SUPERIOR COURT OF CALIFORNIA
COUNTY OF RiVERSIDE
PEOPLE OF THE STATE OF CALIFORNIA,)
   Plaintiff,                     )Case No. HEM01437~
vs.
KEITH HENSON,
Defendant.
REPORTERS'         TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE RODNEY L. WALKER, JUDGE PRESIDING
DEPARTMENT H-3
MONDAY, OCTOBER 30, 2000
APPEARANCES:
For the people:   OFFICE OF THE DISTRICT ATTORNEY
                  BY  ROBERT SCHWARZ
                  910 North Stat. Street
                  Hemet, California 92543


For Defendant:    LAW OFFICES JAMES O. CRIPPS
                  BY:  JAMES J. HARR
                  133 N. Buena Vista. Ste. 1
                  Hemet, California 92543
                  LAW OFFICES GRAHAM E. BERRY,
                  BY:        GRAHAM E. BERRY
                  1223 Wilshire Blvd., Ste. 1028
                  Santa Monica, California 90403
Reported By:      Patricia M. Carlucci, CSR No. 6492
                  Court Reporter Pro Tempore
                  Riverside County Superior Court


MONDAY, OCTOBER 30, 2000; HEMET, CALIFORNIA
HONORABLE RODNEY L. WALKER. DEPT. H-3




(THE COURT AND COUNSEL CONFER IN CHAMBERS OFF THE
RECORD.)
          (OUT OF THE PRESENCE OF THE JURY.)
     THE COURT:  Let's go on the record in the matter of
People versus Henson, HEM0l437l.
       May we have the appearances for the record, please.
     MR. SCHWARZ:  Robert Schwarz on behalf of the People
     MR. HARR:  James Harr on behalf of the defendant, who
is present in court, and Graham Berry, co-counsel  is
present, as well, your Honor.
     THE COURT:  Good morning,. gentlemen.  Have a seat.
Initially the People filed on October 5th a First Amended
Complaint, which we discovered had not yet made its way
into the court file this morning for the simple reason we
dropped the ball in the clerk's office, and it did not get
filed.  It is now filed retroactive to the date of
submission.  But it is clear to all of us Mr. Henson has
not been arraigned on this First Amended Complaint.
      Mr. Harr, would you waive formal arraignment,
stipulate your client has been advised of his legal and
Constitutional rights and enter a not guilty plea on
behalf of your client?
     MR. HARR;  Yes.
     THE COURT:  A plea of not guilty on the Amended
Complaint will be entered on behalf of Mr. Henson?
     MR. HARR:  Yes, your Honor.
     THE COURT:  In our pre-trial discussions, it became
apparent to me and to counsel, I do believe, and perhaps
it was apparent to counsel before it became apparent to
me, that there is a Constitutional issue here that will
have to he addressed and resolved at some time.  It was my
preference, and I believe the attorneys agreed, that the
Constitutional issue should be resolved before we empanel
a jury.
      For reasons of convenience and efficiency  the
Constitutional issue cannot be avoided and would have to
be addressed in the midst of the trial or at least at the
conclusion of the People's case, which because of the
extent of the Constitutional issue, would probably require
us recessing the jury for several days while briefs were
prepared and submitted and the Court read those briefs and
do my own research.
       In order to avoid that sort of break in the
trial, the attorneys and I have agreed that by far the
better sequence is to address the Constitutional issue
we empanel the jury.
        It also could be dispositive of the case   If I
rule in favor of the defense, the case would be dismissed
and the defendant discharged subject to the People's right
to seek in appellate relief by way of writ or otherwise.  If
I rule in favor of the People, then the parameters of the
trial and the direction and evidentiary issues of the
trial would be resolved and we would be able to proceed in
a much more straightforward manner more in accordance with
the misdemeanor proceeding.
        So with the agreement of the attorneys and with
their assistance, and certainly I will give all of you an
opportunity to comment, we seem to all agree that issue
this case is the Constitutionality of this statute as it
might be applied to the facts of this case.   We all agree
that the Constitutionality of these statutes on their face
have already been addressed by the California Supreme
Court and each of these statutory suits found to be
Constitutional on their face.
          The speech issue then can only be addressed in
one context, and that is whether as the statute as it is
seeking to be applied by the People in this prosecution is
an unconstitutional impingement on the speech of
Mr. Henson  That issue, therefore, will be what we will
address in these pretrial proceedings.
          Because the law requires that any Judge have a
factual basis upon which to rest any ruling that I might
make, counsel have agreed to provide to me by December the.
8th, at which time we will all reconvene In this court at
8:30 in the morning, a set of stipulated facts upon which
we can proceed.  I have impressed upon counsel the task of
getting together and drafting that document which would be
a set of stipulated fact which I would use in considering
the Constitutional issue that we have just discussed
That would be in written form, signed by all the attorneys
and by Mr. Henson.  That would then become a part of the
official record in this case, and, as I said earlier,
would be submitted December 8, 2000, 8.30 in the morning
here.
          Counsel has advised me, and I certainly recognize
the possibility that it may not be possible for them to
agree on everything, in which case I have directed them to
agree and stipulate to everything they can agree to and
stipulate to, put it in writing, sign it and bring it with
you on December the 8th and tell me what it is on December
the 8th that is preventing you from arriving at a complete
factual stipulation.
          At that time, I will attempt to iron that out
and make some orders, if need be, so that we can proceed.
If I am not able to do that, a further evidentiary hearing
would be required and live testimony of witnesses in order
to establish sufficient facts for me to proceed to the
Constitutional question.
          Assuming we can get a factual stipulation agreed
upon and filed on December the 8th, at that time we would
then agree on a further briefing schedule, one brief from
each side, fifteen pages or less and dates by which those
briefs would be filed and exchanged would be agreed upon
on December the 8th,
          Mr. Henson initially has agreed through counsel
to waive his time for a jury trial until December the 8th
and for a period of 30 days thereafter,  On December 8th
once we agree upon a briefing schedule, a further waiver
of time and speedy trial by Mr. Henson, plus 30 days, will
have to be agreed upon at that time probably.
        The trial date of today~s date will be vacated
and the jurors who were called in or would be called in
will be released from further obligation in this case and
if and when we get to another trial we will call and
empanel another venery at that time.
        I believe, in general terms, that covers it, but
let me make sure all sides believe, as I do, it has been
covered, and we'll start with Mr. Schwarz.
        Did I leave anything out?
        MR. SCHWARZ:   No, I think that is about right, your
Honor.  But the People would -- -- generally when there ~
a pretrial motion or something of that nature, we normally
waive 45 days, because it is difficult to get ten or
eleven witnesses all in, especially around the holidays
if something breaks down.
        THE COURT:      Mr. Schwarz, I don't blame you for that.
In light of the fact we are contemplating time waivers
through the end of the year, 15 days extra should not be a
        MR. HARR:  No problem.
        THE COURT: Okay.  Anything else?
        MR. SCHWARZ:  The issue -- I want to make sure that
for the sake of everything that everything remains the
same, the conditions of O.R. and nothing is changed in
this case pending the briefing schedule, et cetera,
        THE COURT:  I did not say so, but I do not intend by
anything I do or suggest that the status quo would be
upset in any way
        MR. SCHWARZ;  Thank you, your Honor
        THE COURT:  Anything else from the People?
        MR. SCHWARZ:  No, your Honor.
        THE COURT:  Mr. Harr or Mr. Berry?
        MR. HARR: Nothing to add from me.
        THE COURT;  Mr. Henson, have you followed this
convoluted discussion up to this point?
        THE DEFENDANT:  Yes, I have.
        THE COURT: You understand you have the right to a
speedy trial to be commenced within 45 days --  actually
30 days in a misdemeanor case of the date that you were
first arraigned?
        THE DEFENDANT:  Yes, your Honor, but I am willing to
waive time.
        THE COURT:  Will you give up your right to a speedy
trial until December 8 and for a period of 45 day~
thereafter?
        THE DEFENDANT:  Yes.
        THE COURT:  On December 8, we will probably ask you
for an additional waiver.
        THE DEFENDANT;  No problem.
        THE COURT:  Anything else from either side?
          If you do not know where to file your
stipulation, assuming you want to file it before December
8, my clerk will give you an address where it can be
filed.  If you are not able to arrive at a complete
stipulation, please be prepared to tell me exactly what it
is you do not agree on with great specificity so we can
work our way through that.  The stipulation is to be in
writing and signed by the attorneys and Mr. Henson and
copies for yourselves, because I will file the
original in the court file.
         Anything further?
       MR. HARR: No.
       MR. SCHWARZ: No.
       THE COURT:     Discharge our jurors on this case.
Theresa.
                (OFF THE RECORD.)
                (PROCEEDINGS ADJOURNED.)


REPORTERS CERTIFTCATE




STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
                I, PATRICIA M, CARLUCCI, Certified Shorthand
Reporter, CSR NO. 6492 do hereby certify:
                That on October 3Oth, 2000, in the County of
Riverside, State of California, I took in shorthand a true
and correct reporting of the testimony given and
proceedings had in the above-entitled cause, and that this
is a true and accurate transcription of my shorthand
notes, taken as aforesaid, and is the whole thereof.
                Dated this 1st day of November, 2000
6492
[signed]