Filed 4/8/16 In re Wilson CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re MICHAEL WILSON,                                                A146974
         on Habeas Corpus.
                                                                     (Contra Costa County
                                                                     Super. Ct. No. 51425214)


         Petitioner Michael Wilson (Wilson) challenges an ex parte order issued by the
Contra Costa Superior Court in a divorce case, which is now the basis for several
misdemeanor contempt proceedings. The order imposes numerous constraints on
Wilson’s conduct in court and in the courthouse, including prohibiting him from
harassing and threatening court personnel. Although Wilson could have sought
modification of the order, he raised no objection to it for nine months, until faced with the
multiple contempt charges. At that point, he filed a petition for writ of habeas corpus in
the superior court, claiming the order was invalid and therefore the criminal charges had
to be dismissed.
         The superior court denied Wilson’s habeas petition on numerous grounds,
including that the order was a valid exercise of the court’s authority to ensure safety and
decorum in the courthouse and provided sufficient due process protections of which
Wilson had not availed himself. Wilson then filed a habeas petition in this court, which
we summarily denied. He then filed a third habeas petition in the Supreme Court, which
issued an order to show cause (OSC) and returned the new habeas proceeding to this
court.



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       We now grant Wilson’s petition. We do so solely on the ground the limited record
before us does not show a necessity for the superior court to have issued the order on an
ex parte basis, without notice to Wilson and an opportunity to respond. We therefore
need not, and do not, address the substantive provisions of the order. We also do not
intend by this disposition to suggest the superior court cannot, on a fully developed
record and after providing Wilson with notice and an opportunity to respond, issue any
orders reasonably necessary to maintain order and decorum in the court and to protect
those using or working in the courthouse from harassing or threatening conduct.
                                      BACKGROUND
       Wilson is involved in an apparently contentious divorce proceeding (In re
Marriage of Wilson, case Nos. D13-05801 & D13-05051). He is representing himself,
and has frequented the courthouse many times.
       On February 10, 2014, the Contra Costa Sheriff’s Office, which provides security
services to the superior court, presented Presiding Judge Barry Goode with an ex parte
request for an order imposing restrictions on Wilson’s conduct in court and in the
courthouse, including prohibiting him from threatening and harassing court personnel.
We have no record as to what was actually presented to Judge Goode in support of the ex
parte application.
       The order states: “The Court Executive Officer, the chair of the Security
Committee and the Presiding Judge have received several reports regarding the conduct
of Mr. Michael G. Wilson, including reports of: [¶] (1) Conduct intimidating to staff,
litigants and members of the public; [¶] (2) Recording and intent to record court
proceedings and conversations with staff (without their advance permission or
knowledge) in violation of the Rules of Court and the Penal Code; [¶] (3) Making
inappropriate demands on security staff at the Courthouse; and [¶] (4) Being arrested for
similar conduct at the County Jail. [¶] This conduct has occurred in at least January and
February 2014 and has occurred at both the Courthouse and the nearby jail facility.
There have been several reports that Mr. Wilson has occupied excessive amounts of court
staff time with persistent, argumentative. and intimidating behavior. Court staff has


                                             2
reported becoming fearful and being distracted from their work. [¶] Additionally it has
been reported that Mr. Wilson’s conduct with Court security personnel is so distracting
that it is difficult to maintain security screening on other people trying to enter the
Courthouse. [¶] Thus the court staff’s ability to conduct business in a prompt, safe and
efficient manner effecting the efficient administration of justice, and the ability of
members of the public and other litigants to conduct their business has been
compromised by the conduct of Mr. Michael G. Wilson. [¶] This Court has also received
reports that Mr. Michael G. Wilson’s conduct in the Family Law Court in Florida and in
Alameda County Superior Court in California has resulted in Court orders restricting his
access to those courts based on similar behavior.” From this recitation, it appears the
reports provided to Judge Goode were mostly, if not entirely, hearsay.
       Wilson did not receive notice of this ex parte application, and the court did not
hold a hearing.
       The order enumerates a number of things Wilson is prohibited from doing in court
and in the courthouse.1 It also provides Wilson can seek modification of its provisions on


       1
          The order provides in this regard:
        “1. Michael G. Wilson shall not be allowed to bring any recording device into a
Courthouse in Contra Costa County without first obtaining written permission from a
Superior Court Judge of this Court. This includes, but is not limited to, cellular
telephones and other electronic devices which are capable of recording sound.
        “2. Michael G. Wilson shall not enter a courthouse unless (i) he has a court matter
on calendar for the day he presents himself or (ii) he wishes to file a document with the
Court. If he has a valid reason for entering a Courthouse he shall comport himself
properly and not behave in a manner that is unruly, disruptive, threatening, aggressive, or
that intimidates or threatens to intimidate any staff member or member of the public.
        “3. Mr. Michael G. Wilson may obtain copies of appropriate court files when
needed by submitting a written request to staff with prepayment for the copies, which
copies will be mailed to his address of record.
        “4. This order does not deprive any security personnel of their rights and duties to
maintain security in the Courthouse. Nor does it limit the power of a Judge or a bailiff to
maintain proper control of proceedings in their courtroom.
        “5. Any conduct by Mr. Michael G. Wilson that is unruly, disruptive, aggressive,
intimidating or done in a threatening manner toward court staff, court security personnel,
or members of the public in the Courthouse may subject him to being removed form [sic]

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a properly noticed motion.2 However, he made no objection to the order for nine months,
at which point he filed the first of his habeas petitions.3
       On the same day Judge Goode issued the order restricting Wilson’s conduct, a
different judge, Judge Larry Gaddis, heard an application by Wilson for a civil
harassment restraining order against Contra Costa Deputy Sheriff Derek Murdock (who
Wilson alleges in his habeas petition was part of the court’s security force). Wilson
maintained Murdock harassed and intimidated him (and in his habeas petition, Wilson
devotes 17 pages to outlining his complaints against the officer). Judge Gaddis found,
however, that Murdock was acting within the scope of his court security duties and
denied Wilson’s request for a restraining order.
       Immediately after Judge Gaddis ruled, Sergeant Jason Watkins, the superior court
security supervisor that day, served Wilson with the order signed by Judge Goode.
Because the order, among other things, prohibits Wilson from being in the courthouse
unless on official business, Evans told Wilson that since his matter before Judge Gaddis
was concluded, he was required to leave the building and if he failed to do so, he was
“subject to arrest per that order.” Although expressing a desire to remain, Wilson left
without incident.
       A little over a month later, on April 16, the Contra Costa District Attorney filed a
misdemeanor complaint (case No. 168647-6) alleging that on March 11, Wilson

the Courthouse and to having this order being reconsidered to determine if more
restrictive measures are needed.
        “6. Nothing in this order shall interfere with Mr. Michael G. Wilson’s right to
access the Courthouse, but shall ensure that he comports himself in a manner that is
consistent with the standards of courthouse behavior required of all members of the
public.”
       2
          The order states: “If Mr. Wilson wishes to seek to modify the terms of this
order, he may file a properly noticed motion which shall be set for hearing before the
Presiding Judge.”
       3
          Although Wilson made no challenge to the order, Judge Goode amended it on
April 22, to allow him to use assistive electronic devices. The amended order was filed
under seal and remains so. The original order and amended order are collectively
referred to as “the order.”


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committed contempt by willfully disobeying a lawful order of the court (Pen. Code,
§ 166, subd. (a)(4)), the order Judge Goode had issued. At some point, the district
attorney filed a second misdemeanor complaint (case No. 170908-8) and, on
November 21, filed a first amended complaint in that case alleging two more counts of
misdemeanor contempt allegedly committed on May 19 and June 19.
       On November 24, the public defender representing Wilson in the misdemeanor
cases filed a petition for writ of habeas corpus in the superior court (case No. 05-142521-
4) seeking an order (1) requiring the Sheriff to release Wilson from the actual and
constructive custody of Judge Goode’s order, (2) dissolving Judge Goode’s order as
unconstitutional, and (3) staying the criminal cases until the validity of Judge Goode’s
order is determined.
       Four months later, on March 23, 2015, Judge Laurel Brady stayed the
misdemeanor cases and issued an OSC requiring the superior court (as respondent) and
the People and Sheriff’s Office (as real parties in interest) to show cause why “petitioner
is not entitled to the relief he prays for.”
       The superior court filed its return on April 22, asserting: (1) Habeas corpus relief
is not available because the order does not place Wilson under actual or constructive
custody; (2) Wilson’s due process rights have not been violated because no hearing is
required before a court can take action to protect the security of the court and the order
expressly allowed Wilson to challenge any of its provisions; (3) the order is within the
court’s broad authority to maintain security and is not unconstitutionally vague.
       The Sheriff filed a joinder in the return, along with a two-page declaration by
Lieutenant Steve Evans in support of the order. Lieutenant Evans provided no
information as to the record that was before Judge Goode when the order was issued.
Rather he generally stated the Sheriff had had “numerous problems” with Wilson, some
of which had precipitated the misdemeanor proceedings—e.g., “having to defend against
a baseless Civil Harassment Restraining Order,” disrupting courtroom proceedings by
calling 911, “recording court proceedings and staff,” and “trespassing and causing a



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disturbance in the lobby of the” jail facility. He also stated Wilson was “demeaning and
demanding to courthouse clerical staff,” seriously upsetting one clerk.
       Three months later, Judge Brady issued a written decision denying Wilson’s
habeas petition on four separate grounds. First, the original and amended orders did not
place Wilson under actual or constructive custody; rather they “merely place certain
restrictions on petitioner’s actions within the courthouse as he pursues a civil matter.”
“Admittedly,” the court noted, “petitioner may lose his ‘liberty’ by violating the court’s
orders . . . but this loss is not compelled by the circumstances of the underlying actions,
which are divorce proceedings.” Second, Wilson did not “avail himself of the remedy
provided in the [orders], namely a noticed motion before the Presiding Judge,” but rather
“waited seven months before filing his habeas petition.” Third, since Wilson did not
avail himself of the procedural vehicle provided to him to challenge the orders his due
process claims lacked merit. Fourth, the substance of the challenged orders was proper
given the court’s inherent power to maintain courtroom security and its power under
Code of Civil Procedure section 128 to control courtroom proceedings.
       Wilson then filed a petition for habeas corpus in this court (No. A145904) seeking
an immediate stay of the superior court misdemeanor proceedings and an order
dismissing the proceedings on the ground Judge Goode’s order is invalid. We denied the
request for a stay and summarily denied the petition.
       Wilson filed a third habeas case in the Supreme Court (case No. S229852). The
court issued a stay of the superior court misdemeanor proceedings and requested informal
opposition. Thereafter, the Supreme Court issued an OSC requiring the Sherriff’s Office
to show cause before this court why the relief prayed for should not be granted.
       Instead of filing a return to the OSC in this court, the Sheriff submitted a letter
stating the “Office of the Sheriff requests this court issue its ruling on the present petition,
which involves no disputed facts and is solely an issue of law, and will not be filing a
return. [Citation.] The legal issues raised in the present petition were briefed in
opposition to Petitioner’s prior habeas corpus petition filed in Contra Costa County
Superior Court and those briefs are attached as exhibits to Petitioner’s present petition.”


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The superior court, in turn, submitted a letter noting the Sheriff’s Office had elected not
to file a return and stating the “issues presented by the petition directly affect court
operations, and it appears that the Sheriff may not be an ‘aggrieved party . . . with
sufficient interest in the subject matter of the dispute to press its case with vigor.’
[Citation].” The superior court directed this court’s attention to the return it had filed in
the earlier habeas proceeding.
       Wilson filed an objection to the Sherriff’s request that we consider the return,
joinder and items filed in the superior court habeas proceeding. He alternatively asked, if
this court was inclined to consider these filings, that we also consider his traverse filed in
that proceeding.
                                         DISCUSSION
       Because no return has been filed in this habeas proceeding (despite the Supreme
Court’s issuance of an OSC), “no disputed factual questions exist for resolution” and we
must accept Wilson’s factual allegations as true. (In re Serrano (1995) 10 Cal.4th 447,
455.) And while the Supreme Court’s issuance of an OSC returnable in this court does
not establish “a prima facie determination that petitioner is entitled to the relief
requested,” it does signify the court’s “ ‘preliminary determination that the petitioner has
made a prima facie statement of specific facts which, if established, entitle [petitioner] to
habeas corpus relief under existing law.’ [Citations.]” (In re Serrano, supra, 10 Cal.4th
at pp. 454–455; People v. Duvall (1995) 9 Cal.4th 464, 475 [high court will issue OSC if
“the court finds the factual allegations, taken as true, establish a prima facie case for
relief”].)4 We take judicial notice on our own motion of the superior court documents
submitted by Wilson, the superior court and the Sheriff’s Office. (See Evid. Code,
§ 459.)
          We grant the requested habeas relief on the sole ground the minimal record before
us does not show the need for immediate issuance of the disputed order without notice to

       4
          The Supreme Court’s OSC excluded Wilson’s claim that the order is void for
vagueness, signifying the court concluded he failed to demonstrate a prima facie case for
relief that claim.

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Wilson and without a hearing. (See Zinermon v. Burch (1990) 494 U.S. 113, 127–128
[while post-deprivation hearing may satisfy due process, high court “usually has held that
the Constitution requires some kind of a hearing before the State deprives a person of
liberty or property”]; Randone v. Appellate Dept. of Superior Court (1971) 5 Cal.3d 536,
541 [“individual must be afforded notice and an opportunity for a hearing before he is
deprived of any significant property interest, and . . . exceptions to this principle can only
be justified in ‘extraordinary circumstances’ ”].)
       Neither People v. Ayala (2000) 23 Cal.4th 225 (Ayala) nor People v. Hayes (1999)
21 Cal.4th 1211 (Hayes), on which respondent court relies, support issuance of the ex
parte order in this family law matter without notice and an opportunity to respond. Both
Hayes and Ayala were appeals from first degree murder convictions in which the
defendants complained about enhanced courtroom security measures that applied to the
courtroom overall and the public in attendance.
       In Hayes, the defendant objected to “use of a hand-held metal detecting wand,
patdown of outer clothing, examination of bags and purses for weapons, locking the
courtroom door, and positioning an extra deputy in the courtroom with two additional
deputies outside the courtroom,” instituted due to concerns the defendant might escape
and for the security of witnesses who had allegedly been threatened. (Hayes, supra,
21 Cal.4th at p. 1267 & fn. 16.) The Supreme Court rejected his claim that he was
entitled to a hearing prior to the institution of these security measures. “Neither due
process nor any other constitutional right of a criminal defendant mandates a hearing on
the necessity for courtroom or courthouse security.” (Id. at p. 1268.) The use “of
security personnel, even in a courtroom, is not so inherently prejudicial that it must be
justified by a state interest specific to the trial.” (Ibid.) Rather, “whether challenged
security measures are so inherently prejudicial as to deny the defendant the constitutional
right to a fair trial” must be assessed on a “case-by-case” basis. (Id. at p. 1269.) The
high court concluded the trial court had not abused its discretion in instituting the
additional security measures. (Ibid.)



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       In Ayala, the defendant objected to placing a metal detector at the entrance to the
courtroom. (Ayala, supra, 23 Cal.4th at p. 250.) The prosecution made a motion for the
additional security, the defendant filed opposition, and the trial court heard argument, but
did not allow witnesses. (Id. at p. 251.) Relying on the “shackling” cases, the defendant
claimed a number of his constitutional rights had been violated. (Id. at p. 252.) As to his
procedural due process claim, the court observed due process is “ ‘ “ ‘flexible’ ” ’ ” and
“ ‘ “ ‘calls for procedural protections as the particular situation demands.’ ” ’ ” (Id. at
p. 253, quoting People v. Tilbury (1991) 54 Cal.3d 56, 68–69.) The court then pointed
out the metal detector was “a neutral measure that did not focus attention on” the
defendant and a contested evidentiary hearing “would not have been useful” and imposed
a needless burden on the trial court which “enjoys wide discretion to maintain courtroom
security.” (Ayala, at p. 253.)
       Here the trail court’s order did significantly more than institute general courtroom
security measures that did “not focus on” Wilson. Rather, the order is specifically
directed at Wilson and prohibits him, among other things, from entering a Contra Costa
courthouse “unless (i) he has a court matter on calendar for the day he presents himself or
(ii) he wishes to file a document with the Court.” This targeted prohibition is
significantly different in kind and character than the general courtroom security measures
at issue in Hayes and Ayala.
       We fully appreciate the frustration of the superior court and the Sheriff’s Office
with Wilson’s apparently belligerent and obstructive behavior. However, given the
scarcity of the record, we have nothing from which to conclude Wilson presented an
immediate threat to the public or court personnel, warranting an ex parte order imposing
substantial constraints on his conduct without notice and an opportunity to respond. We
do not know what, in fact, was actually before Judge Goode in support of the ex parte
application. And while it appears the 2011 order issued by the Alameda Superior Court
and the 2009 order issued by the Florida state court may have been shown to the judge,
they do not provide a record of what Wilson did in this case or show that immediate
action was required here to ensure the safety of the public and court personnel.


                                               9
       Given our conclusion that the order is invalid on procedural due process grounds,
we need not, and do not, address the validity of the restrictions imposed by
Judge Goode’s order. Nor is our grant of relief on procedural grounds to be understood
in any way as a limitation on the superior court’s authority to take reasonable actions to
maintain order and decorum in the court and to protect the public and employees in the
courthouse.
                                       DISPOSITION
       The superior court ’s orders of February 10, 2014, and April 22, 2014, entered in
case Nos. D-13-05801 and D13-05051 are hereby vacated and the misdemeanor criminal
charges against Wilson in case Nos. 168647-6 and 170908-8, as well as any other
pending misdemeanor charges based on the vacated orders, are hereby dismissed.




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                                 _________________________
                                 Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




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