Wednesday, May 1, 2013

Kelley's Writ - Kelley Lynch & Leonard Cohen Were Not In A Dating Relationship Regardless Of His Perjured Testimony & Acknowledgment That He Lied On The Witness Stand


In order to prove a restraining order violation under California Penal Code section 273.6, the prosecution must prove that:  the court lawfully issued a written restraining order; the court order was a restraining order or protective order directed at specific conduct; the individual knew of the court order; the individual  had the ability to follow the court order; and,  intentionally violated the court order..

Petitioner was unaware that a valid California order existed, was not served or notified of that order, and was advised - by the Boulder County Court - that the Boulder order had expired.  In fact, one voice mail message confirms that Petitioner was under the impression that the Boulder order expired.  The California order was not lawfully issued due to the fact that Petitioner was never in a “dating relationship” with Leonard Cohen and there was no domestic violence involved with the Boulder, Colorado civil harassment order..  In order to be convicted of violating a court order under California Penal Code section 273.6, the prosecution must prove that the court order itself was lawfully issued.  

Petitioner did not waive her right to an evidentiary hearing and no evidence was presented supporting Leonard Cohen’s application for a restraining order - apart from his highly perjured declaration that Petitioner addressed in her Motion to Quash.  If a restraining ordered is invalid or illegally issued, an individual is not bound by its terms and cannot be convicted for a violation of that order. A restraining order can be invalid if the court lacked jurisdiction to issue such an order or the facts on which it was based are clearly false or misleading.  Finally, with respect to the domestic violence order, a dating relationship is required.  Petitioner and Cohen did not have a an intimate dating relationship.
Leonard Cohen Cross:  Public Defender: Okay.  Now, you also mentioned earlier that there was a brief intimate relationship between you and Ms. Lynch, correct?  Cohen:  That’s correct.  Kelly:  Now, being that she was your business manager, you wouldn’t say that was probably the best idea, to have a romantic relationship with your business partner, correct?   Cohen:  I don’t think it goes the the description of romantic.  Kelly:  Okay, but it was a sexual relationship, correct?  Cohen:  It was an intimate relationship, yes.  Kelly: Was it a sexual relationship?  Cohen:  It involved a sexual - yes.  Kelly:  Not, it was -- it was actually spanning years, correct?  Cohen: I’m sorry?  Kelly:  It actually spanned years, correct?  Cohen:  I don’t know how long it lasted, sSr.  ... Kelly:  But you would agree with me that it was on and off for a period of time?  Cohen:  Yes, sir.  (RT 275)  Kelly:  When did it end?  Cohen:  I don’t remember exactly when it ended.  Like many relationships, it - it just dissolved.  (RT 276)  Kelly?  Okay.  Do you remember testifying on March 23rd at another hearing?  March 23rd, yes.  Of this year.  You were in this courthouse testifying, correct?  Cohen:  That is correct.  Kelly:  Now, you were asked if this was -- if your relationship with Ms. Lynch was purely a business relationship.  Do you remember that?  Cohen:   I did.  Kelly:  And you actually said that it was, yes, purely a business relationship.  (RT 276)  Cohen:  I have said repeatedly that there was an intimate relationship, but the lady denies it.  So I did not want to insist.  Kelly:  I’m not asking you about what Ms. Lynch said.  I’m asking about what you said.  You said that yes, that it was purely a business relationship, correct?  Cohen:  May I explain?  Kelly:  I’m just asking for if that’s what you said on March 23rd.  Cohen:  Yes. Kelly:  In fact, you were asked a follow up question that -- asking you if that was the extent of it, and again you said yes, that was the extent of it.  Cohen:  Correct.  (RT 277)  And finally, there was a question about a previous testimony that you’ve given, the description of your relationship with Ms. Lynch.  Why at that hearing did you say that you only had a business relationship with Ms. Lynch?  And not just once or twice.  Why did you say that?  Because, as it turns out, the friendship Ms. Lynch displayed was false and deceptive, so it was not really a friendship.  Kelly:  Objection.  The intimate relationship we had, she denies.  So I’m not going to insist.  So, therefore, it was not -- from that point of view, there was not an intimate relationship
and there was not a friendship; it was all business.  It was all business from the point of view of Ms. Lynch.  Kelly:  Objection; speculation as to what Ms. Lynch thought.  Court:  Overruled.  The question was why he did it, and he’s testifying to his subjective reason.  (RT 319-320)  Kelly:  When you testified on March 23rd, you said that -- you didn’t give the same answer that you gave now, correct, regarding your relationship with Ms. Lynch?  Cohen:  That’s correct.  Kelly:  Okay.  But you -- when you did testify, you stood in front of the counsel table, you raĆ­sed your right hand, correct?  Cohen:  Correct.  Kelly:  You swore to tell the truth, the whole truth?  Cohen:  Correct.  Kelly:  And then the same oath that you just took right now, correct?  Before testifying, correct?  Cohen:  Correct.  Kelly:  Okay.  And you understand that you were under the penalty of perjury on March 23rd?  Streeter: Objection; argumentative.  Court:  Sustained.  Kelly:  Nothing further.  (RT 321-322)

Petitioner contests the validity of the California restraining order Leonard Cohen registered on May 25, 2011 for lack of jurisdiction under the [84 Cal. App. 4th 400]  Domestic Violence Prevention Act (DVPA or the Act) (Fam. Code, § 6200 et seq.). The Act extends protection to individuals who are or have been in certain relationships with the perpetrator of defined types of abuse, including "a dating or engagement relationship." (Fam. Code, § 6211, subd. (c).)  The DVPA provides for issuance of orders "to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (Fam. Code, § 6300.) "Domestic violence" is defined in section 6211 of the DVPA as "abuse perpetrated against any of the following persons:  (a) A spouse or former spouse; (b) A cohabitant or former cohabitant, as defined in Section 6209; (c) A person with whom the respondent is having or has had a dating or engagement relationship; (d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act; (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected;  and, (f) Any other person related by consanguinity or affinity within the second degree."  Petitioner and Leonard Cohen were not in any one of the above  defined relationships that would permit him to obtain a domestic violence restraining order  .

When registering the Colorado civil protection order, Leonard Cohen sought the protection of the DVPA under subdivision (c) of Family Code section 6211.  Petitioner contends the Court erred in registering the Boulder civil harassment order - that can only be modified by the original court - as a domestic violence order because it failed to take into consideration the fact that Lynch and Cohen were not in a “dating relationship” of any type whatsoever.  Lynch and Cohen’s business relationship, that also included a friendship, is insufficient to meet the definition of the DVPA.  

The legal questions these issues present are with respect to the fact that Petitioner and Cohen were never in a "dating relationship" as used in the DVPA as well as the fact that the court had no jurisdiction to have Petitioner arrested for violating an order (or being in contempt) she was not notified of or served.  The restraining order was not valid and lawful and the arrest was unlawful.