WOODRUff, O'HAIR, POSNER & SALINGER, INC.

D. Thomas Woodruff. C.F.L.S.", AAML"*

Robert J. O'Hair. C.F.L.S.", AAML *" Jeffrey J. Posner, C.F.L.S. •

Paula D. Salinger

PO Box 60662 Sacramento, CA 95860

Dear-

A LAW CORPORATION

2251 Fair Oaks Boulevard, Suite 100 Sacramento. California 95825

Telephone : (916) 920-0211

Facsimile: (916) 920 0241

Email: paula@woplaw.com

October 28, 2010

VIA EMAIL TRANSMISSIO

Re: Marriage of-

As the court indicated at the hearing on October 27, 2010, your Order to Show Case Re: Contempt does not contain sufficient factual basis to sustain the contempt. At the hearing on November 17, 2010, I intend to request the court dismiss the matter and order sanctions pursuant to Family Code section 271 for proceeding with the contempt.

Additionally, the court offered you the opportunity to drop your Notice of Motion filed October 20, 201 O and your Notice of Motion filed October 22, 2010 since the court had already ruled on the issues related to your motions. Since you refuse to drop your frivolous motions, I intend to seek sanctions pursuant to FC §271 for the necessity of defending the motions.

Lastly, your motion filed October 8, 2010 does not set forth a basis to strike the Memorandum to Set filed October 1, 2010. I am requesting you drop this hearing. Should you refuse to drop your hearing, I intend to seek sanctions pursuant to FC §271.

Your behavior in this matter furthers arid frustrates the policy of law intended to promote settlement of litigation and encourage cooperation. Should you provide written proof (a copy of a confirming letter to the court) by Monday, November 1, 2010 at 5:00 p.m. that the above matters have been dropped, I shall withdraw my requests for sanctions pursuant to FC §271.

I look forward to hearing from you.

Sincerely,

WOODRUFF, O'HAIR, POSNER & SALINGER, INC. Dictated but not reviewed to avoid delay.

pds:sbo cc:

Paula D. Salinger

• Certified Family Law S.oecralisl. The Slate Bar of Califomia Boarr, >f Legal Speoalzat1on ··Fellow. Amencan Academy of Matnmonia/, 1wyers

Cal. Prac. Guide Family L. Ch. 18-B

California Practice Guide: Family Law

Judge William P. Hogoboom (Ret.), Justice Donald B. King (Ret.), Contributing Authors: Judge Kenneth A. Black (Ret.), Judge Thomas Trent Lewis, Michael Asimow, Bruce E. Cooperman

Chapter 18. Enforcement Of Orders And Judgments

B. Enforcement Remedies And Procedures

1. Contempt a. [18:105] Nature of contempt—in general: A party subject to a valid court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order is subject to a contempt adjudication and statutory contempt penalties (see CCP §§ 1218 & 1219, ¶ 18:220 ff.). As an enforcement remedy, exercise of the contempt power enables the court to compel compliance with its valid orders. [In re Marcus (2006) 138 CA4th 1009, 1014, 41 CR3d 864–865]…

…(c) [18:212] No affirmative relief by responsive declaration: In OSC and motion hearings generally, respondent is permitted to use the responsive declaration to seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party; this is an exception to the general rule that an independent OSC or notice of motion must be filed to obtain affirmative relief. [See Fam.C. § 213, discussed at ¶ 5:372 ff.] However, Fam.C. § 213 does not apply to contempt hearings; i.e., the citee’s responsive declaration may only be used to answer the contempt charge or move to discharge the contempt on appropriate grounds (above). [Fam.C. § 213(a)—“In a hearing on an order to show cause ... other than for contempt (responding party may seek affirmative relief on same issues by filing responsive declaration)” (emphasis and parentheses added)]

§ 13:107. Witness intimidation, L & R, California Criminal Law § 13:107 (2011-2012 ed.)

L & R, California Criminal Law § 13:107 (2011-2012 ed.)

Expert Series California Criminal Law

Database updated December 2011 Laurie L. Levenson, Alex Ricciardulli

Chapter 13. Crimes Against the Administration of Government

§ 13:107. Witness intimidation

Whoever attempts to prevent or dissuade a victim or crime witness from reporting the incident to law enforcement officials, prosecutors or the judge, is guilty of witness intimidation.1 A person may be guilty of aiding and abetting witness intimidation, but the evidence must show that the defendant had the specific intent for witness intimidation to be committed. If the aider and abettor has such intent, he or she is guilty not only of the intended or target offense, but also of any other crime the direct perpetrator of the crime commits that is a natural and probable consequence of the target offense.2 However, witness intimidation is not the natural and probable consequence of vehicle burglary or illegal possession of a weapon.3

Footnotes 1 Penal Code § 136.1(b).

2 People v. Leon, 161 Cal. App. 4th 149, 158, 73 Cal. Rptr. 3d 786, 793 (4th Dist. 2008), as modified on denial

of reh’g, (Apr. 14, 2008).

3 People v. Leon, 161 Cal. App. 4th 149, 158, 73 Cal. Rptr. 3d 786, 793 (4th Dist. 2008), as modified on denial of reh’g, (Apr. 14, 2008).

End of Document © 2012 Thomson Reuters. No claim to original U.S.

Government Works.

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 608. Bribe or deceit of witness, 17 Cal. Jur. 3d Criminal Law: Crimes Against...

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

17 Cal. Jur. 3d Criminal Law: Crimes Against Admin. of Justice § 608

California Jurisprudence 3d

Database updated May 2012Criminal Law: Crimes Against Administration of Justice and Public Order

Robert F. Koets, J.D., William Lindsley, J.D., Sarah Newcomb, J.D., and Susan L. Thomas, J.D.

II. Crimes Against Public JusticeD. Interference with Evidence and Witnesses

3. Particular Offenses Involving Interference With or Influencing of Witnesses

Topic Summary Correlation Table References

§ 608. Bribe or deceit of witness

West's Key Number Digest

West's Key Number Digest, Bribery 1(1), 3, 6(4)West's Key Number Digest, Obstructing Justice 4, 21

A.L.R. Library

Admissibility in criminal case, on issue of defendant's guilt, of evidence that third person has attempted to influence awitness not to testify or to testify falsely, 79 A.L.R.3d 1156

A person who gives or offers or promises to give to a witness or person about to be called as a witness a bribe upon anunderstanding or agreement that such person will not attend any trial or other judicial proceeding is guilty of a felony. The

attempt to commit the crime is also a felony. 1 A bilateral agreement is not a necessary element of the crime. There need beno meeting of the minds between the briber and the witness. It is sufficient if the defendant offers the bribe with the intent of

persuading the witness to agree not to testify. 2

A misdemeanor is committed by anyone who practices any fraud or deceit or knowingly makes or exhibits any false statement,representation, token, or writing to a witness or person about to be called as a witness in any trial, proceeding, inquiry, or

investigation with intent to affect the testimony of the witness. 3

Footnotes1 Pen. Code, § 138, subd. (a).

As to bribery, generally, see §§ 526 to 553.

2 People v. Pic'l, 31 Cal. 3d 731, 183 Cal. Rptr. 685, 646 P.2d 847 (1982).

As to agreement or understanding in a prosecution for bribery, generally, see § 534.

3 Pen. Code, § 133.

End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.

§ 604. Generally, 17 Cal. Jur. 3d Criminal Law: Crimes Against Admin. of Justice § 604

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

17 Cal. Jur. 3d Criminal Law: Crimes Against Admin. of Justice § 604

California Jurisprudence 3d

Database updated May 2012Criminal Law: Crimes Against Administration of Justice and Public Order

Robert F. Koets, J.D., William Lindsley, J.D., Sarah Newcomb, J.D., and Susan L. Thomas, J.D.

II. Crimes Against Public JusticeD. Interference with Evidence and Witnesses

2. Preventing or Dissuading Attendance, Testimony, or Reporting of Crimes by Witness or Victim

Topic Summary Correlation Table References

§ 604. Generally

West's Key Number Digest

West's Key Number Digest, Bribery 1(1), 3, 6(4)West's Key Number Digest, Obstructing Justice 4, 21

A.L.R. Library

Admissibility in criminal case, on issue of defendant's guilt, of evidence that third person has attempted to influence awitness not to testify or to testify falsely, 79 A.L.R.3d 1156

It is a public offense to knowingly and maliciously prevent or dissuade any witness or victim from attending or giving testimony

at any trial, proceeding, or inquiry authorized by law or to attempt to do so. 1 Advising a witness to conceal himself or herself

for the purpose of avoiding service of a subpoena is a violation of this provision. 2 Evidence that the defendant was a family

member who interceded in an effort to protect the witness or victim creates a presumption that the act was without malice. 3

It is a crime to attempt to prevent or dissuade another person who has been the victim of a crime or who is a witness to a crimefrom doing any of the following:

• making any report of that victimization to any peace officer or state or local law enforcement officer or probation or

parole or correctional officer or prosecuting agency or to any judge 4

• causing a complaint, indictment, information, probation, or parole violation to be sought and prosecuted, and assisting

in the prosecution thereof 5

• arresting or causing or seeking the arrest of any person in connection with that victimization 6

Footnotes1 Pen. Code, § 136.1, subd. (a).

2 In re Holmes, 145 Cal. App. 3d 934, 193 Cal. Rptr. 790 (2d Dist. 1983).

3 Pen. Code, § 136.1, subd. (a)(3).

4 Pen. Code, § 136.1, subd. (b)(1).

5 Pen. Code, § 136.1, subd. (b)(2).

6 Pen. Code, § 136.1, subd. (b)(3).

End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.

2622. Intimidating a Witness (Pen. Code, § 136.1(a) & (b))

The defendant is charged [in Count ] with intimidating awitness [in violation of Penal Code section 136.1].

To prove that the defendant is guilty of this crime, the People mustprove that:

<Alternative 1A—attending or giving testimony>

[1. The defendant maliciously (tried to (prevent/ [or]discourage)/(prevented/ [or] discouraged))<insert name/description of person defendant allegedly soughtto influence> from (attending/ [or] giving testimony at)

<insert type of judicial proceeding or inquiryauthorized by law>;]

<Alternative 1B—report of victimization>

[1. The defendant [maliciously] (tried to (prevent/ [or]discourage)/(prevented/ [or] discouraged))<insert name/description of person defendant allegedly soughtto influence> from making a report that (he/she/someoneelse) was a victim of a crime to <insert type ofoffıcial specified in Pen. Code, § 136.1(b)(1)>;]

<Alternative 1C—causing prosecution>

[1. The defendant [maliciously] (tried to (prevent/ [or]discourage)/(prevented/ [or] discouraged))<insert name/description of person defendant allegedly soughtto influence> from cooperating or providing information sothat a (complaint/indictment/information/probationviolation/parole violation) could be sought and prosecuted,and from helping to prosecute that action;]

<Alternative 1D—causing arrest>

[1. The defendant [maliciously] (tried to (prevent/ [or]discourage)/(prevented/ [or] discouraged))<insert name/description of person defendant allegedly soughtto influence> from (arresting[,]/ [or] (causing/ [or] seeking)the arrest of [,]) someone in connection with a crime;]

2. <insert name/description of person defendant

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allegedly sought to influence> was a (witness/ [or] crimevictim);

AND

3. The defendant knew (he/she) was (trying to (prevent/ [or]discourage)/(preventing/ [or] discouraging))<insert name/description of person defendant allegedly soughtto influence> from <insert appropriatedescription from element 1> and intended to do so.

[A person acts maliciously when he or she unlawfully intends toannoy, harm, or injure someone else in any way, or intends tointerfere in any way with the orderly administration of justice.]

[As used here, witness means someone [or a person the defendantreasonably believed to be someone]:

<Give the appropriate bracketed paragraph[s].>

• [Who knows about the existence or nonexistence of factsrelating to a crime(;/.)]

[OR]

• [Whose declaration under oath has been or may bereceived as evidence(;/.)]

[OR]

• [Who has reported a crime to a (peace officer[,]/ [or]prosecutor[,]/ [or] probation or parole officer[,]/ [or]correctional officer[,]/ [or] judicial officer)(;/.)]

[OR

• [Who has been served with a subpoena issued under theauthority of any state or federal court.]]

[A person is a victim if there is reason to believe that a federal orstate crime is being or has been committed or attempted againsthim or her.]

[It is not a defense that the defendant was not successful inpreventing or discouraging the (victim/ [or] witness).]

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[It is not a defense that no one was actually physically injured orotherwise intimidated.]

New January 2006

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elementsof the crime.

In element 1, alternative 1A applies to charges under Penal Code section136.1(a), which prohibits “knowingly and maliciously” preventing orattempting to prevent a witness or victim from giving testimony. Alternatives1B through 1D apply to charges under Penal Code section 136.1(b).Subdivision (b) does not use the words “knowingly and maliciously.”However, subdivision (c) provides a higher punishment if a violation ofeither subdivision (a) or (b) is done “knowingly and maliciously,” and one ofthe other listed sentencing factors is proved. An argument can be made thatthe knowledge and malice requirements apply to all violations of Penal Codesection 136.1(b), not just those charged with the additional sentencing factorsunder subdivision (c). Because the offense always requires specific intent, thecommittee has included the knowledge requirement with the specific intentrequirement in element 3. (People v. Ford (1983) 145 Cal.App.3d 985, 990[193 Cal.Rptr. 684]; see also People v. Womack (1995) 40 Cal.App.4th 926,929–930 [47 Cal.Rptr.2d 76].) If the court concludes that the malicerequirement also applies to all violations of subdivision (b), the court shouldgive the bracketed word “maliciously” in element 1, in alternatives 1Bthrough 1D, and the definition of this word.

If the defendant is charged with one of the sentencing factors in Penal Codesection 136.1(c), give CALCRIM No. 2623, Intimidating a Witness:Sentencing Factors. If the defendant is charged with the sentencing factorbased on a prior conviction, the court must give both CALCRIM No. 2623and CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, unless thecourt has granted a bifurcated trial on the prior conviction or the defendanthas stipulated to the conviction.

Note that Penal Code section 136.1(a)(3) states, “For purposes of thissection, evidence that the defendant was a family member who interceded inan effort to protect the witness or victim shall create a presumption that theact was without malice.” It is unclear whether the court must instruct on thispresumption.

CALCRIM No. 2622 CRIMES AGAINST GOVERNMENT

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AUTHORITY

• Elements. Pen. Code, § 136.1(a) & (b).

• Malice Defined. Pen. Code, § 136(1).

• Witness Defined. Pen. Code, § 136(2).

• Victim Defined. Pen. Code, § 136(3).

• Specific Intent Required. People v. Ford (1983) 145 Cal.App.3d 985,990 [193 Cal.Rptr. 684]; see also People v. Womack (1995) 40Cal.App.4th 926, 929–930 [47 Cal.Rptr.2d 76].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes AgainstGovernmental Authority, §§ 5, 6.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,Witnesses, § 82.07, Ch. 84, Motions at Trial, § 84.11 (Matthew Bender).

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,Sentencing, §§ 91.23[6][e], 91.43 (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,Crimes Against the Person, § 142.13[4][b]; Ch. 144, Crimes Against Order,§ 144.03[2], [4] (Matthew Bender).

LESSER INCLUDED OFFENSESA violation of Penal Code section 136.1(a) or (b) is a felony-misdemeanor,punishable by a maximum of three years in state prison. If the defendant isalso charged with one of the sentencing factors in Penal Code section136.1(c), then the offense is a felony punishable by two, three, or four years.In the defendant is charged under Penal Code section 131.6(c), then theoffenses under subdivisions (a) and (b) are lesser included offenses. Thecourt must provide the jury with a verdict form on which the jury willindicate if the prosecution has proved the sentencing factor alleged. If thejury finds that this allegation has not been proved, then the offense should beset at the level of the lesser offense.

The misdemeanor offense of knowingly inducing a false statement to a lawenforcement official in violation of Penal Code section 137(c) is not a lesserincluded offense of Penal Code section 137(b) because the latter offenselacks the element that the defendant must actually cause a false statement tobe made. (People v. Miles (1996) 43 Cal.App.4th 575, 580 [51 Cal.Rptr.2d52].)

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RELATED ISSUESPenal Code Sections 137(b), 136.1, and 138

Because one cannot “influence” the testimony of a witness if the witnessdoes not testify, a conviction under Penal Code section 137(b) is inconsistentwith a conviction under Penal Code section 136.1 or 138, which requires thata defendant prevent, rather than influence, testimony. (People v. Womack(1995) 40 Cal.App.4th 926, 931 [47 Cal.Rptr.2d 76].)

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2621. Influencing a Witness by Fraud (Pen. Code, § 137(b))

The defendant is charged [in Count ] with using fraud toinfluence a person to (give false (testimony/ [or] information)/ [or]withhold true (testimony/ [or] information)) [in violation of PenalCode section 137(b)].

To prove that the defendant is guilty of this crime, the People mustprove that:

1. The defendant used fraud against <insertname/description of person defendant allegedly sought toinfluence>;

AND

<Alternative 2A—to give or withhold testimony>

[2. When the defendant used fraud, (he/she) intended to cause<insert name/description of person defendant

allegedly sought to influence> to (give false testimony/ [or]withhold true testimony).]

<Alternative 2B—to give or withhold information>

[2. When the defendant used fraud, (he/she) intended to cause<insert name/description of person defendant

allegedly sought to influence> to (give false materialinformation about a crime to/ [or] withhold true materialinformation about a crime from) a law enforcementofficial.]

A person uses fraud when he or she makes a false statement,misrepresents information, hides the truth, or otherwise doessomething with the intent to deceive.

[Information is material if it is significant or important.]

[(A/The) (district attorney[,]/ [or] deputy district attorney[,]/ [or]city attorney[,]/ [or] deputy city attorney[,]/ [or] AttorneyGeneral[,]/ [or] deputy attorney general[,]/ [or]<insert title of peace offıcer included in Pen. Code, § 830 et seq.>) isa law enforcement official.]

[The People do not need to prove that <insert name/description of person defendant allegedly sought to influence>

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actually (gave false (testimony/information)/ [or] withheld true(testimony/information)).]

New January 2006

BENCH NOTESInstructional Duty

The court has a sua sponte duty to give this instruction defining the elementsof the crime.

Give the bracketed sentence that begins with “The People do not need toprove that” if the evidence shows that the testimony or information of thealleged target was not affected.

AUTHORITY• Elements. Pen. Code, § 137(b).

• Fraud Defined. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127Cal.Rptr.2d 770].

• Law Enforcement Official Defined. Pen. Code, § 137(e).

• Specific Intent Required. People v. Womack (1995) 40 Cal.App.4th 926,929–930 [47 Cal.Rptr.2d 76].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes AgainstGovernmental Authority, § 12.

LESSER INCLUDED OFFENSESThe misdemeanor offense of knowingly inducing a false statement to a lawenforcement official in violation of Penal Code section 137(c) is not a lesserincluded offense of section 137(b) because the latter offense lacks theelement that the defendant must actually cause a false statement to be made.(People v. Miles (1996) 43 Cal.App.4th 575, 580 [51 Cal.Rptr.2d 52].)

RELATED ISSUESDeceiving a Witness

Deceiving a witness is a separate crime under Penal Code section 133:

Every person who practices any fraud or deceit, or knowingly makes orexhibits any false statement, representation, token, or writing, to anywitness or person about to be called as a witness upon any trial,proceeding, inquiry, or investigation whatever, authorized by law, with

CALCRIM No. 2621 CRIMES AGAINST GOVERNMENT

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intent to affect the testimony of such witness, is guilty of a misdemeanor.

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