this hour.

Your visitation here tonight not altogether unexpected.

The night-laborers, immigrants all, assemble here, aching for to speaking,

Longing for to work.

WHEN FIELD MARSHAL VON RUNDSTEDT launched his counterattack in the Ardennes in December 1944, his ten panzer divisions possessed a total of 1,241 tanks. By contrast, Eisenhower's order of battle included 7,079 medium tanks alone. As the commander of a German 88mm gun unit remarked, “The Americans kept sending tanks down the road. We kept knocking them out. Every time they sent a tank we knocked it out. Finally we ran out of ammunition and they didn't run out of tanks.”

— John Ellis, Brute Force: Allied Strategy and Tactics in the Second World War

STEELHEAD NUMBERS ALARMINGLY LOW AT AMERICAN RIVER'S NIMBUS FISH HATCHERY

by Dan Bacher

(Sacramento) The upper section of the American River that has been closed to fishing since October 31 will reopen to steelhead fishing on January 1, 2015, but the outlook for the fishing is not promising, based on a very low fish count to date at the Nimbus Fish Hatchery.

This stretch of river is from the U.S. Geological Survey gauging station cable crossing about 300 yards down-stream from the Nimbus Hatchery fish rack site to the SMUD power line crossing at the southwest boundary of Ancil Hoffman Park.

Only 10 adult steelhead were reported at the Nimbus Fish Hatchery as of today, December 29, an alarmingly low number for this time of year. By contrast, the hatchery had trapped 335 adults to date last year, according to Gary Novak, hatchery manager.

Normally there are hundreds and sometimes thousands of steelhead showing at the facility at this time of year.

Hopefully, the steelhead are late in their migration, just as the fall run Chinook salmon were. The main body of the fall Chinook salmon run arrived over a month late this fall on the American River.

Few anglers have been fishing on the American River lately. The salmon fishing closes December 31, but most anglers have already put down their rods.

"Opening day is going to be SLOW if the action at the Nimbus Basin is any indication," reported Roland Aspiras, an avid American River steelhead fisherman. "I fished both yesterday and today for barely a sniff. I floated eggs, swung spoons and tossed jigs for zilch. I saw one fish follow a spoon in to the bank. The fish seem confused with the new channels they (state and federal governments) created at the basin."

One angler, Leo Salcido of Sacramento Pro Tackle, reported landing two steelhead in the 4 pound class while tossing out Little Cleos in the basin on December 23.

Releases to the lower American below Nimbus Dam continue to be 900 cfs, very low for this time of year.

As one who has spent thousands of hours fishing on the river, going to meetings and rallies fighting for the restoration of the river and its fish, and writing about this unique fishery, the shockingly low return of steelhead to date is very disenheartening.

I was part of a dedicated group of anglers who worked to restore the steelhead on the river through a series of measures, including upgrading the hatchery facilities, protecting wild spawning steelhead from poaching, pressuring the hatchery managers to take eggs throughout the run to preserve genetic integrity and battling the Bureau of Reclamation for higher minimum flows and water temperature standards.

We were very successful in restoring and enhancing the steelhead to where numbers at the hatchery reached 3,000 to 4,000 fish in some years and where wild steelhead returned in good numbers to the river many years. In 2011 and early 2013, I experienced some of the best steelhead fishing I have experienced anywhere on my home river, the American.

All wild steelhead on the American River must be released, since naturally-spawning Central Valley steelhead are listed as "threatened" under the Endangered Species Act. However, anglers may keep two hatchery steelhead, as indicated by clipped adipose fins.

Unfortunately, I fear that the abysmal management of the American, Sacramento, Feather and other Central Valley rivers over the past few years has spurred this apparent decline in the steelhead population. Department of Water Resources and Bureau of Reclamation officials systematically drained Trinity Reservoir on the Trinity River, Lake Shasta on the Sacramento River, Lake Oroville on the Feather River and Folsom Lake on the American River in 2013, during a record drought, to export water through the State Water Project and federal Central Valley Project.

This water was shipped to fill the Kern Water Bank and Southern California reservoirs, as well as to supply water to corporate agribusiness interests in the Westlands Water District and oil companies conducting fracking and steam injection operations in Kern County. Little carryover storage in the reservoirs was left in 2014 as the drought continued.

You can read my investigative news piece on this at: http://www.dailykos.com/story/2014/02/07/1275862/-The-Emptying-of-Northern-California-Reservoirs

Meanwhile, the Brown administration is rushing the Bay Delta Conservation Plan (BDCP) to build the peripheral tunnels, a corporate water grab disguised as a "habitat restoration" and "conservation" plan. If constructed, the tunnels would hasten the extinction of Sacramento River Chinook salmon, Central Valley steelhead, Delta and longfin smelt and green sturgeon, as well as imperil the salmon and steelhead populations on the Trinity and Klamath rivers.

I will update the count of steelhead at the fish hatchery and on the river as the steelhead season proceeds. But it sure doesn't look very good.