IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE

JOSHUA WARING,
Petitioner, Court of Appeal
No. G____________
vs.
Superior Court
ORANGE COUNTY SUPERIOR COURT, No. 17WF2266
Respondent and Petitioner.
________________________________________
THE PEOPLE OF THE STATE OF
CALIFORNIA
Real Party in Interest

APPEAL FROM THE SUPERIOR COURT OF

ORANGE COUNTY

Honorable Jonathan Fish, judge presiding

PETITION FOR WRIT OF MANDATE

CORREEN FERRENTINO
SBN 172485
FERRENTINO & ASSOCIATES, INC.
949 South Coast Drive, Ste 250
Costa Mesa, CA 92626
Telephone: 714-973-2024
Facsimile: 714-973-2025
E-Mail: cori@ferrentinolaw.com

1
 TABLE OF CONTENTS

PETITION FOR WRIT OF MANDATE TO THE HONORABLE

PRESIDING JUSTICE AND HONORABLE ASSOCIATE
JUSTICES OF THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION
THREE: ................................................................................................ 4

PRAYER............................................................................................... 8

VERIFICATION .................................................................................. 9

MEMORANDUM OF POINTS AND AUTHORITES ..................... 10

I. INTRODUCTION .................................................................... 10
II. PROCEDURAL HISTORY .................................................... 10
III. FACTS FROM EVIDENTIARY HEARING ........................ 14

IV. ARGUMENT ......................................................................... 17

V. CONCLUSION ....................................................................... 21
CERTIFICATE OF ............................................................................. 22

WORD COUNT ................................................................................. 22

PROOF OF SERVICE........................................................................ 23
EX. A – CASE SUMMARY…………….…………………………..24

EX. B – RULING ON MOTION TO DISMISS …………...……….74

2
 TABLE OF AUTHORITES
Cases
Barber v. Municipal Court
(1979) 24 Cal.3d 742 ....................................................................... 20
Dowden v. Superior Court
(1999) 73 Cal.App.4th 126, 134 ...................................................... 19
Faretta v. California
422 U.S.806 ..................................................................................... 19
Gamet v. Blanchard
(2001) 91 Cal.App.4th 1276, 1284. ................................................. 19
Meza v. H. Muehlstein & Co.
(2009) 176 Cal.App.4th 969 ............................................................ 19
Milton v. Morris 767 F.2d 1443 (9th Cir. 1985) ................................ 19
People v. Glover
(1985) 169 Cal.App.3d 689 ......................................................... 9, 21
Taylor v. List
880 F.2d 1040, 1047 (9th Cir. 1989) ............................................... 19

Statutes
Evidence Code §250 ........................................................................... 20
Penal Code §1054.6 ............................................................................ 20
Penal Code §995 ................................................................................. 13

3
PETITION FOR WRIT OF MANDATE TO THE HONORABLE
PRESIDING JUSTICE AND HONORABLE ASSOCIATE
JUSTICES OF THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION
THREE:

Petitioner Joshua Warring, by and through his attorney, Correen

Ferrentino, hereby petitions this Court for a Writ of Mandate directed
to the Superior Court, Orange County, State of California, Department
C37, Honorable Johnathan Fish presiding to vacate its order on March
8, 2019, denying petitioner’s motion to dismiss based on outrageous
government conduct and by this verified petition counsel represent
that:
I.
This Petition raises a question of whether numerous and
systemic violations of the work product privilege of a pro per inmate
(i.e. the taping of his court-ordered "unmonitored" telephone calls by
Sherriff Deputies and provided to the prosecution) be treated similarly
to a violation of the attorney-client privilege, such that a dismissal is
warranted to protect against the impact of the devastatingly prejudicial
affect at trial because his work-product, including trial strategy, is
known to the prosecution.1
II.
From November 29, 2016 through December 28, 2016,
defendant was pro per in case 16WF1302 (predecessor to the instant
case).

1
Petitioner, by separate motion, requests this court grant leave to file a
supplemental petition for writ of mandate within 60 days of date of
appointment of counsel, yesterday May 6, 2019, for the reasons set
forth below and in the motion.
4
 On October 20, 2017, case 16WF1302 was dismissed pursuant
to Penal Code Section 995. The Orange County District Attorney’s
Office refiled the case under 17WF2266, the present case. Waring
faces three counts of attempt-murder (Penal Code § 664-187)2 and
various other charges and enhancements.
Attorney Joel M. Garson was appointed as conflict counsel to
represent Waring. He was been working on the case, as well as its
previously dismissed predecessor, for over two years.
In February, 2018, in the course of Garson’s representation of
Waring, he learned of the extent the Sheriff’s Dept., the Costa Mesa
Police Dept., and the District Attorney’s office went to listen to
Waring’s telephone calls from jail while he was pro per, despite the
existence of court orders specifically granting him unmonitored
telephone calls from the jail. In those calls, Waring discussed very
specific trial strategy, case impressions, legal research, and other
highly confidential topics with his mother, his father, and his
girlfriend. Those calls were recorded, downloaded, and disseminated
to the investigating agency, the specific detectives mentioned on the
tapes, and the two assigned deputy district attorneys, one of whom
sanctioned the monitoring of the calls.
III.
The defense filed a Motion to Dismiss based upon outrageous
government conduct. Exhibit A: Docket in Case No. 17WF2266.
Over a dozen hearings were held over the next year, which dug up
additional evidence that attorney/client telephone calls were also
monitored by the Sheriff’s Dept. and turned over to local law

2
All statutory references are to the Calif. Penal Code unless otherwise
indicated.
5
enforcement and/or the District Attorney’s Office (but not in Waring’s
case).
IV.
On Friday, March 8, 2019, Defendant’s motion to dismiss was
denied by the assigned Judge, Jonathan Fish, in an 18-page decision
filed by respondent court. Exhibit A. The court noted that the court
granted Waring authorized access to unmonitored collect phone calls
with certain conditions, no more than two hours per day between the
hours of 0600 and 2300 hrs, at the Jail’s discretion and that if the
defendant believes the Sherriff is in violation of this order, he must set
forth this belief in writing and forward to the captain of the jail facility
where he is housed. Exhibit B, p.1. The trial court concluded “there is
no evidence in this case of the OCSD violating the court order to grant
access to the defendant to unmonitored collect calls in Waring’s case
because Waring never asked for the access.” Exhibit B, p. 18.
Because the court found no violation, the court did not consider
whether Waring was prejudiced by the Sherriff and prosecutions
conduct. The court concluded there is no evidence of an unjustifiable
intent to harm [petitioner] by any of the aforementioned agencies.”
Exhibit B at p. 18.3

Following the court’s denial on Monday, March 11, 2019,

3

Garson emailed the Superior Court requesting additional funds for a

writ. On April 4, 2019, by telephone call, Garson was notified the
superior court judges approved additional funding for trial, but denied
funding for the writ. Garson was told to ask the Court of Appeal for
funding, That same day, he called the clerk in this court asking how to
receive funds to prepare a writ or have counsel appointed. He was
told to contact Appellate Defender’s, Inc. which he did and was told
they do not handle interlocutory writs. It was suggested Garson file
some form of motion or petition with the Court of Appeals. On April
15, 2019, Garson filed two documents with this court seeking
6
 V.
All the proceedings regarding this Petition occurred within the
territorial jurisdiction of Respondent Superior Court and of the Court
of Appeal of the State of California, Fourth Appellate District,
Division Three.
VI.
No other petition for writ of mandate has been made by or on
behalf of Petitioners relating to this issue.
VI.
Petitioner has no other plain, speedy or adequate remedy at law,
but would, if this writ is not granted, be irreparably harmed due to the
disclosure of his work product, including trial strategy, and be
relegated to his remedy on appeal if convicted which shifts the
presumption of prejudice from the prosecution pre-trial to petitioner
after trial. People v. Glover (1985) 169 Cal.App.3d 689.

appointment and both were rejected.

On May 6, 2019, yesterday, this information was presented to
Judge Jonathon Fish at a status conference. Later that day, Judge
Fish appointed counsel for purposes of filing this writ finding Waring
“has no counsel to litigate a writ that he has a right to run. Had either
the Public Defender or the Alternate Defender remained on the case,
he would have appropriate counsel. The court finds that to be
adequately represented, Mr. Waring should have writ counsel
appointed to him and hereby appoints Correen Ferrentino.” Based on
the foregoing, Waring, by separate motion, request leave to file a
supplemental petition for writ of mandate within 60 days to allow
newly appointed counsel time to research and present all of the
relevant facts and authorities to this court.

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 PRAYER
WHEREFORE, Petitioner prays that:
1. A writ of mandate issue from this Court commanding
the Respondent Superior Court to vacate its ruling on March 8, 2019
denying Waring’s motion to dismiss based on outrageous government
conduct and to make a new and different ruling granting the motion to
dismiss, and,
2. This Court grant such other and further relief as may be
appropriate and just.

Date: May 7, 2019 /s/Correen Ferrentino

CORREEN FERRENTINO
Attorney for Petitioner Waring

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 VERIFICATION
I, Correen Ferrentino, declare that I am the attorney for
Petitioner, that I have read the foregoing petition and that I know the
matters herein to be true, that the petition be verified by myself
pursuant in this case. I have read the foregoing petition and know its
contents. The facts alleged in the Petition are within my knowledge
and I know these facts to be true or based on information and belief.
I declare under penalty of perjury that the foregoing is true and
correct and that this verification was executed on 7th day of May,
2019 at Costa Mesa, California.

/s/Correen Ferrentino
Correen Ferrentino

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 MEMORANDUM OF POINTS AND AUTHORITES
I.
INTRODUCTION

While Petitioner was pro per in this and other cases, his jail
telephone calls were monitored and recorded by law enforcement,
and further, these recordings were turned over to the investigating
agency in this case, and eventually to the prosecutors in this case.
Petitioner filed a motion in Respondent Superior Court arguing these
recordings were done in direct violation of a Superior Court Order,
and in violation of Petitioner's State and Federal Constitutional
rights to a fair trial. In these conversations, Petitioner discussed
confidential trial strategy and defenses. Petitioner alleged these
actions by the prosecution team constitute outrageous government
conduct. Petitioner seeks writ relief because if forced to proceed to
trial he will be irreparably harmed because his work-product
privileged information, including his trial strategy, has been
disclosed to the Sherriff’s Department and the prosecutors in this
case.
II.
PROCEDURAL HISTORY
From November 29, 2016 through December 28, 2016,
defendant was pro per in case 16WF1302 (predecessor to the instant
case).
On October 20, 2017, case 16WF1302 was dismissed pursuant
to Penal Code Section 995. The Orange County District Office refiled
the case under 17WF2266.
Attorney Joel M. Garson was appointed as conflict counsel to
represent Waring. He was been working on the case, as well as its

10
previously dismissed predecessor, for over two years. Since the
refiling of the case, the case has heard several motions throughout the
span of two years.
In February, 2018, in the course of Garson’s representation of
Waring, he learned of the extent the Sheriff’s Dept., the Costa Mesa
Police Dept., and the District Attorney’s office went to listen to
Waring’s telephone calls from jail while he was pro per, despite the
existence of court orders specifically granting him unmonitored
telephone calls from the jail. In those calls, Waring discussed very
specific trial strategy, case impressions, legal research, and other
highly confidential topics with his mother, his father, and his
girlfriend. Those calls were recorded, downloaded, and disseminated
to the investigating agency, the specific detectives mentioned on the
tapes, and the two assigned deputy district attorneys, one of whom
sanctioned the monitoring of the calls. The defense filed a Motion to
Dismiss based upon outrageous government conduct.
Over a dozen hearings were held over the next year, which dug
up additional evidence that attorney/client telephone calls were also
monitored by the Sheriff’s Dept. and turned over to local law
enforcement and/or the District Attorney’s Office (but not in Waring’s
case).
On Friday, March 8, 2019, Defendant’s motion to dismiss was
denied.
The following Monday, March 11, 2019, Garson emailed to the
Superior Court the letter attached hereto as Exhibit “_” requesting
additional funds for trial and for a writ. The letter was sent to Lisa Ma,
who is the administrator for the Superior Court in charge of alternate
(conflict) defense.

11
 Garson did not hear back from her until April 4, 2019. She
called to tell Garson that the judges approved additional funding for
trial, but denied funding for the writ. Instead, Garson was told, he
would have to ask the Court of Appeals for funding. Later that day
Garson received a Memo from Judge Prickett, the acting supervising
judge of the Alternate Defense Steering Committee, authorizing
additional funds for trial, but making no mention of funds for the writ.
That Memo is attached hereto as Exhibit “B”.
On that same date, Garson called the clerk of the court at the
Court of Appeals to ask how to either receive funds to prepare a writ,
or in the alternative, to have counsel appointed. She advised Garson
that only Alternate Defense Inc., located in San Diego, has any
contract for indigent cases, and that they only handle appeals, not
writs. She suggested that he either contact them or prepare the writ
himself and ask for funding concurrently.
That same date Garson contacted a staff attorney at ADI, who
advised him that they only handle post-conviction appeals, and the
occasional writ of habeas corpus, not interlocutory writs such as this
one. She suggested Garson file some form of motion or petition with
the Court of Appeals.
On April 15, 2019, Garson filed a Verified Petition for
Appointment of Counsel to Prepare Writ of Mandate/Prohibition. He
called it a “Motion” on TrueFiling. He also served a copy of the
“Motion” on the Superior Court via U.S. mail. That “Motion” is
attached hereto as Exhibit “C.”
The next day the “Motion” was rejected by the Court of
Appeals clerk, who indicated via TrueFiling that “this is a motion
which cannot be assigned a new petition number.” Garson refiled the

12
exact pleading via TrueFiling, but labeled it a “Petition.” Again, it
was rejected by the clerk, with the following explanation: “There is no
such thing as a petition for appointment of counsel to help file a writ
petition.” All e-mail TrueFiling correspondence is attached hereto as
Exhibit “D”. Garson never heard back from the Superior Court after
serving them with the Verified Petition.
Waring’s family at that point advised Garson that they would
try to raise money for a writ attorney. Garson spent the next week
communicating with 4-5 attorneys about the cost of doing the writ,
even offering to assist them for a small fee. There were no attorneys
willing to take the case for less than $35,000, which Waring’s family
could not afford.
Had Waring been represented by the Public Defender’s Office
or the Alternate Defender’s Office, each of which has its own writ
department, he could have used their resources for purposes of filing
said writ. Garson was unwilling to prepare such writ pro bono. In my
opinion, Waring should not be denied an attorney for a writ merely
because the Public Defender’s Office declared a conflict.
All of the above information was presented to Judge Jonathon
Fish, the judge assigned to hear Waring’s case, on his next court date,
yesterday, May 6, 2019. Judge Fish said he would look into it, and
within 1 ½ hours, Attorney Correen Ferrentino was appointed by the
Superior Court. The court stated the presentation of counsel,
including court exhibits A-D clearly shows that despite efforts by
counsel to be appointed to handle the Writ of Prohibition, and despite
the efforts by counsel to have the Appellate Defenders appointed to
represent Mr. Waring on the writ, neither has happened. He has no
counsel to litigate a writ that he has a right to run. Had either the

13
Public Defender or the Alternate Defender remained on the case, he
would have appropriate counsel. The court finds that to be
adequately represented, Mr. Waring should have writ counsel
appointed to him and hereby appoints Correen Ferrentino.

III.
FACTS FROM EVIDENTIARY HEARING

At all times since Defendant went pro per, the Orange County
Sheriff’s Department (“OCSD”) has been under a Court Order
granting him access to up to two hours of unmonitored, collect calls
per day, in addition to one non-collect call per day of 20 minutes.
Defendant’s Pro Per Court Orders are the same as all other pro pers’,
as that same Order has been utilized by Department C.5 for years
(although modified in 2018 as a result of the instant litigation). [Tx
2/13/18, p. 63, Testimony of Sgt. Walehwa; Tx 12/12/18, Testimony
of Elizabeth Pejeau].4

The pro per sergeant, Sergeant Walehwa testified that he has

never tried to make sure that a pro per’s calls are not monitored, nor
does he ever instruct others on how to comply with the Court Order
[Tx 2/13/18, pp. 77-80, Testimony of Sgt.Walehwa].

Despite knowing that every collect call from a pro per is

recorded, in its various pleadings in other cases, OCSD has argued,
through County Counsel, that the inmate failed to prove his calls were
monitored, that the inmate failed to exhaust his administrative
remedies (as though that were a prerequisite to enforcement of a Court

4
Transcripts of the evidentiary hearing will be provided to the court
upon request.
14
Order and a Constitutional right)5, or that nobody can access the
recorded calls without a warrant (a blatant misstatement of fact).
OCSD has also argued that inmates have “waived” any privilege by
using the telephones after receiving the warning that their calls were
subject to monitoring, as though the inmate had any other means to
enforce the Court Order. Being without counsel to assist, many of
these pro per inmates received abbreviated judicial hearings, and
routinely had their various motions denied, based in part upon false or
misleading representations by County Counsel (such as the warrant
requirement, the fact the inmate never proved his calls were recorded,
or that the inmate didn’t exhaust meaningless and futile administrative
remedies). [Tx 12/12/18, pp. 50-2, Testimony of Elizabeth Pejeau].
From June 21, 2016 through September 17, 2018, all but 138 of
Josh Waring’s 5587 calls made through the GTEL phones were
recorded, meaning 5449 calls were recorded.9 [Tx 11/6/18, p. 108,
Testimony of George McNitt]. Of those 5449, approximately 1358
were completed calls (meaning the call was accepted by the other
party). And of those 1358 recorded, completed calls, approximately
668 were “accessed,” meaning they were either downloaded, burned
to a disc, or listened to directly off the GTEL server.10 [Id.]. All of the
accessed calls from August 8, 2016 through March 4, 2017, which
numbers 655, were eventually burned to a disc and turned over to the
Costa Mesa Police Department (“CMPD”), which is the investigating
agency of the case for which Defendant stands trial. [Id.] Those 655
recorded, completed, and accessed calls are the subject of this hearing.
Those recordings were supplied to CMPD by OCSD upon request of
Investigator Maridakis, the lead investigator in Defendant’s case.
Maridakis’ stated reason for requesting the discs, in June 2016, was

15
that the gun used in the case was not yet located. [Tx 2/13/18, p. 109,
Testimony of Maridakis].

A month or two into the investigation, he told the assigned

Deputy District Attorney, Aleta Bryant, that he was receiving and
listening to Defendant’s jail calls. [Tx 2/13/18, p. 116, Testimony of
Maridakis]. Maridakis testified he learned from the then-assigned
prosecutor, Aleta Bryant, that Defendant had gone pro per on the
instant case (he was still pro per on his other cases). Around
Christmas, 2016, he asked her if it was permissible to continue
listening to Defendant’s telephone calls, and that Defendant was
attempting to call other attorneys (he says he terminated those calls).
She never told him to stop listening. He also discussed Defendant’s
trial strategy that he gleaned from the calls, with Ms. Bryant. [Tx
2/13/18, pp. 118, 125-7, Testimony of Maridakis]. He acted upon
some of the information he obtained. For example, he obtained a
search warrant for a GoPro that was in evidence, based upon things
Defendant said on the calls (Maridakis claimed nothing of value was
located). He also alerted Investigator Westman, the officer who
located a crucial piece of evidence, how Defendant was intending to
counter that evidence at trial. [Tx 2/13/18, pp. 123-4, 133-4,
Testimony of Maridakis]. The current prosecutor, Ms. Nichols,
ordered the cessation of recording shortly after she took over the case,
in April 2017, because, according to Maridakis, nothing of value was
being received, and by then, Defendant probably knew his calls were
being recorded.

A review of just the 44 calls he made from November 29

through December 28, 2016 (while he was pro per and in preliminary

16
hearing) reveals he talked about such subjects as what questions to
ask, what theories of the case he had, what defenses he would hold
back for trial, locating witnesses, dealing with ballistics evidence and
GSR evidence, what motions he wanted to run, and more. Below is a
brief summary of the discussions had just during that time period that
he was pro per on this very case (Exhibit 3A) The majority of the calls
were to Defendant’s mother, while a few were to his father, his
girlfriend, and his grandmother. Some of the information recorded
included discussions about the trajectory issues, questions for
witnesses about the condition of the windows, the speed of the car,
prior inconsistent statements of witnesses, drug usage of a prosecution
witness, potential eye witnesses, DNA, shell casings, ballistics
evidence, time line of events, subpoenas needing to be served, how to
question and impeach prosecution witnesses, third party culpability,
motive evidence, and other trial strategy and tactic information.

IV.
ARGUMENT
In Faretta v. California 422 U.S.806, the Supreme Court held
that a criminal defendant has the right under the Sixth Amendment to
reject court-appointed counsel and conduct his own defense. Faretta,
422 U.S. at 834-36. That right necessarily includes the right of the
defendant to prepare a defense. (See Milton v. Morris 767 F.2d 1443
(9th Cir. 1985) (the right to have access to law books and legal
materials and to a telephone to contact an attorney); Taylor v. List 880
F.2d 1040, 1047 (9th Cir. 1989) (the right to law clerks and law
books).`

17
 A pro per defendant is also afforded the protections of the
work-product privilege. Self-represented litigants, our court of
appeals has ruled in a civil case, “are not entitled to special
exemptions from the California Rules of Court or Code of Civil
Procedure. [citations]. They are, however, entitled to treatment equal
to that of a represented party.... The judge should monitor to ensure
the in propria persona litigant is not inadvertently misled, either by the
represented party or by the court.” Gamet v. Blanchard (2001) 91
Cal.App.4th 1276, 1284.
Code of Civil Procedure §2018.030(a) provides that “A writing
that reflects an attorney’s impressions, conclusions, opinions, or legal
research or theories is not discoverable under any circumstances.”
(See also Penal Code §1054.6). A recording is considered a “writing.”
See Evidence Code §250.
The work-product privilege may also be asserted by a pro se
litigant because the privilege "is intended for the protection of
litigants, not just attorneys. (citing Dowden v. Superior Court (1999)
73 Cal.App.4th 126, 134).” Meza v. H. Muehlstein & Co. (2009) 176
Cal.App.4th 969. Thus, while Defendant was speaking to his family as
his own pseudo attorney, he was clearly relaying impressions,
opinions, theories, and defenses for his case. His conversations were
absolutely protected.
Assuming there was a violation of Defendant’s due process
rights, the next question becomes what is the appropriate remedy? The
court need look no farther than Barber v. Municipal Court (1979) 24
Cal.3d 742. In this case an undercover officer invaded the defense
camp by posing as a codefendant. The trial court had agreed with the
defendant that a remedy was in order, but merely ordered exclusion of

18
the evidence obtained by the undercover officer. However, the
Supreme Court disagreed with the remedy. The court first noted that,
“Whether or not the prosecution has directly gained any confidential
information which may be subject to suppression, the prosecution in
this case has been aided by its agent's conduct....” Barber, supra, 24
Cal.3rd at 756. If, to use Justice Marshall's example, the undercover
officer learned that the accused would use an entrapment defense, he
could plan his testimony so as to minimize his own role and
emphasize the accused's predisposition. (Ibid., fn. 1 [51 L.Ed.2d at p.
45].) And finally, the Barber court noted that “The exclusionary
remedy is also inadequate since there would be no incentive for state
agents to refrain from such violations. Even when the illegality is
discovered, the state would merely prove its case by the use of other,
untainted evidence. The prosecution would proceed as if the unlawful
conduct had not occurred.” The Supreme Court ordered dismissal.
The denial of the motion in this casecauses irreparable harm if
Petitioner is forced to go to trial after the prosecution has learned
significant work product through the recording and monitoring of his
phone calls, despite the superior court order to the contrary. The court
cannot simply unring the bell. And after trial, the presumption of
prejudice shifts from the prosecution to petitioner. In People v.
Glover (1985) 169 Cal.App.3d 689, the prosecutor instructed a jail
deputy to search the defendant’s cell shortly before trial. Trial notes
and witness interviews were seized. The trial court excluded all the
evidence found in the cell, as well as its fruits. On appeal, the
defendant argued the case should have been dismissed. The court of
appeals held that unlike a writ, an appeal after conviction requires a
showing of actual prejudice. Glover was not prejudiced, the court

19
held, because none of the information seized in the cell search was
used at trial, and in fact the defendant put on a different defense than
that indicated in his papers. The court disapproved of the
prosecutor’s tactics, but now that Glover was in the post-conviction
phase, he would have had to show actual prejudice, which he could
not. Id.
Here, the evidence at the hearing demonstrated that, not only
was the assigned investigator listening to the conversations of
Defendant, he focused on those calls made when Petitioner was
engaged in his preliminary hearing, acting as his own attorney. He
conceded the conversations were of a strategy nature, and knew
Petitioner was pro per.
He received the tacit consent of the prosecutor. [Tx 2/13/18, p.
116, Testimony of Maridakis]. He listened to the recordings, turned
them over to the prosecution (who has now made transcripts),
discussed trial strategy he had learned from the calls with the assigned
prosecutor and summarized them in a 41-page report. [Tx 2/13/18, pp.
118, 125-7, Testimony of Maridakis]. The prosecutor has listened to
all of the tapes. And in this case, the evidence shows over 600
completed calls were listen to providing essentially everything the
government knows about Petitioner trial strategy and tactics. Motion
Exhibit E; Tx 2/13/18, p. 109, Testimony of Maridakis.
Because of the systemic disregard for the rights of pro per
inmates, from jail deputies all the way up to Deputy District
Attorneys, there has been a serious, incurable violation of Defendant’s
due process and Constitutional rights. This triggers a burden on the
prosecution to prove that this violation will not prejudice Defendant at
trial.

20
 Defendant claims that the specificity of the phone calls
regarding defense strategy cannot help but cause prejudice. The
prosecutor knows all avenues the defense was exploring. it can use
these illegal recordings as impeachment, it can frame its case to attack
the defense theories, and it can anticipate issues to be presented by the
defense. Nor can the prosecutor or law enforcement “unring the bell”
once it has heard and read about these tapes. This court must grant the
writ of mandate and order Respondent Superior Court to vacate its
order denying the motion, and instead grant the motion to dismiss.

V.
CONCLUSION
For the reasons stated above, Petitioner respectfully requests the
relief prayed for in the Petition be granted.

Dated: May 7, 2019 Sincerely,

FERRENTINO & ASSOCIATES, INC.

/s/Correen Ferrentino
Correen Ferrentino
Attorney for Petitioner Waring

21
 CERTIFICATE OF WORD COUNT

Appellate counsel certifies in accordance with California Rules

of Court, rule 8.204(c) that this brief contains approximately 4,052
words as calculated by the software in which it was written.
I certify under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.

Dated: May 7, 2019 Sincerely,

FERRENTINO & ASSOCIATES, INC.

/s/Coreen Ferrentino
Correen Ferrentino
Attorney for Petitioner

22
 PROOF OF SERVICE

I, SAMUEL RIVAS, hereby declare:

I am employed in the County of Orange, State of California. I

am over the age of 18 and not a party to the within action. My
business address is 949 South Coast Drive, Suite 250, Costa Mesa,
CA, 92626.

On May 7, 2019, I served a true and correct copy of the

PETITION FOR WRIT OF MANDATE on the interested parties in
this action by placing a copy thereof in a sealed envelope with postage
prepaid thereon in the United States Mail at Costa Mesa, California,
addressed as follows:

Honorable Johnathan Fish Joshua Waring

700 Civic Center, Dept. C37 Petitioner
Santa Ana, Ca. 92701
Joshua Waring,
Petitioner
I declare that I electronically filed a copy of this document
through True Filing in compliance with the Court’s Terms of Use, as
shown on the website.

I further declare that I electronically served a copy of the above

document to, Office of the District Attorney at
appellate@da.ocgov.com, Deputy District Attorney John Maxfield at
John.Maxfield@da.ocgov.com, and Defense Attorney Joel Garson
atgarsonlaw@roadrunner.com.

I declare under penalty of perjury that the foregoing is true and

correct. Executed this 7th day of May, 2019, at Costa Mesa,
California.

/s/Samuel Rivas
Samuel Rivas

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