995 Writing Sample - Testimonial Evidence

1 NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995

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VINCENT GARCIA Alternate Public Defender JEFFREY REICHERT Deputy Alternate Public Defender PAULINE VILLANUEVA Certified Law Clerk Office of the Alternate Public Defender 110 West C Street, Suite 1100 San Diego, CA 92101 Telephone: (619) 446-2900 Attorneys for Defendant Bob Jones

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN DIEGO

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs. BOB JONES* (all party names and locations have been changed),

Defendant

CASE NO.: CD123456 DA NO.: ACO789 NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO PENAL CODE SECTION 995; MEMORANDUM OF POINTS AND AUTHORITIES Date: Time: Dept.: Time Est.: Witnesses: 0-3 Trial Date:

TO THE CLERK OF THE ABOVE-ENTITLED COURT, AND TO THE DISTRICT ATTORNEY FOR SAN DIEGO COUNTY:

NOTICE IS HEREBY GIVEN that on the 8th day of November, 2009, at 9:00 a.m., in

Department of the above-entitled court, Mr. Jones will move the court to dismiss Count One pursuant

to Penal Code section 995, on the grounds that the evidence presented at the preliminary examination

was not sufficient to justify a holding order.


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It is anticipated this motion will be based upon this notice, the attached Memorandum of Points

and Authorities, the transcript of the preliminary examination held on September 11, 2009, before the

Honorable Judge Kerry Wells, and oral argument.

The motion will require an estimated 15 minutes to hear, argue and submit.

Dated: October 5, 2009

Respectfully submitted, VINCENT GARCIA Alternate Public Defender ______________________ ________ JEFFREY REICHERT Deputy Alternate Public Defender PAULINE VILLANUEVA Certified Law Clerk


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MEMORANDUM OF POINTS AND AUTHORITIES

ISSUE PRESENTED

Bob Jones has been charged with one count of the sale of a substance other than a controlled

substance, in violation of Health and Safety Code section 11355. At the preliminary examination,

Officer Joe Smith testified as to the results of a lab test, conducted by Lara Leftwich of the San Diego

Police Department Crime Lab. The results were relayed to him by Mary Meadows, another criminalist

at the Crime Lab who had no personal knowledge of the test, but merely read Ms. Leftwich’s report to

Officer Smith. The prosecution was also permitted to enter the actual lab results into evidence.

1. Was the lab report, as well as testimony based upon hearsay concerning the

results, properly admitted as a business record under Evidence Code section 1271?

STATEMENT OF FACTS

On June 5, 2009, Officer Joe Smith was working undercover with the San Diego Police

Department Central Narcotics team. (Preliminary Transcript, “PX,” 3:6-25.) At approximately 6:55

p.m., Officer Smith was working near 200 Main Street in San Diego. (PX 3:23-28.) At the time, he

observed Bob Jones in the area. (PX 4:14-17.) Officer Smith approached Mr. Jones and indicated that

he wanted to purchase rock cocaine. (PX 5:16-27.) Mr. Jones gave Officer Smith a package that, based

on Officer Smith’s training and experience, appeared to be rock cocaine. (PX 6:3-7.) A subsequent

N.I.K. test of the substance, done by Officer Smith, indicated that the substance was rock cocaine. (PX

23:21-26, 26:18-23.) At that time, Officer Smith believed that the offense committed was the sale of

cocaine base. (PX 27:2-5.) The substance was later impounded in the San Diego Police Department

Crime Lab under the tag number 075978. (PX 7:2-9.)

At the preliminary examination, the prosecution called Officer Smith to testify as the

investigating officer. (PX 2:10-16.) Approximately five to ten minutes prior to his testimony, Officer

Smith spoke to Mary Meadows, a criminalist for the San Diego Police Department Crime Lab. (PX

7:10-20.) Ms. Meadows did not prepare the lab report for impound number 075978, which was

prepared by Lara Leftwich, another criminalist at the Crime Lab. (PX 10:18-20, PX 13:27-14:1.)


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8 I

Officer Smith was permitted to testify regarding his conversation with Ms. Meadows pursuant to

Proposition 115, while Ms. Meadows’s statements regarding Ms. Leftwich’s lab report were permitted

under the business records exception pursuant to Evidence Code section 1271. (PX 17:15-18:16.) The

lab results themselves were also admitted into evidence as business records. (PX 31:3-19.) These were

admitted over Mr. Jones’s appropriate objections.

ARGUMENT OF LAW

. THE MOTION TO DISMISS SHOULD BE GRANTED BECAUSE INADMISSIBLE

EVIDENCE PROVIDED THE SOLE BASIS FOR COMMITMENT.

An information will not be set aside nor a prosecution prohibited if there is some rational basis

for believing that there is a possibility that an offense has been committed and the defendant is the

person who is guilty of it. Rideout v. Superior Court (1967) 67 Cal.2d 471, 474. While proof beyond a

reasonable doubt is not necessary, “the burden is on the prosecution to produce evidence that there is a

reasonable probability, enough to induce a strong suspicion in the mind of a man of ordinary caution or

prudence, that a crime has been committed and that the defendant is guilty.” Garabedian v. Superior

Court (1963) 59 Cal.2d 124, 126-127.

Penal Code §995 requires that an information or charge be set aside where the defendant has

been committed without reasonable or probable cause. Pen. Code §995(a)(2)(B). The court may draw

only reasonable inferences from the evidence presented at the preliminary hearing. Williams v. Superior

Court (1969) 71 Cal.2d 1144. Inferences which derive their substance from guesswork, speculation or

conjecture are not reasonable. Birt v. Superior Court (1973) 34 Cal.App.3d 934. A reasonable

inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise,

conjecture, or guess work. People v. Morris (1988) 46 Cal.3d 1, 21.

A finding of fact must be an inference drawn from evidence rather than a mere speculation as to

probabilities without evidence. Ibid.

In this case, any finding of fact was drawn from inadmissible evidence and, as such, the

commitment cannot stand.

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A. The lab report from the San Diego Police Department Crime Lab was generated under circumstances that would cause an objective witness to believe it would be used at trial and thus does not qualify as a business record.

The testimony and the lab results were admitted as business records, within the meaning of

Evidence Code section 1271, which provides an exception to the general hearsay rule. Documents kept

in the regular course of business may ordinarily be admitted at trial despite their hearsay status.

Melendez-Diaz v. Massachusetts (2009) 129 S. Ct. 2527, 2538. However, this exception does not apply

“if the regularly conducted business activity is the production of evidence for use at trial.” Ibid.; see

also Palmer v. Hoffman (1943) 318 U.S. 109.

The Court in Melendez-Diaz dealt with the admissibility of lab reports, similar to those in the

case at hand. Melendez-Diaz, supra, 129 S. Ct. at 2530. It noted that “the sole purpose of the

[documents] was to provide ‘prima facie evidence of the composition, quality, and the net weight of the

composition.” Id. at 2532 (emphasis in original). The Court opined, “We can safely assume that the

analysts were aware of the [documents’] evidentiary purpose[.]” Ibid. Thus, the Court found that the

lab reports in question were generated for the purpose of litigation and would not qualify as business or

public records. Id. at 2538,

Mr. Jones’s case presents a number of similarities. Here, the lab results offered into evidence

were clearly made under circumstances which would lead an objective witness to believe that the

statements would be available for use at a later trial. Melendez-Diaz, supra, 129 S. Ct. at 2532;

Crawford v. Washington (2004) 541 U.S. 36, 52. The San Diego Crime Lab is a division of the San

Diego Sheriff’s Department and the forensic testing was done pursuant to an earlier arrest for sale of a

controlled substance. A criminalist at the crime lab, testing a substance that was believed to be cocaine

base, would be well aware of the evidentiary purpose of the test results. Because the primary purpose

of these results would be to establish or prove some past fact for use in a criminal trial, the results are

testimonial in nature and are not business records within the meaning of Evidence Code section 1271.

People v. Dungo (2009) 176 Cal.App.4th 1388, 1401; see also Melendez-Diaz, supra, 129 S. Ct. at

2538.

The mere fact that there are certain procedures and guidelines for criminalists to follow with

regards to their testing does not automatically render results reliable. As the Court in Melendez-Diaz


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pointed out, “A forensic analyst responding to a request from a law enforcement official may feel

pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”

Melendez-Diaz, supra, 129 S. Ct. at 2536. Consequently, Officer Smith’s testimony that he spoke with

a criminalist who described procedures that are to be followed, without knowing whether those

procedures were in fact followed, does not present any evidence of reliability that would overcome the

inherent untrustworthiness of hearsay statements.

B. There was no other evidence presented at the preliminary examination, other

than inadmissible hearsay, that would support a holding order.

The only evidence presented to support Count One was inadmissible hearsay. Absent Officer

Smith’s testimony and the lab results, there is no reasonable basis for holding Mr. Jones to answer on

this charge. Officer Smith testified that, based on his training and experience, he believed the substance

to be rock cocaine. (PX 6:3-7.) Officer Smith has been a detective in the San Diego Police Department

for eight years and was assigned to the Central Narcotics Team Eight, which is an undercover team that

attempts to purchase narcotics at the street level. (PX 3:7-15.) His formal training with regards to sales

of controlled substances included twelve hours of academy training and eighty hours at the DEA

School of Narcotics Investigators. (PX 3:16-19.) He had been involved in over 200 undercover

operations and had purchased controlled substances in an undercover capacity over 100 times. (PX

3:19-22.) Clearly, Officer Smith’s training and experience is significant and, at the time of the sale, he

believed that what he purchased was a controlled substance. (PX 6:3-7.)

Furthermore, Officer Smith also conducted a chemical test on the substance, known as a N.I.K.

test. (PX 23:21-26.) This was a test he had previously conducted in other purchases, to determine

whether the substance was a controlled substance. (PX 24:4-14.) When he conducted the N.I.K. test in

this case, he was satisfied that the substance he had bought from Mr. Jones was cocaine base and there

was nothing in that test that made Officer Smith think differently. (PX 27:2-12.) Thus, there was no

testimony elicited at the preliminary hearing, other than inadmissible hearsay statements, nor any other

evidence presented to support a charge of sale of a substance other than a controlled substance.

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CONCLUSION

The holding order was based upon inadmissible hearsay evidence presented at the preliminary

examination. There was no other evidence to support a rational basis for the charge of sale of a

substance other than a controlled substance. For these reasons, Mr. Jones respectfully requests that

Count One be dismissed.

Dated: October 5, 2009

Respectfully submitted, VINCENT GARCIA Alternate Public Defender ______________________ ________ JEFFREY REICHERT Deputy Alternate Public Defender PAULINE VILLANUEVA Certified Law Clerk