Video of Ed Frey after winning a dismissal for his client, Sharon Paight.
--- Attorney Ed Frey Aug 21, 2009
by Becky Johnson
Aug 22 2009
She received severance pay and unemployment insurance for a year, but eventually that ran out. Around this time, her housing situation ended and she moved into her car. She considered this to be a highly temporary situation, to be rectified as soon as she was able to get another job. However, there was such a general economic downturn that no job was forthcoming. The only job she was able to get was through Labor Ready. She worked full time for Goodwill Industries at a rate slightly greater than half of her former wages. At this rate of pay, she remained unable to afford housing near her work.
In 2005, Sharon was found guilty of sleeping at night within the City of Santa Cruz.
"I could not use the National Guard Armory shelter program," Sharon explained. " In order for me to be up in time to get ready for work, I had to start my day at 4AM. You are not allowed to drive your car to the shelter, or to leave by using any other means than their bus. The earliest I could count on being free would be three hours after the time I need to be in order for me to keep my job."
"HELPING" NON-PROFITS PART OF THE PROBLEM
Sharon worked for Goodwill Industries. This non-profit was at the forefront of defeating an initiative which would have raised the minimum wage in Santa Cruz, in three steps to $9.25/hr. The CEO of Goodwill Industries threatened to move the non-profit outside of the City limits if the ordinance were to pass. It was defeated. But it's precisely because of the low wages, that Sharon could not afford housing. Then to make matters worse, Sharon's hours were cut down to part time, and then finally she was laid off completely. Today, her sole source of income is her unemployment insurance.
Sharon has been a member of the 24-HOUR Fitness on Soquel Ave. in Santa Cruz, Ca. since 1998. When she became vehicularly housed, she found the showers, bathrooms, and lockers at the facility to be a great help to her in order to stay functional and employed. At no time did anyone in charge ever express any concern about her parking her vehicle on the lot of the facility where she had a paid membership. However the neighbors complained.
On March 19th of 2009, SCPD Officer #139, Rodney Dugolow, cited Paight in the early morning hours in the parking lot of the spa. The private parking lot allows members to park there for up to three hours. Sharon, had in fact, been there for over three hours when the officer arrived. She knew she could be cited in the lot because she had been cited in 2005 in the same lot.
"That one I was found guilty. In 2005, the officer did catch me sleeping. But in 2009 I was wide awake. I watched as he circled the parking lot, before he parked and came over to my vehicle," Sharon said on a Free Radio Santa Cruz following the "trial."
"I was sitting up, wide awake in the back of my van with the light on sorting through my laundry looking for something to change into before going into the spa."
THE LEGAL CHALLENGE BEGINS
Ed Frey appeared in June before Judge Timothy Volkman (Symons was absent that day).
"I told Judge Volkman that we wanted to challenge the constitutionality of the law. We needed to determine if the law as applied to this defendant was constitutional. Does it violate the State or National Constitution?" The law in Santa Cruz Paight was cited under, MC 6.36.010 section a outlaws the ACT of sleeping out of doors or in a vehicle between the hours of 11PM and 8:30AM anywhere in the City Limits on both public and private property.
"If you can't sleep you can't live. You've got to have sleep. It's like you've got to breathe," Ed explained. And although years ago Judge Thomas Kelly ruled the Sleeping Ban is constitutional because "they can sleep in the daytime," Frey disagreed. "Sharon can't sleep in the daytime. Her only income is her unemployment benefits. If she doesn't go out and look for jobs she loses her unemployment benefits."
Volkman set a motion to dismiss for August 21st in Judge Ariadne Symons court.
"Late in June I set out to contact the city attorney so that we could voluntarily work out a set of facts. John Barisone was less then cooperative. He told me " We'll dismiss it if you go and get written statements from the owners of the property and the lessee."
Ed contacted the manager of the spa. She told Ed that they don't allow nighttime sleeping in their parking lot "because it's illegal in the City." They were not going to write a letter for Sharon. Furthermore, the owner of the property was completely unavailable living out of town and without contact information.
"Their reasoning was 'we only oppose it because it's illegal. So we don't allow it.' We were caught in a catch 22," Ed said.
SYMONS SPRINGS A "SURPRISE" TRIAL ON DEFENDANT
Yet when Sharon and Ed arrived in court, they were surprised to see that the officer was there and so was Kelly Walker of the City Attorney's office. Frey reminded Symons that they were there to hear a motion to dismiss.
Judge Ariadne Symons said "The City Attorney is here, the officer is here, so we are having a trial."
In Symon's court, on August 21, 2009, SCPD Officer Rodney Dugolow testified under oath that when he looked into the rear of Sharon's van, he witnessed Sharon sleeping underneath some blankets. Dugolow was the only witness for the prosecution. The only evidence presented was his testimony. When Ed asked him if Sharon had permission to be on the property, he testified that he didn't know.
After presenting the officer's testimony, the Prosecution rested.
PERJURY BY A SANTA CRUZ POLICE OFFICER?
Ed immediately moved to have the case dismissed since the officer didn't know if she had permission to sleep in her vehicle (the ordinance allows an exception for up to two vehicles per business if they have the written permission of the owner and the lessee.)
"I'm not going to grant that motion,"Symons said. “I'm persuaded she was sleeping.”
Ed Frey responded by telling her that his client's testimony differed from that of the officer and that he would then be forced to swear in Sharon Paight and put her on the stand in order to rebut Officer Dugolow's testimony.
"I don't think that's necessary," replied Judge Symons. "What else do you have?"
"I do have a statement from Karen Yen, a Harvard-educated psychiatrist with a practice in Scotts Valley. I have a statement here that to deprive someone of sleep cuts down the effectiveness of their immune system, it leads to depression, and is very bad for the health of the person"
Ed told the Judge that Sharon was prepared to testify that she was sitting up, wide awake with a light on at the time the officer knocked on her van. Sharon has said that she was in the back of the van sorting clothing at the time the officer contacted her. She was preparing to change her clothing prior to going into the Fitness center to take a shower. But she never got to testify to any of that.
“I'm persuaded she was sleeping,” Symons said. "And I believe the officer was being honest” she said. She recognized that police officers have a “difficult task.” But that “the way the windows were blocked off” and the question of whether she was legally parked there, in addition to the officer's testimony had convinced her that Paight had been sleeping and was properly cited. “I'm persuaded that she was sleeping.”
Sharon Paight shouted out “I wasn't. He's lying! I was wide awake.”
Symons did not admonish Paight for her outburst or cite her for contempt of court. Instead, she asked Sharon to be patient while she explained.
“She said she was a member of the 24 Fitness Spa but seeing the absence of a representative of 24-hour Fitness, we can't determine if she really was a member." Paight was NOT cited for trespassing and was never given the opportunity to show her membership card, yet Symons continued at some length about how difficult it was to determine if Sharon REALLY was a member of the spa.
Again Ed Frey tried to have his client testify on her own behalf but was incredulous when Symons again rebuffed him.
“I would never prevent you from allowing your defendant to testify. But the reason I stopped you, is that this case is going to be dismissed.”
She just told Sharon Paight “The reason I'm not going to have you testify is because I'm going to drop all charges against you.” Symons did not say she was dropping the case in the interest of justice. She didn't say it was because of insufficient evidence. In fact, she said the opposite. She SAID that there WAS sufficient evidence for a conviction, yet was dismissing the case. She announced "case dismissed" and the bailiff quickly urged the few supporters there to leave. Then Symons gratuitously thanked the City Attorney who was there to prosecute the case, but made no objection to her sudden and abrupt dismissal.
“And Mr. Walker, I thank you for appearing today. I know you don't normally do so in these instances.” Symons was referring to the odd practice in Santa Cruz County courts in which infraction cases charged by the City of Santa Cruz are not prosecuted by either a DA nor a City Attorney. Instead, only the officer testifies and the Judge (there is never a jury trial) serves as both the prosecutor and as the Judge. Despite the obvious conflict of interest between prosecuting a case AND being responsible for judging the merits of the case, this is the usual procedure in Santa Cruz for infraction crimes.
TRYING TO UNDERSTAND SYMONS
When asked why Symons had abruptly ruled to dismiss the case despite her declaration that she had been convinced that the City had proved its case against Paight, Ed Frey was direct.
"She did it in order to sweep it under the rug."
When interviewed outside of the courtroom after his victory, Ed Frey described Symons behavior as arbitrary and regal. "In the first part of the hearing I requested that we set up some sore of discovery procedure: some procedure by which you establish facts in order to create a record, and where you make an argument based on that record. But she wouldn't have it. She wouldn't hear it. She wanted to rush the thing through. Just shove it under the rug and dismiss it. When I attempted to establish facts on which we could make a foundational record, she wouldn't hear it, she wouldn't have it. She wanted no record of that."
"She's the Red Queen. She does whatever she wants," he concluded.
Sharon, however, couldn't believe that the police officer had lied under oath on the witness stand. She explained her outburst.
"I wanted to let her know that the officer was lying. That upset me more than getting the ticket, that an officer of the court was up there lying."
While Ed Frey and Sharon Paight cannot challenge the constitutionality of Santa Cruz' Sleeping Ban due to Symons unexplained dismissal of the case, they plan to file a complaint against the officer with the DA.
"Sharon and I are going to challenge this---we are going to ask the DA to prosecute the officer for perjury which is a felony," Ed promised.