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Evidentiary / Limine Motions

Evidentiary / Limine Motions

Motion to Admit
  1. 1.Motion to Admit Character of Accused Non-Deviant Sexual Behavior Toward Minors

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    DEFENDANT’S MOTION TO ADMIT CHARACTER OF NON-DEVIANT SEXUAL BEHAVIOR TOWARD MINORS


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       



    • DEFENDANT MOVES TO ADMIT CHARACTER OF NON-DEVIANT SEXUAL BEHAVIOR TOWARD MINORS

    • Evidence of the Accused's Character for Non-Deviant Sexual Behavior Towards Children is Admissible

    In People v. Stoll (1989) 49 C.3d 1136, 265 Cal.Rptr. 111, the California Supreme Court ruled that a defendant could present of good character to show non-commission of a crime.  The court found that the legislature implicitly endorsed lack of deviance as a relevant character trait in a lewd and lascivious conduct case.

    The Absence of a “Disposition” Tends to Prove That Defendant Has Not Committed the Crime. Thus, criminal defendants may use character evidence to prove conduct in conformity with character as provided in Evidence Code §1102.  People v. Stoll, supra at 1159.  This is an exception to the general rule as set forth in Evidence Code §1101 prohibiting use of evidence of a person's s character (by opinion, reputation or specific instances) to prove conduct on a specified occasion. Defendants can offer lack of deviance as circumstantial evidence that a defendant is unlikely to have committed charged acts of molestation.  Ibid.  Stoll contemplates that the testimony is offered by the defendant to suggest that he did not commit the requisite act.  


    • The Accused Can Introduce Lay Opinion Character Evidence Of His Non Deviant Sexual Behavior

    Evidence Code Section 800 provides:


    If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is:

    (a) Rationally based on the perception of the witness; and

    (b) Helpful to a clear understanding of his testimony.

    Lay opinion evidence based on personal observation of defendant's conduct with children is a proper subject of lay opinion testimony and is relevant to a charge of child molest where the opinion is based on long term observation of defendant's consistently normal behavior around children.  People v. McAlpin (1991) 53 C.3d 1289, 283 Cal.Rptr. 382.  

    Testimony of lay witnesses not based solely on specific instances in which the defendant could have molested children, but based on long term personal observation of the defendant's consistently normal behavior with children is admissible.  Ibid.  Testimony that the defendant does not have a reputation for being sexually attracted to young girls is relevant and admissible character evidence in a charge of child molest.  IbidThe rationale behind this is that evidence that the defendant does not have a bad reputation for relevant character trait (sexual deviancy) is admissible as tending to show he has a good reputation for that traitEvidence Code § 1102.  People v. McAlpin, supra.  Reputation evidence is the estimation in which an individual is held.  It is the character imputed to an individual rather than what is actually known of him by the witness or others.  Such testimony does not need to be based on personal observation of the witness.  Id.

    Testimony of character witnesses that the defendant has a reputation as a person of high moral sexual character is also relevant and admissible reputation opinion evidence.  Id. 

    In the case of Holland vs. Zollner (1894) 102 C 633, 638, 36 P 930, the court first established the use of lay opinion to describe various mental and moral aspects of humanity.  These included temper, fear, anger and excitement. “Love, hatred, sorrow, joy, and various other mental and moral operations, find outward expression, as clear to the observer as any fact coming to his observation, but he can only give expression to the fact by giving to him the ultimate fact, and which for want of a more accurate expression, we call opinion.” Ibid. at 638.

    • Conclusion

    Lay witnesses who are familiar with the parties can testify as to their personal opinion as to the defendant's character for sexual non-deviancy toward children.  Lay witnesses can testify as to the defendant's reputation for non-deviant sexual character.

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  2. 2.Motion to Admit Expert Opinion on Suggestibility/Group Think

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

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    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    MOTION TO ADMIT EXPERT TESTIMONY ON GROUP THINK/MASS HYSTERIA SUGGESTIBILITY


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       


    1. INTRODUCTION

    By this motion, the defendant seeks leave of the court to introduce evidence and expert testimony of a form of suggestibility know in the literature as group hysteria, or groupthink.  Dr. Annette Ermshar, Ph.D., an expert on suggestibility and group hysteria will testify.  A written report is in preparation, and will be supplied to the prosecution as soon as it is received by the defense.  

    Group Hysteria, or Groupthink,  has been described as follows:

    Definition:

    Groupthink is a psychological phenomenon that can occur in groups of people. It is the process of creating shared beliefs through the positive reinforcement of distorted facts that are amplified through group dynamics and the mechanism of rumor.  

    The term has been in use since 1952, and is generally defined as “a pattern of thought characterized by self-deception, forced manufacture of consent, and conformity to group values and ethics.”  (https://www.merriam-webster.com/dictionary /groupthink.)  It is also defined as “the practice of thinking or making decisions as a group in a way that discourages creativity or individual responsibility.”  There are scattered references to the term in judicial decisions.  (See, e.g., Dahl v. Bain Capital Partners, LLC (D. Mass. 2013) 937 F.Supp.2d 119, 126 [referring to “group think” mentality].)

    Humans have a strong desire to belong to the group.  The effects of a group dynamic are far reaching in that certain ideas and emotions can start a process of rumor, curiosity, and titillation. “The individuals that comprise the group fail to adequately consider the facts of the situation in order to maintain group cohesiveness.”  (Hogg & Hains, 1998).  In conjunction with this desire, there is often an “in group, out group” mentality, and the “group” may recruit others to go along or reinforce the shared belief.  Rather than critically evaluating information, the group members begin to form quick opinions that match the group consensus.  Mass hysteria can be seen as an extreme example of groupthink.  (Lisa Fritscher, Groupthink, Health Phobias, About.com.)    

    The construct of group think is extremely important to consider with respect to allegations of sexual abuse by children and adolescents.  Adolescents will coalesce with other’s memory reports in order to prevent social embarrassment.  It can arise in the context of a school classroom, team sport, social group, and other social situations where there is a desire to maintain group cohesion.  For instance, in a classroom situation where female students unanimously report inappropriate behavior by a teacher but the males do not, the allegations may reflect the desire on the part of the females to maintain group cohesion (i.e., reporting similar abuse).  Certainly, social pressure is part of group hysteria and schools are ideal places for group influence.  Finally, media and authorities serve to reinforce the story.

    Suggestive interviewing practices can add fuel to the fire of groupthink.  Those who interview children in the context of child abuse rarely explore alternative hypothesis to explain the allegations.  Such authority groups often conduct one-sided interviews seeking to gather information that abuse occurred and ignoring information that abuse did not occur.  The lack of critical examination of the story by those who interview the alleged victims reinforce adherence to the abuse narrative.      

    Examples of Group Hysteria or Groupthink occur regularly in jurisprudence.  The McMartin Preschool prosecutions in Los Angeles are well known.  A short time later, during the ritual sex abuse hysteria in Bakersfield, 14 individuals were sentenced to prison, and subsequently cleared.  (See People v. Pitts (1990) 223 Cal.App.3rd 606; See also MVMO Ritual 

    abuse Cases, Bakersfield/Kern County, CA, religioustolerance.org_baker.htm.)  The Salem Witch Trials of 1691-1693 are another classic example.  Many other well know examples have occurred in school classrooms.  In 1965, in Blackburn, England, several school girls complained of dizziness and some fainted.  Within a couple of hours eighty-five girls were rushed to a hospital suffering from “conversion disorder”--another term for group hysteria--in which physiological symptoms affected their central nervous systems in the absence of a physical cause of illness.  In 2011-2012, in LeRoy, New York, a small town of 7,500, twelve  high school girls developed Tourette like symptoms.  A month or later, in January, 2012, additional students and an adult came forward with similar symptoms.  No medical basis for the symptoms was found.  The symptoms were regarded as a case of mass psychogenic illness—a maladaptive form of a kind of empathy that finds its expression in actual physical sensation.

    1. Expert Testimony Concerning Psychological Conditions That Are Probative On Issues Of Mental State, Credibility, Motive, And To Dispel Possible Juror Misconceptions Regarding A Putative Victim’s Conduct Is Admissible.

    The admissibility of testimony as to psychological concepts, syndromes, and other conditions to explain the conduct of parties and witness is discussed in People v. Phillips (1981) 122 Cal.App.3d 69.  In Phillips, the prosecution introduced, over defense objection, expert testimony on the then obscure and debated condition known as Munchausen 

    Syndrome by Proxy to explain why an otherwise respectable mother would poison her child.  The defense objected that the defendant’s mental condition had not been placed in issue.  

    Appellant argues, “The trial court abused its discretion and committed prejudicial error in permitting expert opinion testimony, in answer to a hypothetical question, on Munchausen syndrome by proxy, where the facts of the question related specifically to appellant and the named victims, where appellant's mental condition was not at issue, and where illness attributed to appellant was not recognized by medical profession.” This composite argument contains several components, which we proceed to analyze. (Id. at p. 82.)

    Appellant suggests this may be the “first time in the history of California criminal jurisprudence in which the prosecution was permitted to put into evidence, as part of its case in chief, the mental condition of the defendant without the issue first being raised either by plea or by the introduction of the defendant's state of mind as part of the defense.” That may be true, but it is hardly persuasive as to the admissibility of such testimony. The rules of evidence do not preclude innovation.

    While a prosecutor ordinarily need not prove motive as an element of a crime (People v. Durrant (1897) 116 Cal. 179, 208, 48 P. 75; People v. Planagan (1944) 65 Cal.App.2d 371, 402, 150 P.2d 927), the absence of apparent motive may make proof of the essential elements less persuasive (People v. Beagle (1972) 6 Cal.3d 441, 450, 99 Cal.Rptr. 313, 492 P.2d 1). Clearly that was the principal problem confronting the prosecutor here. In the absence of a motivational hypothesis, and in the light of other information which the jury had concerning her personality and character, the conduct ascribed to appellant was incongruous and apparently inexplicable. As both parties recognize, Dr. Blinder's testimony was designed to fill that gap. (Id. at pp. 83-84.)

    The defense contends that group hysteria, or groupthink, provides a rational explanation for the complaints in this matter.  The psychological phenomenon of groupthink explains how members of the group could accuse the defendant of sexual abuse, and that the accusations could occur without an apparent motive.  It is imperative that the defendant be allowed to introduce evidence and expert testimony on the psychological phenomenon of groupthink.

    Like expert testimony on the psychological factors affecting eyewitness testimony, factors affecting the reliability of confessions, and obscure diagnoses such as Munchausen by proxy, the phenomenon of groupthink is “’sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’”  (People v. Gardeley (1996) 14 Cal.4th 605.)  Dr. Ermshar will testify that the criteria for suggestibility, conformity, and group think are present within the facts of this case.  (Cf. People v. Nunn (1996) 50 Cal.App.4th 1357, 1365 [psychological expert is permitted to testify that a particular setting could have caused a defendant to react impulsively because of his psychological condition].)  

    Dr. Ermshar will testify that factors such as media attention to child abuse, repeated parental questioning of sexual allegations, suggestive interviewing techniques, and peer discussions are significant factors that increase suggestibility.  She will testify that studies have shown that social conformity is a large influencing factor on memory and the blending/reconstruction of memory.  She will base her opinion on existing psychological research on suggestibility and group dynamics.  Several studies have demonstrated that research participants will change their answers or opinions to conform to the majority response.  For instance, in a study involving eyewitnesses, Gabbert, Memon, and Allan (2003) demonstrated that the least confident in their eyewitness experience were the most likely to accept a confident person’s experience.

    Dr. Ermshar will testify that studies have shown that human relationships play an important role in influencing memory, with familiar relationships being more influential than opinions held by strangers.  However, the desire to maintain conformity may arise even amongst groups of strangers.  In particular, a study by Walther et al. (2002) demonstrated that anonymous group members can affect an individuals’ ability to accurately recall previously seen information especially where recognition of the circumstances of the event or stimulus were unclear or unmemorable.  In the experiment, the researchers found no evidence that motivational influences affected the participant’s judgments. 

    The effect of groupthink in the context of multi-victim child abuse cases is analogous to cases involving group false confessions such as the Central Park jogger case.  In the infamous Central Park jogger case, interrogators took advantage of the age of the defendants and social pressure to extract false confessions from five teenage boys.  Adolescents susceptibility to social influence, i.e., the desire to be accepted by peers and conform to the group expectations, can result in a “coerced-internalized” confession in which the suspect or group of suspects actually believe that they are guilty.  (See, S.M. Kassin & K.L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation (May 1996) Vol. 7, No. 3, Psychological Science, pp. 125-128. )  Similarly, children and adolescents in their desire to belong may develop an empathic connection to the group to such an extent that they come to believe that they have been molested and be symptomatic as such.  

    It has been consistently demonstrated that children are suggestible to a significant degree, even on abuse related questions, to suggestive questioning techniques often found in the record of interviews found in criminal cases like repetition, guided imagery, and selective reinforcement interviewing techniques.  (Kennedy v. Louisiana, 554 U.S. 407, 443–44, 128 S. Ct. 2641, 2663, 171 L. Ed. 2d 525, as modified (Oct. 1, 2008), opinion modified on denial of reh'g, 554 U.S. 945, 129 S. Ct. 1, 171 L. Ed. 2d 932 (2008).  Experiments have shown that children subjected to biased interviews or suggestive tactics often make false reports that are consistent with interviewer biases and suggestions rather than their actual experiences.  See, e.g., Ceci & Bruck, The Suggestibility of the child witness: A historical review and synthesis, Psychological Bulletin, 113, 403-409 (1993), and Ceci, S.J. & Bruck, M., Jeopardy in the Courtroom: A scientific analysis of children’s testimony (Amer. Psych. Assoc. Press, Washington, D.C. 1995); State v. Michaels (N.J. 1994) 642 A.2d 1372.  Groupthink can be powerfully influential on a child’s report because it draws from several well-known factors that in combination raise the possibility of a false accusation:  (1) “stereotype induction”--the process of conveying negative characteristics of a suspect; (2) information about abuse is derived from a trusted source (parent, peer, or even the media); (3) information from peers that can shape not only what the child believes but also what he or she “remembers” about his or her own experience; (4) children’s tendency to conform their beliefs to adult expectations; and (5) “imagination inflation” where a child feels puzzled by some difficulty he or she is having (e.g., depression, difficulty with peer relationships, body image) and attempts to imagine how the difficulty might have occurred, hears about how some other child or teen who developed similar problems after a history of abuse, wonders if the same thing might have happened to him or her, imagines various childhood scenarios, and asks whether those scenarios involving abuse feel “right” or “true” or “familiar.”  (Daniel Reisberg, The Science of Perception and Memory: A Pragmatic Guide for the Justice System (Oxford University Press 2014) pp. 259-266; Ceci & Bruck, Jeopardy in the Courtroom, supra, pp. 146-152.)  

    Moreover, the defendant must be allowed to introduce expert testimony to counter popular misconceptions that children’s report of sexual abuse cannot be the product of suggestion, and the natural inclination people have to believe the accuser if others come forward with similar accusations.  The perception that an allegation of child abuse could not possibly be the product of suggestion or intimidation has its roots in the opprobrium the public feels for the crime of child sexual abuse, the notion that children are innocent, that sexual matters are beyond children’s understanding (it was presumed that children who possessed adult vocabulary to describe sexual organs were molested), fears generated by the media of an epidemic of child abuse or sexual assault, and the relatively high frequency of self-reported victims of child sexual abuse in the U.S. population with some 20-27% of women and 5-16% of men claiming to have been sexually abused as children.  [National Center for Victim’s of Crime- https://victimsofcrime.org/child-sexual-abuse-statistics; see also United States Dept. of Justice, National Sex Offender Public Website; Paul & Shirley Eberle, The Politics of Child Abuse (Lyle Stuart Inc. 1986), p. 14).  

    In the 1980’s and 1990’s, there were “we believe the children” political campaigns in response to expressions of doubt about the plausibility of therapist aided recovered memories of ritual sexual abuse in high profile child abuse cases such as the McMartin Preschool case.  See, e.g., Richard Beck, We Believe the Children: A Moral Panic in the 1980’s (Public Affairs 2015) [chronicling the hundreds of false allegations during the day care hysteria of the 1980’s and 90’s]; Ceci & Bruck, Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony (Amer. Psych. Assoc. 1995) at p. 29 [concluding “that children’s allegations involving satanic ritualistic abused are unfounded.”].  There was a tremendous surge in the reporting of child sexual abuse in the 1980’s.  (L.A. Times, Feb. 17, 1985, at 2, col. 1 [reports increased by 35% in 1984 nationwide, and statewide increases reached levels of 126%].  Organizations like Stronger Legislation Against Child Molestors (S.L.A.M.) successfully lobbied state legislators to increases sentences for child sexual abuse.  The “we believe the children” campaigns had a powerful impact on the culture.  Legislation was adopted permitting the introduction of child hearsay statements.  (See Evid. Code, ' 1360 [adopted 1995].)  The scientific research of Drs. Ceci & Bruck in the 1990’s challenged these assumptions because it showed that children’s reports of sexual abuse could be generated by certain methods of questioning.  Defendant must be allowed to introduce expert testimony to counter popular misconceptions and demonstrate the unreliability of the reports of child abuse in this case.  Expert testimony on the suggestibility of child witnesses has been widely accepted in the courts.  (U.S. v. Rouse (8th Cir. 1997) 111 F.3d 561, 571; State v. Kirschbaum (Wis. App. 1995) 535 N.W.2d 462 [195 Wisc.2d 11].)

    For the past 30 years numerous courts of appeal have held that expert testimony about the common characteristics of sexually abused children is admissible to rehabilitate a child’s credibility when the defense suggests that his or her conduct after the incident is inconsistent with having been abused.  (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 & fn. 4 [citing collected cases]; People v. Gray (1986) 187 Cal.App.3d 213, 219-220; People v. Wells (2004) 118 Cal.App.4th 179.)  The evidence is admissible for the purpose of disabusing a jury of possible misconceptions it might hold about how a child reacts to and reports molestation.  (People v. Wells, supra, 118 Cal.App.4th at p. 188.)  In Gray, supra, the Court of Appeal observed that “testimony based on general literature or experience as to the reluctance of molest victims, as a class, to talk to investigators’ [citation] or to discuss the intimate details of the incidents” is admissible as bona fide rebuttal.  (People v. Gray, supra, 187 Cal.App.3d at p. 219.)

    Likewise, expert testimony on the phenomenon of groupthink or group hysteria should be admissible when the prosecution argues that disclosures by multiple children reinforces the credibility of each child making a disclosure.  In the absence of expert testimony on groupthink, jurors are likely to give undue credence to the sheer number of disclosures instead of evaluating the quality of each disclosure.  The exclusion of defendant’s evidence of groupthink would be akin to leaving the people of LeRoy without a psychological explanation for Tourettes-like symptoms suffered by their high school girls.  Without an explanation of the phenomenon of group hysteria, the parents of LeRoy would have been left to believe an external environmental toxin was the cause of their childrens’ Tourettes-like symptoms.  Similarly, without evidence of groupthink, the jury in this case will be left to believe in an external cause, i.e., sexual abuse, when in fact there may be a better psychological explanation.  

    THE RIGHT TO OFFER THE TESTIMONY OF A WITNESS IS A FUNDAMENTAL

    ELEMENT OF SIXTH AMENDMENT COMPULSORY PROCESS AND FOURTEENTH AMENDMENT DUE PROCESS OF LAW

    The United States Supreme Court and California Supreme Court look with disfavor upon trial court rulings that limit the ability of an accused to present defense testimony.  In People v. Wright (1985) 39 Cal.3d 576, the California Supreme Court stated that “‘trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight.’”  (People v. Wright, supra, 39 Cal. 3d 576, 584–85 quoting People v. Murphy (1963) 59 Cal.2d 818, 829.)  The federal and state high courts are particularly concerned with evidentiary rulings that infringe upon a defendant’s 14th Amendment rights to compulsory process and the right to present a defense.

    "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment . . . or in the compulsory process or confrontation clause of the Sixth Amendment. . . the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" (California v. Trombetta (1984) 467 US 479, 485; Crane v. Kentucky (1986) 476 US 683, 690.) The federal constitution requires that the defendant be allowed to present all relevant evidence of significant probative value to the defense.  (Chambers v. Mississippi (1973) 410 U.S. 284, 302, 93 S.Ct. 1038; People v. Reeder (1978) 82 Cal.App.3d 543, 553.)  

    It has been held that a defendant’s right to present the testimony of critical witnesses and important defense evidence is so encompassing that it takes precedence over statutory rules of evidence making persons incompetent as witnesses (Washington v. Texas (1967) 388 U.S. 14 [exculpatory accomplice testimony]; Rock v. Arkansas (1987) 483 U.S. 44 [hypnotically refreshed defense testimony]; Durr v. Cook (5th Cir. 1979) 589 F.2d 891, 893 [juror affidavits]), state statutory privileges (Davis v. Alaska (1973) 415 U.S. 308, 317-318 [right to cross-examination overrides state policy concerning the anonymity of a juvenile offender]; People v. Hammon (1997) 15 Cal.4th 1117 [defendant’s 6th Amendment right to confrontation at trial takes precedence over psychotherapist-patient privilege], and state rules of evidence excluding certain classes or types of as inherently unreliable or unscientifically proven (State v. Dorsey (N.M. 1975) 87 N.M. 323, 532 P.2d 912). 

    The California Supreme Court has long recognized the right of a defendant to present exculpatory evidence in the form of expert psychological testimony.  For instance, in People v. Stoll (1989) 49 Cal.3d 1136, at page 1152, the Supreme Court reaffirmed the holding in People v. Jones (1954) 42 Cal.2d 219, that it is prejudicial error to exclude "expert opinion testimony that the defendant is 'not a sexual deviate' where offered to prove that he did not commit lewd and lascivious acts upon a child."  Stoll specifically found that such testimony is within the boundaries of Evidence Code sections 802 and 1102.  (Id., at 1152-1154; see, e.g., People v. Spigno (1957) 156 Cal.App.2d 279, 286-287; People v. McAlpin, supra, 53 Cal.3d 1289, 1305.)  

    A court is permitted to limit or exclude expert testimony if it is based on matter of a type on which an expert cannot reasonably rely.  (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769-772;  Evid. Code, '' 801, 802.)  A finding of general acceptance in the scientific community is not required for testimony on a medical or psychological condition or syndrome.  (People v. Perez (2010) 182 Cal.App.4th 231, 243-244 [CSAAS]; People v. Bledsoe (1984) 36 Cal.3d 236, 247-248 [rape trauma syndrome]; Roberti v. Andy’s Termite & Pest Control, Inc. (2003) 113 Cal.App.4th 893, 901 [new theory of medical causation that relied upon no new novel techniques not subject to Kelly].)  The methods employed by Dr. Ermshar are not new to psychology or the law but are based upon data and methods normally used by psychologists for their opinions.  The bases for her opinion is readily available literature, both scientific and empirical, that describes the phenomenon of groupthink and relates that research to the facts of this case.  The opinion is not subject to exclusion under Kelly because it is based upon scientific techniques or machines that pose an aura of infallability that a trier-of-fact is unable to evaluate.  

    The United States Supreme Court has found reversible error in the exclusion of psychological testimony.  In Skipper vs. South Carolina (1986) 476 U.S. 1, the court found error in the trial court's exclusion of evidence by a visitor and two jailers that the defendant had made a "good adjustment" while in jail.  Because the evidence involved no predictions of future conduct the court felt that their opinions were reliable and should have been admitted in the guilt phase.   

    USE OF A MENTAL CONDITION FOR IMPEACHMENT

    A defendant has a constitutional right to be able to adequately cross-examine a witness.  A defendant "...has the right to expose to the jury the facts from which jurors, as sole triers of fact and credibility, could proximately draw inferences relating to the reliability of the witness."  (Davis vs. Alaska (1974) 415 US 308, 318.) This includes the right to show that a government witness's testimony was the product of a mental illness.  (U.S. vs. Lindstrom (4th Cir. 1983) 698 F.2d 1154.)  

    The defendant's right to confrontation outweighs the witness's interest in medical privacy.  In Reese vs. State (1983) 54 Md.App. 281, 458 A.2d 492, the court cited Lindstrom, supra, as authority for the proposition that the defendant could probe the witness's psychological problems even though medical examiners claimed it would be stressful.

    Davis vs. Alaska, supra, gives a defendant the constitutional right to cross-examine to elicit facts probative of a witness's faulty memory.  (Latzer vs. Abrams (E.D.N.Y. 1985) 602 F.Supp. 1314, 1319.)  The California Supreme Court has recognized that in sex violation cases the courts have established “more liberal rules of impeachment than those otherwise applicable” including delving into the mental or emotional condition of the complainant.  (Ballard v. Superior Court of San Diego County (1966) 64 Cal.2d 159, 172-173 [superseded in part by Pen. Code, ' 1112 [prohibiting court ordered psychological examination of complaining witness].)  In People v. Neely (1964) 228 Cal.App.2d 16, at page 20, the court recognized that the appellant was entitled to have the jury informed of the mental and emotional instability of the prosecuting witness through the expert medical testimony of the doctor in charge of her case.

    EVIDENCE CODE § 352 BOWS TO DEFENDANT'S DUE PROCESS RIGHT TO PRESENT A DEFENSE


    In People v. Reeder (1978) 82 Cal.App.3d 543, prejudicial error was found in the trial court's exclusion of evidence proffered on a theory of motive.  The defendant proffered evidence that his co-defendant had reneged on a $200.00 debt to him, caused his step-daughter to contract TB and tried to introduce her to heroin, and had introduced his nephew to heroin and almost killed him through overdose.  The defense theory was that defendant, having knowledge of these actions by his co-defendant, disliked him to the point where he would not have conspired with him in the charged narcotic violations.  The trial court excluded his evidence based on inadmissible hearsay, it’s doubtful relevancy, and by operation of Section 352.  (Reeder, supra, 82 CA3d 543, 550.)

    On appeal, the court held that "in criminal cases, any evidence that tends to support or rebut the presumptions of innocence is relevant", since "it is fundamental in our system of jurisprudence that all of a defendant's pertinent evidence should be considered by the trier of fact."  (Reeder, supra, 82 Cal.App.3d 543, 552 [citations omitted, emphasis added.)  The court found that defendant had the right to show he believed what others had told him about the co-defendant and the proffered evidence supported his defense of such intense dislike for his co-defendant as to preclude him from engaging in a criminal conspiracy with him (Id. at p. 550.)

    "Evidence Code Section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.  In Chambers v. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, it was held that the exclusion of evidence, vital to a defendant's defense, constituted a denial of a fair trial in violation of constitutional due-process requirements.”

    (Reeder, supra, at p. 553 [Emphasis added]).

    In Olden v. Kentucky (1988) 488 U.S. 227 [109 S.Ct. 480,102 L.Ed.2d 513], the complaining witness claimed she had been raped by the defendant while the defendant claimed the sex was consensual.  At trial, the prosecution made an in limine motion to exclude evidence of the complaining witness's relationship with a boyfriend who saw her alight from a car with the defendant. The defendant argued that the complaining

    witness concocted the rape story to protect her relationship with her boyfriend. The trial court excluded the evidence finding that its probative value was outweighed by the possibility for prejudice to the complaining witness because she was Caucasian and her boyfriend was African American and the relationship might stir prejudice in some of the jurors.  Olden held that the trial court had violated the defendant's right to confrontation, because the evidence of the relationship would have supported the defense theory that the victim had a motive to falsify the rape charge. (Id., at pp. 231-232.)

    CONCLUSION

    The defense is prepared to present expert testimony on the phenomenon known as Groupthink and how the facts of the instant case present a scenario in which groupthink could have arisen.  Groupthink is a form of suggestibility that applies to a group.  Under the authority above, to exclude such testimony would be to deprive the defendant of his Sixth Amendment rights to compulsory process and to confrontation, and his 14th Amendment due process right to present his defense.  Under these authorities, the exclusion of the proposed expert testimony would result in a reversal on appeal.


    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  3. 3.Motion to Admit Complaining Witness's/Victim's Sexual Conduct (Evid. Code 782)

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    MOTION UNDER EVIDENCE CODE §782 TO ADMIT PRIOR SEXUAL KNOWLEDGE & ACTS OF VICTIM



    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       



    1. MOTION UNDER EVIDENCE CODE §782 TO ADMIT PRIOR SEXUAL KNOWLEDGE & ACTS OF VICTIM

    1. Introduction

    A defendant generally cannot question a sexual assault complaining witness about her prior sexual activity.  However, where such history reveals both a motive to lie and facts that mirror the allegations in the instant case, the history is relevant and admissible (1) to challenge the complaining witness’ credibility about the allegations, (2) to challenge the witness’ aura of veracity, and (3) to permit the defendant his right to present a defense. See, People v. Woodward (2004) 116 Cal.App.4th 821, 831.



    1. Evidence Sought to be admitted is not “sexual conduct of the complaining witness” within the Meaning of Evidence Code §782

    The hearing requirements of Evidence Code §782 apply only to “sexual conduct of the complaining witness.”  Here, the acts sought to be admitted by the Defense are [INSERT EVIDENCE TO BE ADMITTED].

    Penal Code § 311 provides a broad definition of “sexual conduct,” but still does not encompass the conduct of LC the Defense seeks to admit here:


    “sexual conduct” means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288[], or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct. 

    The suggestive acts here are not overtly sexual, but they are substantially similar to the acts CG accuses Defendant of i.e. above the clothes touching of her genital area with his hand.  They are thus directly relevant and at issue providing compelling evidence of CG lack of truthfulness and shedding light on what actually occurred. 

    Accordingly, the defense makes this motion only out of an abundance of caution.


    1. Even if CG’s Behavior is Deemed “Sexual Conduct” Within the Meaning of §782, It Should Nonetheless be Admitted 

    Evidence Code §782(a) provides for an in camera review when evidence of the “sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780....(4)... if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.”  

    Evidence Code §780 provides in relevant part “the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:...(e) His character for honesty or veracity or their opposites... (i) The existence or nonexistence of any fact testified to by him.”  The Defense seeks to admit CG’s sexualized conduct precisely to attack her credibility and to demonstrate that her accusation of inappropriate touching against Defendant is false. 

    In People v. Daggett (1990) 225 Cal. App. 3d 751, 757, 275 Cal. Rptr. 287, 290, the appellate court reversed the defendant’s conviction due to the trial court's failure to allow him to present evidence that the victim had been molested by older children when he was five.  The court held:

    A child’s testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them.

    In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant.  [***8]  Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted.

    Here, Daggett's offer of proof was that he learned, from an inspection of the prosecutor's file, Daryl told a mental health worker and Doctor Slaughter that he had been molested by two older children, ages eleven and eight, when he was five years old. This should have been sufficient for the court to have ordered a hearing to determine whether the acts of prior molestation were sufficiently similar to the acts alleged here. The court erred when it failed to do so.

    The error was compounded when the prosecutor argued to the jurors that if they believed Daryl molested other children, he must have learned that behavior from being molested by Daggett. This is the type of argument the excluded evidence was intended to refute.

    Daggett, 225 Cal. App. 3d 757, 275 Cal. Rptr. 290.

    The acts sought to be admitted are extremely similar to the acts LC accuses Defendant of. That is, in the first instance, Defendant extricating his hand palm down from between CG’s legs after she climbed over him and straddled his arm and, in the second, the charged conduct of over the clothes touching of her genital area.

    1. CG’s Conduct is Admissible Evidence of Character Under Evidence Code §1101

    The prior sexual conduct of the complaining witness, which is evidence of a person's character or trait of character, is admissible under Evidence Code §1101(c) to support or attack his or her credibility.  The prohibition stated in subsection (a) applies to character evidence only when it is offered to prove the conduct of a complaining witness on a specified occasion.

    In our case, the defense seeks to attack the alleged victim’s credibility, and is thus entitled under §1101(c) to employ evidence of her prior sexual conduct (if indeed is it “sexual conduct”) as evidence to attack her credibility and explain the truth of what occurred. People v. Franklin (1994)  25 Cal. App. 4th 328, 335, 30 Cal. Rptr. 2d 376, 380. 

    1. Evidence Code §1103(c) does not Bar Admission of the CG’s Prior “Sexual Conduct” Because Such Evidence Will Not be Offered to Prove Her Consent

    Evidence Code §1103(c)(1) states, as a general proposition, that “opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness's sexual conduct...is not admissible by the defendant in order to prove consent by the complaining witness.”  However, Evidence Code §1103 does NOT bar evidence of a victim's sexual conduct (nor cross-examination of her concerning such conduct) when the evidence is offered to attack her credibility.  Evidence Code §1103(c)(3) & (4); People v. Chandler (1997) 56 CA4th 703, 711; People v. Blackburn (1976) 56 CA3d 685, 689-690.

    Once the defendant makes a sworn offer of proof concerning the relevance of the sexual conduct of the complaining witness to attack her credibility, the protections of §1103 give way to the procedural safeguards of §782.  People v. Rioz (1984) 161 CA3d 905, 916.

    1. Evidence Code § 352

    Generally, cross examination to test the credibility of a prosecution witness should be given wide latitude.  People v. Belmontes (1988) 45 Cal.3d 744, 780.)  “[C]ross-examination is the principle means by which the believability of a witness and the truth of his testimony are tested.” Farrell L. v. Superior Court (1988) 203 CA3d 521, 526.  “In sex cases, broad cross-examination of the prosecuting witness on prior sexual experiences, fabrication and sexual fantasy should be allowed."  People v. Francis (1970) 5 CA3d 414, 417.

      In People v. Reeder (1978) 82 CA3d 543, 550, the court held that “in criminal cases, any evidence that tends to support or rebut the presumptions of innocence is relevant,” since “it is fundamental in our system of jurisprudence that all of a defendant's pertinent evidence should be considered by the trier of fact.”  (Id., at p. 552.)  The court found that defendant had the right to show he believed what others had told him about the co-defendant and the proffered evidence supported his defense of such intense dislike for his co-defendant as to preclude him from engaging in a criminal conspiracy with him (Reeder, supra, at p. 550) and stated: “Evidence Code Section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.  In Chambers vs. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, it was held that the exclusion of evidence, vital to a defendant's defense, constituted a denial of a fair trial in violation of constitutional due-process requirements.?”  Id., at p. 553.

    1. Due Process Require that Evidence of Defendant's Alternative Explanations of CG’s Knowledge of Sex be Admitted Before the Jury

    In child molest cases, the conclusion is routinely drawn that the victim got his or her knowledge of sex from the defendant while being molested.  We learned the hard way in the infamous McMartin case in Los Angeles that this conclusion is not always true.  Children can be “taught” such matters by being repeatedly questioned using questions full of information about sexual acts.  Children can “learn” such matters in a number of ways although this fact is often overlooked.  If no alternative explanation is permitted by the court, juries will automatically presume that the defendant provided the child with knowledge of sex through the alleged illegal acts.

    As quoted above, in People v. Daggett, supra, the appellate court recognized this presumption and its inherent dangers and found that the defense should have been allowed to elicit the victim's prior sexual history to refute it.  The failure to allow the defendant to establish the victim's alternative source of knowledge compelled reversal.  (225 CA3d at p. 758.) 


    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  4. 4.Motion to Admit Prior False Claims by Complaining Witness/Victim

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 


    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    MOTION TO ADMIT PRIOR FALSE CLAIMS OF COMPLAINING WITNESS



    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       

    TO: THE CLERK OF THE COURT AND SUMMER STEFFAN, THE DISTRICT ATTORNEY OF SAN DIEGO COUNTY OR HER AUTHORIZED REPRESENTATIVE 

    Defendant’s central defense is that the complaining witness Noah W made up the allegations of sexual assault, amongst other reasons, to appease his mother and avoid the discussion of his sexual orientation.  Mr.  ________ was an easy target because Jill _______hates Mr. _______________________ and wants full custody of all her children.  Jill took lead in the investigation and like she had done two other times in the past, structured a false allegation of sexual abuse against a third man.  Jill _______________________’s lack of credibility is a central theme of Mr. _______________________’s defense, and he must be given wide latitude to present her pattern of lies, deceptions and previous allegations of sexual assault against other men whom she believed did her wrong, despite no evidence supporting her allegations.


    POINTS AND AUTHORITIES


    I.

    THIS COURT SHOULD PERMIT THE DEFENSE WIDE LATITUDE IN CHALLENGING JILL _________________’ CREDIBILITY

    Jill _______________________ has a pattern of making false allegations and her credibility is central to the defense in the instant case.  Specifically, the defense asserts that Ms. _______________________ has a longstanding grudge against Mr. _______________________ and relying on such, Jill _______________________ has insisted Noah move forward with these false allegations in retaliation for a failed and abusive relationship. As there is no corroborating evidence – no biological evidence, no admissions, no confessions, no witnesses, and a host of inconsistent statements; the Prosecution’s entire case rests on the credibility of Jill _______________________ and Noah _______________________.

    The instant offense represents the third person Asha has accused of sexual assault 

    II.

    JILL _______________________ HAS A LONG HISTORY OF DISHONEST CONDUCT AND CANNOT BE BELIEVED IN THE INSTANT MATTER

    Evidence Code section 780 states, “except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: …(b) the character of his testimony; (e) his character for honesty or veracity or their opposites.  Addressing §780, CalCrim 226 provides a laundry list of permissible considerations including: (1) whether the witness’s testimony is influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided; (2) what the witness’s character for truthfulness reveals and (3) whether the witness has engaged in [other] conduct that reflects on her believability?  In addition, the jury is instructed to consider whether a witness deliberately lied about something significant and if so, “[they] should consider not believing anything that witness says…”

    Generally, past misconduct involving moral turpitude or dishonesty is admissible to impeach a witness in a criminal trial.  People v. Wheeler (1992) 4 Cal.4th 284; People v. Dalton (2019) 7 Cal.5th 166 (Dalton).  A defendant has a constitutional right to due process, to present a complete defense and to confront and cross examine those witnesses against him.  A denial of such important Constitutional principles is prejudicial under Chapman v. California (1967) 386 U.S. 18, 24 and People v. Watson (1956) 46 Cal.2d 818.  In particular, “evidence of a prior false report of molestation or rape is relevant to the credibility of the victim.”  People v. Miranda (2011) 199 Cal.App.4th 1403; see also People v. Franklin, (1994) 25 Cal.App.4th 328.   

    In People v. Randle (1982) 130 Cal.App.3d 286, 294, the defense had evidence of the complainant's reputation for and specific instances of soliciting for public sex acts.  They also had reputation evidence for dishonesty and theft including specific instances.  The court held that the complainant had a trait of making false allegations of crimes being committed against her.  This evidence tended in reason to prove that she was acting in conformity with that trait when she made the allegation in the instant case. Id.   Such evidence cannot be used to prove consent.  It must be introduced to impeach credibility.  

    In People v. Varona (1983) 143 Cal.App.3d 566, the complainant claimed she was accosted by defendant on a certain street and forced her to engage in intercourse and oral copulation.  The defense was consent.  Proof of complainant's prior sexual conduct could not be introduced as tending in reason to prove consent.  (Evidence Code Section 1103).  However, under Evidence Code Section 782 her status as a convicted prostitute on probation was admissible.  The evidence tended to cast doubt on the credibility of her testimony regarding why she was on that street at that time and whether the oral copulation was voluntary or involuntary.  The proffered evidence showed that she "worked" that street and her "specialty" was oral copulation.  The evidence was offered to impeach her testimony on issues other than consent.

    The issue in People v. Adams (1986) 198 Cal.App.3d 10, was whether evidence that on a prior occasion complainant had alleged to her friend that her boyfriend (not defendant) had raped her.  The court reversed the order of conviction because it was “error to exclude otherwise admissible evidence that the victim had on two occasions falsely accused others of rape” Id. at 18.  Such evidence does not fall within the scope of section 782: The instance of conduct being placed before the jury as bearing on credibility is making of the false statement, not the sexual conduct which is the content of the statement.  “Even though the content of the statement has to do with sexual conduct, the sexual conduct is not the fact from which the jury is asked to draw an inference about the witness’s credibility.  The jury is asked to draw an inference about the witness’s credibility from the fact that she stated as true something that was false.” Franklin, supra, 25 Cal.App.4th at p. 335.  

    In Green v. Knipp, 2014 U.S. Dist. LEXIS 106814 the defendant attempted to impeach the victim using the victim’s previous retracted allegation that she was molested by a man other than the defendant. Upon questioning, the victim "said she made the whole thing up."  The trial court allowed Green to question the victim about her prior accusations against Green and the appellate court affirmed.  They noted that in California, a previous false report of sexual assault can be used to impeach the complaining witness in a sex crime case as long as the cross-examiner can show that the prior accusation was actually false.  

    Here, the victims of such false allegations will testify that her accusations were false.  Such testimony is necessary to lay the foundation required under the rules of evidence.  

    The fact that a witness stated something that is not true as true is relevant to the witness's credibility whether she fabricated the incident or fantasized about it. [P] The evidence, therefore, constitutes 'any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing,' including the extent of the witness's capacity to perceive, to recollect, or to communicate any matter about which he or she testified, the extent of the witness's opportunity to perceive any matter about which he or she testified and the existence or nonexistence of any fact testified to by the witness. ([Evid. Code,] § 780, subds. (c), (d) & (i).)" ( Franklin, supra, 25 Cal.App.4th at pp. 335-336.)  Past false complaints of rape are relevant impeachment evidence.  People v. Pacheco (1963) 220 Cal.App.2d 320.  In a rape prosecution, the defendant attempted to introduce evidence that the complainant had threatened to cry rape on her boyfriend if he didn't leave her alone.  The court concluded that this was a specific act to prove a trait.  The court held that collateral evidence (the prior allegation) of specific instances of complainant's non-sexual conduct as proof of a character trait tending to disprove the truthfulness of trial testimony is allowed. People v. Wall (1979) 95 Cal.App.3d 978.

    CONCLUSION

    Mr. _______________________’s defense is that Noah _______________________ made up the allegations of sexual assault to appease his mother and “help her win the case”.  Ms. Jill _______________________ furthered the false allegation by insisting that Noah prosecute and has driven the prosecution ever since. Her credibility is central to the prosecution’s case and decidedly important to the defense.  As such, the defense must be permitted wide latitude to challenge her credibility by introducing evidence relevant to establishing her long pattern of lies, including those committed under penalty of perjury.

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant


    DECLARATION OF [ATTORNEY’S NAME]

    I, [ATTORNEY’S NAME] declare:

    1. I am an attorney duly licensed to practice law in the State of California.  I am the attorney for the defendant [name of defendant]  in this matter. 
    2. Attached hereto as Exhibit 1, are true and correct copies of 

    I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.


    Executed in _____________, CA on ___________________________.



    _______________________

    [ATTORNEY’S NAME]

     

  5. 5.Motion to Admit Evidence of Parental Alienation

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 


    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    MOTION TO ADMIT PRIOR FALSE CLAIMS OF COMPLAINING WITNESS



    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       

    TO: THE CLERK OF THE COURT AND SUMMER STEFFAN, THE DISTRICT ATTORNEY OF SAN DIEGO COUNTY OR HER AUTHORIZED REPRESENTATIVE 

    Defendant’s central defense is that the complaining witness Noah W made up the allegations of sexual assault, amongst other reasons, to appease his mother and avoid the discussion of his sexual orientation.  Mr.  ________ was an easy target because Jill _______hates Mr. _______________________ and wants full custody of all her children.  Jill took lead in the investigation and like she had done two other times in the past, structured a false allegation of sexual abuse against a third man.  Jill _______________________’s lack of credibility is a central theme of Mr. _______________________’s defense, and he must be given wide latitude to present her pattern of lies, deceptions and previous allegations of sexual assault against other men whom she believed did her wrong, despite no evidence supporting her allegations.


    POINTS AND AUTHORITIES


    I.

    THIS COURT SHOULD PERMIT THE DEFENSE WIDE LATITUDE IN CHALLENGING JILL _________________’ CREDIBILITY

    Jill _______________________ has a pattern of making false allegations and her credibility is central to the defense in the instant case.  Specifically, the defense asserts that Ms. _______________________ has a longstanding grudge against Mr. _______________________ and relying on such, Jill _______________________ has insisted Noah move forward with these false allegations in retaliation for a failed and abusive relationship. As there is no corroborating evidence – no biological evidence, no admissions, no confessions, no witnesses, and a host of inconsistent statements; the Prosecution’s entire case rests on the credibility of Jill _______________________ and Noah _______________________.

    The instant offense represents the third person Asha has accused of sexual assault 

    II.

    JILL _______________________ HAS A LONG HISTORY OF DISHONEST CONDUCT AND CANNOT BE BELIEVED IN THE INSTANT MATTER

    Evidence Code section 780 states, “except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: …(b) the character of his testimony; (e) his character for honesty or veracity or their opposites.  Addressing §780, CalCrim 226 provides a laundry list of permissible considerations including: (1) whether the witness’s testimony is influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided; (2) what the witness’s character for truthfulness reveals and (3) whether the witness has engaged in [other] conduct that reflects on her believability?  In addition, the jury is instructed to consider whether a witness deliberately lied about something significant and if so, “[they] should consider not believing anything that witness says…”

    Generally, past misconduct involving moral turpitude or dishonesty is admissible to impeach a witness in a criminal trial.  People v. Wheeler (1992) 4 Cal.4th 284; People v. Dalton (2019) 7 Cal.5th 166 (Dalton).  A defendant has a constitutional right to due process, to present a complete defense and to confront and cross examine those witnesses against him.  A denial of such important Constitutional principles is prejudicial under Chapman v. California (1967) 386 U.S. 18, 24 and People v. Watson (1956) 46 Cal.2d 818.  In particular, “evidence of a prior false report of molestation or rape is relevant to the credibility of the victim.”  People v. Miranda (2011) 199 Cal.App.4th 1403; see also People v. Franklin, (1994) 25 Cal.App.4th 328.   

    In People v. Randle (1982) 130 Cal.App.3d 286, 294, the defense had evidence of the complainant's reputation for and specific instances of soliciting for public sex acts.  They also had reputation evidence for dishonesty and theft including specific instances.  The court held that the complainant had a trait of making false allegations of crimes being committed against her.  This evidence tended in reason to prove that she was acting in conformity with that trait when she made the allegation in the instant case. Id.   Such evidence cannot be used to prove consent.  It must be introduced to impeach credibility.  

    In People v. Varona (1983) 143 Cal.App.3d 566, the complainant claimed she was accosted by defendant on a certain street and forced her to engage in intercourse and oral copulation.  The defense was consent.  Proof of complainant's prior sexual conduct could not be introduced as tending in reason to prove consent.  (Evidence Code Section 1103).  However, under Evidence Code Section 782 her status as a convicted prostitute on probation was admissible.  The evidence tended to cast doubt on the credibility of her testimony regarding why she was on that street at that time and whether the oral copulation was voluntary or involuntary.  The proffered evidence showed that she "worked" that street and her "specialty" was oral copulation.  The evidence was offered to impeach her testimony on issues other than consent.

    The issue in People v. Adams (1986) 198 Cal.App.3d 10, was whether evidence that on a prior occasion complainant had alleged to her friend that her boyfriend (not defendant) had raped her.  The court reversed the order of conviction because it was “error to exclude otherwise admissible evidence that the victim had on two occasions falsely accused others of rape” Id. at 18.  Such evidence does not fall within the scope of section 782: The instance of conduct being placed before the jury as bearing on credibility is making of the false statement, not the sexual conduct which is the content of the statement.  “Even though the content of the statement has to do with sexual conduct, the sexual conduct is not the fact from which the jury is asked to draw an inference about the witness’s credibility.  The jury is asked to draw an inference about the witness’s credibility from the fact that she stated as true something that was false.” Franklin, supra, 25 Cal.App.4th at p. 335.  

    In Green v. Knipp, 2014 U.S. Dist. LEXIS 106814 the defendant attempted to impeach the victim using the victim’s previous retracted allegation that she was molested by a man other than the defendant. Upon questioning, the victim "said she made the whole thing up."  The trial court allowed Green to question the victim about her prior accusations against Green and the appellate court affirmed.  They noted that in California, a previous false report of sexual assault can be used to impeach the complaining witness in a sex crime case as long as the cross-examiner can show that the prior accusation was actually false.  

    Here, the victims of such false allegations will testify that her accusations were false.  Such testimony is necessary to lay the foundation required under the rules of evidence.  

    The fact that a witness stated something that is not true as true is relevant to the witness's credibility whether she fabricated the incident or fantasized about it. [P] The evidence, therefore, constitutes 'any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing,' including the extent of the witness's capacity to perceive, to recollect, or to communicate any matter about which he or she testified, the extent of the witness's opportunity to perceive any matter about which he or she testified and the existence or nonexistence of any fact testified to by the witness. ([Evid. Code,] § 780, subds. (c), (d) & (i).)" ( Franklin, supra, 25 Cal.App.4th at pp. 335-336.)  Past false complaints of rape are relevant impeachment evidence.  People v. Pacheco (1963) 220 Cal.App.2d 320.  In a rape prosecution, the defendant attempted to introduce evidence that the complainant had threatened to cry rape on her boyfriend if he didn't leave her alone.  The court concluded that this was a specific act to prove a trait.  The court held that collateral evidence (the prior allegation) of specific instances of complainant's non-sexual conduct as proof of a character trait tending to disprove the truthfulness of trial testimony is allowed. People v. Wall (1979) 95 Cal.App.3d 978.

    CONCLUSION

    Mr. _______________________’s defense is that Noah _______________________ made up the allegations of sexual assault to appease his mother and “help her win the case”.  Ms. Jill _______________________ furthered the false allegation by insisting that Noah prosecute and has driven the prosecution ever since. Her credibility is central to the prosecution’s case and decidedly important to the defense.  As such, the defense must be permitted wide latitude to challenge her credibility by introducing evidence relevant to establishing her long pattern of lies, including those committed under penalty of perjury.

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant


    DECLARATION OF [ATTORNEY’S NAME]

    I, [ATTORNEY’S NAME] declare:

    1. I am an attorney duly licensed to practice law in the State of California.  I am the attorney for the defendant [name of defendant]  in this matter. 
    2. Attached hereto as Exhibit 1, are true and correct copies of 

    I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.


    Executed in _____________, CA on ___________________________.



    _______________________

    [ATTORNEY’S NAME]

     

Motion to Exclude
  1. 1.Motion to Exclude Lawful Adult Sexual Conduct by Defendant

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    DEFENDANT MOTION TO EXCLUDE EVIDENCE OF LAWFUL ADULT SEXUAL CONDUCT


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       



    1. DEFENDANT MOVES TO EXCLUDE EVIDENCE OF LAWFUL ADULT SEXUAL CONDUCT

    1. Introduction

    [INSERT RELEVANT FACTS]

    1. Evidence to be Excluded

    Defendant moves the Court for an order excluding the following evidence of Adult Sexual Conduct including:

    1. The prosecution be precluded from introducing any evidence of Defendant’s adult with adult sexual conduct.
    2. The prosecution be precluded from questioning Defendant (if he elects to testify) concerning his sexual conduct with other adult(s).  This includes, but is not limited to affairs with other adults, adult sexual preference with adults, adults with adult types of sexual acts, and adult with adult sexual frequencies.
    3. The prosecution be precluded from questioning Defendant’s spouse if she/he testifies concerning their adult sexual conduct.
    4. The prosecution be precluded from arguing that the lack of adult with adult sexual conduct is the motive for adult with child sexual conduct.

    The evidence to be excluded includes, but is not limited to all of the following: [INSERT EVIDENCE TO BE EXCLUDED]

    Relevance

    Only relevant evidence is admissible at trial.  Evidence Code § 350.  “Relevant evidence” means testimony or physical objects, including evidence bearing on the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of an action.  Evidence Code § 210; People vs. Scheid (1997) 16 Cal.4th 1.  A court has no discretion to admit irrelevant evidence.  People vs. Crittenden (1994) 9 Cal.4th 83, 132.   Evidence which produces only speculative inferences is irrelevant evidence.  People vs. De La Plane (1979) 88 Cal.App.3d 223, 242.  Whether or not evidence is relevant is a decision within the trial court's discretion.  People vs. Von Villas (1992) 10 Cal.App.4th 201, 249.  The trial court abuses its discretion in admitting evidence when it can be shown under all the circumstances that it exceeded the bounds of reason.  (People vs. De Jesus (1995) 38 Cal.App.4th 1, 32.  

    1. Court’s Discretion

    Defendant incorporates by reference the above subsection by the same name. 


    1. Defendant's Non-Criminal Sexual Contacts with Other Adults is Irrelevant to the Present Charges.

    In People vs. Kelley (1967) 66 C2d 232 (disapproved on another ground, People v. Alcala (1984) 36 Cal.3d 604, 624), decided when oral copulation and anal sex between consenting adults was an illegal act, the defendant was charged with having orally copulated and masturbated an eight-year-old boy.  Over objection, the prosecution introduced evidence that twenty-four years before defendant was orally copulated by a male and that he committed acts of oral copulation with his first and second wife.  The California Supreme Court reversed the conviction because of the erroneous admission into evidence of the prior sexual acts between consenting adults:


    It is not the law that other offenses are admissible whenever a specific intent is required to be proved. Such a rule should particularly be avoided in 288 cases where evidence of the lewd and lascivious acts themselves normally carry a strong inference that they were done with the specific intent of arousing sexual desires. [¶]  Moreover, in the present case, the other offenses here involved are not, as required by Coltrin and as existed in Malloy and Honaker, "of a similar nature" to the crime charged. The prior offenses were committed with consenting adults and with persons quite dissimilar to the prosecuting witness and involved distinctly different conduct on the part of the defendant. The experience with the man 24 years ago, in addition to being too remote in time to have any reasonable bearing on the act charged, did not involve oral conduct on the part of the defendant, and the experience with his wives, occurring between consenting adults of the opposite sex in the privacy of the marriage bed, certainly cannot be relevant enough to the seduction of an 8-year-old boy to outweigh its prejudicial effect upon the jury.

    Kelley, 244-45, 957.

    This ruling is stronger today in light of the decriminalization of all types of sex between consenting adults.

    People vs. Thomas (1978) 20 C3d 457 at 466 (overruled on other grounds in People v. Tassell (1984) 36 Cal.3d 77, 87-88 and fn. 8) reaffirmed the California Supreme Court’s ruling that adult with adult sexual acts are inadmissible in child molest cases because the persons are quite dissimilar.  It also acknowledging that “although alleged sex offenses committed with persons other than the prosecuting witness are often unreliable and difficult to prove, nevertheless such evidence is admissible to show a common design or plan where the prior offenses (1) are not too remote in time, (2) are similar to the offenses charged, and (3) are committed upon persons similar to the prosecuting witness.”

    Similarly, in United States vs. Gillespie 852 F2d 475 (9th Cir. 1988) the defendant was charged with child molestation.  The prosecution introduced evidence that the defendant (an adult) and his adoptive father (an adult) had a homosexual relationship.  The prosecution introduced the evidence on the theory that it showed appellant's motive, intent, plan and design to bring the child victim into the U.S. for molestation purposes.  The defendant's conviction was reversed because of the introduction of evidence of his homosexual contact with another adult.  

    The court explained:


    The evidence neither proved nor disproved that the appellant molested the child.  It was offered to show that the men differed from what they held themselves out to be, but none of the testimony about their sexual relationship helped the trier of fact decide whether the appellant was guilty of the offense.  (Id., at p. 478.)


    In short, Defendant's non-criminal sexual contacts with other adults are not relevant to establish that committed the charged offense(s) and are therefore inadmissible.

    Adults are not “persons similar to the prosecuting witness” in a child molest case, thus all evidence of Defendant's non-criminal sexual conduct with adults should be excluded as irrelevant.


    1. The Accidental/Incidental Mention by a Defense Witness of the Defendant's Sexual Contacts with Adults Does not Open the Door to Further Evidence on That Subject

    If any witness accidentally/incidentally mentions the defendant’s sexual activities with adults, the door to further evidence on that subject has not “opened.”  “By allowing objectionable evidence to go in without objection, the non-objecting party gains no right to the admission of related or additional otherwise inadmissible testimony.  The so-called ‘open the door’ or ‘open the gates argument is a ‘popular fallacy.’  (Citation Omitted).” People vs. Gambos (1970) 5 Cal.App.3d 187; People vs. Williams (1989) 213 Cal.App.3d 1186, 1189, fn. 1; People vs. Valentine (1988) 207 Cal.App.3d 697, 705 [government's purported impeachment of defendant was an improper rebuttal to a collateral matter improperly raised on cross-examination].

    1. Conclusion

    Defendant respectfully requests to exclude all references to any and all lawful adult sexual conduct by Defendant as it relates to Defendant as all such evidences is because adults are a different class of individuals when it comes to sexual conduct as stated in the case law and adult with adult affairs are irrelevant, an undue waste of time and/or substantially more prejudicial than probative. Evidence Code §§ 210, 350, 350.1, 352.

    / / /

    / / /


    1. DEFENDANT MOVES TO ADMIT CHARACTER OF NON-DEVIANT SEXUAL BEHAVIOR TOWARD MINORS

    1. Evidence of the Accused's Character for Non-Deviant Sexual Behavior Towards Children is Admissible

    In People v. Stoll (1989) 49 C.3d 1136, 265 Cal.Rptr. 111, the California Supreme Court ruled that a defendant could present of good character to show non-commission of a crime.  The court found that the legislature implicitly endorsed lack of deviance as a relevant character trait in a lewd and lascivious conduct case.

    The Absence of a “Disposition” Tends to Prove That Defendant Has Not Committed the Crime. Thus, criminal defendants may use character evidence to prove conduct in conformity with character as provided in Evidence Code §1102.  People v. Stoll, supra at 1159.  This is an exception to the general rule as set forth in Evidence Code §1101 prohibiting use of evidence of a person's s character (by opinion, reputation or specific instances) to prove conduct on a specified occasion. Defendants can offer lack of deviance as circumstantial evidence that a defendant is unlikely to have committed charged acts of molestation.  Ibid.  Stoll contemplates that the testimony is offered by the defendant to suggest that he did not commit the requisite act.  


    1. The Accused Can Introduce Lay Opinion Character Evidence Of His Non Deviant Sexual Behavior

    Evidence Code Section 800 provides:


    If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is:

    (a) Rationally based on the perception of the witness; and

    (b) Helpful to a clear understanding of his testimony.

    Lay opinion evidence based on personal observation of defendant's conduct with children is a proper subject of lay opinion testimony and is relevant to a charge of child molest where the opinion is based on long term observation of defendant's consistently normal behavior around children.  People v. McAlpin (1991) 53 C.3d 1289, 283 Cal.Rptr. 382.  

    Testimony of lay witnesses not based solely on specific instances in which the defendant could have molested children, but based on long term personal observation of the defendant's consistently normal behavior with children is admissible.  Ibid.  Testimony that the defendant does not have a reputation for being sexually attracted to young girls is relevant and admissible character evidence in a charge of child molest.  IbidThe rationale behind this is that evidence that the defendant does not have a bad reputation for relevant character trait (sexual deviancy) is admissible as tending to show he has a good reputation for that traitEvidence Code § 1102.  People v. McAlpin, supra.  Reputation evidence is the estimation in which an individual is held.  It is the character imputed to an individual rather than what is actually known of him by the witness or others.  Such testimony does not need to be based on personal observation of the witness.  Id.

    Testimony of character witnesses that the defendant has a reputation as a person of high moral sexual character is also relevant and admissible reputation opinion evidence.  Id. 

    In the case of Holland vs. Zollner (1894) 102 C 633, 638, 36 P 930, the court first established the use of lay opinion to describe various mental and moral aspects of humanity.  These included temper, fear, anger and excitement. “Love, hatred, sorrow, joy, and various other mental and moral operations, find outward expression, as clear to the observer as any fact coming to his observation, but he can only give expression to the fact by giving to him the ultimate fact, and which for want of a more accurate expression, we call opinion.” Ibid. at 638.

    1. Conclusion

    Lay witnesses who are familiar with the parties can testify as to their personal opinion as to the defendant's character for sexual non-deviancy toward children.  Lay witnesses can testify as to the defendant's reputation for non-deviant sexual character.

    .

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  2. 2.Motion to Exclude Opinions of Truthfulness of Complaining Witness/Victim

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    DEFENDANT’S MOTION TO EXCLUDE WITNESS OPINIONS THAT ALLEGED VICTIM(S) ARE BEING TRUTHFUL


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       


    DEFENDANT MOVES TO EXCLUDE WITNESS OPINIONS THAT ALLEGED VICTIM(S) ARE BEING TRUTHFUL


    • Orders Requested by Defendant 

    Defendant moves for a protective order that:

    1. Parents of the alleged victim(s), police officer(s), psychiatrist(s), psychologist(s), Child Protective Services worker(s), counselor(s), or any other witness (hereinafter referred to as "witnesses") shall not be asked by the District Attorney their opinion on the truthfulness of the alleged victim(s)' allegations.
    2. Said individuals not be permitted to testify that the alleged victim appeared to be truthful.
    3. The District Attorney shall be instructed to caution all witnesses prior to their testimony that the witnesses shall not volunteer their opinion on the truthfulness or the appearance of the alleged victim(s)' allegations.

    • Police Officers May Not Testify as to their Opinion Whether a Victim Reported A Crime Truthfully or Appeared to be Truthful

    A police officer's testimony regarding the truth or veracity of a complainant is not admissible.  This is because the officer's statements do not qualify as either character evidence or as lay or expert opinion.  (People vs. Sergill (1982) 138 Cal.App.3d 34, 187 Cal. Rptr. 497 [case involving a prosecution for oral copulation with a minor].)  

    In Sergill, the trial court permitted two police officers to testify to the effect that the eight-year-old victim was telling the truth when she reported that defendant, her uncle, had sexually molested her.  Defendant's conviction was reversed because the testimony of the two officers has been improperly admitted.  (Id., at p. 41.)

    The Sergill court found that the officers were not qualified to testify to the victim's reputation for honesty since they did not know her and were unaware of any such reputation.  There was no basis to admit their testimony as to her truthfulness as expert opinion because nothing in the record established the officers as experts in judging truthfulness.  Their testimony was not admissible as lay opinion because they had described their interview with her in detail and their opinions as to her truthfulness did not meet the statutory requirement of being helpful to a clear understanding of her testimony.  Further, the court found such testimony irrelevant as it did not fall within any of the categories set forth in Evidence Code section 780, enumerating factors bearing on credibility.  (Id., at pp. 38040.)  For the same reasons, any police officer's opinion of the victim's testimony herein is inadmissible.  The holding of Sergill has been endorsed by other courts.  (See e.g., People vs. Melton (1988) 44 Cal.3d 713, 744; People vs. Smith (1989) 214 Cal.App.3d 904, 915.)

    A lay witness may “describe [his] interviews with [the witness] in detail, leaving the factfinder free to decide. . .credibility for itself, based on such factors as his demeanor or motives, his background, his consistent or inconsistent statements on other occasions, and whether his statements. . . had the essential ring of truth.”  (People v. Melton, supra, 44 Cal.3d at pp. 744-745.)  Thus, a lay witness may state that a witness appeared fearful or sincere.  However, for a lay witness to testify that the alleged victim “appeared to be” telling the truth is the ultimate conclusion to be drawn from all the circumstances, including his conduct and demeanor and is thus inadmissible lay opinion pursuant to Melton and Sergill.


    • A Psychiatrist's Testimony on the Credibility of a Witness is also Inadmissible for the Above Reasons and, More Importantly, Because the Jury May Place too Much Reliance on it

    People vs. Manson (1976) 61 Cal.App.3d 102, 132 Cal. Rptr. 265, discussed the question whether a psychiatrist should be allowed to give his opinion concerning the veracity of a witness.  Manson and his co-defendants relied on Ballard vs. Superior Court (1966) 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.d 838, to demand that Kasabian, a prosecution witness, be examined by a court-appointed psychiatrist to determine her competency and credibility.  The court in finding no necessity for such examination discussed the Ballard provision for appointment of a psychiatrist to examine a prosecution witness in a sex offense case concerning the veracity of the witness.  The court noted: 

    While we do not suggest that Ballard is necessarily limited to cases involving sex offenses, we here accept the admonition that a psychiatrist's testimony on the credibility of a witness may involve many dangers; the psychiatrist's testimony may not be relevant; the techniques used and theories advanced may not be generally accepted; the psychiatrist may not be in any better position to evaluate credibility than the juror; difficulties may arise in communication between a psychiatrist and a jury; too much reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists may cloud rather than clarify issues; the testimony may be distracting, time consuming, and costly. People vs. Russell (1968) 69 Cal.2d 187, 195, 70 Cal.Rptr. 210, 443 P.2d 794, Cert.Denied 393 U.S. 864, 89 Sup.Ct. 145, 21 L.Ed.2d 132.” 

    People vs. Manson, supra, 61 Cal.App. 3d at pp. 137-138.

    Since Ballard and its progeny have since been overruled by Penal Code Section 1112 and the sound logical reasons for not accepting a psychiatrist's testimony on the credibility of a witness still stand, psychiatrists and other like experts must not be allowed to give an opinion as to whether an alleged victim is telling the truth.  

    Applicable case law is in accord.  For example, in People v. Coffman and Marlowe (2004) 34 Cal.4th 1, 82, a psychologist’s opinion that she believed a child abuse victim told the truth during an interview was inadmissible.  In People vs. Willoughby (1985) 164 Cal.App.3d 1054 at p. 1070, 210 Cal. Rptr. 880 at 890, in which the defendant's conviction was reversed, the court held that on retrial, evidence of a sexual trauma expert on the subject of the victim's truthfulness about the alleged act would be inadmissible.  In People vs. Ainsworth (1988) 45 Cal.3d 984, a psychiatrist who testified in a co-defendant's case as to that individual's capacity to form the requisite mental state for the crime charged was permitted to testify that he found no evidence of premeditation and deliberation and that he felt that the co-defendant had been forthright in relating the events to him and was feigning or trying to cover up anything.  (Id., at p. 1011.)  The reviewing court found such testimony relevant to the reliability of the doctor's conclusions and distinguished it from the situation where a psychiatrist is asked to assess a witness's ability to testify truthfully, "We agree that, in such cases, where the sole purpose of the psychiatric examination and testimony relates to the credibility of a witness, the psychiatrist may not testify to the ultimate question of whether the witness is telling the truth on a particular occasion."  (Id., at p. 1012.)  Ainsworth was cited with approval in People vs. Castro (1994) 30 Cal.App.4th 390, 396, in which the appellate court upheld the trial court's refusal to allow the defense to elicit testimony from the victim's psychologist that the victim had stated her claim that the defendant had molested her was false.  As the court stated, "Because defendant's offer of proof was narrowly directed at the truth of Sarah's molestation allegation, the trial court had no discretion to admit the proffered evidence."  (Id., at p. 396.).

    There has been no case allowing expert testimony or lay opinion that the victim is truthful about the alleged act.  People vs. Stoll (1990) 49 Cal.3d 1136, 265 Cal.Rptr. 111 dealt with the personality profiles of defendants, under Evidence Code § 1102.  In that case, a psychologist's opinion testimony, based upon interviews and standardized tests, was competent but disputable "expert opinion," rather than new "scientific" evidence that had to be proven reliable before it was admitted, was permitted.  As indicated however, Stoll pertained to defendants, not victims, and thus it does not disturb the settled area of law on which this motion is based.

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    1. DEFENDANT MOVES TO EXCLUDE ANY AND ALL POLYGRAPH REFERENCES

    1. Evidence to Be Excluded

    Defendant moves to exclude any reference to polygraphs or lie detectors including, but not limited to the following  : [INSERT EVIDENCE TO BE EXCLUDED]

    Transcript of October 30, 2018 Interview of Defendant by Detective Diller at page 10. Also see Incident Report, Bates 28).

    As they apply to polygraph evidence, Defendant incorporates by reference the above discussions of relevance, Evidence Code § 352, Court’s Discretion and accidental/incidental mention not opening the door for admission.

    1. Polygraph Evidence is Inadmissible

    Evidence Code § 351.1 regarding polygraph Examinations, provides:

    1. Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post-conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.

    1. b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.

    Since polygraph evidence is itself inadmissible per Evidence Code § 351.1, it follows that any reference thereto is inadmissible as irrelevant and should be excluded.  

    1. DEFENDANT MOVES TO EXCLUDE POST MOLESTATION SYMPTOMS OF ALLEGED VICTIM (VICTIM IMPACT EVIDENCE)

    •  The Prosecution May Not Introduce Victim Post-Molestation Behavior and Statements to Prove an Alleged Molestation Actually Occurred

    Opinion testimony on rape trauma syndrome and Child Abuse Accommodation Syndrome is inadmissible to prove that an alleged victim was sexually attacked but may, in keeping with certain narrow parameters, be admitted to support the credibility of a witness.  (People vs. Bledsoe (1984) 36 Cal.3d 236, 203 Cal. Rptr. 450; In re Sara M. (1987) 194 Cal.App.3d 585. Thus, it is improper to prove that a crime had occurred based on symptoms that the alleged victim exhibited post-crime.  

    These symptoms include but are not limited to: 1) Disorientation; Stress; Agitation; Fear; Anxiety; Subdued; Controlled; Flashbacks; Denial; Relives incident; Insecurity; Nightmares; Trauma; Mistrust.  Bledsoe, supra, 36 Cal.3d at p. 242-243 and: 2) Consistency of story; Denial; Unusual sexual knowledge; Feeling of loss of control;  Anger; Depression; Behavioral problems; Sleep disturbances; Nightmares; Eating disorders; False sense of maturity; Trust too much; Trust too little; Fear; Details given over time. In re Sara M., 194 Cal.App.3d at p. 589.

    People vs. Jeff (1988) 204 Cal.App.3d 309, 251 Cal. Rptr. 135 is controlling.  In that case the prosecution presented one expert witness who described the alleged complainant's post-molest symptoms, including nightmares, crying, depression, low self-esteem, and helplessness.  The prosecution then presented a second witness to explain these symptoms as evidence of child molest.  Neither witness was called for the purpose of rehabilitating the complaining witness.  (Id., at p. 338.)  The defense objected to the first witness on the ground that it was evidence of post-molest emotions used to prove that the molestation had occurred and objected to the second witness testimony as improper opinion testimony under People vs. Bledsoe, supra and In re Sara M., supra.  The trial court held each witnesses' testimony was admissible with respect to the symptoms exhibited by the complaining victim, but that neither witness would be allowed to state her opinion regarding whether a molestation had in fact occurred.  The Court of Appeal found the admission of such testimony and the trial court's attempt to limit its import ran afoul of the proscriptions set forth in Bledsoe, supra, and its progeny and reversed the defendant's conviction:


    It is not significant the prosecutor told the jury Susan Holland would merely describe symptom she observed and “[a]ny conclusion that is to be drawn will be yours.”  In effect and result, the prosecutor, by what he apparently believed was a brilliant subterfuge, engaged in the exact conduct, here condoned by the trial court, that was proscribed in Bledsoe, Gray and In re Sara M.  The challenged testimony was not offered to rehabilitate a wavering or equivocal Gypsy.  Rather, it told the jury that they should accept gypsy's version of these events as true, that she was a victim, molested over a three-year period by defendant, because here is now typical child molest victims act and Gypsy fits the mold perfectly.


    People vs. Jeff, supra, 204 Cal.App.3d at p. 340.

    That the testimony concerning a complaining witness's post molest symptoms does not come from an expert does not make it admissible.  In In re Christie D. (1988) 206 Cal.App.3d 469, 253 Cal. Rptr. 619, the court held that the non-expert status of witness opinion concerning the sex play with anatomical dolls did not make the play admissible.  (Id., at pp. 478-480.)  The play with anatomical dolls was not relevant to establish a molestation had occurred since there was no study showing its reliability as a predictor whether the opinions interpreting the play were formed by the expert or the trier of fact.  Therefore, since experts cannot form opinion interpreting post-molest symptoms as a predictor of molest, the non-expert status of the witness does not cure the problem.

         

    • Alleged Post-Molestation Symptoms are Inadmissible as Improper Victim Impact Evidence Absent a Theory of Relevance

    Victim impact evidence, i.e., post-molest symptoms, is inadmissible at the guilt phase of a trial unless relevant to a specific disputed issue in the case.  For example, in People v. Redd (2010) 48 Cal.4th 691, the victim’s testimony concerning the permanency of his injuries was deemed relevant to a charged great bodily injury enhancement.  (Id., at p. 731-732.)  In People v. Taylor (2001) 26 Cal.4th 1155, 1171, a doctor’s testimony about the victim’s injuries and loss of bodily functions was held relevant to show the extent of said injuries and confirm he could accurately recall the incident.  

    / / / 

    Generally, victim impact evidence (or victim impact argument by the prosecution) at the guilt phase is inadmissible as having little probative value and great prejudicial effect.  In People v. Vance (2010) 188 Cal.App.4th 1182, the defendant’s murder conviction was reversed where the prosecutor made a victim impact argument during his argument to the jury.  The court noted that such argument is banned at the guilt phase, stating, “The justification for both of these exclusionary policies is that they deal with subjects that are inherently emotional, possessing an unusually potent power to sway juries, and that their use must therefore be rigidly confined and controlled.”  (Id., at 1193.)  

    Other jurisdictions are in accord.  See Colon v. Georgia (2005) 619 S.Ed.2d 773 [victim impact evidence in child molest case admissible to rebut defendant’s attack on credibility of child victim]; United States v. Copple (3rd Cir. 1994) 24 F.3d 535, 546 [error to admit victims’ testimony about negative effects of defendant’s fraud on their health and savings, such testimony was more prejudicial than probative]; Sager v. Maass (D.C. Ore. 1995) 907 F. Supp. 1412, 1419-1420 [ineffective assistance of trial counsel for said counsel to introduce at guilt phase victim’s entire written victim impact statement, which was a “prejudicial piece of evidence”]; Armstrong v. State (Wyo. 1992) 826 P.2d 1106, 1116 [“Consideration of victim-impact testimony or argument remains inappropriate during proceedings determining the guilt of an accused”]; Miller-El v. State (Tex. Crim. App. 1990) [in an attempted murder case, a victim’s paraplegic disability hardship held inadmissible in the guilt phase: “We cannot agree, however, that [Dr.] Harrison’s testimony regarding Hall’s future hardship as a paraplegic had any tendency to make more or less probably the existence of any fact of consequence at the guilt stage of trial”].

    Based on these authorities, victim impact evidence in this case must be excluded unless the prosecution can articulate a theory of relevance and this Court conducts the necessary balancing of interests under Evidence Code section 352.     

    / / /

    / / /

    / / /

    / / 

    • Evidence Code § 352 Precludes Testimony of Post-Molest Symptoms (Victim Impact Testimony), Further, the Admission of Such Evidence Would Violate Defendant’s Federal Constitutional Right to Due Process and a Fair Trial

    Evidence Code § 352 permits the trial court in its discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial impact, if it will consume an undue amount of time, confuse the issues or mislead the jury.  “The prejudice which [section] 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [Citations] Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation].  People vs. Harris (1998) 60 Cal.App.4th727 (internal quotation marks omitted).

    Testimony of a victim’s post-molest symptoms cannot be used to establish the molestation occurred, is extraneous to the case, highly prejudicial and will engender undue sympathy for her and hence antipathy for the defendant.  In finding that such evidence had been erroneously admitted, the Third Circuit Court of Appeals in Copple, supra, explained:


    Testimony such as this had either no, or very little probative value and was unfairly prejudicial.  We believe that it was irrelevant either for the purposes of proving that Copple had failed to make up the loss to the funeral directors or for any other reason. Even if there had been some marginal relevance to the testimony about the particular personal or professional impact the losses had on the funeral directors, its principal effect, by far, was to highlight the personal tragedy they had suffered as victims of the scheme.  The testimony was designed to generate feelings of sympathy for the victims and outrage toward Copple for reasons not relevant to the charges Copple faced.  It arguably created a significant risk that the jury would be swayed to convict Copple as a way of compensating these victims wholly without regard to the evidence of Copple’s guilt.

    United States v. Copple, supra, 24 F.3d at 546.

    Further, such evidence may result in an undue consumption of time.  For example, if the victim were to testify to having nightmares or to being withdrawn, the defense on cross-examination will have the right to search for alternate explanations which would include everything that ever happened to the child that could cause these symptoms making for an endless trial.  

    Defendant further submits that the admission of post-molest symptoms/victim impact evidence in this case would violate his constitutional rights to due process and a fair trial under the 5th, 6th and 14th Amendments to the U.S. Constitution and article 1, sections 7 and 15 of the California Constitution.  (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 [reversal of murder conviction because of other crimes evidence of the defendant’s knife collection and fascination with knives violated federal due process where that evidence was irrelevant to the crime charged]; Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 887 [same]; Clark v. Duckworth (7th Cir. 1990) 906 F.2d 1174 [the defendant has a federal constitutional right to a trial free of irrelevant and prejudicial evidence].)


    • If This Court Permits the Prosecution to Admit Evidence of The Victim's Post-Molest Symptoms, Then it Must Allow the Defense To Offer Evidence Of Alternative Explanations for Those Symptoms.

    Should this court allow the prosecution to admit evidence of the complaining witness's alleged post-molest symptoms as a valid predictor of a crime, due process compels it to allow the defense to present evidence of alternative explanations for those symptoms.  (People vs. Reeder (1978) 82 Cal.App.3d 543, 550; People vs. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.)  As stated in Reeder:

    Evidence Code Section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.  In Chambers vs. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, it was held that the exclusion of evidence, vital to a defendant’s defense, constituted a denial of a fair trial in violation of constitutional due process requirements.

    Reeder, supra at p. 553, emphasis added.

    Depending on what symptoms are presented there may be many alternative explanations in this case.  For example, LC is known to have a host of mental issues. RC has a known learning disability.  CG has a known serious heart condition

    • Conclusion

    Based on the foregoing, the prosecution should be excluded from presenting evidence of the alleged complainant's post-molest symptoms as a predictor that a molestation in fact occurred and because such evidence constitutes improper victim impact evidence inadmissible at the guilt phase.  If the court allows such evidence, it must allow the defense to admit evidence of alternative explanations for the existence of such symptoms.

    1. DEFENDANT MOVES TO EXCLUDE ALLEGED VICTIM’S STATUS AS “IN THERAPY” 

    • In Limine Orders Requested

    The defense moves for orders in limine that the prosecution be precluded from introducing evidence:

    1. That alleged victims are receiving therapy due to Defendant’s charged conduct (child molestation, etc.)
    2. Alleged victims are in need of psychological counseling due to Defendant’s charged conduct (child molestation, etc.).
    3. B. A Victim’s Alleged participation in or need for therapy is Irrelevant

    It is fundamental that only evidence relevant to prove or disprove a material fact is admissible. Evidence Code §§210, 350-351.

    Expert opinion testimony that an alleged victim suffers from rape trauma syndrome or child molest syndrome is inadmissible to prove that any rape or molest/abuse occurred.  (People vs. Bledsoe (1984) 36 Cal.3d 236, 238; People vs. Roscoe (1985) 168 Cal.App. 1093, 1099-1100.)

    Evidence Code §352 requires the trial court to balance any asserted probative value of a particular piece of evidence against its prejudice and exclude evidence the prejudice of which outweighs its probative value or has a substantial danger of confusing the issues or misleading the jury. Here, the fact that the alleged victim may be in therapy would only serve to create undue sympathy for her at the defendant's expense and would confuse the issues.  Such evidence must therefore be excluded.


    1. DEFENDANT MOVES TO EXCLUDE EVIDENCE OF DEFENDANT’S PRIOR DRUG USE

    • Evidence to be Excluded

    During her January 8, 2019 interview, LC told Detective Liller: “[Defendant has] been clean.  He did drugs when – in his 20s...He was a methamphetamine user and he ended up quitting and becoming this upstanding family guy...He wasn’t using anything.”  (January 8, 2019 Interview Transcript at page 12 - 10:09).

    • Defendant’s prior drug use is Irrelevant

    As they apply to drug use evidence, Defendant incorporates by reference the above discussions of relevance, Evidence Code § 352, Court’s Discretion and accidental/incidental mention not opening the door for admission.

    Defendant’s drug use does not relate to any material disputed fact in this litigation.

    • Defendant’s prior drug use is Inadmissible Character Evidence

    Generally, “[e]vidence of traits of…character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.” Cal. Evid. Code § 786.  As noted above, Defendant’s recreational use of drugs ended when he was twenty and he is currently years 44 years old , (DOB: 2-24-1974) and is of no relevance currently (or even back then) to “honesty or veracity, or their opposites.” 

    Evidence Code § 1101(a) provides that evidence of a person's character or trait is inadmissible when offered to prove his conduct on a specific occasion.  Admissibility requires the act to be “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”  Evidence Code § 1101(b). Defendant’s prior drug use is not relevant to any of these issues.

    In People v. Reid, 133 Cal. App. 3d 354, evidence of a defendant’s prior drug abuse was found to have been improperly admitted.  “[T]he admissibility of other crimes evidence must be scrutinized with great care because of its highly inflammatory and prejudicial effect on the trier of fact.  People v. Thompson (1980) 27 Cal.3d 303, 314 [165 Cal.Rptr. 289, 611 P.2d 883].  Accordingly, when such evidence is proffered by the prosecution, its admissibility depends on three principal factors: ‘(1) the materiality of the facts sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and(3) the existence of any rule or policy requiring exclusion of relevant evidence.’ (Id., at p. 315.).”  People v. Reid, 133 Cal. App. 3d 354, 361-62, 184 Cal. Rptr. 186, 190 (1982).

    In People v. Thompson (1980) 27 Cal.3d 303, 314; 165 Cal.Rptr. 289, 611 P.2d 883, because the prosecution did not establish how that drug abuse resulted in appellant's motive for committing the robberies, the evidence of drug abuse alone did not have a tendency to prove a motive for the robberies. Further, because of the substantial prejudicial effect inherent in other crimes evidence, uncharged offenses are admissible only where they had substantial probative value, and if there is any doubt as to that value, the evidence should be excluded.  Cal.Evid 352, 

    In People v. Tuggles (2009)179 Cal. App. 4th 339, 100 Cal. Rptr. 3d 820, the trial court was fond not to have abused its discretion or violate any federal constitutional rights by restricting cross-examination of an accomplice about his drug abuse and mental health issues based on undue consumption of time. Evidence Code § 352.  See also People v. Rodriguez (1986) 42 Cal. 3d 730, 230 Cal. Rptr. 667, 726 P.2d 113, reh’g denied (Evidence regarding state witness’s history of drug abuse and psychiatric treatment five and six years before trial did not have sufficient bearing upon credibility of her testimony at trial to make its exclusion an abuse of discretion).


    1. DEFENDANT MOVES TO EXCLUDE SUBTERFUGE AROUND BLEDSOE, THE INTRODUCTION OF PROFILE EVIDENCE, AND THE INTRODUCTIONS OF STATISTICAL EVIDENCE AS TO THE FREQUENCY OF FALSE ACCUSATIONS IN LIMINE ORDERS REQUESTED

    1. In Limine Orders Requested

    The defense moves for orders in limine that the prosecution be precluded from introducing expert testimony to dispel alleged myths regarding sex/sex crimes/molestation (and the like) unless and until:

    1. There be a hearing outside the presence of the jury for the prosecution to specify the alleged myth and a contested hearing as to whether it is actually a myth.
    2. The testimony be narrowly limited to only those items found by the court to actually be myths.
    3. That the testimony to dispel a myth be limited to victims as a class.
    4. That testimony as to profiles of child molesters be excluded; and
    5. That testimony as to the percentage of false allegations of molestation be excluded (as set forth above).

    • Use of Expert Testimony to Dispel Myths Should be Sharply Limited

    In People vs. Bledsoe (1984) 36 Cal.3dd 236, 249, the California Supreme Court held that rape trauma syndrome was inadmissible to show a rape had actually occurred, but could be admissible to “disabus[e] the jury of some widely held misconceptions about rape and rape trauma victims so that it may evaluate the evidence free of the constraints of popular myths.”

    Subsequently, reviewing courts have held valid the use of expert testimony to dispel myths about child molest victims.  However, the testimony is limited to victims as a class and not a particular alleged victim.  People vs. Roscoe (1985) 168 Cal.App.3d 1093, 1098-1100; People vs. Gray (1986) 187 Cal.App.3d 213, 218; People vs. Coleman (1989) 48 Cal.3d 112, 144; and People vs. Stark (1989) 213 Cal.App.3d 107, 116-117.  In addition, testimony not properly limited is excludable pursuant to Evidence Code section 352.  (Roscoe, supra, at p. 1100.)

    In People vs. Bowker (1988) 203 Cal.App.3d 385, 394, 249 Cal. Rptr. 886, 891, the court considered whether or not the testimony of a child abuse accommodation syndrome expert fell within the Bledsoe exception permitting such testimony for the narrow purpose “of disabusing the jury of misconceptions as to how child victims react to abuse.”  (Id., at p. 392.)  The court reaffirmed that "Bledsoe must be read to reject the use of CSAAS evidence as a predictor of child abuse," and found the expert's testimony had exceeded the Bledsoe exception holding that "at a minimum the evidence must be targeted to a specific 'myth' or 'misconception' suggested by the evidence."  (Id., at pp. 393-394.)  The court further held:

    “In the typical criminal case, however, it is the People's burden to identify the myth or misconception the evidence is designed to rebut.  Where there is no danger of jury confusion, there is simply no need for the expert testimony.” (Id., at p. 394.)

    In determining that the expert's testimony erroneously exceeded the permissible limits of the Bledsoe exception, the Bowker court found that the expert's testimony was tailored to fit the children in that particular case, asked for sympathy, asked that children be believed and by describing each aspect of CSAAS theory provided a scientific framework the jury could use to predict a molest occurred.  The court ruled that this evidence should have been excluded.  (Id., at pp. 394-395.)  

    Synonyms are also inadmissible.  Some expert have used the “trick” of using synonyms to the word “profile”.  These synonyms should be excluded for the same reason.  The main synonym that is used is “patterns”.   This is a different word without a distinction.  Both “profiles” and “patterns” should be excluded under the case of People v. Bledsoe, supra.   

    Requirement of Jury instruction.  When testimony is introduced to dispel a myth, the jury must be instructed not to use that evidence to predict a molestation has been committed.


    Beyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claims is true.  The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury.  CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience.  (See In re Sara M., supra, 194 Cal.App.3d at p. 593, 239 Cal. Rptr. 605.) The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested.

    Bowker, supra, at p. 394; People vs. Housley (1992) 6 Cal.App.4th 947, 958-959 (instruction required sua sponte).  


    • Expert Testimony Concerning About the Characteristics and Conduct Typical of Child Sex Offenders and About Categories of Child Sex Offenders and their Treatment Prognosis Must be Excluded as Profile Evidence

    1. Profile evidence is inadmissible.

    “A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) A profile may include “any information or data” that places the defendant “in an alleged ‘group’ of persons who have committed offenses in the past.” (United States v. Banks (C.M.A. 1992) 36 M.J. 150, 163.)  Profile evidence is generally inadmissible to prove guilt; every defendant has the right to be tried based on the evidence implicating him in the particular crimes charged, and not on facts accumulated regarding a particular criminal profile. (Robbie, supra, 92 Cal.App.4th at p. 1084.) 

    Profile evidence is inherently prejudicial because it proceeds from an erroneous starting point. (Robbie, supra, 92 Cal.App.4th at p. 1085.) The syllogism underlying profile evidence is: criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. (Ibid.) The problem is that the major premise is faulty; it implies that criminals, and only criminals act in a given way. (Ibid.) In fact, certain behavior may be consistent with both innocent and illegal behavior. (Ibid.)  

    As the Supreme Court has put it, if profile evidence lacks foundation, is irrelevant, or is more prejudicial than probative, it is inadmissible; “[p]rofile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt.” (People v. Smith (2005) 35 Cal.4th 334, 358.)   

    In Robbie, the prosecution presented testimony of an expert “in the area of the behaviors and conduct of persons who commit sexual assaults.” (id. at p. 1082.) The state may not justify the admission of this testimony as necessary “to disabuse the jury of common misperceptions about conduct [sic] of a rapist,” claiming that “[a] common citizen, inexperienced in rape and rapists, could be understood naturally to believe that a rape is a harsh, violent, threatening, and unrelentingly brutal experience.” (Id. at pp. 1082-1083, 1085-1086.)  The Robbie prosecutor further contended that the evidence was akin to evidence the Supreme Court had approved in McAlpin, to rebut the common assumption that child molesters were “old [men] in shabby clothes who loiter[] in playgrounds and schoolyards and lure[] unsuspecting children into sexual contact by offering them candy or money.” (Robbie, supra, 92 Cal.App.4th at p. 1086.)

    The Robbie court rejected these arguments. It distinguished the evidence from that approved in McAlpin, noting that the expert properly could have testified that rapists behave in a variety of ways and that there is no typical rapist. (Robbie, supra, 92 Cal.App.4th at p. 1087.) In Robbie, by contrast, the expert “did not merely attack the stereotype by explaining that there is no ‘typical sex offender.’ Instead, she replaced the brutal rapist archetype with another image: an offender whose behavioral pattern exactly matched defendant’s.” (Ibid.)

    Robbie is in accord with precedent across the state and across the country. (See, e.g., People v. Martinez (1992) 10 Cal.App.4th 1001, 1006 [court erred in admitting profile evidence; expert testified about operations of auto theft rings, including type of car, route of travel, and fact that most of those arrested denied knowing the vehicle they drove was stolen]; People v. Castaneda (1997) 55 Cal.App.4th 1067, 1072 [testimony that defendant fit the profile of typical Northern San Diego County heroin dealer was inadmissible]; People v. Covarrubias (2011) 202 Cal.App.4th 1, 16 [drug courier profile evidence is inadmissible]; United States v. Pineda-Torres (9th Cir. 2002) 287 F.3d 860, 865 [expert provided testimony about the structure of drug trafficking organizations, thus “attribut[ing] knowledge to the defendant by attempting to connect him to an international drug conspiracy . . . .”]; Haakanson v. State (Ct. App. Alaska 1988) 760 P.2d 1030, 1035-1036 [profile testimony, which identified otherwise innocent characteristics and behavior as evidence of guilt, was inadmissible under Alaska law]; Sloan v. State (Ct. Special App. Md. 1987) 522 A.2d 1364, 1369 [reversal where expert testified about “classic indicators of child abuse”]; Kansas v. Clements (1989) 244 Kan. 411, 420 [evidence that describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question]; Banks, supra, 36 M.J. at pp. 155-157, 160-164, 170-171 [reversing for cumulative error including court’s admission of evidence that defendant and his family fit a profile of child sex abuse because defendant was a stepfather who did not have a good marital sexual relationship]; Kirby v. State (Ct. App. Tex.2006) 208 S.W.3d 568, 573-574 [profile evidence inadmissible to prove guilt]; Commonwealth v. LaCaprucia (App. Ct. Mass. 1996) 671 N.E.2d 984, 986-987, 989 [expert profile testimony that presented defendant’s family situation as one prone to sexual abuse was erroneously admitted and, along with other erroneously-admitted evidence, required reversal]; Ryan v. State (Wyo. 1999) 988 P.2d 46, 55 [“Those jurisdictions that have considered profiles of battering parents, pedophiles, rapists, and drug couriers unanimously agree that the prosecution may not offer such evidence in its case-in-chief as substantive evidence of guilt.”].)

    Even if the expert frames her opinions cautiously — indeed, in Robbie, the expert apparently admitted that the behavior she described may be consistent with both innocent and illegal behavior (Robbie, supra, 92 Cal.App.4th at pp. 1083, 1085) — profile evidence is dangerously misleading. As the court explained in Raymond, supra, 700 F.Supp.2d at p. 150, while the expert him or herself may be very careful in using profiles, “a jury may make the quick and unjustified leap from his expert testimony about behavioral patterns to guilt in a particular case that shows similar patterns.”

    Finally, that an expert does not specifically opine that a defendant shares the characteristics of a typical child molester does not render the testimony any less improper and prejudicial.  In Robbie, the expert testified by way of hypothetical, without directly opining that the defendant fit the profile she had drawn. (Robbie, supra, 92 Cal.App.4th at pp. 1082-1084.) In Buzzard v. State (Ct. App. Ind. 1996) 669 N.E.2d 996, 1000. (14RT 2872 [prosecutor: “Mr. Martin’s got a sickness. It’s not his fault. Didn’t choose to be this way. He’s struggling with it.”]; see People v. Walkey (1986) 177 Cal.App.3d 268, 279 [although expert never expressly concluded defendant fit the profile, his testimony clearly tended to associate defendant with a group who, in the expert’s opinion, are often child abusers].)

    In People v. Bradley (Ill. 4th Dist. 1988) 526 N.E.2d 916, the court reversed where the prosecution’s expert listed characteristics said to be typical of perpetrators of child sexual abuse, noting that while the trial court had prohibited the parties from specifically connecting these characteristics to the defendant, that only exacerbated the problem, leaving the jury to speculate as to whether the defendant fit the very general profile described by the expert. (Id. at p. 921.)

    In sum, because an expert’s testimony does not merely refute the purported stereotype of a typical child molester, but replaces that stereotype with a new type of offender, whose conduct and attributes matched those the prosecution attributes to the defendant,  — and which were as consistent with innocence as with guilt — the evidence is inadmissible.


    1. Admission of such testimony would violate Defendant’s right to a fair trial and to due process of law

    The erroneous admission of such testimony violates due process by rendering the trial fundamentally unfair. (See Partida, supra, 37 Cal.4th at p. 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903, 913; Duncan v. Henry (1995) 513 U.S. 364, 366; see also Lisenba v. California (1941) 314 U.S. 219, 236 [“The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.”]; U.S. Const., 14th Amend.)

    When there are no permissible inferences to be drawn from the evidence, and it is of “such quality as necessarily prevents a fair trial,” due process is violated. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; People v. Albarran (2007) 149 Cal.App.4th 214, 229-232.) Such evidence violates due process when it “‘is material in the sense of a crucial, critical, highly significant factor.’ [Citation.]” (Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 737.)

    No permissible inference can be drawn from testimony about a particular type of sex offender whose conduct and characteristics matches those attributed to the defendant. Indeed, “[t]he only inference which can be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one.” (Clements, supra, 244 Kan. at p. 420.)

    Similarly, no permissible inference can be drawn from evidence that two to five percent of men are sexually attracted to children, and that that attraction is innate, immutable, and untreatable. Such evidence only invites speculation about the likelihood that the defendant is one of those men, and about whether he would go on to abuse children if not convicted, and risks conviction because jurors believe that the defendant is a pedophile, not because they believe the elements of the crimes charged have been proven beyond a reasonable doubt. (Cf. Collins, supra, 68 Cal.2d at p. 329 [statistical evidence “could only lead to wild conjecture without demonstrated relevancy to the issues presented”].)


    1. DEFENDANT MOVES TO EXCLUDE COUNSEL ARGUING CONSEQUENCES OF AN ACQUITTAL

    • In Limine Orders Requested

    The defense moves for orders in limine that the prosecution be precluded from arguing:

    1. That an acquittal would allow Defendant to resume teaching children at Bible Studies again;
    2. That an acquittal would put Defendant on the streets and as a consequence, put children at risk of molestation;
    3. That the jurors should consider the reaction of neighbors to a verdict of not guilty.

    / / /

    • It Would be Improper for the Prosecution to Argue Consequences of an Acquittal

    It is improper for a prosecutor to urge the jury to convict because of the possible consequences of a failure to do so. Such probable consequences which would be inappropriate to argue would include arguments to the effect that an acquittal would permit the defendant to resume teaching and consequently might put other children “ at risk of molestation. “ Caselaw is clear that while commentary on a defendant's future dangerousness may be proper in the sentencing context, it has no place at the guilt phase of a trial.  (People v. Hayes (1990) 52 Cal.3d 577, 635; Com. Of Northern Mariana Islands v. Mendiola (9th Cir. 1992) 976 F.2d 475, 487 [conviction reversed where prosecutor urged that defendant could go out and kill again if acquitted because gun was still out there]; United States v. Cunningham (7th Cir. 1995) 54 F.3d 295, 300 ["The government may not attempt to obtain a conviction by appealing to jurors to prevent future crimes by finding present guilt."].)   

    In People v. Mendoza (1974) 37 Cal.App.3d 717,727, the defendant was charged with committing a lewd act upon a child under 14 years of age.  During closing argument, the prosecutor asked the jury to 'take the defendant off the streets.' The Court of Appeal reversed the conviction, finding that said comment by the prosecutor coupled with several other objectionable ones was not harmless error.  In finding the prosecutor's exhortation to the jurors to take the defendant off the streets error, the Court explained that “California law gives the responsibility for determining punishment in criminal cases to the judge and the Adult Authority. The jury’s responsibility is limited to the determination of the defendant’s guilt or innocence of the charge against him.” (Id., at p. 726.)  Similarly, in People v. Duckworth (1984) 162 Cal.App.3d 1115, 1123-1124, the prosecutor's argument during the sanity phase of trial which implied that the defendant would be on the streets and would thus pose a danger to society if he were found insane was reversible error. 

    It is likewise improper for the prosecution to argue that the jury has a moral obligation to protect society from the defendant, or that if the defendant is acquitted, he will commit more crimes.  In People v. Whitehead (1957) 148 Cal.App.2d 701, the prosecution argued improperly in a child molest trial that men of the defendant’s age commit offenses of this character and his [the prosecutor's] office’s experience is that if such men are acquitted, they will repeat the same character of offense.  (Id., at p. 705.)  The reviewing court found such argument "highly inflammatory" and reversed the defendant's conviction.  (Id., at p. 705-706.)   

    Furthermore, it is improper for the prosecution to argue that the jury should consider what the reaction of their neighbors would be if they were to acquit the defendant. In People v. Purvis (1963) 60 Cal.2d 323, 342, (overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631) the court reversed a first degree murder conviction based on prosecutorial misconduct which included a comment from the prosecutor following trial publicity in the Oakland Tribune newspaper which “threatened the jury with the statement that 'those outside that are not part of this jury have their eyes focused upon you just to see what you are going to do * * *.' The court held “A warning of probable consequences of failure to convict, and of the unfavorable reactions of neighbors is improper (48 Cal.Jur.2d, Trial, s 439, p. 446). 

    DEFENDANTS OPPOSITIONS TO THE PEOPLE’S MOTIONS IN LIMINE


    1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING VICTIM’S PRIOR SEXUAL CONDUCT

    Defendant opposes the Prosecution’s Motion in limine regarding victim’s prior sexual conduct on the same grounds that the Defense makes the above motion for admitting such evidence under Evidence Code § 782 which is hereby incorporated by reference at this point.  


    1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING REGARDING REFERENCES TO STANDARDS OF PROOF.

    The People motion in limine to preclude the defense from making any comparisons or

    references to any standards other than reasonable doubt is misplaced and not supported by any applicable law.  In support, the People cite People v. Katzenberger (2009)178 Cal. App. 4th 1260, 1266, 101 Cal. Rptr. 3d 122, 126. However, the case is inapposite. Katzenberger precludes the prosecution from attempting to confuse the jury regarding standards of proof, ie. Suggesting that a conviction for example could be by either “clear and convincing” or a “preponderance” of evidence.  Here, counsel for Defense may wish during closing to compare the standard to clarify to the jury what “beyond a reasonable doubt” means. Accordingly, the People’s motion in limine in this regard should be denied. 

    DEFENDANTS PROPOSED JURY INSTRUCTIONS

    Defendant joins the People’s jury instruction except as to:

    1. CALCRIM 315 as to Eyewitness Identification because there is no issue as to identification in this case; and 
    2. CALCRIM 1193 Testimony on Child Sexual Abuse Accommodation Syndrome, states:

    Testimony on Child Sexual Abuse Accommodation Syndrome You have heard testimony from <insert name of expert>regarding child sexual abuse accommodation syndrome’s <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her).You may consider this evidence only in deciding whether or not’s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony. 


    New January 2006; Revised August 2016.

    Defendant respectfully submits that CALJIC 10.69 provides a clearer and more accurate statement of the law. It states as follows:


    Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. 


    Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  3. 3.Motion to Exclude Defendant's Drug use

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    DEFENDANT’S MOTION TO EXCLUDE EVIDENCE OF DEFENDANT’S PRIOR DRUG USE


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       


    DEFENDANT MOVES TO EXCLUDE EVIDENCE OF DEFENDANT’S PRIOR DRUG USE


    • Evidence to be Excluded

    During her January 8, 2019 interview, LC told Detective Liller: “[Defendant has] been clean.  He did drugs when – in his 20s...He was a methamphetamine user and he ended up quitting and becoming this upstanding family guy...He wasn’t using anything.”  (January 8, 2019 Interview Transcript at page 12 - 10:09).

    • Defendant’s prior drug use is Irrelevant

    As they apply to drug use evidence, Defendant incorporates by reference the above discussions of relevance, Evidence Code § 352, Court’s Discretion and accidental/incidental mention not opening the door for admission.

    Defendant’s drug use does not relate to any material disputed fact in this litigation.

    • Defendant’s prior drug use is Inadmissible Character Evidence

    Generally, “[e]vidence of traits of…character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.” Cal. Evid. Code § 786.  As noted above, Defendant’s recreational use of drugs ended when he was twenty and he is currently years 44 years old , (DOB: 2-24-1974) and is of no relevance currently (or even back then) to “honesty or veracity, or their opposites.” 

    Evidence Code § 1101(a) provides that evidence of a person's character or trait is inadmissible when offered to prove his conduct on a specific occasion.  Admissibility requires the act to be “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”  Evidence Code § 1101(b). Defendant’s prior drug use is not relevant to any of these issues.

    In People v. Reid, 133 Cal. App. 3d 354, evidence of a defendant’s prior drug abuse was found to have been improperly admitted.  “[T]he admissibility of other crimes evidence must be scrutinized with great care because of its highly inflammatory and prejudicial effect on the trier of fact.  People v. Thompson (1980) 27 Cal.3d 303, 314 [165 Cal.Rptr. 289, 611 P.2d 883].  Accordingly, when such evidence is proffered by the prosecution, its admissibility depends on three principal factors: ‘(1) the materiality of the facts sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and(3) the existence of any rule or policy requiring exclusion of relevant evidence.’ (Id., at p. 315.).”  People v. Reid, 133 Cal. App. 3d 354, 361-62, 184 Cal. Rptr. 186, 190 (1982).

    In People v. Thompson (1980) 27 Cal.3d 303, 314; 165 Cal.Rptr. 289, 611 P.2d 883, because the prosecution did not establish how that drug abuse resulted in appellant's motive for committing the robberies, the evidence of drug abuse alone did not have a tendency to prove a motive for the robberies. Further, because of the substantial prejudicial effect inherent in other crimes evidence, uncharged offenses are admissible only where they had substantial probative value, and if there is any doubt as to that value, the evidence should be excluded.  Cal.Evid 352, 

    In People v. Tuggles (2009)179 Cal. App. 4th 339, 100 Cal. Rptr. 3d 820, the trial court was fond not to have abused its discretion or violate any federal constitutional rights by restricting cross-examination of an accomplice about his drug abuse and mental health issues based on undue consumption of time. Evidence Code § 352.  See also People v. Rodriguez (1986) 42 Cal. 3d 730, 230 Cal. Rptr. 667, 726 P.2d 113, reh’g denied (Evidence regarding state witness’s history of drug abuse and psychiatric treatment five and six years before trial did not have sufficient bearing upon credibility of her testimony at trial to make its exclusion an abuse of discretion).


    1. DEFENDANT MOVES TO EXCLUDE SUBTERFUGE AROUND BLEDSOE, THE INTRODUCTION OF PROFILE EVIDENCE, AND THE INTRODUCTIONS OF STATISTICAL EVIDENCE AS TO THE FREQUENCY OF FALSE ACCUSATIONS IN LIMINE ORDERS REQUESTED

    1. In Limine Orders Requested

    The defense moves for orders in limine that the prosecution be precluded from introducing expert testimony to dispel alleged myths regarding sex/sex crimes/molestation (and the like) unless and until:

    1. There be a hearing outside the presence of the jury for the prosecution to specify the alleged myth and a contested hearing as to whether it is actually a myth.
    2. The testimony be narrowly limited to only those items found by the court to actually be myths.
    3. That the testimony to dispel a myth be limited to victims as a class.
    4. That testimony as to profiles of child molesters be excluded; and
    5. That testimony as to the percentage of false allegations of molestation be excluded (as set forth above).

    • Use of Expert Testimony to Dispel Myths Should be Sharply Limited

    In People vs. Bledsoe (1984) 36 Cal.3dd 236, 249, the California Supreme Court held that rape trauma syndrome was inadmissible to show a rape had actually occurred, but could be admissible to “disabus[e] the jury of some widely held misconceptions about rape and rape trauma victims so that it may evaluate the evidence free of the constraints of popular myths.”

    Subsequently, reviewing courts have held valid the use of expert testimony to dispel myths about child molest victims.  However, the testimony is limited to victims as a class and not a particular alleged victim.  People vs. Roscoe (1985) 168 Cal.App.3d 1093, 1098-1100; People vs. Gray (1986) 187 Cal.App.3d 213, 218; People vs. Coleman (1989) 48 Cal.3d 112, 144; and People vs. Stark (1989) 213 Cal.App.3d 107, 116-117.  In addition, testimony not properly limited is excludable pursuant to Evidence Code section 352.  (Roscoe, supra, at p. 1100.)

    In People vs. Bowker (1988) 203 Cal.App.3d 385, 394, 249 Cal. Rptr. 886, 891, the court considered whether or not the testimony of a child abuse accommodation syndrome expert fell within the Bledsoe exception permitting such testimony for the narrow purpose “of disabusing the jury of misconceptions as to how child victims react to abuse.”  (Id., at p. 392.)  The court reaffirmed that "Bledsoe must be read to reject the use of CSAAS evidence as a predictor of child abuse," and found the expert's testimony had exceeded the Bledsoe exception holding that "at a minimum the evidence must be targeted to a specific 'myth' or 'misconception' suggested by the evidence."  (Id., at pp. 393-394.)  The court further held:

    “In the typical criminal case, however, it is the People's burden to identify the myth or misconception the evidence is designed to rebut.  Where there is no danger of jury confusion, there is simply no need for the expert testimony.” (Id., at p. 394.)

    In determining that the expert's testimony erroneously exceeded the permissible limits of the Bledsoe exception, the Bowker court found that the expert's testimony was tailored to fit the children in that particular case, asked for sympathy, asked that children be believed and by describing each aspect of CSAAS theory provided a scientific framework the jury could use to predict a molest occurred.  The court ruled that this evidence should have been excluded.  (Id., at pp. 394-395.)  

    Synonyms are also inadmissible.  Some expert have used the “trick” of using synonyms to the word “profile”.  These synonyms should be excluded for the same reason.  The main synonym that is used is “patterns”.   This is a different word without a distinction.  Both “profiles” and “patterns” should be excluded under the case of People v. Bledsoe, supra.   

    Requirement of Jury instruction.  When testimony is introduced to dispel a myth, the jury must be instructed not to use that evidence to predict a molestation has been committed.


    Beyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claims is true.  The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury.  CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience.  (See In re Sara M., supra, 194 Cal.App.3d at p. 593, 239 Cal. Rptr. 605.) The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested.

    Bowker, supra, at p. 394; People vs. Housley (1992) 6 Cal.App.4th 947, 958-959 (instruction required sua sponte).  


    • Expert Testimony Concerning About the Characteristics and Conduct Typical of Child Sex Offenders and About Categories of Child Sex Offenders and their Treatment Prognosis Must be Excluded as Profile Evidence

    1. Profile evidence is inadmissible.

    “A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) A profile may include “any information or data” that places the defendant “in an alleged ‘group’ of persons who have committed offenses in the past.” (United States v. Banks (C.M.A. 1992) 36 M.J. 150, 163.)  Profile evidence is generally inadmissible to prove guilt; every defendant has the right to be tried based on the evidence implicating him in the particular crimes charged, and not on facts accumulated regarding a particular criminal profile. (Robbie, supra, 92 Cal.App.4th at p. 1084.) 

    Profile evidence is inherently prejudicial because it proceeds from an erroneous starting point. (Robbie, supra, 92 Cal.App.4th at p. 1085.) The syllogism underlying profile evidence is: criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. (Ibid.) The problem is that the major premise is faulty; it implies that criminals, and only criminals act in a given way. (Ibid.) In fact, certain behavior may be consistent with both innocent and illegal behavior. (Ibid.)  

    As the Supreme Court has put it, if profile evidence lacks foundation, is irrelevant, or is more prejudicial than probative, it is inadmissible; “[p]rofile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt.” (People v. Smith (2005) 35 Cal.4th 334, 358.)   

    In Robbie, the prosecution presented testimony of an expert “in the area of the behaviors and conduct of persons who commit sexual assaults.” (id. at p. 1082.) The state may not justify the admission of this testimony as necessary “to disabuse the jury of common misperceptions about conduct [sic] of a rapist,” claiming that “[a] common citizen, inexperienced in rape and rapists, could be understood naturally to believe that a rape is a harsh, violent, threatening, and unrelentingly brutal experience.” (Id. at pp. 1082-1083, 1085-1086.)  The Robbie prosecutor further contended that the evidence was akin to evidence the Supreme Court had approved in McAlpin, to rebut the common assumption that child molesters were “old [men] in shabby clothes who loiter[] in playgrounds and schoolyards and lure[] unsuspecting children into sexual contact by offering them candy or money.” (Robbie, supra, 92 Cal.App.4th at p. 1086.)

    The Robbie court rejected these arguments. It distinguished the evidence from that approved in McAlpin, noting that the expert properly could have testified that rapists behave in a variety of ways and that there is no typical rapist. (Robbie, supra, 92 Cal.App.4th at p. 1087.) In Robbie, by contrast, the expert “did not merely attack the stereotype by explaining that there is no ‘typical sex offender.’ Instead, she replaced the brutal rapist archetype with another image: an offender whose behavioral pattern exactly matched defendant’s.” (Ibid.)

    Robbie is in accord with precedent across the state and across the country. (See, e.g., People v. Martinez (1992) 10 Cal.App.4th 1001, 1006 [court erred in admitting profile evidence; expert testified about operations of auto theft rings, including type of car, route of travel, and fact that most of those arrested denied knowing the vehicle they drove was stolen]; People v. Castaneda (1997) 55 Cal.App.4th 1067, 1072 [testimony that defendant fit the profile of typical Northern San Diego County heroin dealer was inadmissible]; People v. Covarrubias (2011) 202 Cal.App.4th 1, 16 [drug courier profile evidence is inadmissible]; United States v. Pineda-Torres (9th Cir. 2002) 287 F.3d 860, 865 [expert provided testimony about the structure of drug trafficking organizations, thus “attribut[ing] knowledge to the defendant by attempting to connect him to an international drug conspiracy . . . .”]; Haakanson v. State (Ct. App. Alaska 1988) 760 P.2d 1030, 1035-1036 [profile testimony, which identified otherwise innocent characteristics and behavior as evidence of guilt, was inadmissible under Alaska law]; Sloan v. State (Ct. Special App. Md. 1987) 522 A.2d 1364, 1369 [reversal where expert testified about “classic indicators of child abuse”]; Kansas v. Clements (1989) 244 Kan. 411, 420 [evidence that describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question]; Banks, supra, 36 M.J. at pp. 155-157, 160-164, 170-171 [reversing for cumulative error including court’s admission of evidence that defendant and his family fit a profile of child sex abuse because defendant was a stepfather who did not have a good marital sexual relationship]; Kirby v. State (Ct. App. Tex.2006) 208 S.W.3d 568, 573-574 [profile evidence inadmissible to prove guilt]; Commonwealth v. LaCaprucia (App. Ct. Mass. 1996) 671 N.E.2d 984, 986-987, 989 [expert profile testimony that presented defendant’s family situation as one prone to sexual abuse was erroneously admitted and, along with other erroneously-admitted evidence, required reversal]; Ryan v. State (Wyo. 1999) 988 P.2d 46, 55 [“Those jurisdictions that have considered profiles of battering parents, pedophiles, rapists, and drug couriers unanimously agree that the prosecution may not offer such evidence in its case-in-chief as substantive evidence of guilt.”].)

    Even if the expert frames her opinions cautiously — indeed, in Robbie, the expert apparently admitted that the behavior she described may be consistent with both innocent and illegal behavior (Robbie, supra, 92 Cal.App.4th at pp. 1083, 1085) — profile evidence is dangerously misleading. As the court explained in Raymond, supra, 700 F.Supp.2d at p. 150, while the expert him or herself may be very careful in using profiles, “a jury may make the quick and unjustified leap from his expert testimony about behavioral patterns to guilt in a particular case that shows similar patterns.”

    Finally, that an expert does not specifically opine that a defendant shares the characteristics of a typical child molester does not render the testimony any less improper and prejudicial.  In Robbie, the expert testified by way of hypothetical, without directly opining that the defendant fit the profile she had drawn. (Robbie, supra, 92 Cal.App.4th at pp. 1082-1084.) In Buzzard v. State (Ct. App. Ind. 1996) 669 N.E.2d 996, 1000. (14RT 2872 [prosecutor: “Mr. Martin’s got a sickness. It’s not his fault. Didn’t choose to be this way. He’s struggling with it.”]; see People v. Walkey (1986) 177 Cal.App.3d 268, 279 [although expert never expressly concluded defendant fit the profile, his testimony clearly tended to associate defendant with a group who, in the expert’s opinion, are often child abusers].)

    In People v. Bradley (Ill. 4th Dist. 1988) 526 N.E.2d 916, the court reversed where the prosecution’s expert listed characteristics said to be typical of perpetrators of child sexual abuse, noting that while the trial court had prohibited the parties from specifically connecting these characteristics to the defendant, that only exacerbated the problem, leaving the jury to speculate as to whether the defendant fit the very general profile described by the expert. (Id. at p. 921.)

    In sum, because an expert’s testimony does not merely refute the purported stereotype of a typical child molester, but replaces that stereotype with a new type of offender, whose conduct and attributes matched those the prosecution attributes to the defendant,  — and which were as consistent with innocence as with guilt — the evidence is inadmissible.


    1. Admission of such testimony would violate Defendant’s right to a fair trial and to due process of law

    The erroneous admission of such testimony violates due process by rendering the trial fundamentally unfair. (See Partida, supra, 37 Cal.4th at p. 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903, 913; Duncan v. Henry (1995) 513 U.S. 364, 366; see also Lisenba v. California (1941) 314 U.S. 219, 236 [“The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.”]; U.S. Const., 14th Amend.)

    When there are no permissible inferences to be drawn from the evidence, and it is of “such quality as necessarily prevents a fair trial,” due process is violated. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; People v. Albarran (2007) 149 Cal.App.4th 214, 229-232.) Such evidence violates due process when it “‘is material in the sense of a crucial, critical, highly significant factor.’ [Citation.]” (Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 737.)

    No permissible inference can be drawn from testimony about a particular type of sex offender whose conduct and characteristics matches those attributed to the defendant. Indeed, “[t]he only inference which can be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one.” (Clements, supra, 244 Kan. at p. 420.)

    Similarly, no permissible inference can be drawn from evidence that two to five percent of men are sexually attracted to children, and that that attraction is innate, immutable, and untreatable. Such evidence only invites speculation about the likelihood that the defendant is one of those men, and about whether he would go on to abuse children if not convicted, and risks conviction because jurors believe that the defendant is a pedophile, not because they believe the elements of the crimes charged have been proven beyond a reasonable doubt. (Cf. Collins, supra, 68 Cal.2d at p. 329 [statistical evidence “could only lead to wild conjecture without demonstrated relevancy to the issues presented”].)


    1. DEFENDANT MOVES TO EXCLUDE COUNSEL ARGUING CONSEQUENCES OF AN ACQUITTAL

    • In Limine Orders Requested

    The defense moves for orders in limine that the prosecution be precluded from arguing:

    1. That an acquittal would allow Defendant to resume teaching children at Bible Studies again;
    2. That an acquittal would put Defendant on the streets and as a consequence, put children at risk of molestation;
    3. That the jurors should consider the reaction of neighbors to a verdict of not guilty.

    / / /

    • It Would be Improper for the Prosecution to Argue Consequences of an Acquittal

    It is improper for a prosecutor to urge the jury to convict because of the possible consequences of a failure to do so. Such probable consequences which would be inappropriate to argue would include arguments to the effect that an acquittal would permit the defendant to resume teaching and consequently might put other children “ at risk of molestation. “ Caselaw is clear that while commentary on a defendant's future dangerousness may be proper in the sentencing context, it has no place at the guilt phase of a trial.  (People v. Hayes (1990) 52 Cal.3d 577, 635; Com. Of Northern Mariana Islands v. Mendiola (9th Cir. 1992) 976 F.2d 475, 487 [conviction reversed where prosecutor urged that defendant could go out and kill again if acquitted because gun was still out there]; United States v. Cunningham (7th Cir. 1995) 54 F.3d 295, 300 ["The government may not attempt to obtain a conviction by appealing to jurors to prevent future crimes by finding present guilt."].)   

    In People v. Mendoza (1974) 37 Cal.App.3d 717,727, the defendant was charged with committing a lewd act upon a child under 14 years of age.  During closing argument, the prosecutor asked the jury to 'take the defendant off the streets.' The Court of Appeal reversed the conviction, finding that said comment by the prosecutor coupled with several other objectionable ones was not harmless error.  In finding the prosecutor's exhortation to the jurors to take the defendant off the streets error, the Court explained that “California law gives the responsibility for determining punishment in criminal cases to the judge and the Adult Authority. The jury’s responsibility is limited to the determination of the defendant’s guilt or innocence of the charge against him.” (Id., at p. 726.)  Similarly, in People v. Duckworth (1984) 162 Cal.App.3d 1115, 1123-1124, the prosecutor's argument during the sanity phase of trial which implied that the defendant would be on the streets and would thus pose a danger to society if he were found insane was reversible error. 

    It is likewise improper for the prosecution to argue that the jury has a moral obligation to protect society from the defendant, or that if the defendant is acquitted, he will commit more crimes.  In People v. Whitehead (1957) 148 Cal.App.2d 701, the prosecution argued improperly in a child molest trial that men of the defendant’s age commit offenses of this character and his [the prosecutor's] office’s experience is that if such men are acquitted, they will repeat the same character of offense.  (Id., at p. 705.)  The reviewing court found such argument "highly inflammatory" and reversed the defendant's conviction.  (Id., at p. 705-706.)   

    Furthermore, it is improper for the prosecution to argue that the jury should consider what the reaction of their neighbors would be if they were to acquit the defendant. In People v. Purvis (1963) 60 Cal.2d 323, 342, (overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631) the court reversed a first degree murder conviction based on prosecutorial misconduct which included a comment from the prosecutor following trial publicity in the Oakland Tribune newspaper which “threatened the jury with the statement that 'those outside that are not part of this jury have their eyes focused upon you just to see what you are going to do * * *.' The court held “A warning of probable consequences of failure to convict, and of the unfavorable reactions of neighbors is improper (48 Cal.Jur.2d, Trial, s 439, p. 446). 

    DEFENDANTS OPPOSITIONS TO THE PEOPLE’S MOTIONS IN LIMINE


    1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING VICTIM’S PRIOR SEXUAL CONDUCT

    Defendant opposes the Prosecution’s Motion in limine regarding victim’s prior sexual conduct on the same grounds that the Defense makes the above motion for admitting such evidence under Evidence Code § 782 which is hereby incorporated by reference at this point.  


    1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING REGARDING REFERENCES TO STANDARDS OF PROOF.

    The People motion in limine to preclude the defense from making any comparisons or

    references to any standards other than reasonable doubt is misplaced and not supported by any applicable law.  In support, the People cite People v. Katzenberger (2009)178 Cal. App. 4th 1260, 1266, 101 Cal. Rptr. 3d 122, 126. However, the case is inapposite. Katzenberger precludes the prosecution from attempting to confuse the jury regarding standards of proof, ie. Suggesting that a conviction for example could be by either “clear and convincing” or a “preponderance” of evidence.  Here, counsel for Defense may wish during closing to compare the standard to clarify to the jury what “beyond a reasonable doubt” means. Accordingly, the People’s motion in limine in this regard should be denied. 

    DEFENDANTS PROPOSED JURY INSTRUCTIONS

    Defendant joins the People’s jury instruction except as to:

    1. CALCRIM 315 as to Eyewitness Identification because there is no issue as to identification in this case; and 
    2. CALCRIM 1193 Testimony on Child Sexual Abuse Accommodation Syndrome, states:

    Testimony on Child Sexual Abuse Accommodation Syndrome You have heard testimony from <insert name of expert>regarding child sexual abuse accommodation syndrome’s <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her).You may consider this evidence only in deciding whether or not’s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony. 


    New January 2006; Revised August 2016.

    Defendant respectfully submits that CALJIC 10.69 provides a clearer and more accurate statement of the law. It states as follows:


    Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. 


    Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  4. 4.Motion to Exlude Evidence of Uncharged Acts

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 




    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF  [COUNTY]

    THE PEOPLE OF THE STATE OF CALIFORNIA   

      

                 Plaintiff,

    vs.


    [name of defendant],

    Defendant 

    CASE NO. 

    MOTION TO EXCLUDE UNCHARGED ACTS (Evidence Code Sections 1108 and 352)


    Trial Readiness:

    Current Trial Date:

    Case Filed:

    In Custody Since:

    Dept.:

       

    PLEASE TAKE NOTICE that on May 28, 2020 at 9:30 a.m. or as soon thereafter as the matter may be heard, and in the above-designated department, [name of defendant] (“Defendant”) will move this court for an order that any evidence concerning the commission of prior sex acts be excluded pursuant to Evidence Code Sections 1108 and 352 specifically, allegations disclosed to the Defense n May 8, 2020 contained in Incident Report,  Case No. 11900785, CAD Event Number 1903210059 by 3990 - Haack, Dennis dated March 30, 2019 regarding alleged victim, MG. 

    This motion will be based upon this notice, the following points and authorities and any other relevant documentation and evidence in this case.

    Dated: May 6, 2020

    __________________________

    Attorney for Defendant

    Attorney for Defendant

    MEMORANDUM OF POINTS AND AUTHORITIES 

    1. SUPPORTING FACTS AND CONTENTIONS
      1. Introduction

    Defendant is charged with:

    • Count 1: Continue Sexual Abuse in violation of Penal Code § 288.5(a) against CG, a child under the age of 14 between January 1, 2013 and December 31, 2014.
    • Count 2: Continue Sexual Abuse in violation of Penal Code § 288.5(a) against RC, a child under the age of 14 between January 1, 2013 and December 31, 2014.
    • Count 3: Forcible Rape in violation of Penal Code § 1203.065(a) against LC between November 1, 2014 and November 27, 2014.
    • Count 4: Forcible Rape of Unconscious Person in violation of Penal Code § 261(a)(a)  against LC between November 1, 2014 and November 27, 2014 (the same act as in count 3).

    Factual Summary

    [FACTUAL SUMMARY]

    1. EVIDENCE TO BE EXCLUDED

    [STATE SPECIFIC EVIDENCE TO BE EXCLUDED] PURPOSE OF MOTION IN LIMINE

    The purpose of the motion is to avoid the obviously futile attempt to “unring the bell” in the event a motion to strike is granted in the proceedings before the jury.  Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 669, 56 Cal. Rptr. 2d 803; Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 337, 145 Cal. Rptr. 47.  Trial courts have the inherent power to use motions in limine to control the litigation and to adopt any suitable method of practice, even if not specified by statute or court rules. Amtower v. Photon Dynamics, Inc. (2008) 158 Cal. App. 4th 1582, 1594–1595, 71 Cal. Rptr. 3d 361.  Further, “in limine motions” can help speed the trial and allow for a more considered decision on difficult evidentiary issues. Kelly, 49 Cal.App.4th at 669-70.

    1. ONLY RELEVANT EVIDENCE IS ADMISSIBLE AT TRIAL.  

    Evidence Code § 350.  “Relevant evidence” means testimony or physical objects, including evidence bearing on the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of an action.  Evidence Code § 210; People vs. Scheid (1997) 16 Cal.4th 1.  A court has no discretion to admit irrelevant evidence.  People vs. Crittenden (1994) 9 Cal.4th 83, 132.   Evidence which produces only speculative inferences is irrelevant evidence.  People vs. De La Plane (1979) 88 Cal.App.3d 223, 242.  Whether or not evidence is relevant is a decision within the trial court's discretion.  People vs. Von Villas (1992) 10 Cal.App.4th 201, 249.  The trial court abuses its discretion in admitting evidence when it can be shown under all the circumstances that it exceeded the bounds of reason.  (People vs. De Jesus (1995) 38 Cal.App.4th 1, 32.  

    1. Court’s Discretion

    “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Evidence Code § 352.   “Prejudicial” is not synonymous with “damaging,” but refers instead to evidence that “uniquely tends to evoke an emotional bias against defendant” without regard to its relevance on material issues). People v. Kipp (2001) 26 Cal. 4th 1100, 113 Cal. Rptr. 2d 27, 33 P.3d 450.  

    The balancing process requires consideration of the relationship between evidence and relevant inferences to be drawn from it, whether evidence is relevant to main or only a collateral issue, and necessity of evidence to proponent’s case as well as reasons recited in statute for exclusion. Kessler v. Gray (1978) 77 Cal. App. 3d 284, 143 Cal. Rptr. 496.  Because evidence of other, uncharged offenses can be highly prejudicial, trial courts should use particular care in performing balancing analysis under Section 352. People v. Millwee (1998) 18 Cal. 4th 96, 74 Cal. Rptr. 2d 418, 954 P.2d 990, cert. denied. 

    For example, the trial court committed reversible error in rape and kidnapping trial by admitting uncharged act evidence that defendant put his finger in the mouth of previous attempted kidnapping victim; the jury could infer a sexual connotation to the prior offense, and the prejudicial effect of the evidence exceeded its comparatively low probative value.  People v. Jandres (2014) 226 Cal. App. 4th 340, 171 Cal. Rptr. 3d 849.  Similarly, in a prosecution for committing a forcible lewd act upon a child, where the key issue was whether the defendant had the intent to commit the act when he entered the victim’s house, the trial court erred in permitting the court-appointed interpreter to testify that she had seen defendant moving his hands near his groin during victim’s testimony; such testimony could confuse and inflame the jury.  People v. Leon (2001) 91 Cal. App. 4th 812, 110 Cal. Rptr. 2d 776.

    By enacting §352, the legislature gave courts the means to facilitate judicial economy.  DePalma v. Westland Software House (1990) 225 Cal. App. 3d 1534, 276 Cal. Rptr. 214. The issue of judicial economy is served by the exclusion of the long known by the DA, but just disclosed evidence to the Defense of the allegations against the Defendant by MG because it would require Defendant to call rebuttal witnesses on collateral issues of scant relevance and possible enormous prejudice.  See People v. Morrison (2011) 199 Cal. App. 4th 158, 131 Cal. Rptr. 3d 26 (Contrary to the common law rule and popular belief, a trial court has substantial discretion to allow rebuttal witness to contradict testimony on direct examination, even though the rebuttal is impeachment on a collateral fact).

    II

    EVIDENCE CODE 1108 DOES NOT MAKE THE EVIDENCE OF MG’S ALLEGATIONS ADMISSIBLE

    Evidence Code § 1108 provides for the admission of prior convictions for specified sex offenses for use as propensity evidence so long as such evidence is not subject to exclusion pursuant to §352.  The incorporation of §352 into section §1108 provides “a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial.”  People v. Falsetta (1998) 21 Ca1.4th 908 at pp. 917-918.

    The reviewing court in People v. Harris (1998) 60 Cal.App.4th 727 set forth the manner in which the balancing test of §352 should be applied to other sex crimes evidence sought to be admitted under §1108.  In recognition that all cases discussing the application of §352 to other crimes evidence predated §1108, the Harris court emphasized that §352 “preserves the accused’s right to be tried for the current offense,” i.e. for what he did, not who he is. (Id., at p. 737.)  The court determined: “The factors we consider are derived from the text of section 352 and the cases which have arisen in the context of the use of prior conduct admitted under section 1101.  We recognize that different considerations may apply in the context of section 1108.  However, section 1108 functions as another albeit much broader exception to the general rule of exclusion of other crimes evidence.” (ld., at p. 737.) (Also see People vs. Soto (1998) 64 CalApp4th 966, 75 Cal.Rptr.2d605,617.)

    The Harris Court then considered essentially the same §352 balancing factors that the California Supreme Court enumerated in People v. Ewoldt (1994) 7 Cal.4th 380.  These factors, as described in Harris include:

    1. The inflammatory nature of the evidence;
    2. The probability of confusion if the defendant's prior sex offense did not result in a criminal conviction;
    3. The remoteness in time of the uncharged act from the charged offenses;
    4. The consumption of time of evidence pertaining to the uncharged offense;
    5. The probative value of the evidence which can include “consideration [of] the degree of similarity of the prior and current offenses, as similarity would tend to bolster the probative force of the evidence.”

    Harris, supra, 60 Cal.AppAth at p. 740; Ewoldt, supra, 7 Ca1.4th at pp. 404-405; Falsetta, supra, 21 Cal4th at p.917.

    First, any evidence of abuse against MG would be particularly “inflammatory,” given their very nature fact.  As noted in People v. Karis (1988) 46 Ca1.3d 612, 638, the “prejudice” referred to in Evidence Code §352 “applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,” as is the case here.

    Second, these events were committed when Defendant was between six and eight and never resulted in an conviction, juvenile or otherwise and, as the report stipulates, were never before reported.  As explained in People v. Branch (2001) 91 CaLApp.4th 274, at p. 284: “In Ewoldt, the Supreme Court discussed confusion of the issues in terms of whether or not a defendant has been convicted of the uncharged prior offense. (Ewoldt, supra, 7 Cal.4th at p. 405, 27 Cal.Rpt.2d 646, 867 P.2d 757.)  If the prior offense did not result in a conviction, that fact increases the likelihood of confusing the issues ‘because the jury [has] to determine whether the uncharged offenses [in fact] occurred.’ (Ibid).”  Here, it is unclear if there is any evidence at all of any crime committed by Defendant against his deceased daughter, let alone a sex crime.

    Third, the alleged acts are very remote, over 40 years ago subject to fading memory and unavailability of witnesses to either rebut or corroborate. 

    Fourth, if MG’s allegations are admitted, Defendant would then be compelled to rebut it with testimony from witnesses who were in a position to know the facts of what actually took place at that time. This would essentially require a trial within a trial almost certainly resulting in an “undue consumption of time.”  Moreover, the likelihood of unavailability of such witnesses after the passage of 40 years, would also likely result in exactly the kind of prejudice §352 is intended to prevent.  

      Fifth, the report provides minimal information regarding MG’s actual allegations.  Whatever they may be though, they were between two very young juveniles whereas the current acts allege above the clothes touching of an adult male and two juveniles.  Thus, the probative value, if any, would be slight.  

    1. CONCLUSION

    [INSERT CONCLUSION]              


    Respectfully submit



    ___________________________

    Attorney for Defendant

  5. 5.Motion to Exclude Custodial Statements (Miranda)

    [NAME OF ATTORNEY], SBN [STATE BAR NUMBER]

    Innocence Legal Team

    3478 Buskirk Avenue, Suite 150

    Pleasant Hill, CA 94523

    Tel: (408) 414-8194

    Email: [EMAIL ADDRESS]





    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF CALIFORNIA   

      

                 Plaintiff,

    vs.


    [NAME OF DEFENDANT],

    Defendant 









    CASE NO. [CASE NUMBER]

    NOTICE OF MOTION TO SUPPRESS DEFENDANT’S CUSTODIAL STATEMENTS (MIRANDA)


    Date:

    Time:

    Dept:



    Case Filed: 

    Trial:  


    TO THE DISTRICT ATTORNEY OF [COUNTY] AND/OR [HIS/ HER] REPRESENTATIVE:

    PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move for an order suppressing all evidence of the defendant’s statement [insert statements].

    The motion will be made on the grounds that the introduction of such evidence before the trier of fact would violate the defendant’s right against compulsory self-incrimination, and his right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. This motion is also based on the grounds that the evidence was obtained in violation of the Sixth Amendment to the United States Constitution. 

    The motion will be based on this notice of motion, on the memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as hereafter may be filed with the court, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.


    Dated:

     

    __________________________

    [NAME OF ATTORNEY]

    Attorney for Defendant


    [NAME OF ATTORNEY], SBN [STATE BAR NUMBER]

    Innocence Legal Team

    3478 Buskirk Avenue, Suite 150

    Pleasant Hill, CA 94523

    Tel: (408) 414-8194

    Email: [EMAIL ADDRESS]





    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF CALIFORNIA   

      

                 Plaintiff,

    vs.


    [NAME OF DEFENDANT],

    Defendant 









    CASE NO. [INSERT CASE NUMBER] 

    MOTION TO SUPPRESS DEFENDANT’S STATEMENTS


     


    I.

    STATEMENT OF THE CASE

    [Add case information]


    II.

    SUMMARY OF THE FACTS

    [add case facts …]

    MEMORANDUM OF POINTS AND AUTHORITIES

    III.

    THE USE OF STATEMENTS STEMMING FROM A CUSTODIAL INTERROGATION OF THE DEFENDANT VIOLATES THE PRIVILEGE AGAINST SELF-INCRIMINATION UNLESS THE PROSECUTION CAN DEMONSTRATE THAT THE PROCEDURAL SAFEGUARDS OF MIRANDA WERE HONORED

    In Miranda v. Arizona (1966) 384 U.S. 436, 444 the Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”

    The Supreme Court cautioned that custodial interrogations must be strictly controlled in order to ensure the elimination of coercive methods, both psychological as well as physical. Precautions must be observed to eliminate the “gap in our knowledge as to what in fact goes on in the interrogation rooms,” and to prevent the interrogation environment from being used to “subject the individual to the will of his examiner” (Miranda, supra, 384 U.S. 436, 449). Therefore, to ensure the statements offered against the defendant at trial are the product of the voluntary choice of the defendant, the court devised a set of procedures to mitigate the inherent coerciveness that pervades custodial interrogations.

    The Miranda safeguards require that a suspect be advised prior to any questioning: (1) the suspect has the right to remain silent, and anything he or she says can be used against him or her in a court of law; (2) the suspect has the right to an attorney prior to questioning; and (3) if the suspect cannot afford an attorney, one will be provided him or her prior to any questioning.

    In Dickerson v. U.S. (2000) 530 U.S. 428, the Supreme Court made clear that the Miranda warnings are constitutionally based on the Fifth Amendment right against self-incrimination.

    IV.

    IN RE ELIAS V. (2015) 237 CAL.APP.4TH 568 FINDS THE REID METHOD OF INTERROGATION COERCIVE WHEN APPLIED TO AN IMMATURE INDIVIDUAL.

    In Elias V. the First District Court of Appeal address the claim of a minor that his confession was involuntary under the due process clause of the Fourteenth Amendment as it was the product of the type of coercive interrogation techniques condemned in Miranda v. Arizona (1966) 384 U.S. 436.   The court agreed and reversed.

    The court reasoned: 


    The admissibility of a confession depends upon the totality of the circumstances existing at the time the confession was obtained. (People v. Robertson (1982) 33 Cal.3d 21, 39–40 [188 Cal. Rptr. 77, 655 P.2d 279]; People v. Sanchez (1969) 70 Cal.2d 562, 572 [75 Cal. Rptr. 642, 451 P.2d 74], cert. dism., Sanchez v. California (1969) 394 U.S. 1025 [23 L. Ed. 2d 743, 89 S. Ct. 1646].) A minor can effectively waive his constitutional rights (People v. Lara (1967) 67 Cal.2d 365, 390–391 [62 Cal. Rptr. 586, 432 P.2d 202], cert. den. Lara v. California (1968) 392 U.S. 945 [20 L. Ed. 2d 1407, 88 S. Ct. 2303] … [fn. omitted] but age, intelligence, education and ability to comprehend the meaning and effect of his confession are factors in that totality of circumstances to be weighed along with other circumstances in determining whether the confession was a product of free will and an intelligent waiver of the minor's Fifth Amendment rights ([Lara], at pp. 385–387).” (People v. Maestas (1987) 194 Cal.App.3d 1499, 1508 [240 Cal. Rptr. 360].)  (Id. at p. 576.)

    The prosecution is required to show voluntariness of a confession by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489.)  The determination depends on all of the surrounding circumstances, both the characteristics of the accused and the details of the interrogation. (Schneckloth v. Bustamante (1973) 412 U.S. 218, 226.)  The trustworthiness of the confession is not a consideration. (Rogers v. Richmond (1961) 365 U.S. 534, 543-544.)   A finding of coercive police conduct is necessary, but the exertion of any improper influence is sufficient. (Colorado v. Connelly (1986) 479 U.S. 157; Hutto v. Ross (1976) 429 U.S. 28, 30.)

    The techniques employed in In re Elias V., and in the instant case, were condemned by the Supreme Court in Miranda.  

    The foundational theses of Miranda are that “the modern practice of in-custody

    Interrogation is psychologically rather than physically oriented” (Miranda, supra, 384 U.S. at p. 448), and the psychological techniques now employed by interrogators “trade[] on the weakness of individuals,” and “may even give rise to a false confession.” (Id. at p. 455 & fn. 24, citing Borchard, Convicting the Innocent (1932).)

    The danger of false confessions is real. Studies conducted after Miranda was decided estimate that between 42 and 55 percent of suspects confess in [*578]

    response to a custodial interrogation. (Kassin & Gudjonsson, The Psychology of

    Confessions: A Review of the Literature and Issues (Nov. 2004) 5 Psychol. Sci. Pub. Int. 33, 44.)  Estimates of false confessions as the leading cause of error in wrongful convictions range from 14 to 25 percent, and as will be discussed (see post, at pp. 588–591), a disproportionate number of false confession cases involve juveniles. Recent research has shown that more than one-third (35 percent) of proven false confessions were obtained from suspects under the age of 18. (Drizin & Leo, The Problem of False Confessions in the Post-DNA World (2004) 82 N.C. L.Rev. 891, 902, 944–945, fn. 5 (False Confessions).) (Id. at pp. 577-578.)

    Both Elias V. and Miranda cite John E. Reid and Associates, and their basic course on “The Reid Technique”.  Scientists who study interrogation techniques and their effects describe the Reid Technique as follows:

    “First, investigators are advised to isolate the suspect in a small private room, which increases his or her anxiety and incentive to escape. A nine-step process then ensues in which an interrogator employs both negative and positive incentives.  On one hand, the interrogator confronts the suspect with accusations of guilt, assertions that may be bolstered by evidence, real or manufactured, and refuses to accept alibis and denials. On the other hand, the interrogator offers sympathy and moral justification, introducing ‘themes’ that minimize the crime and lead suspects to see confession as an expedient means of escape.” (Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations (2010) 34 Law & Hum. Behav. 3, 7 (Police-Induced Confessions).  According to these authors, the purpose of interrogation is “not to discern the truth, determine if the suspect committed the crime, or evaluate his or her denials. Rather, police are trained to interrogate only those suspects whose culpability they ‘establish’ on the basis of their initial investigation … .” (Police-Induced Confessions, at p. 6.)  (Id. at pp. 579-580.)

    Investigators are taught to conduct the interrogation in privacy, and not at home or where the suspect would have support.  They are to express confidence in guilty, and to minimize the moral seriousness of the offense.   They seek to create in the suspect a psychological state where the defendant’s story is nothing more than an elaboration of which the police already know, guilt.  Patience, perseverance, kindness and stratagems are employed.  The interrogation is steady and without relent.  The officer dominates, and insinuates guilt with his questions.  He is aggressive and persistent. 

    Maximization/minimization is employed.  The officer is rock solid in his belief in guilt, and provides moral justification and face saving excuse for the conduct.  This is an offer of leniency by implication.   False evidence may be cited.  The lie detector ploy may be employed. Questions may take the form of a false choice, encouraging the suspect to select one of two options.  (See Elias V., supra, at pp. 581-588.)

    In recent years both the courts (See Roper v. Simmons, supra, 543 U.S. at 569-570) and the Reid Institute have found that the differences between adults and the immature must be recognized.

    Thus, for example, the most recent edition of the Reid manual on interrogations notes that although the use of deception, including the use of “fictitious evidence which implicates the subject” (Inbau et al., Criminal Interrogation, supra, at p. 255), has been upheld by the courts (see, e.g., Frazier v. Cupp, supra, 394 U.S. at p. 739; People v. Smith, supra, 40 Cal.4th at p. 505), “this technique should be avoided when interrogating a youthful suspect with low social maturity …” because such suspects “may not have the fortitude or confidence to challenge such evidence and depending on the nature of the crime, may become confused as to their own possible involvement if the police tell them evidence clearly indicates they committed the crime.  Factors such as the adolescent's level of social responsibility and general maturity should be considered before fictitious evidence is introduced.” (Inbau et al., Criminal Interrogation, supra, at p. 255.)  (In re Elias V., supra, at p. 588.)

    V.

    THERE WAS AN INVOCATION UNDER MIRANDA THEREFORE ANY SUBSEQUENT STATEMENT IS INADMISSIBLE

    When an individual “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise” (Miranda, supra, 384 U.S. 436, 473–474). 

    Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” (McNeil v. Wisconsin (1991) 501 U.S. 171, 178). However, if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, officers are not automatically required to stop the questioning (Ibid). Therefore, an essential inquiry is whether the defendant made an unequivocal invocation.

    1. THE INVOCATION WAS UNEQUICOVAL

    If the individual indicates at any time prior to questioning, that he or she wishes to remain silent or have the presence of an attorney, the interrogation may not proceed. Faced with a clear invocation, law enforcement officers may not seek clarification and keep talking to the defendant. The assertion does not need to be “invoked with unmistakable clarity” (People v. Randall (1970) 1 Cal. 3d 948, 955 (overruled on other grounds by, People v. Cahill (1993) 5 Cal. 4th 478)). 

    A suspect’s request for an attorney constitutes an invocation. For example, in U.S. v. de la Jara (1992) 973 F.2d 746, 751, the court held that absent compelling evidence to the contrary, a phone call to an attorney must be construed as an invocation (U.S. v. de la Jara (1992) 973 F.2d 746, 751). In Mays v. Clark (2015) 807 F.3d 968, 978, the Ninth Circuit concluded a California court of appeal had erred in finding no invocation when a 17-year-old murder suspect, shortly after an implied Miranda waiver, asked that an attorney retained by a family member be summoned. 

    [ADD IN CASE FACTS]

    1. IF THE COURT FINDS THE INVOCATION WAS EQUICOVAL DETECTIVES EXCEEDED PERMISSIBLE CLARIFICATION QUESTIONING

    When a suspect makes a statement which is ambiguous as to invoking Miranda rights, law enforcement officers may ask questions to clarify the defendant’s response (People v. Sauceda-Contreras (2012) 55 Cal. 4th 203, 218; U.S. v. Rodriguez (2008) 518 F.3d 1072, 1079). The questioning is allowed for the limited purpose of clarifying whether the suspect is waiving or invoking those rights, officers may not persist “in repeated efforts to wear down his resistance and make him change his mind,” or inquire the reasons why he is invoking (People 

    1. Peracchi (2001) 86 Cal. App. 4th 353). In Peracchi, police gave Miranda advisements and asked defendant if, having those rights in mind, defendant wanted to talk (Ibid.) He said, “I don't think so. At this point, I don’t think I can talk.” The court found this was an unambiguous assertion of right to remain silent (Ibid.) Officer who asked why he didn’t want to talk was not seeking clarification whether he was asserting his right to silence (Ibid.)

    In People v. Williams (2010) 49 Cal. 4th 405, 428, as modified, (Aug. 18, 2010), the court addressed the question whether law enforcement officers may seek clarification when a suspect makes an ambiguous or equivocal request for the assistance of counsel at the initial stage of an interrogation, prior to any waiver of Miranda rights. The Williams’ court held “the interrogators may clarify the suspect’s comprehension of, and desire to invoke or waive, the Miranda rights.” Whether the invocation of the right to counsel is ambiguous is judged objectively from “what a reasonable officer would have understood the nature of the suspect’s request to be under all the circumstances.” (See Connecticut v. Barrett (1987) 479 U.S. 523, 529 (analyzing a response to an initial admonition).)

    [APPLY CASE FACTS]

    1.  

    THE INTERROGATION BY DETECTIVES VIOLATED THE SIXTH AMENDMENT

    The interrogation by officers also violated the safeguards of the Sixth Amendment. The Sixth Amendment “guarantees the accused ... the right to rely on counsel as a ‘medium’ between him and the State.” (Maine v. Moulton (1985) 474 U.S. 159, 176). “The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversarial system of criminal justice.” (Id. at 168–69). “Once the right to counsel has attached and been asserted, the State must of course honor it.” (Id. at 170).

    The Sixth Amendment right to counsel extends to all “critical stages” of the criminal proceedings, including the period prior to trial. (United States v. Wade (1967) 388 U.S. 218, 227–28). Once there has been an initiation of criminal charges, the right to counsel attaches. After an attorney represents a person on particular charges, the accused may not be questioned about the crimes charged in the absence of the attorney. 

    [ADD CASE FACTS]

    IV.

    CONCLUSION

    The interrogation violated both the Fifth and Sixth Amendments to the United States Constitution. [ADD BRIEF FACTS]


    Respectfully submitted,


    Dated:

     

    __________________________

    [NAME OF ATTORNEY]

    Attorney for Defendant


  6. 6.Motion to Exclude Fasle Allegation Statistics

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    MOTION TO EXCLUDE EVIDENCE OF FALSE ALLEGATION STATISTICS


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       



    DEFENDANT MOVES TO EXCLUDE ALL TESTIMONY CONCERNING STATISTICS REGARDING FALSE ALLEGATIONS (SUCH AS PERCENTAGES) AND TO DIRECTLY INSTRUCT PROSECUTION EXPERTS TO MAKE ANY MENTION THEREOF


    1. Testimony on the statistical likelihood of false allegations is irrelevant and invades the province of the jury to determine the credibility of witnesses. 

    In People v. Wilson (2019) 33 Cal.App.5th 559, the prosecution called Dr. Anthony Urquiza to offer evidence about CSAAS and false allegations of child sexual abuse.  Urquiza testified that research on the topic of false allegations of child sexual abuse shows that false allegations happen “very infrequently or rarely.”  He referred to a Canadian study that found a false allegation rate of “about 4% of cases,” and that in those cases where a false allegation occurred it was not the child who made the false allegation.  Dr. Urquiza testified that there were 12 to 15 other studies on the subject which found the false allegation rate to be between one and six percent of cases.  (Id. at p. 568.)  On appeal, defendant contended that the numerical evidence improperly amounted to testimony that 96% (or between 94 and 99%) of children accusing a person of child sexual abuse are telling the truth.  (Ibid.) 

    The Wilson Court agreed with the “clear weight of authority in our sister states, the federal courts, and the military courts” that evidence of the rate of false allegations of child sexual assault is inadmissible.  (Id. at p. 570.)  The use of such statistical evidence bolsters the credibility of the complainant thereby depriving the defendant of his constitutional right to have the jury make credibility determinations.  (Id. at p. 570.)  Even more fundamentally, Wilson determined that statistical evidence regarding false allegations is irrelevant “because it tells the jury nothing about whether this particular allegation is false.”  (Id. at p. 571.)  As such, testimony regarding statistical evidence of false allegations is more prejudicial than probative because it confuses the issues and distracts the jury from its function of determining credibility.  (Ibid.)

    In People v. Julian (2019) 34 Cal.App.5th 878, the prosecution once again called upon Dr. Anthony Urquiza to testify about the CSAAS theory and the statistical percentage of false allegation by child sexual abuse victims.  Dr. Urquiza testified that the “range of false allegations that are known to law enforcement of [Child Protective Services] . . . is about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases that appear to be false allegations.”  (Id. at p. 883.)  He added that the research bears out that false allegations are “very infrequent, or rare.”  (Ibid.)  Defense counsel did not object to Dr. Urquiza’s testimony.  On cross-examination, defense counsel questioned Dr. Urquiza about the studies that were the foundation of his testimony.  However, Dr. Urquiza simply “used the opportunity to repeatedly reassert his claim that statistics show children do not lie about being sexually abused.”  (Id. at pp. 888-889.)

    The Julian Court agreed with the defendant that his trial attorney was ineffective in failing to object to Dr. Urquiza’s statistical evidence on false allegations and that counsel’s omission deprived him of a fair trial.  Julian noted that the fact that such evidence is inadmissible is dictated by existing authority that precludes an expert from using syndrome evidence, such as CSAAS or rape trauma syndrome, to make “predictive conclusions” about whether a particular child or child abuse victims in general “should be believed” or that “abused children give inconsistent accounts and are credible nonetheless.”  (Id. at p. 886, citing People v. Collins (1968) 68 Cal.2d 319, 327; People v. Bowker (1988) 203 Cal.App.3d 385, 393.) 

    Wilson and Julian require the exclusion of statistical evidence on false allegations.  These cases also preclude any expert from making “predicative conclusions” regarding the verity of a child’s account of abuse.  Thus, Dr. Urquiza should be admonished to refrain from discussing research on the statistical probability of false allegations and to avoid making predictive conclusions about the credibility of child abuse victims based upon CSAAS theory (e.g., “children who make inconsistent statements about child abuse should be believed anyway,” or “children sexually abused by a family member normally delay disclosure.”)  


    1. Admission of testimony about the rate of false allegations violates the defendant’s federal and state constitutional rights.

    In Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, the court reversed an order denying a habeas corpus petition because, it held, defendant’s due process rights were violated by expert testimony that 99.5% of children tell the truth about sexual abuse, and that the expert had not personally encountered any instances where a child had invented a lie about sexual abuse. (Id. at pp. 737-739.)  

    Julian, supra, agrees with Snowden that the admission of prejudicial statistical data deprives the defendant of his due process right to a fair trial.  (People v. Julian, supra, 34 Cal.App.5th at p. 887.)  While such evidence “may not be prejudicial where it occurs in a slight passing reference by the expert,” it cannot be deemed harmless when the expert is called upon to pontificate on the issue of the rate of false allegations and recites empirical studies in support of his opinion.  In such circumstances, the error is “prejudicial by any standard.”  (Id. at p. 890, citing Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824; People v. Watson (1956) 46 Cal.2d 818; see also People v. Partida (2005) 37 Cal.4th 428, 435-439 [defendant may argue that the admission of unobjected to gang evidence violates federal due process if it deprives the defendant of a fair trial]; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 15 & 16.)

    A criminal defendant is entitled to be tried on the relevant evidence against him, not on statistics and probabilities that bear no relation to the particular acts he is accused of. (U.S. Const., 14th Amend.; Collins, supra, 68 Cal.2d at p. 320 [statistical testimony “distorted the jury’s traditional role of determining guilt or innocence according to long-settled rules”]; Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; Snowden, supra, 135 F.3d at pp. 737-739; Lisenba v. People of the State of California (1941) 314 U.S. 219, 235-237 [62 S.Ct. 280].)  Given that the prosecution of a child sexual abuse case normally turns on the respective credibility of the complainant and the defendant, the admission of expert opinion that improperly bolsters the credibility of the victim deprives the defendant of due process of law.  (Snowden, supra, 135 F.3d at p. 737.)

    Dr. Urquiza’s opinion regarding the low incidence of false allegations usurps the jury function and substitutes his own biased opinion for a jury determination of guilt beyond a reasonable doubt.  (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Dillon v. United States (2010) 560 U.S. 817, 828 [referring to the “Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt”]; Snowden, supra, 135 F.3d at pp. 737-739; United States v. Brooks (C.A.A.F. 2007) 64 M.J. 325, 330 [defendant had substantial right to have fact finder decide ultimate issue without viewing alleged victim’s credibility through the filter of expert testimony]; Powell v. State (Del. 1987)  527 A.2d 276, 279-280 [expert’s percentage testimony deprived defendant of his right to have jury make credibility determinations]; see United States ex rel. Toth v. Quarles (1955) 350 U.S. 11, 16-18; U.S. v. Scheffer (1998) 523 U.S. 303, 313 [118 S.Ct. 1261].)

    Such testimony would also violate Petitioner’s right to present a defense.  (U.S. Const., 6th & 14th Amends.; see Collins, supra, 68 Cal.2d at pp. 327, 331 [statistical testimony “foreclosed the possibility of an effective defense by an attorney apparently unschooled in mathematical refinements, and placed the jurors and defense counsel at a disadvantage in sifting relevant fact from inapplicable theory”]; Cal. Const., art. I, §§ 15 & 16.)

    Last, but far from least, such testimony would also undermine defendant’s right to the presumption of innocence and reduce the prosecution’s burden of proof beyond a reasonable doubt.  Dr. Urquiza’s statistics inform jurors that, even before any evidence relevant to this particular case is considered, that there is a well above a 90% chance the defendant is guilty. (See Taylor v. Kentucky (1978) 436 U.S. 478, 487-488, 490 [jury was improperly invited to consider petitioner’s status as a defendant and permitted to draw inferences of guilt from fact of arrest and indictment]; In re Winship (1970) 397 U.S. 358, 363; Estelle v. Williams (1976) 425 U.S.501, 503; U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.)  In effect, such statistics convert the fact that an accusation had been made to a probability of guilt; from such testimony, jurors could conclude, without considering any evidence specific to this case, that there is a 92 to 99 percent chance that the defendant was guilty. (See generally Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1360-1361, 1368-1372 (1971) [statistical evidence undermines the presumption of innocence].)

    For the above reasons the defense requests the court to order the prosecution, and Dr. Urquiza not to present or discuss the studies and their percentages of false allegations before the jury or make predictive conclusions about the credibility of child abuse victims in general based upon research studies or his own observations of the characteristics of child abuse victims.   

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  7. 7.Motion to Exclude Opinion That Witness Was Victim of Sexual Assault

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    MOTION TO EXCLUDE OPINION THAT COMPLAINING WITNESS IS A VICTIM OF SEXUAL OFFENSE


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       


    TO THE DISTRICT ATTORNEY OF [COUNTY] AND/OR [HIS/ HER] REPRESENTATIVE:

    PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move for an order to exclude any opinion evidence that the complaining witness has been the victim of a sexual offense.

    The motion will be made on the grounds that the introduction of such evidence before the trier of fact would violate the defendant’s right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. This motion is also based on the grounds that the evidence was obtained in violation of the Sixth Amendment to the United States Constitution. 

    The motion will be based on this notice of motion, on the memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as hereafter may be filed with the court, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.


    Dated:

     

    __________________________

    [NAME OF ATTORNEY]

    Attorney for Defendant

    MEMORANDUM OF POINTS & AUTHORITIES

    I.

    STATEMENT OF THE CASE

    [Add case information]


    II.

    SUMMARY OF THE FACTS

    [add case facts …]

    The defense moves for a protective order that: 

    1. The prosecution not be allowed to introduce expert testimony that the complaining witness is a victim of sexual offense based on “predictors.”
    2. The prosecution be required to specifically identify any alleged “myths” it intends to dispel by introducing expert testimony.
    3. The prosecution be limited to introducing evidence of victims as a class to dispel myths.

    I.

    SYNDROME AND OTHER PSYCHOLOGICAL THEORIES OR MODELS DESIGNED FOR THE TREATMENT OF CHILD MOLEST VICTIMS ARE NOT ADMISSIBLE AS PREDICTORS, SINCE THEY PRESUME THE EXISTENCE OF WHAT THEY CLAIM TO HAVE DISCOVERED

    1. RAPE TRAUMA SYNDROME

    In People vs. Bledsoe (1984) 36 Cal.3d 236, the California Supreme Court held that evidence that a victim was suffering from Rape Crisis Trauma Syndrome was not admissible for the purpose of proving that a rape had occurred.  The prosecution called a rape counselor who had treated the victim after the incident and who the prosecution indicated would testify that the victim was suffering from "rape trauma syndrome".  The trial court found the evidence relevant on the issue of whether a rape occurred and determined that a showing of the victim's continuing condition and strife was further evidence of the fact that a rape occurred as opposed to evidence that a rape did not occur.  (Id., 36 Cal.3d 241.)  The counselor testified at length that 99.9% of the rape victims fall into the "rape trauma syndrome", and to its various aspects.  Ultimately she expressed an opinion based on her experience and past training in interviews and her contact with the victim, that the victim was suffering from rape trauma syndrome.  (Id., 36 Cal.3d 243-244.)

    The Supreme Court stated:

    "...rape trauma syndrome was not devised to determine the truth or accuracy of a particular past event--that is, whether in fact, a rape in the legal sense occurred-but rather was developed by professional rape counselors as a therapeutic tool to help identify, predict and treat emotional problems experienced by the counselors clients."  (Id., 36 Cal.3d 248 to 250, emphasis added.)

    The court went on to note that rape trauma counselors, by their training, are particularly required not to judge the credibility of their clients and not to pass judgment.  Thus, "as a rule, rape counselors do not probe inconsistencies in their client's descriptions of the facts of the incident, nor do they conduct independent investigations to determine whether other evidence corroborates or contradicts their client’s renditions."  (Id., 36 Cal.3d 250.)

    The court squarely held that expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove the witness was raped "[b]ecause the literature does not even purport to claim that the syndrome is a scientifically reliable means of proving that a rape occurred."  (Id., 36 Cal.3d 251.)

    II

    CHILD MOLEST SYNDROME

    In In re Sara M. (1987) 194 Cal.App.3d 585, the Court of Appeal held that evidence that a victim was suffering from Child Molest Syndrome was not admissible for the purpose of proving that a child molest had occurred.

    The trial court allowed two expert witnesses to testify to the "Child Molest Syndrome" but did not allow the experts to testify to his opinion that a molestation had in fact occurred.

    According to one psychologist who had treated Sara M., the common characteristics of child molest victims included:

    1. Consistency in recounting the molestation to different people;
    2. Denial the molestation occurred;
    3. Sexual knowledge beyond that usually associated with the victim's age;
    4. The ability to recall the molestation over an extended period of time;
    5. A feeling of loss of control over their life.  (Id., at p. 589.)  Another psychologist who treated Sara elaborated on the symptoms of child molest syndrome:
    6. They often are angry or depressed;
    7. They often exhibit a variety of behavioral problems;
    8. They suffer from sleep disturbances or eating disorders;
    9. They show a false sense of maturity;
    10. They may trust too much or too little;
    11. They are fearful of the purported molester;
    12. They consistently name one person as the molester, and;
    13. Details of the incident may be revealed only over time.  (Id., at p. 589.)

    In In re Sara M., supra, the court held that the Child Molest Syndrome's primary purpose at trial in that case was as evidence that the molestation did in fact take place and its admission was therefore reversible error.  (Id., at p. 592, 595.)

    Similarly, in People vs. Bowker (1988) 203 Cal.App.3d 385, the court determined that general testimony regarding Child Sexual Abuse Accommodation Syndrome (“CSAAS”) was not permitted to be used “in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused.”  (Id., at p. 393.)  Leaving such an application to the jurors was dangerous because of their lack of training in the perils of drawing “predictive conclusions.”  (Id., at p. 393.)  Thus, general, educational testimony on CSAAS is inadmissible even if there is no reference to the victim because it “has the potential of being used by an untrained jury as a construct within which to pigeon-hole the facts of the case and draw the conclusion that the child must have been molested.”  (People vs. Bothuel (1988) 205 Cal.App.3d 581, 587.)

    III

    WHY SYNDROMES AND PREDICTORS ARE INADMISSIBLE

    The fatal defect in the Child Molest Syndrome was the same defect in the Rape Trauma Syndrome:  child molestation was presumed!

    "Psychologists testified the syndrome is neither included in the DSM nor recognized by the American Psychological Association or any other professional organization.  They described the syndrome as being in the beginning stages of development and acceptance.  No treatises on the syndrome were introduced into evidence.  The psychologists further testified they did not know how the symptoms of the syndrome were developed; they knew of no studies comparing the reactions of children known to be molested with those who claimed to be molested or with those who were not molested.  A basic defect of the syndrome is thus apparent: the syndrome was developed on the assumption the children studied were in fact molested.  Moreover, while no one at the hearing testified directly concerning the reason for the syndrome's development, it appears to be a tool for therapy and treatment, much like the rape trauma syndrome.  Consequently, the same problem discussed in Bledsoe may be present in the case of the child molest syndrome: if it was not developed as a truth-seeking procedure but rather as a therapeutic aid, it cannot be used for a different purpose, i.e., to prove a molestation occurred." In re Sara M. (1987) 194 Cal.App.3d 585, 594, 239 Cal. Rptr. 605-611.

    IV

    AN EXPERT WITNESS MAY DISPEL MYTHS AS TO MOLEST VICTIMS

    AS A CLASS, BUT MAY NOT RENDER A PERSONAL OPINION ON

    A SPECIFIC COMPLAINING WITNESS OR DEFENDANT

    In People vs. Roscoe (1985) 168 Cal.App.3d 1093, 215 Cal. Rptr. 45, the court established the rule on the use of experts to rehabilitate alleged victims.  The court stated:

    "The Bledsoe court would permit the expert to tell the jury about `recent findings of professional research on the subject of a victim's reaction to sexual assault' to rehabilitate the complaining witness.  (People vs. Bledsoe, supra, 36 Cal.3d at p. 247, 203 Cal. Rptr. 450, 681 P.2d 291.)  The language suggests-although it does not explicitly require-that the opinion testimony must be based upon the literature in the field and the general professional experience of the witness rather than upon an analysis and diagnosis based upon a review and evaluation of the facts in the case at hand.  Thus, for example, a victim whose credibility is attacked for initially denying that he had been molested could be rehabilitated by expert testimony that such denials are more likely than not in molestation cases.  The testimony would not be that this particular child was a victim of molestation, causing him to react in a certain way, but rather that as a class victims of molestation typically make poor witnesses, and are reluctant to disclose or discuss the sordid episodes.

    Since the language used by the court does not clearly proscribe testimony in support of credibility based upon a diagnosis of the victim, we must consider Bledsoe further.

    Credibility questions arise whenever the defendant denies the victim's story, explicitly or implicitly suggesting mis-recollection or fabrication.  If, in every such case, the jury could be informed that a doctor had diagnosed the complainant, based upon the specific facts in the case, as a child molest victim (or rape victim, or whatever), then the protection against misuse of psychologists' testimony erected by Bledsoe would be largely dismantled.

    Where the expert refers to specific events, people and personalities and bases his opinion as to credibility on his diagnosis of this witness, then the conclusion that the witness is credible rests upon the premise that the diagnosis is accurate, and that in fact molestation had occurred.  The jury in effect is being asked to believe the diagnosis, to agree that the doctor's analysis is correct and that the defendant is guilty.  Such a result would subvert the sound rule adopted by a unanimous Supreme Court in Bledsoe, supra.  It follows, therefore, that the expert testimony authorized by Bledsoe to permit rehabilitation of a complainant's credibility is limited to discussion of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand."  (Id., at pp. 1099-1100, 215.) 

    The court also held that the doctor/expert should not be allowed to discuss the facts of this particular case under Evidence Code Section 352.

    "While we believe that this reading of Bledsoe is proper, we find as an independent ground of decision that all of the above considerations required the trial court to exclude this testimony under Evidence Code Section 352, even though this was not specifically urged in support of defendant's various objections.  It would be possible for an expert witness to tell the jury about various studies showing typical responses of victims in molest situations without relying on a detailed analysis of the facts in the case at hand.  All of the `probative value' that the prosecution was entitled to could have been preserved by so limiting the doctor's testimony, without creating any `substantial danger of undue prejudice'.  (EvCode Section 352).   The doctor's discussions of specific facts of this case in support of his conclusion that the complainant was indeed a victim of molestation by the defendant had all the force of a district attorney's closing argument, and even greater impact since it was delivered in clinical terms by a `doctor' purporting to make an objective scientific analysis."  (Id., at p. 1100.)

    Also see People vs. Bowker, supra, at pp. 393-394; People vs. Bothuel, supra, at pp. 587-588; People vs. Bergschneider (1989) 211 Cal.App.3d 144, 158-159; People vs. Gilbert (1992) 5 Cal.App.4th 1372, 1384; People vs. Humphrey (1996) 13 Cal.4th 1095-1096.) 

    V

    THE CORRECT PROCEDURE FOR DISPELLING MYTHS:

    In People vs. Gray (1986) 187 Cal.App.3d 213, 213, the court allowed an expert witness to testify regarding the child abuse accommodation syndrome.  It was made clear to the jury that this was not a diagnosis or a test for child abuse.  The expert did not form any opinions that the child had been molested.  The expert confined his remarks to behavioral traits of child abuse victims as a class nor did he rely on a detailed analysis of the facts in the case at hand.  The expert's testimony was allowed to explain that late reporting is not unusual and disclosure of details over time is not unusual.

    This view was reiterated in People vs. Harlan (1990) 222 Cal.App.3d 439 wherein the court held that it was permissible to use expert testimony to dispel myths about victims as a class.  The myth must be identified, the testimony must be limited to dispel this myth, and the jury must be admonished that the expert testimony is not intended and should not be used to determine whether the victim's molestation claim is true.  (See also People vs. Stark (1989) 213 Cal.App.3d 107, 116-117, People vs. Bowker, supra, at pp. 393-394.)

    VI

    PROFILE EVIDENCE IS INADMISSIBLE IF THE DEFENDANT

    DOES NOT PUT HIS OR THE VICTIM'S CHARACTER IN ISSUE.


    Evidence of the characteristics and typical behavior of one who commits a certain type of crime coupled with the expert opinion that the defendant’s behavior, as put before the expert in the form of hypothetical questions, is consistent with those characteristics is inadmissible profile evidence.  For example, in People v. Robbie (2001) 92 Cal.App.4th 1075, the defendant’s conviction for kidnapping and sexual assault was reversed where an expert was improperly allowed to testify that the defendant’s conduct was consistent with the typical rapist.  The expert was never asked directly to opine that this was so, but rather responded to hypothetical questions posed by the prosecutor which incorporated the victim’s description of the defendant’s conduct.  (Id., at 1084.)  The Robbie court noted that the improper profile evidence could be “unfairly relied upon to affirmatively prove a defendant’s guilt based on his match with the profile.”  (Id., at 1084.)  The court further stated that such evidence is inadmissible because the jury “is improperly invited to conclude that, because the defendant manifested some characteristics, he committed a crime.”  (Id., at 1086-1087.)  Other jurisdictions preclude the use of sex offender profile evidence to conclude that a defendant committed the charged crime.  (See Hall v. State (1985 Ark.) 692 So.w2d 769, 770-771 [expert testimony regarding the psychological profile of a child molester including that in a high percentage of cases the offender is known to the victim reversible error; State v. Petrich (1984 Wa.) 683 P.2d 173, 180 [same]; State v. Clements (1989 Kan.) 770 P.2d 447, 453-454 [evidence that defendant fit the profile of typical child sexual offender reversible error]; ) Other California decisions finding profile evidence inadmissible include People v. Castenada (1997) 55 Cal.App.4th 1057, 1072 (drug dealer profile); People v. Martinez (1992) 10 Cal.App.4th 1001, 1006 (truck thief profile).

    The admissibility of "profile" evidence was considered in People vs. Stoll, supra:

    "The Attorney General argues that, under Bledsoe, supra, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291, use of `syndrome' or `profile' terminology by a mental health professional makes the diagnosis seem `scientific' to a jury, and thus invokes Kelly/Frye.  We adopted no such per se rule in Bledsoe, despite its reference to concerns raised in out-of-state cases.  We are not persuaded that juries are incapable of evaluating properly presented references to psychological `profiles' and `syndromes'."  (Id., at p. 1161, fn. 22.)

    People vs. Harlan (1990) 222 Cal.App.3d 439, 448-449 quotes Stoll with approval on the subject of allowing profiles although that case did not contain a profile issue.  In People vs. Ruiz (1990) 222 Cal.App.3d 1241, the court found based upon Stoll, that profile evidence of a pedophile may be admissible but found the particular profile evidence proffered in that case to be inadmissible because of the defendant's failure to demonstrate the reliability of the material on which his expert based his opinion.  (Id., at pp. 1245-1246.)

    However, as stated above, People vs. Stoll, supra, 49 Cal.3d at p. 1159, held that the psychological evaluations or personality evaluations was CHARACTER EVIDENCE!  Also see People vs. Ruiz, supra, wherein the court held that these opinions were character evidence:

    "It is now settled that psychological opinions based upon personal examination and analysis of accepted psychological tests, such as the MMPI and MCMI, may be admitted as character evidence...."  (Id., at p. 1243.)

    The defendant's and the victim's character can only be placed in evidence by the defendant.  (Evidence Code sections 1101, 1102, 1103.)

    VII

    STUDIES ON THE RELIABILITY OF PROFILES ARE REQUIRED BEFORE THEY ARE CAN BE ADMISSIBLE AS “PREDICTORS.”


    In People vs. Ruiz, supra, the court held that based upon People vs. Stoll, supra, that profile evidence of a pedophile may be admissible.  However, since the profile had not been standardized against a population group of pedophile it was not admissible.  The court stated:

    "Still, it is not enough to determine that certain material--here, profile evidence--might be admissible.  Evidence Code section 801, subdivision (b) requires that the matter underlying an expert's opinion be of `a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.'  Thus there must be some showing that the material on which the expert bases his or her opinion--here the profiles of the primary types of pedophile--is reliable.

    As discussed, supra, there was no such showing in the present case.  There was no evidence that the scientific community had developed any standard profile of a pedophile.  Indeed, Dr. Berg explained that the tests he used were not designed to elicit that information and had not been standardized against a population group of pedophile.  Dr. Berg said that the disorder usually manifests itself in persons who have become fixated on children or on persons who have experienced some recent stress, but there was no showing that Dr. Berg was stating anything other than his personal opinion, nor was there any showing that his personal opinion in such matters was reliable.  We conclude that in this case, at least, the evidence properly was excluded."  (Id., at pp. 1245-1246.)

    VIII

    SYNONYMS ARE ALSO INADMISSIBLE

    Some expert have used the “trick” of using synonyms to the word “profile”.  These synonyms should be excluded for the same reason.  The main synonym that is used is “patterns”.   This is a different word without a distinction.  Both “profiles” and “patterns” should be excluded unter the case of People v. Bledsoe, supra.   

    IX

    AN EXPERT'S PERSONAL OPINION ABOUT A DEFENDANT IS INADMISSIBLE

    Other cases hold that it is error for an expert to express a personal expert opinion that the defendant is what he is accused of being.  In People vs. McDonald (1984) 37 Cal.3d 351, 208 Cal. Rptr. 236, the court ruled that the expert should have been permitted to testify about psychological factors affecting the reliability of eyewitness identification.  It did not hold that the expert could give an opinion on the reliability of particular eyewitness testimony.  (Also see People vs. Page (1991) 2 Cal.App.4th 161; People vs. Torres (1995) 33 Cal.App.4th 37, 46-48 [expert cannot express opinion on the guilt or innocence of the accused or whether or not the conduct in question constituted a crime].)  In People vs. Brown (1981) 116 Cal.App.3d 820, 172 Cal. Rptr. 221, the court found error where a police officer testified as to the definition of a heroin "runner" and then went further to render an opinion that the defendant in the case was in fact a runner.  The court held that the jury was as qualified as the witness to determine whether the defendant worked as a runner.  Finally, in In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1118-1125, the court held that the opinion of a psychiatrist who had examined a suspected victim of sexual molest as to the identity of the defendant as the abuser was inadmissible.

    Respectfully submitted,


    Dated:

     

    __________________________

    [NAME OF ATTORNEY]

    Attorney for Defendant

  8. 8.Motion to Exclude Aquital Consequences Argument

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    DEFENSE MOTION TO EXCLUDE PROSECUTION ARGUMENT REGARDING CONSEQUENCES OF AN ACQUITTAL



    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       


    DEFENDANT MOVES TO EXCLUDE COUNSEL ARGUING CONSEQUENCES OF AN ACQUITTAL


    • In Limine Orders Requested

    The defense moves for orders in limine that the prosecution be precluded from arguing:

    1. That an acquittal would allow Defendant to resume teaching children at Bible Studies again;
    2. That an acquittal would put Defendant on the streets and as a consequence, put children at risk of molestation;
    3. That the jurors should consider the reaction of neighbors to a verdict of not guilty.

    / / /

    • It Would be Improper for the Prosecution to Argue Consequences of an Acquittal

    It is improper for a prosecutor to urge the jury to convict because of the possible consequences of a failure to do so. Such probable consequences which would be inappropriate to argue would include arguments to the effect that an acquittal would permit the defendant to resume teaching and consequently might put other children “ at risk of molestation. “ Caselaw is clear that while commentary on a defendant's future dangerousness may be proper in the sentencing context, it has no place at the guilt phase of a trial.  (People v. Hayes (1990) 52 Cal.3d 577, 635; Com. Of Northern Mariana Islands v. Mendiola (9th Cir. 1992) 976 F.2d 475, 487 [conviction reversed where prosecutor urged that defendant could go out and kill again if acquitted because gun was still out there]; United States v. Cunningham (7th Cir. 1995) 54 F.3d 295, 300 ["The government may not attempt to obtain a conviction by appealing to jurors to prevent future crimes by finding present guilt."].)   

    In People v. Mendoza (1974) 37 Cal.App.3d 717,727, the defendant was charged with committing a lewd act upon a child under 14 years of age.  During closing argument, the prosecutor asked the jury to 'take the defendant off the streets.' The Court of Appeal reversed the conviction, finding that said comment by the prosecutor coupled with several other objectionable ones was not harmless error.  In finding the prosecutor's exhortation to the jurors to take the defendant off the streets error, the Court explained that “California law gives the responsibility for determining punishment in criminal cases to the judge and the Adult Authority. The jury’s responsibility is limited to the determination of the defendant’s guilt or innocence of the charge against him.” (Id., at p. 726.)  Similarly, in People v. Duckworth (1984) 162 Cal.App.3d 1115, 1123-1124, the prosecutor's argument during the sanity phase of trial which implied that the defendant would be on the streets and would thus pose a danger to society if he were found insane was reversible error. 

    It is likewise improper for the prosecution to argue that the jury has a moral obligation to protect society from the defendant, or that if the defendant is acquitted, he will commit more crimes.  In People v. Whitehead (1957) 148 Cal.App.2d 701, the prosecution argued improperly in a child molest trial that men of the defendant’s age commit offenses of this character and his [the prosecutor's] office’s experience is that if such men are acquitted, they will repeat the same character of offense.  (Id., at p. 705.)  The reviewing court found such argument "highly inflammatory" and reversed the defendant's conviction.  (Id., at p. 705-706.)   

    Furthermore, it is improper for the prosecution to argue that the jury should consider what the reaction of their neighbors would be if they were to acquit the defendant. In People v. Purvis (1963) 60 Cal.2d 323, 342, (overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631) the court reversed a first degree murder conviction based on prosecutorial misconduct which included a comment from the prosecutor following trial publicity in the Oakland Tribune newspaper which “threatened the jury with the statement that 'those outside that are not part of this jury have their eyes focused upon you just to see what you are going to do * * *.' The court held “A warning of probable consequences of failure to convict, and of the unfavorable reactions of neighbors is improper (48 Cal.Jur.2d, Trial, s 439, p. 446). 

    DEFENDANTS OPPOSITIONS TO THE PEOPLE’S MOTIONS IN LIMINE


    1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING VICTIM’S PRIOR SEXUAL CONDUCT

    Defendant opposes the Prosecution’s Motion in limine regarding victim’s prior sexual conduct on the same grounds that the Defense makes the above motion for admitting such evidence under Evidence Code § 782 which is hereby incorporated by reference at this point.  


    1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING REGARDING REFERENCES TO STANDARDS OF PROOF.

    The People motion in limine to preclude the defense from making any comparisons or

    references to any standards other than reasonable doubt is misplaced and not supported by any applicable law.  In support, the People cite People v. Katzenberger (2009)178 Cal. App. 4th 1260, 1266, 101 Cal. Rptr. 3d 122, 126. However, the case is inapposite. Katzenberger precludes the prosecution from attempting to confuse the jury regarding standards of proof, ie. Suggesting that a conviction for example could be by either “clear and convincing” or a “preponderance” of evidence.  Here, counsel for Defense may wish during closing to compare the standard to clarify to the jury what “beyond a reasonable doubt” means. Accordingly, the People’s motion in limine in this regard should be denied. 

    DEFENDANTS PROPOSED JURY INSTRUCTIONS

    Defendant joins the People’s jury instruction except as to:

    1. CALCRIM 315 as to Eyewitness Identification because there is no issue as to identification in this case; and 
    2. CALCRIM 1193 Testimony on Child Sexual Abuse Accommodation Syndrome, states:

    Testimony on Child Sexual Abuse Accommodation Syndrome You have heard testimony from <insert name of expert>regarding child sexual abuse accommodation syndrome’s <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her).You may consider this evidence only in deciding whether or not’s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony. 


    New January 2006; Revised August 2016.

    Defendant respectfully submits that CALJIC 10.69 provides a clearer and more accurate statement of the law. It states as follows:


    Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. 


    Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  9. 9.Motion to Exclude Fresh Complaint Evidence

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT STATEMENTS MADE BY THE COMPLAINING WITNESS AT TIME OF DISCLOSURE (“FRESH COMPLAINT”)


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       

    POINTS AND AUTHORITIES

    I

    FACTUAL BACKGROUND

    [INSERT RELEVANT FACTS]

    II

    THE GENERAL REQUIREMENTS AND THE BURDEN TO ESTABLISH THE REQUIREMENTS FOR ADMISSION OF A SPONTANEOUS STATEMENT

    RESTS WITH THE PROSECUTION


    The Prosecution bears the burden of establishing that a spontaneous statement was in fact spontaneous.  In the instant offense, the statements reflect incidents that if true, occurred nearly a decade ago.  This does not meet the foundation of a ‘fresh complaint.’


    Rule (1):  Evidence of a declarant's hearsay statement is admissible under the spontaneous statement exception to the hearsay rule if:

    (a)  The statement purports to narrate, describe, or explain an exciting act, condition or event observed by declarant; and

    (b)  A statement was made spontaneously while the declarant was under the stress of excitement caused by such observation.

    Rule (2):  If the opponent disputes the preliminary fact of declarant having made the statement spontaneously while under the stress of excitement, the proffered statement must be excluded unless the proponent sustains the burden of convincing the judge that declarant made the statement spontaneously and while under the stress of excitement.

     Jefferson's Evidence Benchbook; 2nd Ed. page 369, Section 13.1.  Authority: Evidence Code §§ 1240 and 405.


    Explanation:

    1. The acts observed must be of a nature to cause excitement in the declarant, such as an accident or a crime.
    2. Declarant's statement must be made without reflection and while still under the stress of the excitement caused by the event.
    3. The spontaneous statement must describe the exciting act or event and not relate to collateral matters.
    4. Most rules, such as rules excluding expressions of inadmissible opinion, that apply to a witness testifying in court apply to the spontaneous statement hearsay exception, but a spontaneous statement of a declarant who is incompetent to be a witness (by reason of age or otherwise) is admissible under this exception.  People v. Butler (1967) 249 Cal.App.2d 799.
    5. The burden of proof is on the proponent to establish admissibility and if the trial judge is not convinced that the declarant made the statement spontaneously and while under the stress of excitement caused by his observation, the statement must be excluded.

    Jefferson's Evidence Benchbook, pages 370 to 371.

    The statement must be “made under the immediate influence of the occurrence to which they relate.”  People v. Poggi (1988) 45 Cal.3d 306, 318,.  See In re Cheryl H. (1984) 153  1098 at pp. 1130-1131 (text and fn. 36).

    II.

    CIRCUMSTANCES UNDER WHICH A HEARSAY STATEMENT IS A “FRESH COMPLAINT”

    The case of People v. Bunton (1961) 55 Cal.2d 328, made the exception referred to as fresh complaint.  The theory behind fresh complaint was stated as: “It is natural to expect that the victim of such a crime would complain of it, and the prosecution can show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur.” People v. Bunton, supra, p. 352.

    The limits placed on admissibility were: “We therefore accept the view that although details cannot be recounted, it can be shown by the People `that the complaint related to the matter being inquired into, and not a complaint wholly foreign to the subject'; that is the alleged victim's statement of the nature of the offense and identity of the asserted offender, without details, is proper.” People v. Bunton, supra, p. 352.

    III.

    FRESH COMPLAINTS ARE NOT ADMISSIBLE FOR THE TRUTH OF THE MATTER ASSERTED, AND THE DEFENSE IS ENTITLED TO A JURY INSTRUCTION TO THAT EFFECT

    In the case of In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1128-1129, the court held that these fresh complaints are only admitted to show a complaint was made by the victim, and not for the truth of the matter stated.  In People v. Fair (1988) 203 Cal.App.3d 1303, 1313, fn. 4, the court held that the defense was entitled to a limiting instruction, but the trial court was not under a duty to instruct the jury sua sponte.

    If the court holds any statement by any minor in this case to be a “fresh complaint” the defense now moves for an appropriate limiting instruction.

    IV.

    ELICITED STATEMENTS ARE NOT FRESH COMPLAINTS

    In the case of People v. Fair (1988) 203 Cal.App.3d 1303, the minor's mother asked the minor who had been "messing with her".  The minor then implicated the mother's boyfriend in a molest.  The court held that a fresh complaint had in fact to be a complaint and not responses in a conversation started by a third party.

    “Appellant challenges the admissions of Letisha's statement to her mother under fresh complaint doctrine because the statement was elicited, not voluntary.  There is merit to this claim of error.  In order to qualify under the fresh complaint doctrine, the out-of-court statement must truly be in the nature of a complaint and not in response to questioning.”  People v. Fair (1988) 203  1303, 1314.  

    V.

    CONCLUSION

    The theory behind “fresh complaint” was stated in People v. Bunton, supra.  The theory was that it is natural to expect that the victim of such a crime would complain of it and the prosecution can show the fact of complaint to forestall the assumption that none was made.

    Further, under People v. Bunton, supra, only the name of the alleged perpetrator and the general nature of the allegations (child molest) are admissible and not the details.  Further, the defense is entitled to a limiting instruction that the statement is not introduced for the truth of the matter asserted.

    All prosecution witnesses testifying to a "fresh complaint" should be instructed by the Prosecutor that his or her testimony is limited to (a) name of alleged victim; (b) name of alleged perpetrator; (3) date or time of the "fresh" act; (4) that the allegation was of molestation but give no details.  Complaints made in response to questions are not “fresh complaints.”

    Dated:                

    Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  10. 10.Motion to Exclude Exclude Sexual Assault Victim Impact Symptoms/Evidence

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    DEFENSE MOTION TO EXCLUDE SEXUAL ASSAULT VICTIM IMPACT EVIDENCE 


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       


    DEFENDANT MOVES TO EXCLUDE POST MOLESTATION SYMPTOMS OF ALLEGED VICTIM (VICTIM IMPACT EVIDENCE)


    •  The Prosecution May Not Introduce Victim Post-Molestation Behavior and Statements to Prove an Alleged Molestation Actually Occurred

    Opinion testimony on rape trauma syndrome and Child Abuse Accommodation Syndrome is inadmissible to prove that an alleged victim was sexually attacked but may, in keeping with certain narrow parameters, be admitted to support the credibility of a witness.  (People vs. Bledsoe (1984) 36 Cal.3d 236, 203 Cal. Rptr. 450; In re Sara M. (1987) 194 Cal.App.3d 585. Thus, it is improper to prove that a crime had occurred based on symptoms that the alleged victim exhibited post-crime.  

    These symptoms include but are not limited to: 1) Disorientation; Stress; Agitation; Fear; Anxiety; Subdued; Controlled; Flashbacks; Denial; Relives incident; Insecurity; Nightmares; Trauma; Mistrust.  Bledsoe, supra, 36 Cal.3d at p. 242-243 and: 2) Consistency of story; Denial; Unusual sexual knowledge; Feeling of loss of control;  Anger; Depression; Behavioral problems; Sleep disturbances; Nightmares; Eating disorders; False sense of maturity; Trust too much; Trust too little; Fear; Details given over time. In re Sara M., 194 Cal.App.3d at p. 589.

    People vs. Jeff (1988) 204 Cal.App.3d 309, 251 Cal. Rptr. 135 is controlling.  In that case the prosecution presented one expert witness who described the alleged complainant's post-molest symptoms, including nightmares, crying, depression, low self-esteem, and helplessness.  The prosecution then presented a second witness to explain these symptoms as evidence of child molest.  Neither witness was called for the purpose of rehabilitating the complaining witness.  (Id., at p. 338.)  The defense objected to the first witness on the ground that it was evidence of post-molest emotions used to prove that the molestation had occurred and objected to the second witness testimony as improper opinion testimony under People vs. Bledsoe, supra and In re Sara M., supra.  The trial court held each witnesses' testimony was admissible with respect to the symptoms exhibited by the complaining victim, but that neither witness would be allowed to state her opinion regarding whether a molestation had in fact occurred.  The Court of Appeal found the admission of such testimony and the trial court's attempt to limit its import ran afoul of the proscriptions set forth in Bledsoe, supra, and its progeny and reversed the defendant's conviction:


    It is not significant the prosecutor told the jury Susan Holland would merely describe symptom she observed and “[a]ny conclusion that is to be drawn will be yours.”  In effect and result, the prosecutor, by what he apparently believed was a brilliant subterfuge, engaged in the exact conduct, here condoned by the trial court, that was proscribed in Bledsoe, Gray and In re Sara M.  The challenged testimony was not offered to rehabilitate a wavering or equivocal Gypsy.  Rather, it told the jury that they should accept gypsy's version of these events as true, that she was a victim, molested over a three-year period by defendant, because here is now typical child molest victims act and Gypsy fits the mold perfectly.


    People vs. Jeff, supra, 204 Cal.App.3d at p. 340.

    That the testimony concerning a complaining witness's post molest symptoms does not come from an expert does not make it admissible.  In In re Christie D. (1988) 206 Cal.App.3d 469, 253 Cal. Rptr. 619, the court held that the non-expert status of witness opinion concerning the sex play with anatomical dolls did not make the play admissible.  (Id., at pp. 478-480.)  The play with anatomical dolls was not relevant to establish a molestation had occurred since there was no study showing its reliability as a predictor whether the opinions interpreting the play were formed by the expert or the trier of fact.  Therefore, since experts cannot form opinion interpreting post-molest symptoms as a predictor of molest, the non-expert status of the witness does not cure the problem.

         

    • Alleged Post-Molestation Symptoms are Inadmissible as Improper Victim Impact Evidence Absent a Theory of Relevance

    Victim impact evidence, i.e., post-molest symptoms, is inadmissible at the guilt phase of a trial unless relevant to a specific disputed issue in the case.  For example, in People v. Redd (2010) 48 Cal.4th 691, the victim’s testimony concerning the permanency of his injuries was deemed relevant to a charged great bodily injury enhancement.  (Id., at p. 731-732.)  In People v. Taylor (2001) 26 Cal.4th 1155, 1171, a doctor’s testimony about the victim’s injuries and loss of bodily functions was held relevant to show the extent of said injuries and confirm he could accurately recall the incident.  

    / / / 

    Generally, victim impact evidence (or victim impact argument by the prosecution) at the guilt phase is inadmissible as having little probative value and great prejudicial effect.  In People v. Vance (2010) 188 Cal.App.4th 1182, the defendant’s murder conviction was reversed where the prosecutor made a victim impact argument during his argument to the jury.  The court noted that such argument is banned at the guilt phase, stating, “The justification for both of these exclusionary policies is that they deal with subjects that are inherently emotional, possessing an unusually potent power to sway juries, and that their use must therefore be rigidly confined and controlled.”  (Id., at 1193.)  

    Other jurisdictions are in accord.  See Colon v. Georgia (2005) 619 S.Ed.2d 773 [victim impact evidence in child molest case admissible to rebut defendant’s attack on credibility of child victim]; United States v. Copple (3rd Cir. 1994) 24 F.3d 535, 546 [error to admit victims’ testimony about negative effects of defendant’s fraud on their health and savings, such testimony was more prejudicial than probative]; Sager v. Maass (D.C. Ore. 1995) 907 F. Supp. 1412, 1419-1420 [ineffective assistance of trial counsel for said counsel to introduce at guilt phase victim’s entire written victim impact statement, which was a “prejudicial piece of evidence”]; Armstrong v. State (Wyo. 1992) 826 P.2d 1106, 1116 [“Consideration of victim-impact testimony or argument remains inappropriate during proceedings determining the guilt of an accused”]; Miller-El v. State (Tex. Crim. App. 1990) [in an attempted murder case, a victim’s paraplegic disability hardship held inadmissible in the guilt phase: “We cannot agree, however, that [Dr.] Harrison’s testimony regarding Hall’s future hardship as a paraplegic had any tendency to make more or less probably the existence of any fact of consequence at the guilt stage of trial”].

    Based on these authorities, victim impact evidence in this case must be excluded unless the prosecution can articulate a theory of relevance and this Court conducts the necessary balancing of interests under Evidence Code section 352.     

    / / /

    / / /

    / / /

    / / 

    • Evidence Code § 352 Precludes Testimony of Post-Molest Symptoms (Victim Impact Testimony), Further, the Admission of Such Evidence Would Violate Defendant’s Federal Constitutional Right to Due Process and a Fair Trial

    Evidence Code § 352 permits the trial court in its discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial impact, if it will consume an undue amount of time, confuse the issues or mislead the jury.  “The prejudice which [section] 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [Citations] Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation].  People vs. Harris (1998) 60 Cal.App.4th727 (internal quotation marks omitted).

    Testimony of a victim’s post-molest symptoms cannot be used to establish the molestation occurred, is extraneous to the case, highly prejudicial and will engender undue sympathy for her and hence antipathy for the defendant.  In finding that such evidence had been erroneously admitted, the Third Circuit Court of Appeals in Copple, supra, explained:


    Testimony such as this had either no, or very little probative value and was unfairly prejudicial.  We believe that it was irrelevant either for the purposes of proving that Copple had failed to make up the loss to the funeral directors or for any other reason. Even if there had been some marginal relevance to the testimony about the particular personal or professional impact the losses had on the funeral directors, its principal effect, by far, was to highlight the personal tragedy they had suffered as victims of the scheme.  The testimony was designed to generate feelings of sympathy for the victims and outrage toward Copple for reasons not relevant to the charges Copple faced.  It arguably created a significant risk that the jury would be swayed to convict Copple as a way of compensating these victims wholly without regard to the evidence of Copple’s guilt.

    United States v. Copple, supra, 24 F.3d at 546.

    Further, such evidence may result in an undue consumption of time.  For example, if the victim were to testify to having nightmares or to being withdrawn, the defense on cross-examination will have the right to search for alternate explanations which would include everything that ever happened to the child that could cause these symptoms making for an endless trial.  

    Defendant further submits that the admission of post-molest symptoms/victim impact evidence in this case would violate his constitutional rights to due process and a fair trial under the 5th, 6th and 14th Amendments to the U.S. Constitution and article 1, sections 7 and 15 of the California Constitution.  (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 [reversal of murder conviction because of other crimes evidence of the defendant’s knife collection and fascination with knives violated federal due process where that evidence was irrelevant to the crime charged]; Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 887 [same]; Clark v. Duckworth (7th Cir. 1990) 906 F.2d 1174 [the defendant has a federal constitutional right to a trial free of irrelevant and prejudicial evidence].)


    • If This Court Permits the Prosecution to Admit Evidence of The Victim's Post-Molest Symptoms, Then it Must Allow the Defense To Offer Evidence Of Alternative Explanations for Those Symptoms.

    Should this court allow the prosecution to admit evidence of the complaining witness's alleged post-molest symptoms as a valid predictor of a crime, due process compels it to allow the defense to present evidence of alternative explanations for those symptoms.  (People vs. Reeder (1978) 82 Cal.App.3d 543, 550; People vs. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.)  As stated in Reeder:

    Evidence Code Section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.  In Chambers vs. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, it was held that the exclusion of evidence, vital to a defendant’s defense, constituted a denial of a fair trial in violation of constitutional due process requirements.

    Reeder, supra at p. 553, emphasis added.

    Depending on what symptoms are presented there may be many alternative explanations in this case.  For example, LC is known to have a host of mental issues. RC has a known learning disability.  CG has a known serious heart condition

    • Conclusion

    Based on the foregoing, the prosecution should be excluded from presenting evidence of the alleged complainant's post-molest symptoms as a predictor that a molestation in fact occurred and because such evidence constitutes improper victim impact evidence inadmissible at the guilt phase.  If the court allows such evidence, it must allow the defense to admit evidence of alternative explanations for the existence of such symptoms.

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  11. 11.Complaining Witness in Therapy

    Aaron Shnider, SBN 337108

    Innocence Legal Team

    18002 Irvine Boulevard

    Tustin, CA  92780

    Tel: 925 948-9000 ext. 102

    Email: shnider@innocencelegalteam.com



    Attorney for Defendant



    SUPERIOR COURT OF THE STATE OF CALIFORNIA

    FOR THE COUNTY OF SACRAMENTO




    THE PEOPLE OF THE STATE OF CALIFORNIA,

    Plaintiff,

    vs.

    MAX SHKODNIK,

    Defendant

    )

    )

    )

    )

    )

    )

    )

    )

    )

    )

    )

    )

    Case No.: 20FE013912


    NOTICE OF MOTION TO EXCLUDE ALLEGED VICTIM’S STATUS IN THERAPY



    DATE: 

    TIME:  

    DEPT:   

    PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, MAX SHKODNIK (“Defendant”) will move for a protective order that:

    1.  The prosecution cannot introduce evidence that the alleged victim is receiving therapy based on the alleged offenses.
    2. The prosecution cannot introduce evidence that the alleged victim is in need of psychological counseling for child molest.

    Dated:

     

    __________________________

    Aaron Shnider

    Attorney for Defendant

    I.

    THE FACT THAT THE MINOR MAY HAVE RECEIVED THERAPY 

    IS IRRELEVANT TO THE INSTANT ALLEGATIONS


    No evidence is admissible unless it is relevant evidence.  All relevant evidence is admissible unless it is made inadmissible by some constitutional or statutory provision or by a judicial rule of exclusion that is established in the interests of justice by the California Supreme Court by virtue of its inherent supervisory power over the trial courts of the state. Ev.Code Section 210, 350-351.

    Evidence that is offered to prove a fact that is not disputed is irrelevant evidence and, as such, is inadmissible.  Ev.Code Section 210, 350."  Proffered evidence is relevant to prove or disprove a disputed fact in an action if:

    (a) The disputed fact is either an intermediate fact or an ultimate fact that is of consequence to determination of the action; and

    (b) Such evidence, in the light of logic, reason, experience, or common sense, has, by reasonable inference, a tendency to prove or disprove such disputed fact. 

    Proffered evidence is not relevant if it has a tendency to prove or disprove a disputed intermediate fact or an ultimate fact of consequence to determination of the action only by resort to inference or deductions from such evidence that are speculative or conjectural in nature. EvCode Section 210.  Also see People vs. Scheid (1997) 16 Cal.4th 1 [only relevant evidence is admissible]; People vs. Crittenden (1994) 9 Cal.4th 83, 132 [a trial court has no discretion to admit irrelevant evidence]; People vs. De La Plane (1979) 88 Cal.App.3d 223, 242 [evidence which only produces speculative inferences is irrelevant evidence].)


    II.

    OPINION TESTIMONY THAT ALLEGED VICTIM WAS IN FACT

    SEXUALLY MOLESTED IS INADMISSIBLE


    Expert opinion testimony that an alleged victim suffers from rape trauma syndrome or child molest syndrome is inadmissible to prove that any rape or molest/abuse occurred.  (People vs. Bledsoe (1984) 36 Cal.3d 236, 238; People vs. Roscoe (1985) 168 Cal.App. 1093, 1099-1100.)

    Decades of litigation has established that expert testimony on child sexual abuse accommodation syndrome is unreliable as a matter of law to prove the molest occurred.  In People v. Bledsoe (1984) 36 Cal.3d 236, the Supreme Court applied Kelly/Frye to exclude expert psychological testimony based upon the "rape trauma syndrome."  The court held that expert testimony that the complaining witness was suffering from rape trauma syndrome was inadmissible to show a rape had actually occurred because the syndrome was developed as a "therapeutic tool" and not to determine the "truth" or "accuracy" of a particular past event.  (Id. at p. 249.)

    Relying on Bledsoe, numerous Court of Appeal decisions have held that Kelly/Frye similarly precludes an expert from testifying, based on the Child Sexual Abuse Accommodation Syndrome (CSAAS), that a particular victim's report of alleged abuse is credible because the victim manifests certain defined characteristics which are generally exhibited by abused children.  (See, In re Sara M. (1987) 194 Cal.App.3d 585, 593; Seering v. Dept. of Social Services (1987) 194 Cal.App.3d 298, 310-311, 313; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1069.

    In addition to prohibiting direct testimony that a molest occurred or that an alleged victim is credible, it is also error to permit testimony that creates such an inference.  Courts risk creating such an inference when they allow someone closely connected to the case to testify as a ‘general’ expert.  Such an inference is created, if the Court were to allow testimony that the minor sought treatment following the alleged abuse in the instant case.  



    III

    THE ADMISSION OF EVIDENCE OF THERAPY 

    STATUS VIOLATES EVIDENCE CODE SECTION 352


    Evidence Code Section 352 requires the trial court to balance any asserted probative value of a particular piece of evidence against its prejudice and exclude evidence the prejudice of which outweighs its probative value or has a substantial danger of confusing the issues or misleading the jury.  In People vs. Harris (1998) 60 Cal.App.4th 727, the reviewing court restated the meaning of "prejudice" within the context of Evidence Code section 352:

    ""'The prejudice which [section 352] is

    designed to avoid is not the prejudice or

    damage to a defense that naturally flows from

    relevant, highly probative evidence.' [Citations.]        

     'Rather, the statute uses the word in its

    etymological sense of "prejudging" a person or

    cause on the basis of extraneous factors.'"  

    [Citation omitted.]" (Id., at p. 737.)


    The fact that the alleged victim may be in therapy or a dependent child would only serve to create undue sympathy for him/her at the defendant's expense and would confuse the issues.  Such evidence must therefore be excluded.


    CONCLUSION

    The admission of testimony that the complaining witness sought therapy following the alleged instances of abuse is irrelevant, violates Bledsoe mandates against such introduction and is highly prejudicial to the instant case.  


    Dated: September 26, 2022

    Respectfully Submitted,


    ___________________

    AARON SHNIDER

    Attorney for MAX SHKODNIK

  12. 12.Motion to Exclude Mention/Evidence of Polygraph

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    MOTION TO EXCLUDE POLYGRAPH



    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       

    PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, Defendant will move this court for an order excluding the any reference to polygraphs.

    DATE:



    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

    MEMORANDUM OF POINTS AND AUTHORITIES

    I.

    INTRODUCTION

    1. Purpose of Motion in Limine

    The central cases on in limine motions are Amtower v. Photon Dynamics, Inc., 158 Cal.App.4th 1582 (2008); Kelly v. New West Federal Savings, 49 Cal.App.4th 659 (1996); and R & B Auto Center, Inc. v. Farmers Group, Inc., 140 Cal.App.4th 327 (2006) (Rylaarsdam, Acting P .J., concurring).

    The key function of these motions is to ensure juries do not hear inadmissible evidence,

    and in particular inadmissible evidence which may prejudice the jury. "The advantage of such

    motions is to avoid the obviously futile attempt to Un-ring the bell in the event a motion to strike

    is granted in the proceedings before the jury." Amtower, 158 Cal.App.4th at 1593, quoting Hyatt

    1. Sierra Boat Co., 79 Cal.App.3d 325, 337 (I 978). Secondly, in limine motions can help speed

    the trial and allow for a more considered decision on difficult evidentiary issues. Kelly, 49

    Cal.App.4th at 669-70.

    1. Relevance

    Only relevant evidence is admissible at trial.  Evidence Code § 350.  “Relevant evidence” means testimony or physical objects, including evidence bearing on the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of an action.  Evidence Code § 210; People vs. Scheid (1997) 16 Cal.4th 1.  A court has no discretion to admit irrelevant evidence.  People vs. Crittenden (1994) 9 Cal.4th 83, 132.   Evidence which produces only speculative inferences is irrelevant evidence.  People vs. De La Plane (1979) 88 Cal.App.3d 223, 242.  Whether or not evidence is relevant is a decision within the trial court's discretion.  People vs. Von Villas (1992) 10 Cal.App.4th 201, 249.  The trial court abuses its discretion in admitting evidence when it can be shown under all the circumstances that it exceeded the bounds of reason.  (People vs. De Jesus (1995) 38 Cal.App.4th 1, 32.

    1. Court’s Discretion

    “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Evidence Code § 352.   “Prejudicial” is not synonymous with “damaging,” but refers instead to evidence that “uniquely tends to evoke an emotional bias against defendant” without regard to its relevance on material issues). People v. Kipp (2001) 26 Cal. 4th 1100, 113 Cal. Rptr. 2d 27, 33 P.3d 450.  

    The balancing process requires consideration of the relationship between evidence and relevant inferences to be drawn from it, whether evidence is relevant to main or only a collateral issue, and necessity of evidence to proponent’s case as well as reasons recited in statute for exclusion. Kessler v. Gray (1978) 77 Cal. App. 3d 284, 143 Cal. Rptr. 496.  Because evidence of other, uncharged offenses can be highly prejudicial, trial courts should use particular care in performing balancing analysis under Section 352. People v. Millwee (1998) 18 Cal. 4th 96, 74 Cal. Rptr. 2d 418, 954 P.2d 990, cert. denied. 

    For example, the trial court committed reversible error in rape and kidnapping trial by admitting uncharged act evidence that defendant put his finger in the mouth of previous attempted kidnapping victim; the jury could infer a sexual connotation to the prior offense, and the prejudicial effect of the evidence exceeded its comparatively low probative value.  People v. Jandres (2014) 226 Cal. App. 4th 340, 171 Cal. Rptr. 3d 849.  Similarly, in a prosecution for committing a forcible lewd act upon a child, where the key issue was whether the defendant had the intent to commit the act when he entered the victim’s house, the trial court erred in permitting the court-appointed interpreter to testify that she had seen defendant moving his hands near his groin during victim’s testimony; such testimony could confuse and inflame the jury.  People v. Leon (2001) 91 Cal. App. 4th 812, 110 Cal. Rptr. 2d 776.

    By enacting this section 352, the legislature gave courts the means to facilitate judicial economy.  DePalma v. Westland Software House (1990) 225 Cal. App. 3d 1534, 276 Cal. Rptr. 214. The issue of judicial economy is served by the exclusion of any mention of polygraphs because it would require Defendant to call rebuttal witnesses on collateral issues of scant relevance and possible enormous prejudice.  See People v. Morrison (2011) 199 Cal. App. 4th 158, 131 Cal. Rptr. 3d 26 (Contrary to the common law rule and popular belief, a trial court has substantial discretion to allow rebuttal witness to contradict testimony on direct examination, even though the rebuttal is impeachment on a collateral fact).

    II.

    POLYGRAPH

    Evidence Code § 351.1 regarding polygraph Examinations, provides:

    1. a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post-conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.
    2. b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.

    Defendant was questioned regarding his willingness to take a polygraph. Since polygraph evidence is itself inadmissible per Evidence Code § 351.1, any reference thereto is inadmissible as irrelevant.  

    II

    The Accidental/Incidental Mention by a Defense Witness of a Polygraph Does not Open the Door to Further Evidence on That Subject

    If any witness accidentally/incidentally mentions the defendant’s sexual activities with adults, the door to further evidence on that subject has not “opened.”  “By allowing objectionable evidence to go in without objection, the non-objecting party gains no right to the admission of related or additional otherwise inadmissible testimony.  The so-called ‘open the door’ or ‘open the gates argument is a ‘popular fallacy.’  (Citation Omitted).” People vs. Gambos (1970) 5 Cal.App.3d 187; People vs. Williams (1989) 213 Cal.App.3d 1186, 1189, fn. 1; People vs. Valentine (1988) 207 Cal.App.3d 697, 705 [government's purported impeachment of defendant was an improper rebuttal to a collateral matter improperly raised on cross-examination].

    IV.

    CONCLUSION

    Defendant respectfully requests to exclude any mention of polygraphs as it relates to Defendant as all such evidences is irrelevant, an undue waste of time and/or substantially more prejudicial than probative. Evidence Code §§ 210, 350, 350.1, 352.


    Dated: January 25, 2024

     


    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

    DECLARATION OF ____________________________

    I, ________________________ declare:

    1. I am an attorney duly licensed to practice law in the State of California. I am a Certified Criminal Law Specialist. I am the attorney for the defendant in this matter. This matter is set for trial on March 24, 2020.
    2. I represent and am trial counsel defendant _____________________(“Defendant”).
    3. The same is true for several other clients including:B [insert relevant conflicting case information]

    I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.  

    Executed in Pleasant Hill, CA on January 25, 2024.


    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  13. 13.Motion to Limit or Exclude Child Sexual Abuse Accommodation Syndrome (CSAAS) Testimony

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO EXCLUDE OR LIMIT STATEMENTS MADE BY THE COMPLAINING WITNESS AT TIME OF DISCLOSURE (“FRESH COMPLAINT”)


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       

    POINTS AND AUTHORITIES

    I

    FACTUAL BACKGROUND

    [INSERT RELEVANT FACTS]

    II

    1. THE JUNK SCIENCE OF CSAAS

    In 1983 Dr. Roland Summit wrote a paper entitled The Child Sexual Abuse Accommodation Syndrome, also known as CSAAS. However, this “syndrome” was never been recognized by either the American Psychological Association or the American Psychiatric Association.  In re Sara M. (1987) 194 Cal.App.3d 585, 594, 239 Cal. Rptr. 605-611.

    Indeed, it is well accepted that is not even a true “syndrome.”   

    Nevertheless, Dr. Summit claimed it was valid to “dispel myths” regarding the behavior of child molestation victims. Notwithstanding the recognition that this syndrome did not pass scientific standards, the California Supreme Court allowed it to be admitted into evidence in the landmark 1984 case of People vs. Bledsoe (1984) 36 Cal.3rd 236, 249.

    The admission of the Child Sexual Abuse Accommodation Syndrome made obtaining convictions much easier for the prosecution because it opened the door to so called CSAAS “experts” being called to explain away every piece of evidence favorable to the accused. 

    Every delay in reporting abuse and every inconsistent statement by the accuser could now be rebutted by such “experts” as “a myth.”

    In truth though, a careful study of the syndrome reveals that it has a “myth” to explain how every child behavior is consistent with the child having been molested.  No matter what the defense presents, the syndrome always explains that the evidence is somehow consistent with having been molested. This is because the Child Sexual Abuse Accommodation Syndrome starts with the assumption that all the children that they were studying were, in fact, molested. Thus, if a child is consistent in telling of the story, that is consistent with having been sexually molested.  If the child changes his or her story, that too is consistent with having been molested because the trauma of abuse has made recall difficult.  If the child retracts their story and says it was a false allegation, that is consistent with having been molested, because the child sees that his or her family is being hurt. If the child appears sexualized, that is consistent with having been molested.  If the child does not appear sexualized, that also is consistent with having been molested.  If the child is in fear of and withdraws from the accused, that is consistent with being molested. If the child loves and wants to be with the accused, that is also consistent with having been molested. If the child reports the molestation immediately, that is consistent with having been molested. If the child delays reporting, even for years, that too is consistent with having been molested.

    There are no known cases in which a prosecution CSAAS “expert” ever found a behavior inconsistent with having been molested.  Indeed, in the decades it has been around, this junk science is used by child advocates and the DA’s that hire them to get convictions.  

    What these so called experts will never acknowledge is the fact that all of these behaviors are also consistent with a false allegation. Something neither Dr. Roland or the horde of so called experts that followed him have ever recognized.

    It is important to note, the last paragraph Summit’s paper, The Child Abuse Accommodation Syndrome, states: “It has become a maxim among child sexual abuse intervention counselors and investigators that children never fabricate the kinds of explicit sexual manipulations they divulge in complaints or interrogations.”  If that were the case, we need no courts, no judges, no juries and no legal system.  An accusation should be good enough to put the accused away for life. 

    1. BLEDSOE AND ITS PROGENY

    In People vs. Bledsoe (1984) 36 Cal.3rd 236, 249, the California Supreme Court held that rape trauma syndrome was inadmissible to show a rape had actually occurred, but could be admissible to “disabus[e] the jury of some widely held misconceptions about rape and rape trauma victims so that it may evaluate the evidence free of the constraints of popular myths.”

    In this case the court must exclude 

    • “…secrecy and the related component of delayed and unconvicting disclosure, both girls did not immediately disclose their abuse”
    • “…uncommon for victims to lay out everything that happened to them all at once. They may also appear detached and confused when sharing the abuse to others and mix up time frames and details of the abuse.”
    • “…helplessness and accommodation and entrapment..”
    • “…as a class, victims of child sexual abuse will feel trapped/stuck in the situation where they feel they cannot tell others what is happening with them and will accommodate to the abuse through coping mechanisms like dissociation. They may hide their abuse and try to block it from their mind after the fact. They may stop resisting because they feel like such efforts are fruitless and just allow the abuser to ‘get it over with.’ They may even cope by displaying positive feelings towards their abuser or not actively avoid him.”

    Following Bledsoe, courts limited this unjust and highly prejudicial “evidence.”  For example, testimony is limited to victims as a class and not a particular alleged victim.  People vs. Roscoe (1985) 168 Cal.App.3d 1093, 1098-1100; People vs. Gray (1986) 187 Cal.App.3d 213, 218; People vs. Coleman (1989) 48 Cal.3d 112, 144; and People vs. Stark (1989) 213 Cal.App.3d 107, 116-117.  In addition, testimony not properly limited is excludable pursuant to Evidence Code section 352.  (Roscoe, supra, at p. 1100.)

    In People vs. Bowker (1988) 203 Cal.App.3d 385, 394, 249 Cal. Rptr. 886, 891, the court considered whether or not the testimony of a child abuse accommodation syndrome expert fell within the Bledsoe exception permitting such testimony for the narrow purpose “of disabusing the jury of misconceptions as to how child victims react to abuse.”  (Id., at p. 392.)  The court reaffirmed that "Bledsoe must be read to reject the use of CSAAS evidence as a predictor of child abuse," and found the expert's testimony had exceeded the Bledsoe exception holding that "at a minimum the evidence must be targeted to a specific 'myth' or 'misconception' suggested by the evidence."  (Id., at pp. 393-394.)  The court further held:

    “In the typical criminal case, however, it is the People's burden to identify the myth or misconception the evidence is designed to rebut.  Where there is no danger of jury confusion, there is simply no need for the expert testimony.” (Id., at p. 394.)

    In determining that the expert's testimony erroneously exceeded the permissible limits of the Bledsoe exception, the Bowker court found that the expert's testimony was tailored to fit the children in that particular case, asked for sympathy, asked that children be believed and by describing each aspect of CSAAS theory provided a scientific framework the jury could use to predict a molest occurred.  The court ruled that this evidence should have been excluded.  (Id., at pp. 394-395.)  

    Synonyms are also inadmissible.  Some expert have used the “trick” of using synonyms to the word “profile”.  These synonyms should be excluded for the same reason.  The main synonym that is used is “patterns”.   This is a different word without a distinction.  Both “profiles” and “patterns” should be excluded under the case of People v. Bledsoe, supra.   

    1. THE COURT MUST EXCLUDE DR. ______________’S PROPOSED TESTIMONY

    Every aspect of Dr. ____________’s proposed testimony improperly relies on supposed statistics by the use of words such as “overall” and “as a class” to indicate a majority, a large majority, or practically all cases follow the referenced scenario.  In many if not most of these scenarios, no such statistics actually exist.

    Here is how the prosecution summarizes his Dr. ____________'s testimony:

    Dr. ____________ will testify that sexual abuse generally happens behind closed doors, that the abuser may enlist strategies to keep the child quiet about the abuse, that people shouldn’t expect the child to easily tell about their abuse right away and reasons why, and that overall, children are quiet about these events. He will explain that as a class, children are fearful of breaking up family dynamics and their family hating them, they may be confused about what is happening to them, particularly if abused by a loved and trusted figure, and that children ultimately want to feel normal, which can contribute to why they will keep the abuse a secret from others. Another significant concern is not being believed by others. Further, if they initially keep the acts a secret, this can also add pressure to a child to continue to keep the abuse a secret. Maturation can assist in the ability to disclose as can knowledge that they are not alone in the victimization. He will also indicate that inconsistencies in disclosure are typical, particularly with chronic abuse, and that it is uncommon for victims to lay out everything that happened to them all at once. They may also appear detached and confused when sharing the abuse to others and mix up time frames and details of the abuse.

    (Emphasis added).

    Each of these terms (“generally,” “may,” “as a class,” “May be,” “significant concern,” “typical”) gives the impression of a statistical basis for the testimony which is not only false and scientifically unfounded, it is prohibited under the well-founded principle excluding statistical evidence, precisely because it is subject to the kind of manipulation which Dr. ____________ proposed testimony is riddled with. See People v. Wilson (2019) 33 Cal.App.5th 559; People v. Julian (2019) 34 Cal.App.5th 878; People v. Collins (1968) 68 Cal.2d 319, 327; People v. Bowker (1988) 203 Cal.App.3d 385, 393.

    A criminal defendant is entitled to be tried on the relevant evidence against him, not on statistics and probabilities that bear no relation to the particular acts he is accused of. (U.S. Const., 14th Amend.; People v. Collins (1968) 68 Cal.2d 319, 320 [statistical testimony “distorted the jury’s traditional role of determining guilt or innocence according to long-settled rules”]; Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; Snowden, supra, 135 F.3d at pp. 737-739; Lisenba v. People of the State of California (1941) 314 U.S. 219, 235-237 [62 S.Ct. 280].)  Given that the prosecution of a child sexual abuse case normally turns on the respective credibility of the complainant and the defendant, the admission of expert opinion that improperly bolsters the credibility of the victim deprives the defendant of due process of law.  Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 737.

    Such testimony would also violate defendant’s right to present a defense.  (U.S. Const., 6th & 14th Amends.; see Collins, supra, 68 Cal.2d at pp. 327, 331 [statistical testimony “foreclosed the possibility of an effective defense by an attorney apparently unschooled in mathematical refinements, and placed the jurors and defense counsel at a disadvantage in sifting relevant fact from inapplicable theory”]; Cal. Const., art. I, §§ 15 & 16.)

    Last, but far from least, such testimony would also undermine defendant’s right to the presumption of innocence and reduce the prosecution’s burden of proof beyond a reasonable doubt.  (See Taylor v. Kentucky (1978) 436 U.S. 478, 487-488, 490 [jury was improperly invited to consider petitioner’s status as a defendant and permitted to draw inferences of guilt from fact of arrest and indictment]; In re Winship (1970) 397 U.S. 358, 363; Estelle v. Williams (1976) 425 U.S.501, 503; U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.)  In effect, such statistics convert the fact that an accusation had been made to a probability of guilt; from such testimony, jurors could conclude, without considering any evidence specific to this case, that there is a 92 to 99 percent chance that the defendant was guilty. (See generally Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1360-1361, 1368-1372 (1971) [statistical evidence undermines the presumption of innocence].)

    For the above reasons, the defense requests the court to exclude or at least sharply limit Dr. ____________’s proposed testimony. 

    1. THE REQUIREMENT OF LIMITING INSTRUCTIONS

     If the court decides to allow Dr. ______________ proposed testimony the court must order that no words or references implying a statistical basis must be used before the jury. In addition the court should issue a limiting instruction. 

    Beyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claims is true.  The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury.  CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience.  (See In re Sara M., supra, 194 Cal.App.3d at p. 593, 239 Cal. Rptr. 605.) The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested.  Bowker, supra, at p. 394; People vs. Housley (1992) 6 Cal.App.4th 947, 958-959 (instruction required sua sponte).  


    The Prosecution bears the burden of establishing that a spontaneous statement was in fact spontaneous.  In the instant offense, the statements reflect incidents that if true, occurred nearly a decade ago.  This does not meet the foundation of a ‘fresh complaint.’


    Rule (1):  Evidence of a declarant's hearsay statement is admissible under the spontaneous statement exception to the hearsay rule if:

    (a)  The statement purports to narrate, describe, or explain an exciting act, condition or event observed by declarant; and

    (b)  A statement was made spontaneously while the declarant was under the stress of excitement caused by such observation.

    Rule (2):  If the opponent disputes the preliminary fact of declarant having made the statement spontaneously while under the stress of excitement, the proffered statement must be excluded unless the proponent sustains the burden of convincing the judge that declarant made the statement spontaneously and while under the stress of excitement.

     Jefferson's Evidence Benchbook; 2nd Ed. page 369, Section 13.1.  Authority: Evidence Code §§ 1240 and 405.


    Explanation:

    1. The acts observed must be of a nature to cause excitement in the declarant, such as an accident or a crime.
    2. Declarant's statement must be made without reflection and while still under the stress of the excitement caused by the event.
    3. The spontaneous statement must describe the exciting act or event and not relate to collateral matters.
    4. Most rules, such as rules excluding expressions of inadmissible opinion, that apply to a witness testifying in court apply to the spontaneous statement hearsay exception, but a spontaneous statement of a declarant who is incompetent to be a witness (by reason of age or otherwise) is admissible under this exception.  People v. Butler (1967) 249 Cal.App.2d 799.
    5. The burden of proof is on the proponent to establish admissibility and if the trial judge is not convinced that the declarant made the statement spontaneously and while under the stress of excitement caused by his observation, the statement must be excluded.

    Jefferson's Evidence Benchbook, pages 370 to 371.

    The statement must be “made under the immediate influence of the occurrence to which they relate.”  People v. Poggi (1988) 45 Cal.3d 306, 318,.  See In re Cheryl H. (1984) 153  1098 at pp. 1130-1131 (text and fn. 36).

    II.

    CIRCUMSTANCES UNDER WHICH A HEARSAY STATEMENT IS A “FRESH COMPLAINT”

    The case of People v. Bunton (1961) 55 Cal.2d 328, made the exception referred to as fresh complaint.  The theory behind fresh complaint was stated as: “It is natural to expect that the victim of such a crime would complain of it, and the prosecution can show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur.” People v. Bunton, supra, p. 352.

    The limits placed on admissibility were: “We therefore accept the view that although details cannot be recounted, it can be shown by the People `that the complaint related to the matter being inquired into, and not a complaint wholly foreign to the subject'; that is the alleged victim's statement of the nature of the offense and identity of the asserted offender, without details, is proper.” People v. Bunton, supra, p. 352.

    III.

    FRESH COMPLAINTS ARE NOT ADMISSIBLE FOR THE TRUTH OF THE MATTER ASSERTED, AND THE DEFENSE IS ENTITLED TO A JURY INSTRUCTION TO THAT EFFECT

    In the case of In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1128-1129, the court held that these fresh complaints are only admitted to show a complaint was made by the victim, and not for the truth of the matter stated.  In People v. Fair (1988) 203 Cal.App.3d 1303, 1313, fn. 4, the court held that the defense was entitled to a limiting instruction, but the trial court was not under a duty to instruct the jury sua sponte.

    If the court holds any statement by any minor in this case to be a “fresh complaint” the defense now moves for an appropriate limiting instruction.

    IV.

    ELICITED STATEMENTS ARE NOT FRESH COMPLAINTS

    In the case of People v. Fair (1988) 203 Cal.App.3d 1303, the minor's mother asked the minor who had been "messing with her".  The minor then implicated the mother's boyfriend in a molest.  The court held that a fresh complaint had in fact to be a complaint and not responses in a conversation started by a third party.

    “Appellant challenges the admissions of Letisha's statement to her mother under fresh complaint doctrine because the statement was elicited, not voluntary.  There is merit to this claim of error.  In order to qualify under the fresh complaint doctrine, the out-of-court statement must truly be in the nature of a complaint and not in response to questioning.”  People v. Fair (1988) 203  1303, 1314.  

    V.

    CONCLUSION

    The theory behind “fresh complaint” was stated in People v. Bunton, supra.  The theory was that it is natural to expect that the victim of such a crime would complain of it and the prosecution can show the fact of complaint to forestall the assumption that none was made.

    Further, under People v. Bunton, supra, only the name of the alleged perpetrator and the general nature of the allegations (child molest) are admissible and not the details.  Further, the defense is entitled to a limiting instruction that the statement is not introduced for the truth of the matter asserted.

    All prosecution witnesses testifying to a “fresh complaint” should be instructed by the Prosecutor that his or her testimony is limited to (a) name of alleged victim; (b) name of alleged perpetrator; (3) date or time of the “fresh” act; (4) that the allegation was of molestation but give no details.  Complaints made in response to questions are not “fresh complaints.”

    Dated:                

    Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  14. 14.Motion to Exclude Warantless Search Evidence

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 





    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA

    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF CALIFORNIA   

      

                 Plaintiff,

    vs.


    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]

    MOTION TO SUPPRESS EVIDENCE OBTAINED FROM WARRANTLESS SEARCH


    Trial Readiness:

    Current Trial Date:

    Case Filed:

    In Custody Since:

    Dept.:

       

    PLEASE TAKE NOTICE that on [DATE] at [TIME] or as soon thereafter as the matter may be heard, and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move this court for an order to exclude evidence based upon improper search and seizure.


    Dated: [DATE]

     

    __________________________

    [Attorney Name], 

    Attorney for Defendant

    POINTS AND AUTHORITIES IN SUPPORT OF BAIL REDUCTION


    • FACTUAL BACKGROUND
    1. Introduction

    Defendant is charged with:

    • Count 1:  [INSERT CHARGES]

    [INSERT FACTUIAL INFORMAITON]

    • THE WARRANT WAS INSUFFICENT ON ITS FACE. 

    Pen C § 1538.5. (a) (1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable or (B) The search or seizure with a warrant was unreasonable because any of the following apply: (i) The warrant is insufficient on its face.

    In the present matter, the warrant was insufficient on its face as it lacked a proper signature. 

    • THE PROSECUTION BEARS THE BURDEN OF JUSTIFYING THE WARRANTLESS ACTIONS OF THE POLICE OFFICERS.

    When a person questions the lawfulness of a search or seizure, a prima facie case is established when it is shown that the search was undertaken without a warrant, and the burden then shifts to the prosecution to show justification for the search. Badillo v. Superior Court, (1956) 46 Cal.2d 269, 272.

    Once a person produces evidence to show the seizure was without a warrant, the prosecution bears the burden of proving the justification for the warrantless seizure. Wimberly v. Superior Court,(1976) 16 Cal.3d 557, 563, fn. 2; People v. Sedillo, (1982) 135 Cal.App.3d 616, 623; Wilder v. Superior court, (1979) 92 Cal.App.3d 90, 96. People v. Harvey, 156 Cal. App. 2d 516 (1958) and People v. Madden, 2 Cal. 3d 1017 (1970) require the Prosecution to bring forth witnesses when necessary to establish the basis for the conduct.  Here the prosecution would necessarily have to justify the conduct by the Redwood City Police Department on September 9, 2019, as there were no other valid grounds for entry into the garage. 

    • ANY AND ALL EVIDENCE OBTAINED AS FRUITS OF THE WARRANTLESS SEARCH AND/OR SEIZURE MUST BE SUPPRESSED.

    If the challenged police conduct is shown to be violative of the Fourth Amendment, the exclusionary rule requires that all evidence obtained as a result of such conduct be suppressed.  Such evidence includes not only what was seized in the course of the unlawful conduct itself – the so-called ‘primary’ evidence but also what was subsequently obtained through the information gained by the police in the course of such conduct – the so-called ‘derivative’ or ‘secondary’ evidence. Once the challenged police conduct is shown to be unlawful, the primary evidence is automatically subject to suppression.  Secondary evidence, by contrast, is excluded only if it is ‘tainted’ by the unlawful conduct. (People v. Williams, 45 Cal.3d 1268 (1988)). 

    In the case at hand, there were warrantless detentions and searches, pursuant to the Fourth Amendment, outside any recognized exception. 

    • CONCLUSION

    The Defendant respectfully asks the Court to grant the Motion for Suppress pursuant to Penal Code Section 1538.5.


    Dated: [DATE]

     

    __________________________

    [Attorney Name], 

    Attorney for Defendant


     

    DECLARATION OF [ATTORNEY’S NAME]

    I, [ATTORNEY’S NAME] declare:

    1. I am an attorney duly licensed to practice law in the State of California. I am a Certified Criminal Law Specialist. I am the attorney for the defendant in this matter. This matter is set for trial on April 13, 2020.
    2. I represent [NAME OF DEFENDANT] (“Defendant”) who is accused of 

    I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.  

    Executed in Pleasant Hill, CA on January 26, 2024.



    [ATTORNEY’S NAME], SBN 

Discovery Motions

Discovery Motions

  1. 1.Compel Discovery

    [NAME OF ATTORNEY], SBN [STATE BAR NUMBER]

    Innocence Legal Team

    3478 Buskirk Avenue, Suite 150

    Pleasant Hill, CA 94523

    Tel: (408) 414-8194

    Email: [EMAIL ADDRESS]





    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF CALIFORNIA   

      

                 Plaintiff,

    vs.


    [NAME OF DEFENDANT],

    Defendant 









    CASE NO. [CASE NUMBER]

    POINTS AND AUTHORITIES IN SUPPORT OF TO COMPEL DISCLOSURE OF BRADY 

    MATERIAL; DECLARATION OF [Attorney Name]


    Date:

    Time:

    Dept:



    Case Filed: 

    Trial Date:  


    TO THE DISTRICT ATTORNEY OF [COUNTY] AND/OR [HIS/ HER] REPRESENTATIVE:

    PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, the defendant will move this court for an order requiring the District Attorney of the County of Contra to disclose to the defense evidence with the possession of the District Attorney or its agents statements and reports that are material and exculpatory with in the rule of Brady v. Maryland

    / / /

    / / /

    This motion will be based on the attached Memorandum of Points and Authorities, the declaration of [Attorney Name], attorney for the defendant, and such other and further evidence as may be presented at the time of the hearing.


    Dated: 

    Respectfully submitted,

    [Attorney Name]



      by:   ____________                          Attorneys for Defendant

    POINTS AND AUTHORITIES

    I.

    FACTS

    II.

    DEFENDANT IS ENTITLED TO DISCOVERY OF INFORMATION IN THE POSSESSION OF THIRD PARTIES 

    By this motion, the defense seeks to compel the production of [INSERT INFORMATION SOUGHT]

    Motions for discovery by a criminal defendant are made to the sound discretion of the trial court, "which has the inherent power to order discovery in the interests of justice." (Hill v. Superior Court (Los Angeles) (1974) 10 Cal.3d 812, 816.)  The basic principles underlying criminal pretrial discovery is that an accused is entitled to a fair trial.  (Id.)  "[T]he state has no interest in denying the accused access to all evidence that can throw light on the issues in the case, and in particular, it has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits."  (Id.)   (Emphasis in original, citing People v. Riser (1952) 47 Cal.2d 566, 586.)

    Pitchess v. Superior Court (1974) 11 Cal.3d 531, is direct authority for issuance of a subpoenas duces tecum requiring production of information, or "discovery", in the possession of a non-party, as recognized by the courts in Pacific Lighting Leasing Company v. Superior Court (Los Angeles) (1976) 60 Cal.App.3d 552, 560, and Millaud v. Superior Court (San Diego) (1986) 182 Cal.App.3d 471, 475-476.  (See also, People v. Broderick (1991) 231 Cal.App.3d 584, [subpoena duces tecum is appropriate discovery tool directed to third parties despite Proposition 115].)  Central to the decisions in Pacific Lighting and Millaud is the realization that information critical to a criminal defendant is not always within the possession or control of the prosecution or its various agents.

    The prosecution does not dispute the materiality of the interviews and related reports.  They maintain, however, that they are prevented from disclosing the reports and interviews because of privacy concerns and the juvenile nature of the investigation.  While the defense has begun the slow statutory process to gain access to the protected juvenile records, it is the defense position that these state concerns are preempted by federal due process concerns. (See Brady v. Maryland (1963) 373 U.S. 83.)  These interviews were conducted by the San Ramon Police Department with the assistance, in the normal course of events, of the office of the district attorney.  They are in the possession of the district attorney or their agents, and under Brady, the prosecution is under a Constitutional Duty to produce the interviews and related reports.

      The constitutional duty that requires prosecutors to disclose exculpatory evidence to a criminal defendant under Brady is independent from the statutory duty to provide discovery, such that evidence that is material under Brady must be disclosed to the defense, notwithstanding any failure of the defense to enforce its statutory right to discovery.  (People v. Superior Court (App. 5 Dist. 2008) 77 Cal.Rptr.3d 352, 163 Cal.App.4th 28.)  State's federal constitutional duty under Brady to disclose exculpatory evidence to criminal defendant is independent from its duty under reciprocal discovery provisions of Penal Code, and applies even without request by the accused. (Abatti v. Superior Court (App. 4 Dist. 2003) 4 Cal.Rptr.3d 767, 112 Cal.App.4th 39.)    Responsibility for Brady compliance lies exclusively with the prosecution, including the duty to learn of any favorable evidence known to the others acting on the government's behalf in the case. (Walters v. Superior Court (App. 4 Dist. 2000) 95 Cal.Rptr.2d 880, 80 Cal.App.4th 1074.) The prosecution team, subject to duty under Brady to disclose material exculpatory evidence, includes both investigative and prosecutorial agencies and personnel. (People v. Superior Court (App. 4 Dist. 2000) 96 Cal.Rptr.2d 264, 80 Cal.App.4th 1305.)

       Evidence is “material” under the Brady v. Maryland standard for disclosure to defendant under due process, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.  (People v. Cook (2006) 47 Cal.Rptr.3d 22, 39 Cal.4th 566.)  Brady material includes evidence that would help to impeach a prosecution witness.  (Randolph v. People of the State of Cal., C.A.9 (Cal.)2004, 380 F.3d 1133.)   The scope of the Brady disclosure obligation extends beyond the contents of the prosecutor's case file, and encompasses the duty to ascertain as well as divulge any favorable evidence known to the others acting on the government's behalf, including the police.  (People v. Gutierrez (App. 2 Dist. 2003) 6 Cal.Rptr.3d 138, 112 Cal.App.4th 1463.) A Prosecutor's duty under Brady to disclose material exculpatory evidence extends to evidence the prosecutor or the prosecution team knowingly possesses or has the right to possess.  (People v. Superior Court (App. 4 Dist. 2000) 96 Cal.Rptr.2d 264, 80 Cal.App.4th 1305.)  Because the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police, Brady suppression occurs when the government fails to turn over even evidence that is known only to police investigators and not to the prosecutor.  (In re Sodersten (App. 5 Dist. 2007) 53 Cal.Rptr.3d 572, 146 Cal.App.4th 1163.)  

    DATED:

    ____________________________________

    [Attorney Name]

    Attorney for Defendant

    DECLARATION IN SUPPORT OF MOTION

    I, the undersigned, [Attorney Name], state:

    I am an attorney at law duly licensed to practice in the state of California, and attorney of record for the defendant herein.

    I have informally requested discovery from the prosecution and received a number of reports and interviews.  These reports and interviews 

    It is the defense's position that this material is critical to the defense and that due process under Brady v. Maryland mandates that the prosecution disclose this material and supersedes any California law to the contrary.  It is therefore requested that the court issue an order directing the Prosecution to provide copies of the interview and all related reports.

    Date:

    ____________________________________

    [Attorney Name]

    Attorney for Defendant


     



    PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move for an order suppressing all evidence of the defendant’s statement [insert statements].

    The motion will be made on the grounds that the introduction of such evidence before the trier of fact would violate the defendant’s right against compulsory self-incrimination, and his right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. This motion is also based on the grounds that the evidence was obtained in violation of the Sixth Amendment to the United States Constitution. 

    The motion will be based on this notice of motion, on the memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as hereafter may be filed with the court, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.


    Dated:

    __________________________

    [NAME OF ATTORNEY]

    Attorney for Defendant

  2. 2.Pitches Motion

    [NAME OF ATTORNEY], SBN [STATE BAR NUMBER]

    Innocence Legal Team

    3478 Buskirk Avenue, Suite 150

    Pleasant Hill, CA 94523

    Tel: (408) 414-8194

    Email: [EMAIL ADDRESS]





    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF CALIFORNIA   

      

                 Plaintiff,

    vs.


    [NAME OF DEFENDANT],

    Defendant 









    CASE NO. [CASE NUMBER]

    POINTS AND AUTHORITIES IN SUPPORT OF TO COMPEL DISCLOSURE OF BRADY 

    MATERIAL; DECLARATION OF [Attorney Name]


    Date:

    Time:

    Dept:



    Case Filed: 

    Trial Date:  


    TO THE DISTRICT ATTORNEY OF [COUNTY] AND/OR [HIS/ HER] REPRESENTATIVE:

    PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, the defendant will move this court for an order requiring the District Attorney of the County of Contra to disclose to the defense evidence with the possession of the District Attorney or its agents statements and reports that are material and exculpatory with in the rule of Brady v. Maryland

    / / /

    / / /

    This motion will be based on the attached Memorandum of Points and Authorities, the declaration of [Attorney Name], attorney for the defendant, and such other and further evidence as may be presented at the time of the hearing.


    Dated: 

    Respectfully submitted,

    [Attorney Name]



      by:   ____________                          Attorneys for Defendant

    POINTS AND AUTHORITIES

    I.

    FACTS

    II.

    DEFENDANT IS ENTITLED TO DISCOVERY OF INFORMATION IN THE POSSESSION OF THIRD PARTIES 

    By this motion, the defense seeks to compel the production of [INSERT INFORMATION SOUGHT]

    Motions for discovery by a criminal defendant are made to the sound discretion of the trial court, "which has the inherent power to order discovery in the interests of justice." (Hill v. Superior Court (Los Angeles) (1974) 10 Cal.3d 812, 816.)  The basic principles underlying criminal pretrial discovery is that an accused is entitled to a fair trial.  (Id.)  "[T]he state has no interest in denying the accused access to all evidence that can throw light on the issues in the case, and in particular, it has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits."  (Id.)   (Emphasis in original, citing People v. Riser (1952) 47 Cal.2d 566, 586.)

    Pitchess v. Superior Court (1974) 11 Cal.3d 531, is direct authority for issuance of a subpoenas duces tecum requiring production of information, or "discovery", in the possession of a non-party, as recognized by the courts in Pacific Lighting Leasing Company v. Superior Court (Los Angeles) (1976) 60 Cal.App.3d 552, 560, and Millaud v. Superior Court (San Diego) (1986) 182 Cal.App.3d 471, 475-476.  (See also, People v. Broderick (1991) 231 Cal.App.3d 584, [subpoena duces tecum is appropriate discovery tool directed to third parties despite Proposition 115].)  Central to the decisions in Pacific Lighting and Millaud is the realization that information critical to a criminal defendant is not always within the possession or control of the prosecution or its various agents.

    The prosecution does not dispute the materiality of the interviews and related reports.  They maintain, however, that they are prevented from disclosing the reports and interviews because of privacy concerns and the juvenile nature of the investigation.  While the defense has begun the slow statutory process to gain access to the protected juvenile records, it is the defense position that these state concerns are preempted by federal due process concerns. (See Brady v. Maryland (1963) 373 U.S. 83.)  These interviews were conducted by the San Ramon Police Department with the assistance, in the normal course of events, of the office of the district attorney.  They are in the possession of the district attorney or their agents, and under Brady, the prosecution is under a Constitutional Duty to produce the interviews and related reports.

      The constitutional duty that requires prosecutors to disclose exculpatory evidence to a criminal defendant under Brady is independent from the statutory duty to provide discovery, such that evidence that is material under Brady must be disclosed to the defense, notwithstanding any failure of the defense to enforce its statutory right to discovery.  (People v. Superior Court (App. 5 Dist. 2008) 77 Cal.Rptr.3d 352, 163 Cal.App.4th 28.)  State's federal constitutional duty under Brady to disclose exculpatory evidence to criminal defendant is independent from its duty under reciprocal discovery provisions of Penal Code, and applies even without request by the accused. (Abatti v. Superior Court (App. 4 Dist. 2003) 4 Cal.Rptr.3d 767, 112 Cal.App.4th 39.)    Responsibility for Brady compliance lies exclusively with the prosecution, including the duty to learn of any favorable evidence known to the others acting on the government's behalf in the case. (Walters v. Superior Court (App. 4 Dist. 2000) 95 Cal.Rptr.2d 880, 80 Cal.App.4th 1074.) The prosecution team, subject to duty under Brady to disclose material exculpatory evidence, includes both investigative and prosecutorial agencies and personnel. (People v. Superior Court (App. 4 Dist. 2000) 96 Cal.Rptr.2d 264, 80 Cal.App.4th 1305.)

       Evidence is “material” under the Brady v. Maryland standard for disclosure to defendant under due process, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.  (People v. Cook (2006) 47 Cal.Rptr.3d 22, 39 Cal.4th 566.)  Brady material includes evidence that would help to impeach a prosecution witness.  (Randolph v. People of the State of Cal., C.A.9 (Cal.)2004, 380 F.3d 1133.)   The scope of the Brady disclosure obligation extends beyond the contents of the prosecutor's case file, and encompasses the duty to ascertain as well as divulge any favorable evidence known to the others acting on the government's behalf, including the police.  (People v. Gutierrez (App. 2 Dist. 2003) 6 Cal.Rptr.3d 138, 112 Cal.App.4th 1463.) A Prosecutor's duty under Brady to disclose material exculpatory evidence extends to evidence the prosecutor or the prosecution team knowingly possesses or has the right to possess.  (People v. Superior Court (App. 4 Dist. 2000) 96 Cal.Rptr.2d 264, 80 Cal.App.4th 1305.)  Because the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police, Brady suppression occurs when the government fails to turn over even evidence that is known only to police investigators and not to the prosecutor.  (In re Sodersten (App. 5 Dist. 2007) 53 Cal.Rptr.3d 572, 146 Cal.App.4th 1163.)  

    DATED:

    ____________________________________

    [Attorney Name]

    Attorney for Defendant

    DECLARATION IN SUPPORT OF MOTION

    I, the undersigned, [Attorney Name], state:

    I am an attorney at law duly licensed to practice in the state of California, and attorney of record for the defendant herein.

    I have informally requested discovery from the prosecution and received a number of reports and interviews.  These reports and interviews 

    It is the defense's position that this material is critical to the defense and that due process under Brady v. Maryland mandates that the prosecution disclose this material and supersedes any California law to the contrary.  It is therefore requested that the court issue an order directing the Prosecution to provide copies of the interview and all related reports.

    Date:

    ____________________________________

    [Attorney Name]

    Attorney for Defendant


     



    PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move for an order suppressing all evidence of the defendant’s statement [insert statements].

    The motion will be made on the grounds that the introduction of such evidence before the trier of fact would violate the defendant’s right against compulsory self-incrimination, and his right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. This motion is also based on the grounds that the evidence was obtained in violation of the Sixth Amendment to the United States Constitution. 

    The motion will be based on this notice of motion, on the memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as hereafter may be filed with the court, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.


    Dated:

    __________________________

    [NAME OF ATTORNEY]

    Attorney for Defendant

Dismissal Motions

Dismissal Motions

  1. 1.Motion to Dismiss Persuant to PC 995

    <Attorney Name>, SBN: <SBN>

    Innocence Legal Team

    3478 Buskirk Avenue, Suite 150

    Pleasant Hill, CA 94523

    Tel: ,phone number>

    Email:  <last name>@innocencelegalteam.com





    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF <NAME OF COUNTY>

    THE PEOPLE OF THE STATE OF CALIFORNIA   

      

                 Plaintiff,

    vs.


    Defendant.







    CASE NO. 

    NOTICE OF MOTION AND MOTION TO SET ASIDE THE INFORMATION PURSUANT TO PENAL CODE § 995

    Date:
    Time:
    Dept:

    Trial:

    PLEASE TAKE NOTICE that the Defendant, by and through his counsel, will and hereby does move this court for an order setting aside counts six and eight through twenty-eight of the information pursuant to Penal Code § 995.

    This motion shall be based upon Penal Code § 995, the preliminary hearing transcripts on file herein, this motion and the points and authorities attached hereto, and on all pleadings, records, and files in this case and upon such evidence, oral and documentary, as may be adduced at the time of the motion, and any argument of counsel at the hearing hereon. 


    Dated:  May 1, 2023 Respectfully submitted,



    _______________________________

        Attorney for Defendant

    MEMORANDUM OF POINTS AND AUTHORITIES

    1. FACTUAL AND PROCEDURAL BACKGROUND
    •  DEFENDANT CANNOT BE HELD TO ANSWER WITHOUT PROBABLE CAUSE

    The rules of review for Pen. Code, § 995 motions are well settled. It is axiomatic that an information must be set aside if the defendant has been committed by the magistrate “without reasonable or probable cause” (Pen. Code, § 995). The term “reasonable or probable cause” means “such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of guilt of the accused” (People v. Slaughter (1984) 35 Cal. 3d 629, 636). This test requires less evidence than is necessary to sustain a conviction.  (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.)  In other words, at the preliminary examination “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 of City and County of San Francisco (1963) 59 Cal. 2d 124, 126–127). 

    The record from the preliminary examination must raise a “clear and distinct inference of the existence of the essential elements of the crime charged” (People v. McKee (1968) 267 Cal. App. 2d 509, 515). When the evidence presented at the preliminary hearing fails to meet this test, the holding order should be set aside pursuant to a motion under section 995.  (Williams v. Superior Court, supra, 71 Cal.2d at p. 1147.)  “Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.  [Citations.]”  (Williams v. Superior Court, supra, 71 Cal.2d at p. 1148.)  However, there must be some showing as to the existence of each element of the charged crime.  (Ibid.)  The ultimate inquiry is whether the “magistrate might reasonably have inferred the existence of each element of the charged crime.”  (Id. at pp. 1148-1149.)  

    In making such a determination, it is this Court’s duty “to discard -- as unreasonable -- inferences which derive their substance from guesswork, speculation, or conjecture.”  (Birt v. Superior Court (1973) 34 Cal.App.3d 934, 938, emphasis added; see also People v. Morris (1988) 46 Cal.3d 1, 21.) “If the evidence shows that it is as probable that the defendant did not commit the crime as that he did, it is insufficient evidence to support a bind over and a Penal Code section 995 motion should be granted.” (Malleck v. Superior Court, (1956) 142 Cal.App.2d 396 (emphasis added.).  Thus, only if the preliminary hearing yields strong and credible evidence of defendant's guilt, may the magistrate reasonably assume the possibility of his guilt. (Id.)  In the instant case, the testimony and all rational inferences made from the evidence at the preliminary examination is legally insufficient to hold Defendant to answer for counts six and eight through twenty-eight. 

    • The District Attorney did not request a holding order on count 6, Penal Code § 289(i).

    The original complaint filed on February 14, 2022, alleged a felony violation of Penal Code § 289(i), sexual pentation of a person under the age of sixteen by a defendant over the age of twenty-one. The offense was alleged to have occurred between July 4, 2012 and July 3, 2018 in the County of Santa Cruz. The information filed on June 15, 2022 alleged a felony violation of Penal Code § 289(i), sexual pentation of a person under the age of sixteen by a defendant over the age of twenty-one in count six. The new count six was alleged to have occurred between July 4, 2012, and July 3, 2018 in the County of Santa Clara. The complaint alleged counts three and four occurred in Santa Clara and Counts five and six occurred in Santa Cruz. The information alleged counts three, four, five and six occurred in Santa Clara. Based on the no holding order on count six, this charge should be dismissed. 

    • There is Insufficient Evidence of Force, Violence, Duress, Menace, or Fear.

    Counts eight through twenty-seven allege the element of force, violence, duress, menace or fear of bodily injury. There was insufficient evidence of force, violence, duress, menace or fear of bodily injury.

    “Force” as used in statutes prohibiting sexual acts accomplished by force means physical force substantially different from or substantially in excess of that required for the lewd act.  (People v. Senior (App. 6 Dist. 1992) 3 Cal.App.4th 765). Since ordinary oral copulation and digital penetration almost always involve some physical contact other than genital, modicum of holding and even restraining cannot be regarded as substantially different or excessive “force” within meaning of statutes prohibiting oral copulations and digital-vaginal penetrations by force. (Ibid). The court in People v. Jimenez (2019) 35 Cal.App.5th 373, 391 noted: “A defendant uses ‘force’ if the prohibited act is facilitated by the defendant’s use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act.’ [Citation.] ‘The evidentiary key to whether an act was forcible is not whether the distinction between the “force” used to accomplish the prohibited act and the physical contact inherent in that act can be termed “substantial.” Instead, an act is forcible if force facilitated the act rather than being merely incidental to the act.’ [Citation.]” (citing People v. Morales (2018) 29 Cal.App.5th 471, 480.)

    Here, the only force used was the physical contact associated with the penetration or oral copulation. 

    Additionally, there is no evidence of duress in this case. Penal Code section 262(b) defines duress as it applies to sexual offenses: “As used in this section, “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship with the defendant, are factors to consider in apprising the existence of duress.”

    The definition of “duress” is based on People v. Leal (2004) 33 Cal.4th 999, 1004–1010 and People v. Pitmon (1985) 170 Cal.App.3d 38, 50. In People v. Leal, supra, 33 Cal.4th at p. 1007, the court held that the statutory definition of “duress” contained in Penal Code sections 261 and 262 does not apply to the use of that term in any other statute. In looking at the totality of the circumstances to determine if duress was used to commit forcible lewd acts on a child, “relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. . . . The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim’s testimony must be considered in light of her age and her relationship to the defendant.” (People v. Cochran, supra, 103 Cal.App.4th at p. 14.) Duress means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or (2) acquiesce in an act to which one otherwise would not have submitted. (People v. Garcia (2016) 247 Cal.App.4th 1013).

    Here, there was insufficient evidence presented at the preliminary hearing to establish that counts eight through twenty-seven were committed using force, violence, duress, menace, or fear. 

    • There is Insufficient Evidence on Count 28, Penal Code § 288.2(a)(2) 

    Count 28 alleges a violation of Penal Code § 288.2(a)(2) sending harmful matter to a minor. Penal Code § 288.2 provides:

    (a)(1) Every person who knows, should have known, or believes that another person is a minor, and who knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including by physical delivery, telephone, electronic communication, or in person, any harmful matter that depicts a minor or minors engaging in sexual conduct, to the other person with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, and with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other, is guilty of a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, or is guilty of a felony, punishable by imprisonment in the state prison for two, three, or five years.

    (2) If the matter used by the person is harmful matter but does not include a depiction or depictions of a minor or minors engaged in sexual conduct, the offense is punishable by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for 16 months, or two or three years.

    The prosecution did not establish sufficient evidence at the preliminary hearing of “harmful matter” depicting “sexual conduct.” 

    Penal Code § 288.2 refers to Penal Code § 313 for the purposes of defining “harmful matter” and means: “matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.”

    In determining whether a communication is “harmful matter” that may form the basis for a conviction of exhibiting harmful matter to a minor, it is not the minor’s opinion that matters; the sexual conduct depicted must be judged patently offensive under a single contemporary statewide standard. (People v. Dyke (App. 1 Dist. 2009) 172 Cal.App.4th 1377, modified on denial of rehearing.) The communication is judged by its impact on an average person, rather than a particularly susceptible or sensitive person, or a totally insensitive one. (Id.)  

    “Sexual conduct” is defined in subdivision (d) of Penal Code § 311.4 and includes “any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.”

    Penal Code § 288.2(3)(g) makes it a defense if the act charged was “committed in aid of legitimate scientific or educational purposes.” 

    Penal Code § 288.2 prohibits “harmful matter that depicts … sexual conduct.”

    II.

    CONCLUSION

    Based on the insufficiency of the evidence presented at the preliminary hearing, and for all of the above reasons, Defendant requests this Court to dismiss counts six and counts eight through twenty-seven of information in their entirety. 

    Dated: May 1, 2023

    Respectfully Submitted,



      _____________________

        Attorney for Defendant

     

  2. 2.Speedy Trial - Motion to Dismiss

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 





    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA

    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF CALIFORNIA   

      

                 Plaintiff,

    vs.


    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    MOTION TO DISMISS FOR VIOLATION OF DEFENDANT’S CONSTITUTIONAL RIGHT TO SPEEDY TRIAL


    MEMORANDUM


    Date:

    Time:

    Dept.:

       

    PLEASE TAKE NOTICE that on [DATE] at [TIME] or as soon thereafter as the matter may be heard, and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move this court to dismiss the above-entitled matter for a violation of the Constitutional Right to a Speedy Trial. The Motion will be based on this Notice of Motion, the attached Memorandum of Points and Authorities, the Declarations of [NAME OF ATTORNEY] with attached investigative reports, the files in this matter, and such other and further evidence as may be introduced at the hearing.


    Dated: 



    _______________________________________

    [NAME OF ATTORNEY]

    Attorney for Defendant.

    MEMORANDUM OF POINTS AND AUTHORITIES

    1. Procedural History of this matter.

    On November 12, 1999, a female resident of Olympia, Washington, reported that she had been attacked and raped while on the Chehalis Western Trail.  The scene of the attack was near to an apartment complex occupied primarily by Spanish speaking workers.  Extensive investigation produced a DNA profile, and a unidentified suspect connected to the City of Concord, California

    On the night May 2, 2000, the complaining witness in the instant matter reported that she had been raped in her apartment in the City of Concord.  She described the assailant as a Filipino of approximate 30 years of age.  Investigation by the Concord Police located two used condoms, and books and equipment indicating an interest in S&M practices.  The complaining witness indicated that the books and equipment were hers, and that she had been introduce to the practices by a prior boyfriend.

    In the first of June of the year 2000, a DNA match between the Washington SART kit and a cigarette butt found in a automobile raised suspicions concerning the defendant.  On June 7, 2000, Concord Police, at the request of Washington State, obtained a search warrant for the defendant’s blood.  The warrant was served on the defendant while he was confined in Juvenile Hall on a shoplifting charge.  The defendant had told the authorities that he was 16 years old, but the defense has obtained a birth certificate from Mexico indicating that he was 14 years old at the time.  During the service of the warrant, the defendant was interviewed by a Spanish speaking member of the Concord Police Department, and made incriminating statements concerning the Washington State attack.  

    Defendant was arrested on a warrant out of Washington State, and was booked in Washington State on July 2, 2000.  A DNA match with evidence from the Washington State attack was obtained, and he was subsequently convicted of the rape and sentenced to State Prison.

    On March 10, 2004, the Concord Police was informed of a CODIS (Combined DNA Index System) match based on the DNA profile obtained in the instant case.   The DNA match was identified as belonging to the defendant, then in custody at Clalloam Bay Correctional Center in Washington State.  On approximately Nov. 11, 2004, the defendant was served with a search warrant for blood in Washington State.   On January 31, 2005, Concord Police received notice of a match between the defendant and evidence obtained in the instant case.  On Feb. 3, 2005, a Felony Complaint was filed.  Handwritten notes on discovery provided by the prosecution indicate a decision to serve the arrest warrant at the end of defendant’s sentence in Washington State, and a projected release date of December 22, 2014. (See Exhibit A.)  The defendant was unaware of the outstanding arrest warrant.

    In 2014, as the defendant was being prepared for release to ICE, the warrant was discovered and the defendant informed.  He prompt filed a demand for trial under the interstate compact, and proceedings in this court began.

    1. In Motions to Dismiss for Violations of Constitutional Speedy Trial, the burden of the Defense is to show some prejudice, actual or presumed, however minor, and then the burden passes to the prosecution to justify the delay. 

    A guarantee of a speedy trial exists under both the State and Federal constitutions. (U.S. Const., 6th Amendment; Cal.Const. Art.I, section 15; People v. Lowe (2007) 40 Cal.4th 937.)  The statutory speedy trial provisions are supplementary to and a construction of the state constitutional guarantee. (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1539.)

    There are some differences.  Both the state and federal Constitutions guarantee criminal defendants the right to a speedy trial. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.) But the rights differ from each other in two significant respects. First, the state constitutional right arises upon the filing of a felony complaint, whereas the federal right does not come into play until an indictment or an information has been filed or the defendant has been arrested and held to answer. Second, an “uncommonly long” delay triggers a presumption of prejudice under the federal Constitution, but not under the state Constitution. (Martinez, supra, 22 Cal.4th at pp. 765–766, 94 Cal.Rptr.2d 381, 996 P.2d 32.)  (People v. Lowe (2007) 40 Cal.4th 937, 942.)

    The interpretation of the Sixth Amendment’s speedy trial right by California Courts has evolved over the years.  It begins with Jones v. Super Court (1970) 3 Cal.3d 734, where our Supreme Court held that both the state constitutional right and the Sixth Amendment Right attached to a proceeding at either the arrest, or the filing of a formal accusation.  In Jones, it was alleged that the defendant sold heron to an undercover officer May 7, 1968.  A Complaint was file and an arrest warrant issued July 8, 1968, The defendant was not arrested until February 16, 1970.  The court reasoned that the function of the Speedy Trial Rights was “to protect those accused of crime against possible delay, caused either by willful oppression, or the neglect of the state or its officers. (Jones, supra, at p. 738.)  The court reasoned that suspect became an “accused” within the meaning of the Sixth Amendment and the California Constitution at the time a complaint was filed and a warranted issued.  This reasoning remains the interpretation of the California Constitution, but the California interpretation of the Sixth Amendment right as changed.

    The court revisited the issue in People v. Hannon (1977) 19 Cal.3d 588.  Leaving the application of the state right to a speedy trial unchanged, the court look at the impact of U.S. v. Marion (1971) 404 U.S. 307.  In Marion, the U.S. Supreme Court addressed a claim by the defendants that there speedy trial rights have been violated by a three year long investigation.  Justice White responded by finding that, “In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused,’ an event that occurred in this case only when the appellees were indicted on April 21, 1970. (Id., supra at p.313.)  Later in the opinion, following Justice White, concluded, “So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.”

    Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend that reach of the amendment to the period prior to arrest. (Id. at pp. 320-321.)

    What is not addressed in Marion is the specific actions that turn a putative defendant into an accused, or the meaning of the phrase “other formal charge.”  What is address specifically in Marion is the application of the Sixth Amendment to Federal Criminal Procedure.  Unlike California’s two stage prosecutorial process, stemming from the historical requirement that all criminal prosecutions begin in the Municipal Courts, and be refiled in the Superior Court following a holding order, a Federal prosecution has only one stage.  The only arraignment occurs after an indictment or information.  (Federal Rules of Criminal Procedure, Rule 10.)  The term “criminal complaint” applies only to an application for an arrest warrant, analogous to California’s issuance of a warrant by a judge based on the declaration of a law enforcement officer before the filing of a complaint.  (Federal Rules of Criminal Procedure, Rule 3.)  No one would contend that the declaration in either case would be a formal accusation, requiring arraignment and the start of court proceedings.  Nonetheless, the Hannon court interpreted Marion to restrict the application of the Sixth Amendment right to arrest, indictment, or Information following a holding order.  The entire discussion, however, can be viewed as dicta as the court when on to review the case under the State Speedy Trial right, and conclude that “the People demonstrated sufficient justification to outweigh whatever prejudice accrued to defendant as a result of the seven-month delay in serving the warrant. (Hannon, supra, at p. 610.)

    The holding, however, had the unintended consequence of depriving any application of the Sixth Amendment right in misdemeanor prosecution, as a California criminal complaint was not considered formal charging document.  This issue came before the California Supreme Court in Serna v. Superior Court (1985) 40 Cal.3d 239.  In Serna, the defendant contended his Speedy Trial rights were violated under the Sixth Amendment by a four year delay between the filing of a complaint and his arrest.  Citing Hannon, the People contended that the Sixth Amendment had no application to misdemeanor prosecutions in California.

    In determining the applicability of other constitutional rights, the Supreme Court has emphasized that the nature of the proceeding and its consequences determine the applicability of the protections of the Bill of Rights, not “labels of convenience.” (See, e.g., In re Gault (1966) 387 U.S. 1, 50, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527; see also McKeiver v. Pennsylvania (1971) 403 U.S. 528, 541, 91 S.Ct. 1976, 1984, 29 L.Ed.2d 647; Matter of Anthony P., supra, 104 Misc.2d 1024, 430 N.Y.S.2d 479, 480.) Moreover, elsewhere in Marion the court uses language generally applicable to any criminal proceeding, referring to the time at which “the putative defendant in some way becomes an ‘accused’ ” (404 U.S. at p. 313, 92 S.Ct. at p. 459), to “indictment, information, or other formal charge” (id., at p. 321, 92 S.Ct. at p. 463), and to whether the defendant had been “arrested, charged, or otherwise subjected to formal restraint prior to indictment” (id. at p. 325, 92 S.Ct. at p. 466), as events triggering the right to speedy trial. (Id. at p. 256.)

    The People suggest no basis upon which to explain or support a construction of the right to speedy trial that extends to misdemeanor defendants different rights than it accords felony defendants. Nor do they offer any basis for distinguishing between those defendants charged with misdemeanors by indictment and those charged by complaint.  (Ibid.)

    In addressing Hannon, the court distinguished between felony and misdemeanor complaints, and in particularly emphasized that the misdemeanor complaint, filed in a municipal court, did not confer trial jurisdiction on that court.  This grounds for distinction ended in 1998 with consolidation of the courts.  In this instant case, the complaint, filed in February, 2004, confirmed trial jurisdiction on the Superior Court of Contra Costa County. (Id. at p. 257.)  Finally it cited numerous opinion in other state and federal jurisdictions holding that the right to Speedy Trial is not dependent upon the label placed on the accusatory pleading. (Id. at p. 258.)

    The California Supreme Court next addressed the California interpretation of the Sixth Amendment in People v. Martinez (2000) 22 Cal.4th 750.  Justice Kennard, writing for the court, continued the criticism of the reasoning of Hannon, but eventually continued the California rule that the Sixth Amendment speedy trial right does not attach in an arrest, indictment, or information in felony prosecutions.

    Subsequent California Supreme Court decision have not directly addressed this issue, but have rather used more general terms in describing the required court filing.  In People v. Nelson (2008) 43 Cal.4th 1242, Justice Chin, writing for the court, stated that neither speedy trial right, state or federal, applied “until at least the defendant has been arrested or a charging document has been filed.” (Id. at p. 1250.)  Nelson involved a cold case murder prosecution, where advances in technology provided a DNA match after 25 years.  Justice Chin went on to hold that claim of a Due Process violation could be brought for the 25 year delay, but that the delay was justified by technological advances. (Id. at p. 1250.)

    In People v. Cowan (2010) 50 Cal.4th 401, a death penalty appeal, the defendant complained of a ten year delay between the homicide and his arrest.  The court noted that the case came under the due process clauses of the Fifth Amendment and Article 1, section 15 of the California Constitution, as both the State and Federal Speedy Trial rights, “as those rights do not attach until a defendant as been arrested or a charging document has been filed.” (Id. at p. 430.)

    Neither Nelson or Cowan directly address the nature of the charging document filed.  Nor has the Ninth Circuit or the United States Supreme Court directly addressed the California interpretation of the application of the Sixth Amendment to California criminal procedure.  However, in 2003, three years after Nelson, the applied the Sixth Amendment speedy trial rules, including its presumption of prejudice, to a six year delay in a California prosecution that had not yet proceeded to a preliminary examination. (McNeely v. Blanas (2003)336 F.3d 822.)  Although the defendant had been in some sort of custody that period, there was no discussion of the lack of a “charging document.”  

    Under the Sixth Amendment speedy trial right, prejudice is presumed after an undue delay.  An undue delay is defined as one year.  In this case we have what appears to be an intentional delay by law enforcement of nearly 10 years.  Should California courts rule that the defendant has not shown prejudice, this case would be the ideal vehicle to place the state interpretation of the Sixth Amendment before the Federal Courts.  If, as Jones held, a California felony criminal complaint, which begins a prosecution requiring arraignment and other procedural safeguards, triggering the right to counsel, is a formal charging document, this case must be dismissed.

      Under California procedure, the defense has the initial burden of showing some prejudice from the delay in bringing the defendant to trial.  Once the defense satisfies the burden, the prosecution must show justification for the delay.  If the prosecution does, the trial court must balance the prejudice against the justification. (Lowe, supra at p. 942; Serna v. Superior Court (1985) 40 Cal.3d 239, 249.)

    A minimal showing of prejudice will require dismissal if the proffered justification for delay is insubstantial.  By the same token, the more reasonable the delay, the more prejudicial the defense would have to show to require dismissal. (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1328; People v. Conrad (2006) 145 Cal.App.4th 1175, 1185.)  The same balancing test is applied for pre-accusation delay resulting in a denial of due process. (People v. Catlin (2001) 26 Cal.4th 81, 107; People v. Boysen (2007) 165 Cal.App.4th 761, 772.)

    Under the federal procedure, the Sixth Amendment right attaches when a suspect becomes the accused. In U.S. District Court, an indictment is the first procedural step in most prosecutions.  In Sixth Amendment cases, both state and federal court, there is a presumption of prejudice for any extended delay.  “Extended delay” is defined as more than one year. (U.S. v. Cardona (2002) 302 F.3d 494, 497. )   There are four factors to be considered: 1, the length of the delay; 2, the reason for the delay; 3, the defendant’s diligence is asserting his rights; and, 4, prejudice to the defendant resulting from the delay.  (Barkers v. Wingo (1972) 407 U.S. 514, 530-533.) In Moore v. Arizona (1973) 415 U.S. 25, the unjustified delay was the failure of Arizona to extradite the defendant, who was serving time is California State Prison, for 28 months following his demand.  In Smith v. Hooey (1969) 393 U. S. 374, the failure of Texas to seek extradition of the defendant from federal custody over a period of six years resulted in dismissal.  In United States v. Mendoza (2008) 530 F.3d, 758, it was the lack of diligence by government authorities in pursuing the defendant, who was living in the Philippines, over a period of six years. Given lack of diligence, the defendant was not required to show specific prejudice.  In U.S. v. Cardona (2002) 302 F.3d 494, it occurred when the government waited five years to execute an arrest warrant on a defendant who was living openly in the United States.  In McNeely v. Blanas (2003) 336 F.3d 822, a six year delay in the prosecution, and the failure of the state to explain the delays, resulted in the release of the defendant and the dismissal of all pending charges with prejudice.


    The threshold inquiry is whether the delay was long enough to trigger a “speedy trial” analysis. If the delay reaches the threshold level of one year, it is “presumptively prejudicial” and requires the court to engage in the speedy trial analysis, balancing the remaining factors. Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir.1993), cert. denied, 510 U.S. 1167, 114 S.Ct. 1197, 127 L.Ed.2d 546 (1994); Doggett, 505 U.S. at 651–52 & n. 1, 112 S.Ct. 2686, 2690–91, 120 L.Ed.2d 520. This delay of  over five years certainly suffices to raise the presumption of prejudice and trigger the analysis. (Id. at p. 497.)

    In Sixth Amendment cases, the delay and any actual or presumed prejudice is balanced against the government’s justification for the delay.  Where a lengthy delay is not justified, the presumed prejudice alone requires dismissal.  

    In the instant case, the prosecution and the Concord Police knew where the defendant was housed, having obtained a sample of his blood pursuant to warrant while he was imprisoned in Washington prior to the filing of the complaint.  The notations on Exhibit A indicate that law enforcement not only knew where he was, but also knew his release date, and elected to serve the warrant on his release.  No justification for the decision has been provided to this counsel, and this counsel can not see what justification could exist.

    It is well established that prejudice may be shown by loss of material witnesses due to lapse of time, or loss of evidence because of fading memory attributable to the delay.  “The overarching theme is that the loss of such evidence, particularly where the defendant or victims cannot independently recall details of the crime, makes it difficult or impossible for the defendant to prepare a defense thus showing prejudice. (Mirenda, supra, at p.1329.)

    As we recognized in Boysen, supra, 165 Cal.App.4th 761, 62 Cal.Rptr.3d 350, because “due process is ultimately tied to the fundamental conceptions of justice that lie at the base of our civil and political institutions and which define the community's sense of fair play and decency,” (id. at p. 774, 62 Cal.Rptr.3d 350), it is also shown to be “properly offended when, with little or no justification, the government waits decades to bring a prosecution and that delay has demonstrably placed the defense at a profound and perhaps fatal disadvantage.” (Ibid.)

    Under both Federal and California law, the speedy trial right serves a three fold purpose.  “It protects the accused . .  against prolonged imprisonment; it relieves him of the anxiety and public suspicion attendant upon an untried accusation of crime; and . . . it prevents him from being exposed to the hazard of a trial, after so great a lapse of time, that the means of proving his innocence may not within his reach” - as, for instance by the loss of witnesses or the dulling of memory.” (Craft, supra, at p. 1540.)  Prejudice, in the form of the loss of the possibility of concurrent sentences in separate prosecutions, has been recognized as such prejudice, or at lease an element of the prejudice. (See People v. Barker (1966) 64 Cal.2nd 806, 813.)   This position was rejected in Lowe, supra, which holds that although the loss of the possibility of concurrent sentences alone can not serve as prime facie prejudice, it can be consider in the balancing of any justification against the prejudice. (Lowe, supra, at p. 946.)

    1. The preparation of the defense in this matter has been extensively prejudice by the delay of fourteen plus years between the event and the bringing of the defendant to court. 

    It is the defense position that the relationship between the complaining witness and the defendant was ongoing and consensual.  On the occasion of the charged incident, there was a fight between the complaining witness and the defendant resulting in the filing of the complaint.  This theory is supported by the following facts contained in the police report: the presence of two used condoms after the event; the use, during the event, of trick handcuffs owned by the complaining witness; the presence at the scene of S&M related “toys” and literature; the admission by the complaining witness that she had an interest in such matters, and had been introduced to it by a former boyfriend.  In addition, the description of the assailant as a 30 year old Filipino when the defendant was a 14 or 16 year old Hispanic suggests that the complaining witness was aware of the illegality of her relationship with the defendant.  The passage of time has prejudiced the preparation of the defense in the follows areas:

    1. The resident of the apartment complex, who made the 911 call to the police at the request of the complaining witness, has died.  He would have been a witness to the lack of screams or other noise during the alleged assault, and possibly to the defendant’s presence in the complex as a guest of the complaining witness.  He did tell the police that he heard nothing before the complaining witness banged on his door.  This is in contrast to the testimony of the complaining witness that she screamed throughout the incident. (See Exhibit B, Concord Police Report re Ronald Reese; Exhibit C, Death Certificate Ronald Reese; Preliminary Hearing Transcript page 33.)
    2. Investigation by the public defender, including visits to the complex by both the investigator and the assigned attorney, was unable to locate any person who had been a resident of the complex at the time of the incident in 2000.  The testimony of such witnesses would have been relevant to the presence of  the defendant on other occasions, and to whether or not any screams were heard during what is described as a lengthy assault.  Of particular interest would have been the complaining witness’ immediate neighbor.  When the complaining witness sought help after the assault, she did not try the neighbors door, know that the neighbor would have been aware of the assault form the noise and screams, had done nothing, and therefore “didn’t care.”  Records from the public defender show extensive efforts to locate these witnesses. (See Exhibit C, declaration the defendant, attached hereto, and Exhibit D, Statement of complaining witness.)  
    3. The public defender attempted to locate the former boyfriend of the complaining witness (who introduced S&M).  They located a man with the same name, but who had never met the complaining witness.  There are indications that the former boyfriend is now in England.  This witness could testify to the extent of the complaining witness’ involvement in S&M.  (See Exhibit E, Police Report; Exhibit F, Notes of investigator.)
    4. The defense has served a subpoena duces tecum on American Airlines, the successor to America West, to confirm whether or not the complaining witness actually arrived in Oakland the night of the assault.  Given that America West merged with US Airways in 2005, which in turn merged with American in 2013, this counsel believes that it is unlikely that the records exist.  As February 29, the court had not received a return of that subpoena.
    5. The complaining witness was in therapy with a M.S.W. at the time of the assault.  A subpoena duces tecum has been served on the therapist.  This therapist may have received statements concerning the interest in S&M, or an interest in younger men, or specifically in the accused.  The response from the therapist was that the records have been destroyed. (See return in Court file.)  
    6. The defense has obtained a list of five witnesses that knew the defendant while he was in Concord in 2000, and where close enough to him to have known of any romantic involvement.  With the authorization of funds by the presiding judge of this court, an investigator has been hired and is attempting to locate the five witness.  So far we have learned that two adult friends are living in Mexico, and have moved from their last known locations.  We have received information is that one of the three remaining has died.   So far we have been unable to locate any of the four surviving witnesses.  A man with the same name of one of the four has been located, but he does not remember the defendant or his family, and has not left the United States since the year 2000.  In all probability he is not the witness sought.  If he is, it would be the classic case of prejudice caused by delay.  The investigator for the defense has located investigators in Mexico willing to conduct further investigations, but that would require both time and additional funding, and the likelihood of success is small.  (See Exhibit G and H, emails from Rod Harmon, investigator.)
    7. The prosecution has indicated an intent to introduce the Washington rape under 1108.  A witness list in the file include the victim in the Washington incident and a large number of law enforcement officers.  During the Washington investigation, a large number of residents of the neighboring apartment complex were interviewed, and their reported information help the police connect the defendant to the assault.  Prior to the involvement of this office, no effort had been made to investigate in this area.  With the authorization of the presiding judge, the defense has obtained the services of a Washington State Investigator to attempt to locate the witness who resided at the complex in 1999.  To date, despite extensive efforts, none of the witnesses who resided in the complex have been located.   This have has spoken with the investigator Michael K. Anderson, and has been informed that, despite diligent efforts, none of the witness identified in 1999 and 2000 have been located.  One of these witness, Fernando Fernandez, told Detective Weiss of Washington State law enforcement, and he was a friend of the defendant, the he helped him with his job, and that in the days after the Washington assault the defendant had no injuries.  Another, Manuel Mesa, told the police that he owned the bicycle that the police associated with the Washington State attack.
    8. The prosecution has indicated an intent to prove the 1108 incident with DNA testimony from Washington State, Included in the discovery is a summary report to the police department that a match had been made.  The defense has requested the lab notes concerning the match, and has not yet received them.  Given the passage of 14 years, and the closure of the Washington case with a long prison sentence, the lab notes may well be no longer available.  On Monday, February 8, the defense received, via email, copies of written lab notes.  They have been sent the Simon Ford, the DNA expert consulted by the public defender.  In a reply, he indicates that he will need additional electronic date concerning the examination, as well as additional funding, that would have to be secured from the Presiding Judge.  As of the below date, the defense has not received the electronic data necessary for review.
    9. The defendant spent the period between February 3, 2005, and October or November, 2014, in custody in Washington State.  If he had been brought to trial promptly, and convicted, the sentencing judge would have had the option to run the sentence in the instant case concurrently with the sentence in Washington State. The defendant lost this possibility due to the delay of law enforcement.  
    10. CONCLUSION

    The defendant was identified as a suspect in the instant case by a CODIS match on March 10, 2004.  A criminal complaint charging the defendant with this offense was filed Feb. 3, 2005, within the state Statute of Limitations.  With the filing of the complaint, the defendant became an accused, and both the California and Sixth Amendment speedy trial right attached.  Law enforcement knew where the defendant was, housed is a Washington State prison, but did nothing.  Exhibit A reflects a law enforcement decision not to serve the arrest warrant until his release, in December, 2014, nearly 10 years following the filing of the Complaint.

      Under the Sixth Amendment of the United States Constitution, there is a presumption of prejudice of such extended delay.  In U. S. V. Mendoza, supra, the failure of the government to seek the defendant’s extradition form the Philippines for a period of six years mandated dismissal.  In U.S. v. Cardona, supra, the failure of the government to arrest a defendant living openly in the United States over a five year period mandated dismissal.   In McNeely v. Blanas, supra, the failure of the government to explain a six year delay in bring a defendant to trial resulted in dismissal.  In this case, we have an unexplained, and apparently intentional, delay of over nine years, during which the defendant’s location was known, resulting in a presumption of prejudice, as well as actual prejudice.  Dismissal is the mandated remedy.


    Dated: 



    _______________________________________

    [NAME OF ATTORNEY]

    Attorney for Defendant.


     

  3. 3.Motion to Dismiss for Prior Prosecution PC 654 Kellett

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 





    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA

    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF CALIFORNIA   

      

                 Plaintiff,

    vs.


    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]

    MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS THE EVIDENCE PURSUANT TO KELLETT v. SUPERIOR COURT


    Date:

    Time:

    Dept.:

       

    PLEASE TAKE NOTICE that on [DATE] at [TIME] or as soon thereafter as the matter may be heard, and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move this court to dismiss the above-entitled matter for a violation of PC 654, Kellett v. Superior Court (1966) 63 Cal.2nd 822, 827. The Motion will be based on this Notice of Motion, the attached Memorandum of Points and Authorities, the Declarations of [NAME OF ATTORNEY] with attached investigative reports, the files in this matter, and such other and further evidence as may be introduced at the hearing.


    Dated: 



    _______________________________________

    [NAME OF ATTORNEY]

    Attorney for Defendant.

    MEMORANDUM OF POINTS AND AUTHORITIES

    1. Facts and Procedural History of this matter.
    2. FAILURE TO UNITE ALL OFFENSES ARISING FROM THE SAME COURSE OF CONDUCT IN ONE ACCUSATORY PLEADING BARS SUBSEQUENT PROSECUTION OF ANY OTHER RELATED OFFENSES.

    Penal Code section 654 states “[a]n acquittal or conviction and sentence under any one [prosecution] bars a prosecution for the same act or omission under any other.”

    The focus of the courts has been that Penal Code section 654 is designed to prevent “needless harassment” of a defendant.  Kellett v. Superior Court (1966) 63 Cal.2nd 822, 827.  Thus “[a]ll offenses . . . which arise out of the same . . . course of conduct must be prosecuted in a single proceeding.”  People v. Lohbauer (1981) 29 Cal.3d 364, 373 (Emphasis added).

    The tests are whether there is “more than one offense in which the same act or course of conduct plays a significant part”,  Kellett, supra, at 827, and whether the prosecutor “should have known’ of the multiple prosecutions.  In re Dennis B. (1976) 18 Cal.3d 687, 694.  The bar to subsequent prosecution applies “if the initial proceedings culminate in either acquittal or conviction and sentence.”  Kellett, supra, at 827.  

    Moreover, “[e]ven where crimes arising from the same incident are distinct and non-inclusive in the sense that each requires an element not essential to the other, an acquittal [or other disposition] in one may bar prosecution for the other.”  People v. Krupa (1944) 64 Cal.App.2nd 592, 598.  If an acquittal would so bar, so would a conviction.  Kellett, supra, at 827.  

    Recall that it is multiple prosecutions, not multiple punishments, which are proscribed by the section 654/Kellett rule.  In re Hayes (1969) 70 Cal.2nd 604, 610.

    Simply put, a conviction of separately brought misdemeanors and infractions which are factually interwoven with a felony charge requires the dismissal of the felony charge, where the prosecutor was aware, or should have been aware, of both cases.  People v. Bas (1987) 194 Cal.App.3d 878, 882-883 [DUI with injury prevented by previous conviction of interwoven infraction]; see also In re Grossi (1967) 248 Cal.App.2d 315, 319-322 [conviction of ex-felon with gun prevents later prosecution for robbery with that gun.]; People v. Wasley (1970) 11 Cal.App.3d 121, 122-124 [acquittal of armed robbery bars later prosecution for ex-felon possessing gun used in that robbery.] Here, the “[s]ame act or course of conduct played a significant part.”  Kellett, supra, at 827.  Vehicle Code section 23152(a) and (b) require driving under the influence or with a .08 percent or more blood alcohol content.  Vehicle Code section 16028(a) requires driving upon a highway without proof of financial responsibility).  As to each offense, the prosecutor must prove  

    Mr. VIVIAS was driving on the night of June 27, 1999, in order to prove each offense. 

    In the instant case, the “[p]rosecution is or should have been aware of more than one offense.”  Penal Code section 654. The same prosecuting agency charged both offenses.  This same agency has delegated its power to oversee citation-generated accusations to local police officers, and in turn these officers give copies of such accusations to the prosecutors.  See Penal Code section 853.6(e)(2), (3).  That agency was privy to the same police reports, written by the same deputies, investigating the same set of facts, which resulted in both cases being filed.  Additionally, the same police officer knew of both aspects of the same course of conduct.

    The prosecution may argue that an infraction may not invoke the protections of Penal Code section 654.  The Dennis B. court impliedly held to the contrary.  In re Denis B., supra, 18 Cal.App.3d.. at 690.  There, the court expressly stated that for purposes of its analysis, “defendant was involved with committing an infraction.”  Id., at 695, fn.4. 

    The prosecution may argue that it would be simply unfair to dismiss the charges pending against Mr. VIVAS.  Under such circumstances, the court has observed that “[i]f the People had their pockets picked in [this] case, it was because they neglected to button down the flaps.”  People v. Municipal Court (Martinez) (1971) 14 Cal.App.2d. 362, 366 [92 Cal.Rptr. 248].

    CONCLUSION

    For the above-mentioned reasons, defendant, DDD, respectfully requests this court to grant his motion to dismiss.


    Dated: 



    _______________________________________

    [NAME OF ATTORNEY]

    Attorney for Defendant.


     

Procedural Motions

Procedural Motions

  1. 1.Motion to File Under Seal

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    MOTION TO FILE UNDER SEAL


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       

    Pursuant to California Rules of Court 2.551 Defendant, by and through counsel, hereby respectfully requests the Court enter an Order authorizing the document(s) lodged herewith to be filed under seal.  As required by Rule 2.551 a complete, unredacted copy of the document(s) for which permission to file under seal is requested has been lodged with the court clerk in paper form in a secured envelope.

    This motion is made upon the grounds and for the reason that Filing the instant motion under seal is necessary to preserve the integrity of the process outlined under California Evidence Code Section 782.

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

    MEMORANDUM OF POINTS AND AUTHORITIES

    In Holley v. Yarborough (2009) 568 F.3d 1091, the court granted habeas relief on the ground that the state trial court violated the defendant’s Sixth Amendment right of confrontation by excluding impeaching evidence that the complaining minor witness had told others “she had done ‘weird’ stuff in a closet with her boyfriend,” which was the same term she had used in describing what the defendant had done to her, that a neighborhood boy wanted to “hump her brains out,” and that her brother had once tried to have sex with her.  Descriptions of similar evidence are included in the motion Defense here requests to seal.  

    Out of an abundance of caution and in anticipation of Prosecution objecting to evidence described in the lodged motion as evidence of ‘prior sexual conduct,’ the defense intends to submit that evidence pursuant to procedures outlined in California Penal Code 782.

    Evid. Code §782 specifies a procedure by which the trial court is given discretion to admit evidence of the prior sexual conduct of the victim if relevant to the credibility of the witness.  Upon written motion by the defendant, accompanied by a declaration containing an offer of proof, evidence of the sexual conduct of an alleged victim of rape or a related offense may be offered to attack the credibility of the witness. (People v. Mestas (2013) 217 Cal.App.4th 1509, 1513-1514, fn. Omitted.)  The declaration and supporting affidavit must be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing.

    In light of this, filing the lodged motion under seal is necessary to preserve the integrity of the 782 process.  

    It is therefore respectfully requested that the lodged motion be filed under seal in order to both protect the integrity of the process outlined in California Evidence Code section 782. 

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  2. 2.Bail Motion

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 


    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    DEFENSE BAIL REVIEW HEARING BRIEF; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF [ATTORNEY’S NAME]



    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       

    NOTICE IS HEREBY GIVEN that on the above-designated date in the above designated department at the above time, or as soon thereafter as the matter may be heard, the defendant, [Name of Defendant] (“Defendant”) will move for an order for O.R. Release and/or the setting of reasonable bail.  The motion is made on grounds of the overwhelming evidence that Defendant is neither a flight risk nor a danger to the community. Cal. Const., art. I, § 12, subs. (c); Penal Code §§ 1268 -1276.5; In re Humphrey (March 25, 2021) 11 Cal.5th 135.

    DATE:



    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

    MEMORANDUM OF POINTS AND AUTHORITIES

    • INTRODUCTION

    According to the November 4, 2022 Complaint, Defendant is charged with violation of PC288(c)(1) – Lewd Act on a child of 14 or 15 (Count 1), Violation of PC288(a) – Lewd Act on A child (Count 2) and Violation of PC288(a) – Lewd Act on A child (Count 3).

    In Count 1, Defendant is alleged to have committed a lewd act on S. Doe between September 30, 2003 and September 29, 2004 when she was 14. In Count 2, Defendant is alleged to have committed a Lewd Act on C. Doe between October 15, 1996 and October 14, 2002. In Count 3, Defendant is alleged to have committed a Lewd Act on R. Doe between April 8, 1996, and April 7, 2000.

    Defendant is 62-years-old. He immigrated to the United States in 1977, studied computer science at Conde and Heald Colleges, and has been employed as an engineer for the last 40 years. He has resided in Northern California ever since coming to the United States and has lived in Castro Valley since 2020.  For the last seven years, Defendant worked as a system engineer in an I.T. department. Defendant is a well-respected, hardworking, religious, and dedicated family man with many letters of support referenced herein and strong community ties.  

    On the other hand, C. Doe, a person with severe mental problems, orchestrated the entire case against Defendant based on recovered memories which are scientifically known to be unreliable. C. Doe further directly influenced both R. Doe and S. Doe to make similar allegations. S. Doe admits that her allegation is also based on recovered memories telling investigators that she was “triggered” to remember being abused by Defendant only after recently being told by C. Doe of C. Doe’s allegation of being sexually abused by Defendant.  

    • FACTUAL AND PROCEDURAL BACKGROUND
    • C. Doe 
    1. Doe is Defendant’s 34-year-old niece. In October of 2022, C. Doe told investigators that in or around the year 2000, when she was 11, she “laid down on her stomach completely naked. The suspect started to massage her arms and back with both of his hands. The suspect started to massage [her] buttocks with both of his hands in a circular motion and then moved down to massage her thighs…The suspect began to massage [her] inner thighs with his thumbs and then started to touch her ‘Labia’ area.’” (PR 12-13, 43). 
    2. Doe initiated the case against Defendant on October 3, 2022 with a “Crime Tip” stating that "I was sexually abused by my uncle in 2000 when I was 10-11 years old. I am concerned he could still be an active child predator. My cousin has filed a report in Santa Clara county (case#222730958) as we have both decided it was right to finally come out with this information.” (PR 36) Thus, it is clear that there was coordination between the CWs, with evidence indicating C. Doe as the orchestrater.

    “[C. Doe] said around 2013 she began to have dreams over the course of about a week or two that involved her uncle (Alfredo Malabot), massaging her in places that were not appropriate. She said within the dream, one of her cousins was also there. She said after a week she decided to tell her cousin [R. Doe] about it since it was reoccurring and bothering her. [C. Doe] called and told her about her dreams over the phone. [S. Doe] told [C. Doe] it was not a dream and she was there. C. Doe believed the dream were real and not just a dream because “she continued to have the exact same dream every time.”  C. Doe related to investigators she was “in shock” that it was “real.” (PR 12-13, 42, 43).

    In 2022, C. Doe also told R. Doe that S. Doe “had been assaulted by their uncle…” (PR14). 

    1. Doe is a troubled individual with severe mental health issues, including “rage issues,” depression and depressive episodes, ADHD, anxiety disorder, and panic attacks which she freely posts about on social media platforms on which she openly discusses her treatment which includes antidepressants (Lexapro, Ativan, Escitalopram) and hypnotherapy to try to “recover” hidden memories. C. Doe also posted that she suffers from endometriosis which has caused her “chronic pain since I was 13 years old, and it seems to get worse as I age…I hate my ovaries.” Notwithstanding the use of strong psychiatric medication, C. Doe also reports recreational use of cannabis, including one post stating, “Last night I literally had the best high of my frickin life and today I woke up like the people in the movies who got seyx [sic] the day before and are strolling around the neighbourhood [sic] on the way to work skipping around and dancing with a smile on their face and I just had to tell someone so I figured I’d hop on here and tell 22.7K of you…”
    • S. Doe 
    1. Doe is the 34-year-old daughter of Defendant’s brother’s wife’s brother. She alleges that during a birthday party for C. Doe after a volleyball tournament in the month of October in one of the years between 2002 and 2004, Defendant had her “lay down on her stomach behind the couch [in the formal living room]. He began massaging her hamstrings. As time passed, he massaged her buttox [sic] and eventually asked her to take off her pants. He then went underneath her shorts, where he began to massage her vagina…he started to massage her ‘labia’ (‘lips’) with both of his thumbs…He did not penetrate her vagina...or] make threats.” S. Doe told investigators that she recalled that after the incident,  she asked R. Doe, “did uncle touch you down there?” to which R. Doe purportedly responded, “yes.”  S. Doe decided to speak out about the incident because C. Doe had been through a similar incident with the same suspect.”  (PR 06-07, 10-11). 
    2. Doe was “triggered” to remember this incident only recently when she was informed by [C. Doe] that she was sexually abused by Defendant. (PR 39).
    3. Doe told investigators that she had disclosed the incident to C. Doe in 2020 on Instagram during the pandemic after C. Doe told S. Doe that she was “not in a good mental state of mind. [S. Doe] stated that [C. Doe] was public and verbal about her emotional state during this time on social media… [C. Doe told S. Doe] that she had a lot of different things that would trigger her, and she was unable to control her feelings. [C. Doe] told [S. Doe] that she was unable to be intimate with her own husband because of what had happened between her and her uncle (the suspect)…[S. Doe then] opened up [ to C. Doe] that her uncle massaged her vagina on her labia area.” (PR 11-12). 

    In 2022, S. Doe told R. Doe “that their uncle (the suspect) took her to a room and massaged her during a family party” when R. Doe was 15 years old. (PR 14).

    • R. Doe
    1. Doe is the 37-year-old daughter of Defendant’s 3rd sister. She alleges that when she was over the age of ten, Defendant gave her a massage during which he would “first touch her thighs, then her inner thighs and then her vagina. He would rub her vagina area and around it, penetrate her vagina with his fingers, and then go back to massaging her thighs…[R. Doe] was digitally penetrated multiple times during this one incident.” (PR 15).
    2. Doe told investigators that “she only learned about [S. Doe’s] situation approximately a few weeks ago [based on 10/20/22 date of report, the beginning of October 2022]. Prior to that [R. Doe] did not know anything about [S. Doe’s] situation other than that she had been assaulted by their uncle (the suspect). She only knew this because she was told by Charmaine.” (PR 14).
    • Defendant

    Defendant immigrated to the United States from the Philippines in 1977.  He studied computer science at Conde and Heald Colleges and has been an engineer for the last 40 years. For the last seven, Defendant has been employed as a system engineer in an I.T. department. (PR58)

    Defendant became interested in chiropractic health and learned about it when he received chiropractic adjustments.  He would provide chiropractic massages to family members, including to C. Doe.  Defendant has at all times maintained his innocence, telling investigators he never touched anyone inappropriately. (PR 59).

    Attached as Exhibit 1 are character letters received in support of Defendant.

    • THE ALLEGATIONS AGAINST DEFENDANT ARE BASED ON NOTORIOUSLY UNRELIABLE RECOVERED MEMORIES 

    As set forth above, both C. Doe and S. Doe have admitted to investigators that their allegations against Defendant are based on recovered memories.  Moreover, the admissions made by all of the complaining witnesses clearly establish that C. Doe, who suffers from a host of mental ailments, personally orchestrated the case against Defendant influencing S. Doe and R. Doe to make similar allegations.

    It is well known that “memories of all kinds (including memories for traumatic events) can become distorted over time and in response to suggestive questioning.” 

    The United States Supreme Court has taken a skeptical view of recovered memories.  In Stogner v. California (2003) 539 U.S. 607, 631-632, 123 S. Ct. 2446, 2460-2461, 156 L. Ed. 2d 544, 564-565, the Supreme Court overturned a conviction in a sex case, citing Holdsworth, Is It Repressed Memory with Delayed Recall or Is It False Memory Syndrome? The Controversy and Its Potential Legal Implications, 22 Law & Psychol. Rev. 103, 103-104 (1998) which states:  

    In The debate surrounding delayed recall of repressed memories and false memories is far from resolved, though a wide array of proposed solutions abounds. While advocates of repressed memory theory have been able to produce some extremely convincing evidence pertaining to the reality of the repressed memory phenomenon which is rarely disputed by its critics, they have not been able to sufficiently prove its accuracy. Critics of 8048*129 repressed memory have been very successful in demonstrating their ability to implant false memories in subjects' minds and identifying factors that may increase the effectiveness of these techniques. However, due in part to the ethical aspects of attempting to place false memories of childhood sexual abuse and the like, to date, these researchers have not produced sufficient evidence to prove that recovered memories are inherently inaccurate. 22 Law & Psychol. Rev. 103, 22 Law & Psychol. Rev. 103.

    According to the June 13, 2007, Association for Psychology article “Study: Discriminating Fact from Fiction in Recovered Memories of Childhood Sexual Abuse,” 

    The results, published in the July issue of Psychological Science, a journal of the Association for Psychological Science, showed that, overall, spontaneously recovered memories were corroborated about as often (37% of the time) as continuous memories (45%). Thus, abuse memories that are spontaneously recovered may indeed be just as accurate as memories that have persisted since the time the incident took place. Interestingly, memories that were recovered in therapy could not be corroborated at all. 

    The unreliability of the recovered memories of C. Doe and S. Doe substantially undermines the case against Defendant especially when considering C. Doe’s concerted efforts to recruit S. Doe and R. Does to make similar claims against Defendant.

    • THE PURPOSE OF BAIL IS TO ENSURE DEFENDANT’S ATTENDANCE WHEN REQUIRED

    While the court may be required to assume the Defendant’s guilt on a bail motion (In Ex parte Duncan, 53 Cal. 410), it is also required to consider the degree of danger the defendant poses to the community as well as the defendant’s flight risk, which, in this case is minimal. Cal. Const., art. I, § 12, subs. (c); Penal Code §§ 1268 -1276.5; In re Humphrey (March 25, 2021) 11 Cal.5h 135.  

    The purpose of bail is to assure the defendant’s attendance in court when his presence is required, whether before or after conviction. [Citations] Bail is not a means for punishing defendants [citation] nor for protecting the public safety.  Such objectives are provided for otherwise.” In re Underwood (1973) 9 Cal.3d. 345, 348, see also Williams v. Superior Court (1964) 226 Cal.App.2d 666, 673.).  

    Bail may not be used to punish those accused of crimes. “The purpose of bail is not to punish the defendant … but to assure his presence in court when his presence is required, whether before or after conviction.” (People v. Gilliam (1974) 41 Cal.App.3d 181, 191 disapproved of on other grounds by People v. McGaughran (1979) 25 Cal.3d 577.) Both the California Constitution, Art. 1, § 12, and the United States Constitution, Amend. 8, prohibit excessive bail. 

    The court has broad discretion to set the actual amount of bail. (Griffin v. Superior Court 4 (1972) 26 Cal.2d 672, 702.) Penal Code § 1275, subsection (a)(1) sets forth the following factors to be taken into consideration in setting, reducing, or denying bail: 

    (a) protection of the public; 

    (b) seriousness of the offense; 

    (c) previous criminal record of the defendant; 

    (d) probability of his or her appearing at trial or at a hearing of the case. 

    The California Supreme Court has ruled that the factors listed in section 1275 are “not necessarily exhaustive.” (In re Alberto (2002) 102 Cal.App. 421, 430.)  Thus, courts will frequently consider such issues as the ties the defendant has to the community, including whether the defendant and his family live in the community, the defendant’s employment history, any indication that the defendant has given that he will not appear in court, any prior record that the defendant has of failing to appear in court, and the “value” of the bond to the defendant (i.e., how the size of the bond compares to the relative wealth of the defendant, since naturally, a given sum might amount to a king’s ransom for a poor defendant, whereas the same sum will be of little or no value to a wealthy defendant). See Continuing Education of the Bar – California, California Criminal Law Procedure and Practice, § 5.22 (2005). 

    • DEFENDANT HAS A CONSTITUTIONAL AND STATUTORY RIGHT TO REASONABLE, NON-EXCESSIVE BAIL. 

    Defendant has a Constitutional and statutory right to reasonable bail.  This has been codified in Penal Code sections 1268 through 1276.5 inclusive and was recently re-iterated by the California Supreme Court’s decision In re Humphrey (2021) 11 Cal.5th 135. 

    Cal. Pen. Code §1271 is clear, “if the charge is for any other offense (other than a capital offense), he may be admitted to bail before conviction, as a matter of right.”  Even defendants charged with violent acts or threats of great bodily harm may not be preventatively detained pre-trial, unless the People show, by “clear and convincing evidence” that there is “a substantial likelihood the defendant’s release would result in great bodily harm to others.” (Cal. Const., art. I, § 12, subs. (b) and (c).) Clear and convincing evidence requires a specific type of showing – one demonstrating a “High Probability” that the fact or charge is true. In re White (2020) 9 Cal.5th 455. The factors to be considered when making decisions regarding pretrial detention, setting bail, and permitting own-recognizance release include: (1) protection of the public, (2) seriousness of the offense charged, (3) the defendant’s previous criminal record, and (4) the probability that the defendant will appear at trial. (Cal. Const., art. I, § 12, subs. (c); § 1275.). 

    The California Supreme Court recently confirmed In re Humphrey, “the common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.” In re Humphrey (2021) 11 Cal.5th 135, 143. Where a financial condition is nonetheless necessary, the court “must consider the arrestee’s ability to pay the stated amount of bail – and may not effectively detain the arrestee “solely because” the arrestee “lacked resources” to post bail.” Ibid. [emphasis added] “In unusual circumstances, the need to protect community safety may conflict with the arrestee’s fundamental right to pretrial liberty – a right that also generally protects an arrestee from being subject to a monetary condition of release the arrestee can’t satisfy – to such an extent that no option other than refusing pretrial release can reasonably vindicate the state’s compelling interests. In order to detain an arrestee under those circumstances, a court must first find by clear and convincing evidence that no condition short of detention could suffice and then ensure the detention otherwise complies with statutory and constitutional requirements.” Ibid. 

    The Humphrey Court spent great lengths discussing “the disadvantages to remaining incarcerated pending resolution of criminal charges” and called these disadvantages “immense and profound” Id. at 147. “If not released, the courts have observed, the accused may be impaired to some extent in preparing a defense.” Ibid. Additionally, “studies suggest that pretrial detention heightens the risk of losing a job, a home, and custody of a child.” Ibid. Pretrial detention also forces the state “to bear the cost of housing and feeding those arrestees who could properly be released.” Ibid. Moreover, “the indiscriminate imposition of money bail has consequences. ‘Some people currently in California jails who are safe to be released are held in custody solely because they lack the financial resources for a commercial bail bond, and other people who may pose a threat to public safety have been able to secure their release from jail simply because they could afford to post a commercial bond.” Ibid. For these reasons, the Court classified detention in most cases, “the limited exception”, not the rule. Id. at 155. 

    The Humphrey Court also reconfirmed some important constitutional principles. Specifically, “the accused retains a fundamental constitutional right to liberty.” Id. at 150. (Quoting United States v. Salerno (1987) 481 U.S. 739; Cal. Const. art. 1, §7) Further, “the state’s interest in the bail context is not to punish – it is to ensure the defendant appears at court proceedings and to protect the victim, as well as the public, from further harm. Ibid. See also, Cal. Const. art. 1 §§12, 28, subd. (f)(3) and Calif. Pen. Code §1275(a)(1). Consistent with such principles, the Court held that “[d]etention is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interests.” Id. at 152-153. 

    A general framework was established to guide the Court in making bail determinations. First, when making any bail determination, a superior court must undertake an individualized consideration of the relevant factors. These factors include the protection of the public as well as the victim, the seriousness of the charged offense, the arrestee’s previous criminal record and history of compliance with court orders, and the likelihood that the arrestee will appear at future court proceedings. Id. at 152. When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community…consistent with the Due Process Clause, a court may disable the arrestee from executing that threat. Ibid, quoting U.S. v. Fidler (9th Cir. 2005) 419 F.3d 1026, 1028. However, and notably, the court cautioned “[w]e…interpret our Constitution to bar a court from causing an arrestee to be detained pretrial based on concerns regarding the safety of the public or the victim, unless the court has first found clear and convincing evidence that no other conditions of release could reasonably protect those interests.” Id. at 153 [emphasis added] 

    Similarly, the Court also determined that the standard of proof required to justify pretrial detention when an arrestee poses a flight risk is ‘clear and convincing’. “There is no compelling reasons why the quantum of evidence needed to establish that a given arrestee poses a risk of flight should differ from the quantum of evidence needed to establish that a given arrestee poses a risk to public or victim safety.” Ibid. In those cases where the arrestee poses little or no risk of flight or harm to others, the court may offer OR release with appropriate conditions. Id. at 154. 

    Where the record reflects the risk of flight or a risk to public or victim safety, the court should consider whether nonfinancial conditions of release may reasonably protect the public and the victim or reasonably assure the arrestee’s presence at trial. Ibid. If the court concludes that money bail is reasonably necessary, then the court must consider the individual arrestee’s ability to pay, along with the seriousness of the charged offense and the arrestee’s criminal record, and – unless there is a valid basis for detention – set bail at a level the arrestee can reasonably afford. Ibid. And if a court concludes that public or victim safety, or the arrestee’s appearance in court, cannot be reasonably assured if the arrestee is released, it may detain the arrestee only if it first finds, by clear and convincing evidence, that no nonfinancial condition of release can reasonably protect those interests. Ibid. While due process does not categorically prohibit the government from ordering pretrial detention, it remains true that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Id. at 155. 

    • CONCLUSION - DEFENDANT IS NEITHER A THREAT TO THE COMMUNITY NOR A FLIGHT RISK AND SHOULD THEREFORE BE ALLOWED TO POST BOND

    As noted above, Defendant is an engineer who has been in Northern California since 1977.  He earned and engineering degree at Cal State and has been employed ever since, most recently for seven years as an IT professional. He is an upstanding member his church and community with many letters of support which have been presented here. 

    Accordingly, Defendant is a stable person with deep ties and roots in the community and should therefore be freed on O.R. or provided with reasonable bail.

    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant


    DECLARATION OF [ATTORNEY’S NAME]

    I, [ATTORNEY’S NAME] declare:

    1. I am an attorney duly licensed to practice law in the State of California.  I am the attorney for the defendant [name of defendant]  in this matter. 
    2. Attached hereto as Exhibit 1, are true and correct copies of the character letters my firm received in support of Defendant.

    I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.


    Executed in _____________, CA on ___________________________.



    _______________________

    [ATTORNEY’S NAME]

     

  3. 3.Motion to Continue Trial

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 



    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    MOTION TO CONTINUE TRIAL



    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       

    PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, Defendant will move this court for an order to continue the trial date. The motion is on grounds that Defense counsel has a conflict on a “no time waiver” criminal matter with child complaining witnesses currently set for trial on July 7, 2020 and the instant case could not be completed by then even in the unlikely event trial actually started on the date now set of June 22, 20-20.  Further, the instant case in not ready for trial due to issues regarding ongoing investigations.  This motion is made based on “good cause” which exists justifying a continuance. California Penal Code § 1050(e).

    DATE:



    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

    MEMORANDUM OF POINTS AND AUTHORITIES

    Attorney _____________________ represents defendant __________________ in the instant matter and is ___________________ trial counsel.  The same is true for several other clients including: [insert relevant conflicting case information] 

    The defendants in each of these cases are in custody with ______________ and _______________ having child complaining witnesses as well.  

    Further, on June 5, 2020, during the last hearing in________________, Judge ___________________, specifically directed _____________to clear his calendar so the trial in the _____________ case can go forward.  The ______________ matter will take in excess of three weeks to complete especially because Nevada County hold trials only three days per week. The instant case is set for trial on June 22, 2020. Mr. Clancy estimates at least 10 to 15 court days for trial and thus would conflict with the O’Dell matter even in the unlikely event that the trial started that very day.

    Finally, the defense investigation in the instant case is progressing, but still not complete including the matter of out of state witnesses which has not been resolved.

    I informed ADA _________________________ of the need for a continuance in a May 31, 2020 email from my assistant, ___________________.  In an email of June 3, Mr. _____________________responded, “I think we find ourselves in the same position. Unfortunately, trial dates are impossible to predict at this point, I don't know that September is realistic.” (See attached Exhibit ‘A’).

    California Penal Code § 1050(e) provides in relevant part, “Continuances shall be granted only upon a showing of good cause …”  Whether to grant a motion to continue or postpone a hearing or trial rests in the sound discretion of the court. “It is a settled rule of practice that an application for a continuance is addressed to the sound discretion of the trial court, and its ruling will not be reviewed except for the most cogent reasons. The trial court is apprised of all the circumstances of the case and the previous proceedings, and is, therefore, better able to decide upon the propriety of granting the application than an appellate court; and when it exercises a reasonable, and not an arbitrary discretion, its action will not be disturbed.” People v. Collins (1925) 195 Cal. 325.

    Here, Mr. _____________________ is unavailable for the instant trial as he has another trial in an in custody case with child complaining witnesses on July 7, two weeks after the June 22 trial in the instant case and would thus conflict with it.  Mr. ______________________ is thus unavailable.  It is well settled that counsel’s unavailability constitutes good cause for continuing a criminal trial. People v. Sutton (2010) 48 Cal. 4th 533, 555, 106 Cal. Rptr. 3d 883, 900, 227 P.3d 437, 451.

    Moreover, due to issues with its investigator, the defense has not completed its investigation and therefore cannot determine which witnesses are essential to testify.  Thus, the case is, in any event, not ready for trial.

    Admittedly, On February 5, 2020, the Court granted a countenance based on Defendant’s previous motion.  However, due to the epidemic, the situation in essence has not changed necessitating the current trial continuance request.

    Finally, defendant has met the requirement to timely file and serve the instant motion. California Penal Code § 1050(b) (The party seeking the continuance must serve and file the motion at least two court days prior to the hearing).

    It is therefore respectfully requested that the Court order the trial in the instant case continued a reasonable amount of time to a time when Mr. ___________________ will be available, and the defense investigation concluded.  

    Respectfully submitted,

    Dated: January 25, 2024

     


    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

    DECLARATION OF ____________________________

    I, ________________________ declare:

    1. I am an attorney duly licensed to practice law in the State of California. I am a Certified Criminal Law Specialist. I am the attorney for the defendant in this matter. This matter is set for trial on March 24, 2020.
    2. I represent and am trial counsel defendant _____________________(“Defendant”).
    3. The same is true for several other clients including:B [insert relevant conflicting case information]
    4. The defendants in each of these cases are in custody with ______________ AND _________________ having child complaining witnesses as well.  
    5. Further, on June 5, 2020, during the last hearing in________________ Judge __________________, specifically directed me to clear my calendar so the trial in the __________________case can go forward,  The O’Dell matter will take in excess of three weeks to complete especially because Nevada County hold trials only three days per week. The instant case is set for trial on June 22, 2020. I estimate at least 10 to 15 court days for trial and thus would conflict with the O’Dell matter even in the unlikely event that the trial started that very day.
    6. Admittedly, On February 5, 2020, the Court granted a countenance based on Defendant’s previous motion.  However, due to the epidemic, the situation in essence has not changed necessitating the current trial continuance request.
    7. Finally, the defense investigation in the instant case is progressing, but still not complete including the matter of out of state witnesses which has not been resolved.
    8. I informed ADA ___________________of the need for a continuance in a May 31, 2020 email from my assistant, __________________.  In an email of June 3, Mr. ________________responded, “I think we find ourselves in the same position. Unfortunately, trial dates are impossible to predict at this point, I don't know that September is realistic.”  A true and correct copy of said email is attached hereto as Exhibit ‘A’.
    9. A reasonable continuance is requested due the above referenced issues.

    I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.  

    Executed in Pleasant Hill, CA on January 25, 2024.


    DATE: Respectfully submitted,





    ___________________________

    [ATTORNEY NAME]

    Attorney for Defendant

  4. 4.Release Medical Records

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel: 

    Email: 





    Attorney for Defendant




     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF 


    CALIFORNIA     


                 Plaintiff,


    vs.

    [DEFENDANT’S NAME]

    Defendant 

    CASE NO. [CASE NUMBER]


    POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL THE RELEASE OF MEDICAL RECORDS; DECLARATION OF [Attorney Name]


    Date:

    Time:

    Dept:

    Current Trial Date:

    Case Filed:

       

    POINTS AND AUTHORITIES

    FACTS

    The complaining witness has made claims of substantial sexual abuse from the age of four years old until the age of eight years old.  The allegations include nightly anal penetration resulting in anal bleeding between ten to twenty times.  Despite these serious allegations of medical injuries, there is absolutely no corroboration.  The defense seeks Jelani’s medical records to corroborate or dispel these allegations by determining whether the medical records reflect such injuries.  The request is narrowly tailored and limited to only such time as relevant to the instant offense.  

    I.

    DEFENDANT IS ENTITLED TO DISCOVERY OF INFORMATION IN THE POSSESSION OF THIRD PARTIES 


    Motions for discovery by a criminal defendant are made to the sound discretion of the trial court, "which has the inherent power to order discovery in the interests of justice." (Hill v. Superior Court (Los Angeles) (1974) 10 Cal.3d 812, 816.)  The basic principles underlying criminal pretrial discovery is that an accused is entitled to a fair trial.  (Id.)  "[T]he state has no interest in denying the accused access to all evidence that can throw light on the issues in the case, and in particular, it has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits."  (Id.)   (Emphasis in original, citing People v. Riser (1952) 47 Cal.2d 566, 586.)

    Pitchess v. Superior Court (1974) 11 Cal.3d 531, is direct authority for issuance of a subpoenas duces tecum requiring production of information, or "discovery", in the possession of a non-party, as recognized by the courts in Pacific Lighting Leasing Company v. Superior Court (Los Angeles) (1976) 60 Cal.App.3d 552, 560, and Millaud v. Superior Court (San Diego) (1986) 182 Cal.App.3d 471, 475-476.  (See also, People v. Broderick (1991) 231 Cal.App.3d 584, [subpoena duces tecum is appropriate discovery tool directed to third parties despite Proposition 115].)  Central to the decisions in Pacific Lighting and Millaud is the realization that information critical to a criminal defendant is not always within the possession or control of the prosecution or its various agents.

    For example, in Millaud, an Alpha Beta supermarket hired a private investigating service to investigate a killing which occurred on its premises.  Alpha Beta provided one report to both prosecution and defense counsel for their use in the ensuing murder case, but refused to provide remaining material which included notes and tape recordings of witness interviews, photographs, and videotapes of the crime scene.  Alpha Beta claimed that much of the material was "work product or subject to the attorney-client privilege" and did not want its defense of any civil action compromised. (Milllaud, supra, at p. 474.)  Upon review on a writ of mandate, the appellate court found that Alpha Beta's investigation material was "clearly relevant and useful" to the defendant's preparation for trial. (Millaud, supra, at p. 476.)  The court held that any interest of Alpha Beta could be protected by an order “limiting the use of the material to criminal prosecution", but its interests could not prevail over a criminal defendant's right to a fair trial.  (Id.)

    Thus, upon sufficient showing of good cause, a defendant is entitled to inspect material, whether in the possession of a prosecutor or a third party.  (Pacific Lighting, supra, at p. 565.)   The defendant must make only a "plausible showing" that the requested information "might lead to discovery of evidence".  (Hill v. Superior Court, supra, at p. 817; citing Traynor, Ground Lost and Found in Criminal Discovery (1964) N.Y.U.L. Rev. 228, 244.)

    In Hill, the defendant requested the felony conviction record ("rap sheet") of a prosecution witness.  While the court acknowledged that the rap sheet alone was not a "record of judgement", sufficient for California Evidence Code section 788 purposes, provision of the rap sheet "could provide information that might lead to discovery of that record". (Hill, supra, at p. 817.)  (See also, People v. Memro (1985) 38 Cal.3d 658.)  The Hill court explored the argument that a defendant should also show that he cannot "readily obtain the information through his own efforts."  (Id.)  In Hill, there was no claim that the defendant could have obtained the rap sheet on his own.   However, the prosecution claimed the efforts could have been directed to the witness himself to discern his prior record.  The court found that the defense need not explain why it did not request the information directly from the witness  because: (1) The information would not likely be accurate or complete; and (2) Any attempt to obtain this information could harm the defense, antagonizing the witness.  (Hill supra, at p. 819.)

    In the current case, as in Hill and Millaud, third parties possess information which is critical to Defendant’s defense. It would be impossible for Defendant to obtain the information by other means  Defendant is entitled to a fair trial and an intelligent defense, in light of all relevant and reasonably accessible information.  (Hill v. Superior Court, supra, 10 Cal.3d at p. 816.)  He is entitled to the subpoenaed information.


    II.

    DEFENDANT’S RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS OUTWEIGH ANY PRIVACY RIGHTS; FULL DISCLOSURE OF THE INFORMATION REQUESTED IS WARRANTED


    The complaining witness has made claims of substantial sexual abuse from the age of four years old until the age of eight years old.  The allegations include nightly anal penetration resulting in anal bleeding between ten to twenty times.  Despite these serious allegations of medical injuries, there is absolutely no corroboration.  The defense seeks Jelani’s medical records to corroborate or dispel these allegations by determining whether the medical records reflect such injuries.  The request is narrowly tailored and limited to only such time as relevant to the instant offense.  


    III.


    IN CAMERA REVIEW OF THE REQUESTED INFORMATION IS MANDATED BY FEDERAL AND STATE LAW



    Pennsylvania v. Ritchie (1987) 480 US 39, [94 L Ed 2d 40, 107 S Ct 989], and its California progeny clearly mandate that, at minimum, the trial court conduct an in- camera inspection of the records and information requested. In Ritchie a father, charged with various sexual offenses against his minor daughter, subpoenaed a state child welfare agency's records which pertained to the daughter.  There he hoped to find a medical report, names of witnesses, and other exculpatory evidence.  The agency refused to comply with the subpoena, invoking a state law which protected the confidentiality of its records and allowed access only to certain specified persons and agencies, including courts of competent jurisdiction.  After examining the records in chambers and finding no medical report, the Court of Common Pleas of Allegheny County, Pennsylvania, refused to order the disclosure of the records.  The father was subsequently convicted before the Court of Common Pleas.

    In reversing and remanding for further proceedings in the trial court, the United States Supreme Court directed the Pennsylvania trial court to conduct a full examination of the requested records, basing its decision on the Due Process Clause of the Constitution. The relevant portion of the Ritchie opinion states as follows; 


    . . . the Court traditionally has evaluated claims such as those raised by Ritchie under the broader protections of the Due Process Clause of the Fourteenth Amendment.  (See United States v Bagley, 473 US 667, [87 L Ed 2d 481, 105 S Ct 3375] (1985); Brady v Maryland, 373 US 83, [10 L Ed 2d 215, 83 S Ct 1194] (1963).)  (See also Wardius v Oregon, 412 US 470, [37 L Ed 2d 82, 93 S Ct 2208] (1973).)  Because the applicability of the Sixth Amendment to this type of case is unsettled, and because our Fourteenth Amendment precedents addressing the fundamental fairness of trials establish a clear framework for review, we adopt a due process analysis for purposes of this case.  Although we conclude that compulsory process provides no greater protections in this area than those afforded by due process, we need not decide today whether and how the guarantees of the Compulsory Process Clause differ from those of the Fourteenth Amendment.  It is enough to conclude that on these facts, Ritchie's claims more properly are considered by reference to due process.


    It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.  (United States v Agurs, 427 US 97, [49 L Ed 2d 342, 96 S Ct 2392] (1976); Brady v Maryland, supra, at p. 87, [10 L Ed 2d 215, 83 S Ct 1194].)  Although courts have used different terminologies to define "materiality," a majority of this Court has agreed, "[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.  A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome."  (United States v Bagley, 473 US, at 682, [87 L Ed 2d 481, 105 S Ct 3375] (opinion of Blackmun, J.); see id., at p. 685, [87 L Ed 2d 481, 105 S Ct 3375] (opinion of White, J.)


    . . . Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances . . . .  

      

    . . . In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is "material" to the defense of the accused. (Pennsylvania v. Ritchie (1987) 480 US 39, [94 L Ed 2d 40, 107 S Ct 989].)


    The reasoning in Ritchie followed the California cases addressing the in-camera review of confidential records. In People v. Reber (1986) 177 Cal.App.3d 523, the trial court denied a requested in-camera review of the victims' confidential psychiatric records.  The appellate court found the trial court in error, holding that “adherence to a statutory privilege of confidentiality must give way to pretrial access when denial would deprive a defendant of the constitutional right of confrontation and cross-examination.”  (Id. at p. 531; See also United States v. Lindstrom (11th Cir. 1983) 698 F.2d 1154 and United States v. Partin (5th Cir. 1974) 493 F.2d 750 (improper to withhold records where evidence the person was suffering from serious mental illness shortly before or during the period in which the events to which she testified occurred).)

    The Reber Court relied on Davis v. Alaska (1974) 415 U.S. 308.  In Davis v. Alaska, the trial court issued a protective order preventing the defense from questioning the witness about his juvenile probation status.  The United States Supreme Court held that the right to confrontation was paramount to the state’s policy of protecting anonymity of the juvenile offender and whatever temporary embarrassment might result to the witness and his family by disclosure of his juvenile record was outweighed by the defendant’s “right to probe into the influence of possible bias in the testimony of a crucial identification witness.”  (Id. at 319.)

    In Reber, the Court stated that the “Sixth Amendment guarantee that an accused in a criminal prosecution ‘be confronted with the witnesses against him’ means more than confronting the witnesses physically.”  (Reber, supra, 177 Cal.App.3d at p. 529; (citation omitted.).  “The primary right secured by confrontation is cross-examination” which does not limit the cross-examiner to only “delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.”  (Id. at pp. 529-530.)  The Court held that the accused must have access to the information pretrial.  (Id. at p. 531;  (Accord People v. Hammon (1997) 15 Cal.4th 1117).)  “The exercise of the power of a trial court to provide for discovery in criminal cases is consistent with the fundamental proposition that [the accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.”  (Id. at p. 531; see also Cal. Const. art. 1, § 28(d) (all relevant information is admissible).)  “One of the legitimate goals of discovery is to obtain information for possible use to impeach or cross-examine an adverse witness.”  (Id.)  

    These principles were reaffirmed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), which held “[t]he Sixth Amendment’s Confrontation Clause provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him.’”  (Id. at p. 2951.)  This is a “bedrock procedural guarantee” which applies to both federal and state prosecutions.  (Id.)  The Supreme Court, echoing Reber and Davis v. Alaska, stated that “the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee.  It commands, not that evidence be reliable, but that reliability be assessed in a particular manner, by testing in the crucible of cross-examination.”  (Id. at pp. 2954-55.)

    Under the procedure set forth in section 1326, when a criminal defendant has subpoenaed confidential records of a nonparty, “the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents.” (§1326, subd. (c). At the pretrial stage of the proceedings, the trial court is not required to review or grant discovery of confidential records in a nonparty’s possession. People v. Hammon (1997) 15 Cal.4th 1117, 1127-1128 [no Sixth Amendment right to pretrial discovery of non-party’s confidential records]; At trial, however, the court may review the records and disclose information if necessary, to preserve the defendant’s Sixth Amendment rights of confrontation and cross-examination. People v. Hammon, supra, at 1127.  “When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon … to balance the defendant’s need for cross-examination and the stated policies the privilege is intended to serve.” Ibid

    In Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1295-1296, the court reviewed the “procedure to be followed once the defendant shows good cause for discovery of a witness’s mental health records.  the trial court should (1) obtain the records and review them in camera; (2) weigh the constitutional right of confrontation against the witness’s right to privacy; (3) determine which if any records are essential to the defendant’s right of confrontation; and (4) create an adequate record for review.” … “[T]he good cause requirement embodies a “relatively low threshold” for discovery’ [citation] under which a defendant need demonstrate only a logical link between the defense proposed and the pending charge’ and describe with some specificity ‘how the discovery being sought would support such a defense ….’” People v. Gaines (2009) 46 Cal.4thg 172

    Here the defense is requesting access to confidential records based on the complaining witness’s claims that he suffered extreme injuries during the period requested.  The records will assist the triers of fact in determining the truth of those matters asserted.   From the discovery already provided, it can reasonably be inferred that those records should contain information relevant to this case. Such an inference could only be rebutted by an in-camera examination.

    CONCLUSION

    For the above-stated reasons, Defendant respectfully requests that the court conduct an in-camera review of the subpoenaed documents, and that relevant documents be released to the defense to establish there was never any treatment of Jelani for anal bleeding from being sodomized as he claimed. .


    Dated: 


    Respectfully submitted,

    [Attorney Name]




      by:                             Attorneys for Defendant

     

  5. 5.Motion to Withdraw Plea

    [Attorney Name], SBN [            ]

    Firm Name

    Firm Address

    City, State Zip

    Tel:

    Email:

     

     

     

     

    Attorney for Defendant

     

     

     

     

    SUPERIOR COURT OF THE STATE OF CALIFORNIA


    COUNTY OF [COUNTY]

    THE PEOPLE OF THE STATE OF

     

    CALIFORNIA    

     

                 Plaintiff,

     

                vs.

    [DEFENDANT’S NAME]

                Defendant

     

    CASE NO. [CASE NUMBER]

     

    MOTION TO WITHDRAW PLEA (Penal Code section 1018); DECLARATION OF [Attorney Name]

     

    Date:

    Time: 

    Dept:  

    Current Trial Date:

    Case Filed:    

     

     

     

    PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move this court to withdraw his plea of guilty to the offenses charged in the complaint, and enter a plea of not guilty to those offenses.

    The motion will be made on the following grounds:

    1. The defendant is innocent of the charges in the instant case.
    2. At the time the defendant entered his guilty plea he was of the misunderstanding that evidence of his wife being a former victim of molest and her obsession with molestation could not be introduced as evidence at trial in his defense.
    3. At the time of the entry of the guilty plea, the defendant lacked the capacity to enter his plea freely and voluntarily due to a mental defect in his ability to process information.
    4. The defendant’s previous attorney was ineffective in that he:
      1. At the time of the guilty plea the defendant had not been advised by his attorney that he may be subject to prosecution as a sexually violent predator after completing the 25 year sentence that was agreed to in the plea bargain while telling the defendant that if he did not accept the plea agreement, he would get more prison time. This failure is ineffective assistance of counsel.
      2. Prior to the entry of the guilty plea, the defendant asked his attorney about getting a second opinion from another attorney and was told that “no other attorney could win this case.”
      3. Failed to get the CPS files and reports regarding the allegations from the complaining witnesses in the instant case to determine the source of the current false allegations was, in fact, Linda Walton, the defendant’s wife.
      4. Failed to obtain therapist notes regarding the complaining witnesses in the instant case to determine the source of the current false allegations was Linda.
      5. Failed to conduct a thorough investigation into previously false allegations by Linda Walton, the defendant’s wife, that the defendant molested all of the other children in their family to determine the source of the current false accusations was
      6. Failed to conduct a thorough interview with the defendant’s son, Matthew, regarding previous allegations made by Linda Walton that the defendant was molesting him. Matthew denies any molest and indicates that Linda Walton was pushing the idea on him.
      7. Failed to conduct a thorough interview with the defendant’s daughter, Joan, regarding previous allegations by Linda Walton that the defendant was molesting her. Joan denies any molest and indicates that Linda Walton was pushing the idea on her.
      8. Failed to conduct any investigation into false allegations that the defendant molested his daughter, April. The source of this allegations was Linda Walton and not April.
      9. Failed to obtain police reports and discovery materials regarding alleged sexual misconduct by the defendant with an individual know as Tina Marie.
      10. Failed to obtain all discovery from the district attorney regarding any evidence to be used against the defendant pursuant to Evidence Code section 1108.
    5. The defendant’s previous legal representation fell below standard of practice in that defendant’s previous attorney:
      1. Believed that the defendant’s wife’s obsession with molestation could not be made part of the defense.
      2. Focused the investigation solely on where the complaining witnesses denied the instant allegations and did not investigate the source of other false allegations of molestation.
      3. Believed that the denials of molestation by the defendant’s other children could be used against the defendant in the prosecution’s case in chief, when in fact, they are a defense to the instant charges and are not Evidence Code section 1108 evidence.
      4. Failed to get discovery on the previous false allegations of molest and other evidence of prior bad acts pursuant to Evidence Code section 1108.
      5. Failed to advise the defendant that after the 25 year sentence he was pleading to, there was the possibility that he could still be prosecuted as a sexually violent predator.
      6. Advised the defendant that “no other attorney could win this case” thus, eliminating the chance for the defendant to obtain a second opinion.
      7. Plead a client, who had passed a polygraph examination and continually maintained his innocence, to a 25 year sentence.
      8. Mis-communicated the state of the law to the defendant in such a way that the defendant believed he had no defense to the charges and that after completion of the 25 year sentence there would be no further possibility of prosecution.

    Dated: March 19, 2024

                           

    __________________________

    [Attorney Name]

    Attorney for Defendant

     

     

     


    MEMORANDUM OF POINTS AND AUTHORITIES

    1. MISTAKE OF LAW
      1. A MISTAKE OR IGNORANCE OF LAW IS GOOD CAUSE

    First, the California Supreme Court has directed the trial courts to liberally construe Penal Code Section 1018.  “Trial courts are expressly directed to give a liberal construction to the provisions of section 1018 in the interest of promoting justice.”  People vs. Superior Court (1974) 11 C3d 793, 797, 114 Cal.Rptr. 596, 598.

    In the case of People vs. Superior Court, supra, judgment was reversed because the defendant's plea was the result of mistake and ignorance of the law.  The court stated:

    “A trial court, nevertheless, in the exercise of its discretion directed to the promotion of justice may take into consideration such material matters with which an accused was confronted and as to which he made erroneous assumptions when he entered a guilty plea.”  People vs. Superior Court (1974) 11 C3d 793, 798, 114 Cal.Rptr. 596, 598.

                The court went on to restate the general rule about motions to withdraw a plea: “As a general rule, a plea of guilty may be withdrawn `for mistake, ignorance, or inadvertence or any other factor overreaching defendant's free and clear judgment.'  People vs. Butler (1945) 70 CA2d 553, 561, 161 P.2d 401.”  People vs. Superior Court (1974) 11 C3d 793, 798, 114 Cal.Rptr. 596, 598.

    1. ABUSE OF DISCRETION

    In the case of People vs. Tabucchi, 64 CA3d 245, 134 Cal.Rptr. 245, the court held that it was an abuse of discretion to deny a defendant's motion to withdraw a plea which was based upon a mistake of law.  “Apart from the constitutional defect of taking of the plea, it is apparent that the trial court abused its discretion under Penal Code section 1018 in refusing to allow appellant to withdraw his plea.”

                In determining whether a trial court has abused its discretion in denying a prejudgment motion to withdraw a guilty plea under Penal Code section 1018, the test is whether after a consideration of all of the relevant factors, good cause has been shown and whether justice would be furthered by granting the motion.  (People vs. Superior Court (Giron) (1974) 11 Cal.3d 793, 798, 114 Cal.Rptr. 596, 523 P.2d 636.).  Generally, a plea of guilty may be withdrawn for mistake, ignorance, inadvertence or any other factor overriding a defendant's free and clear judgment providing the good cause is shown by clear and convincing evidence.  (People vs. Cruz (1974) 12 Cal.3d 562, 566, 116 Cal.Rptr. 242, 526 P.2d 250.)

                Here, defendant advised the court that when he entered his plea he was under the impression that he would be eligible for parole after having served one-third of the minimum term of five years or twenty months.  Nothing in the record by inference contradicts this assertion of fact.  Since it has been a matter of common knowledge for many years that in the usual case, assuming good behavior in prison, a defendant will be eligible for parole after serving one-third of the minimum term of punishment, appellant's assertion that he was under such an impression when he entered his plea is plausible on its face.

                Trial courts are required to give a liberal construction to the provisions of Penal Code section 1018 in the interests of promoting justice.  (People vs. Superior Court (Giron), supra, 11 Cal.3d at 796-797, 114 Cal.Rptr. 596, 523 P.2d 636.)  Because the record does not reflect that appellant was told that he would have to serve three years in the state prison before he was eligible for parole, but to the contrary shows that he entered his plea on the mistaken belief that he would be eligible for parole in twenty months, appellant has sustained his burden of showing good cause.  Thus, we have no alternative but to hold that the trial court abused its discretion in now allowing appellant to withdraw his plea of guilty."  People vs. Tabucci (1976) 64 CA3d 133, 144-145, 134 Cal.Rptr. 245, 251.   

    1. ARGUMENT

    Based on the discussion in the hallway with defense attorney, the defendant was under the mistaken impression or belief that if convicted in __________ the court would have no option but to send him to prison.  That in order to avoid prison he had no choice but to enter a plea in _____________ and a plea in __________.

    1. COURT’S DISCRETION
      1. COURT HAS DISCRETIONARY POWER TO ALLOW WITHDRAWAL OF PLEA WHEN DEFENDANT ENTERED PLEA FOR EXPEDIENCY

    In the case of People vs. Clark (1968) 264 CA2d 44, 70 Cal.Rptr. 324, the court held that when a defendant maintains his innocence, the court has the power to withdraw the defendant's plea of guilty.

    To the offence charged in Count II appellants originally entered pleas of guilty in the municipal court, but on their subsequent appearance in the superior court their pleas were in effect vacated by Judge Alarcon.  Appellants contend that, absent motions from them for a substitution of pleas, Judge Alarcon lacked authority to set aside their pleas on his own motion.  We reject this argument for two reasons:

     

    (1) Every court has inherent power to prevent abuse of its process and to conform its procedures to the fundamentals of due process.  The combined acceptance by the court of a guilty plea in the face of a defendant's suggestion that in fact he is not guilty, runs contrary to all basic conceptions of justice under law.  Whenever the superior court has reason to suspect that a defendant has pleaded guilty to a felony as a matter of expediency we think the court has inherent power to set aside the plea on its own initiative prior to the entry of judgment.  In our view double jeopardy no more follows the vacation of an erroneously accepted plea than it does an instance of mistaken identity, incompetency, corruption, or mistrial.

     

    (2) In doing what it did the court acted in substantial compliance with the provisions of section 1018 of the Penal Code: Unless otherwise provided by law every plea must be put in by the defendant himself in open court. * * *  On application of the defendant any time before judgment the court may, and in the case of a defendant who appeared without counsel at the time of the plea the court must, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. * * *  This section shall be liberally construed to effect these objects and to promote justice.

     

    In this section a basic characteristic of criminal procedure appears:  the defendant himself, not counsel, is responsible for the entry of his plea.  From this it follows that the defendant himself is the most appropriate person to apply for permission to withdraw a plea and put in another.  In view of this emphasis in criminal pleading on the personal responsibility of the defendant, it seems to us that when appellants told Judge Alarcon they had no intention to cheat anybody, in effect they notified him they did not consider themselves guilty of the charge to which they had previously entered pleas of guilty.  We think Judge Alarcon was justified in interpreting their statements in open court as implicit requests to withdraw their pleas of guilty and enter pleas of not guilty, in ordering the entry of not guilty pleas Judge Alarcon in effect acted favorably on their requests.

     

    The appropriateness of the court ruling was demonstrated by later events.  On the filing of the information appellant pleaded not guilty to all charges, plea which they thereafter maintained and on which they stood trial.  If in fact appellants thought of themselves as guilty and genuinely desired to enter guilty please, they could have done so any time before trial.  Normally, a prosecutor initially willing to accept a plea of guilty to one count will display the same willingness at a later stage of the proceedings.  The plea of guilty, however, involves an admission which each element of the offense charged, an admission which appellants were apparently not willing to make.  When they stood trial on the merits appellants clearly displayed a continued belief in their own innocence, a belief wholly inconsistent with their initial entry of pleas of guilty to one count.  Indeed, had the court failed to take steps to vacate the original pleas, appellants might later have argued with some justification that the court neglected its basic duty to protect the rights of the accused at all stages of the prosecution." 

    People vs. Clark (1968) 264 CA2d 44, 47-49, 70 Cal.Rptr. 324, 325-326.

    1. ARGUMENT

                As indicated in the transcript when asked about a factual basis the defendant said he was pleading guilty to avoid prison.  Clearly his belief at the time was that his options were limited.  He did not realize he had the option to apply for probation should a jury convict him.  There was no discussion regarding his changes for probation in __________ if convicted given the minimal touching over four years alleged by the complainant.

    1. INEFFECTIVE ASSISTANCE OF COUNSEL
      1. POPE ERROR - INEFFECTIVE ASSISTANCE OF COUNSEL AT TIME OF PLEA - GROUNDS FOR WITHDRAWAL OF PLEA

    In the case of People vs. McCary (1985) 166 CA3d 1, 212 Cal.Rptr. 114, the court ruled that ineffective assistance of counsel was grounds for withdrawal of a plea.  The court stated:

    "We begin with the established principle that a defendant is `entitled to representation at every step of the proceedings, including the aid of counsel to enable an intelligent decision as to his plea.'  (People vs. Mattson (1959) 51 Cal.2d 777, 790, fn. 5, 336 P.2d 937, see also People vs. Chesser (1947) 29 Cal.2d 815, 820-821, 178 P.2d 761; People vs. Avilez (1948) 86 Cal.App.2d 289, 296, 194 P.2d 829.)  Where a defendant has been denied the effective assistance of counsel in entering a plea of guilty, he is entitled to reversal and an opportunity to withdraw his plea if he so desires.  (People vs. Chesser, supra, 29 Cal.2d at p. 825, 178 P.2d 761; People vs. Avilez, supra, 86 Cal.App.2d at p. 299, 194 P.2d 829.)"  People vs. McCary (1985) 166 CA3d 1, 8, 212 Cal.Rptr. 114, 117.

                In the case of People vs. McCary, supra, the court laid out counsel's duty in the entry of a guilty or no contest plea.

                "With respect to counsel's duties in the entry of a guilty plea, `It is his [counsel's] task to investigate carefully all defenses of fact and of law that may be available to the defendant and confer with him about them before he permits his client to foreclose all possibility of defense and submit to conviction without a hearing by pleading guilty.'  (People vs. Mattson, supra, 51 Cal.2d at p. 791, 336 P.2d 937, quoting People vs. Avilez, supra, 86 Cal.App.3d at p. 296, 194 P.2d 829.)  Counsel `is expected...to possess knowledge of those plain and elementary principles of law which are commonly known by well informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.'  (Smith vs. Lewis (1975) 13 Cal.3d 349, 358, 118 Cal.Rptr. 621, 530 P.2d 589.)"  People vs. McCary (1985) 166 CA3d 1, 9, 212 Cal.Rptr. 114, 117-118.

    1. TWO TYPES OF INEFFECTIVE ASSISTANCE OF COUNSEL

    In the case of People vs. Stanworth (1974) 11 C3d 588, 613, 114 Cal.Rptr. 272, 267, the court stated that there are two types of ineffective assistance of counsel in failing to assert a defense.  First, where counsel did know the facts but did not know the law.  Secondly, where counsel knew the law but did not know the facts.  Where the facts establish that counsel was ignorant of the facts or the law and it appears that such ignorance caused the withdrawal of a crucial defense, his client is entitled to relief.

    The test for showing of good cause is clear and convincing evidence.  People vs. Fratianno (1970) 6 CA3d 211, 221-222, 85 Cal.Rptr. 755, People vs. Cruz (1974) 12 C3d 562, 567, 116 Cal.Rptr. 242, 244.

    1. STANDARD WHERE UNDERLYING GROUNDS ARE INEFFECTIVE ASSISTANCE OF COUNSEL IS NOT CLEAR AND CONVINCING EVIDENCE BUT POPE STANDARD

    If one of the grounds for withdrawal of the plea is ineffective assistance of counsel, a two level analysis must occur.  First, the defense must show by clear and convincing evidence that the attorney either did not know the facts or did not know the law.

                However, the defense does not have to prove by clear and convincing evidence that the motion to suppress a critical statement would have been granted or that a defense of diminished capacity, etc. would have prevailed by clear and convincing evidence.  In the case of People vs. McCary (1985) 166 CA3d 1, 212 Cal.Rptr. 114, the court set forth the test of the underlying grounds when a plea has been entered.

    "This does not end the inquiry, for Pope additionally requires defendant to establish that counsel's acts or omissions resulted in the withdrawal of potentially meritorious defense.  (People vs. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.)  Where counsel's failing does not result in the withdrawal of a defense, ineffectiveness may be proven by establishing `that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings.'  (People vs. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)

                Neither standard as worded above fits squarely within the present case, for those cases resulted from trials, where it is possible to examine the record and ascertain whether counsel's failings had a prejudicial effect on the fact-finding process.  In this case, defendant's guilt was determined by his own pleas, and whether he would have pled differently in the absence of counsel's failings is more difficult to ascertain.

                However, the standards expressed in Pope and Fosselman are not exhaustive.  As the court in Fosselman points out, the basis inquiry in all cases is whether defendant was prejudiced by the conduct of his attorney.  (Fosselman, supra, 33 Cal.3d at p. 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)  In the present case, prejudice can be measured by determining whether counsel's acts or omissions adversely affected defendant's ability to knowingly, intelligently and voluntarily decide to enter a plea of guilty.  In this respect, the standard applicable to the withdrawal of a guilty plea is helpful.  In other words, if, as a result of counsel's acts or omissions, it fairly appears defendant entered his plea under the influence of `mistake, ignorance or inadvertence or any other factor overreaching defendant's free and clear judgment' such as would justify the withdrawal of his plea, he was ineffectively represented by counsel."

                "Generally, the Sixth Amendment and Article I, Section 15 require counsel's diligence and active participation in the full and effective preparation of his client's case."  (Citations omitted).  Criminal defense attorneys have a `duty to investigate carefully all defenses of fact and law that may be available to the defendant...'  (Citation omitted).  This obligation includes conferring with the client `without defense delay and as often as necessary to elicit matters of defense...'" People vs. Pope (1979) 23 C3d 472, 152 Cal.Rptr. 732.

    1. ARGUMENT

    The defendant's declaration asks this court to find that he had not been given effective assistance of counsel.  His attorney did not know the facts of the defendant's defense.

    Before the trial there had been only two meetings with Mr. _____.  No discussion of the defense took place at either meeting - financing the defense was the agenda for both meetings.

    On the day of trial Mr. _____ asked to continue the _____________ trial to trail the __________ case.  The motion was denied and the trial was set to commence at 1:30 p.m. that day.

    There was no interview with Mr. _____ before the 1:30 p.m. court appearance, nor was there any interview after the first day of trial, nor after the second day of trial.  On the third day, before the trial commenced, defense counsel took the defendant into the hallway and presented the offer.

    By failing to explore the defense with the defendant, counsel was not in a position to effectively evaluate the strength of the state's case after rebuttal by defense evidence.  Failing to meet and confer with the defendant deprived defense counsel of potentially meritorious defense witnesses.

                As recognized in Pope a substantial portion of the obligation counsel owes to a defendant is not directly connected with the trial but involves investigation and advice at pretrial and post trial stages.  Pretrial advice not grounded on an adequate database does not comply with constitutional mandates.

    The defendant did not have the benefit of informed advice on the __________ case.  His decision to plead in __________ and, therefore in _____________, was made without the benefit of reasonably competent assistance of an attorney acting as his diligent and conscientious advocate.  Pleading to the misdemeanor in _____________ made sense if he was pleading to two felonies in __________.  If the decision to plead in __________ was based on inadequate advice then so was the plea in _____________.

    1. FAILURE OF COUNSEL TO PROPERLY ADVISE REGARDING P. C. SECTION 290 REGISTRATION

    In the case of In Re Birch (1973) 10 C3d 314, 110 Cal.Rptr. 212, the Supreme Court held that a guilty plea to Penal Code Section 647(a) had to be reversed because the defendant was not advised of the requirement that he register as a sex offender pursuant to Penal Code Section 290.  The court stated: "Although we have not as yet had occasion to explore the full extent of this responsibility under all circumstances, we conclude that in the instant case, in view of the unusual and onerous nature of the sex registration requirement that follows inexorably from a conviction under section 647, subdivision (a), the trial court's duty surely included an obligation to advise petitioner of his sanction prior to accepting his guilty plea.”

                Under Penal Code Section 290, a person convicted of one of the enumerated offenses, including Penal Code Section 647, subdivision (a), must register for life with the police department in the city in which he lives.  He must re-register whenever he moves and must report each change of address within 10 days.  Individuals convicted of one of the enumerated crimes have been deemed by the Legislature to have a propensity to commit such antisocial crimes in the future and thus are the subject of continual police surveillance.  Whenever any sex crime occurs in his area, the registrant may very well be subjected to investigation.  Although the stigma of a short jail sentence should eventually fade, the ignominious badge carried by the convicted sex offender can remain for a lifetime."  In Re Birch (1973) 10 C3d 314, 322-323, 110 Cal.Rptr. 212, 216-217.

                The Supreme Court made it clear that the fact that the registration was for life and that he must re-register every time he moves made it an ignominious badge.  The standard to apply is a full understanding of the consequences.  “The United States Supreme Court observed over 40 years ago that `Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.' (Kercheval vs. United States (1972) 274 U.S. 220, 47 S.Ct. 582, 583, 71 L.Ed. 1009.)"  In Re Birch, supra, fn. 7.”

    In the case of People vs. Soriano (1987) 194 CA3d 1470, 240 Cal.Rptr. 328, the court noted that in an immigration case the court had discharged its duty when at the time of the plea it advised the defendant that if you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

    However, the court went on to find that there was ineffective assistance of counsel because the attorney did not adequately advise the defendant of the specific ramifications of the immigration law that impacted the defendant's case.  The court examined whether the defendant was effectively advised of the immigration laws that did exist and found that the attorney had not.  It rejected the contention that being advised that the plea could lead to deportation was sufficient.  The court stated:

     

    What is uncontested is that counsel, knowing the defendant was an alien, resident in this country less than five years at the time he committed the crime, did not make it her business to discover what impact his negotiated sentence would have on his deportability.  We have received an amicus brief in this case from San Francisco Public Defender Jeff Brown pointing out that his `office regards a defendant's immigration status as an important factor to be considered in determining the appropriate plea bargain for one's client.'  Accordingly, the public defender's office imposes on its staff attorneys, under its `Minimum Standards of Representation', the duty to ascertain `what the impact of the case may have on [the client's] immigration status in this country.

    The American Bar Association's Standards for Criminal Justice, standard 14-3.2, which discusses plea agreements, provides in pertinent part, that `(b) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and of considerations deemed important by defense counsel or the defendant in reaching a decision.'  (3 ABA Standards for Criminal Justice, std. 14-3.2 (2d ed. 1980 p. 73.)  The commentary to the standard notes the importance of advising a client of collateral consequences which may follow his conviction.  `[W]here the defendant raises a specific question concerning collateral consequences (as where the defendant inquires about the possibility of deportation), counsel should fully advise the defendant of these consequences.'  (Id, at p. 75)

    While counsel maintained that she did warn defendant that there might be immigration consequences to his guilty plea, when questioned she described the warning she gave as `the advisement that is given in the course of the guilty plea, that is the general advisement I gave him.'  Is such a formulaic warning from his own attorney an adequate effort to advise a criminal defendant of the possible consequences of his plea?  We think not.

                The commentary to the American Bar Association's Standards for Criminal Justice standard 14-3.2 notes that while `the court must inquire into the defendant's understanding of the possible consequences at the time the plea is received..., this is not a substitute for advice by counsel.  The court's warning, coming as it does just before the plea is taken, may not afford time for mature reflection.'  (3 ABA Standards for Criminal Justice std. 14-3.2, supra, at p. 74.)  Similarly, section 1016.5, subdivision (b) itself provides that `[u]pon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section.'  Both commentary and statute are concerned with the self-evident proposition that a defendant's in-court responses to rights advisements should not be made `off the cuff'.  Instead, they should reflect informed decisions he has reached after meaningful consultation with his attorney."

    The courts require more than simple advisement from defense counsel that deportation could result if not a citizen.

    By analogy it is argued that the courts likewise require more than simple advisement that you must register under Penal Code Section 290.

    In the instant case the full import of a lifetime registration as a sex offender was not explained to the defendant.  There was no discussions about the collateral consequences on his career, his life, his employment or future employability.

    Such advice is required when one's immigration status is in jeopardy.  It should also be required in cases where sex registration is required.

    1. DUE DELIBERATION

    In the landmark Supreme Court case of People vs. McCrory, 41 C 458, the court introduced the concept that a plea can be withdrawn if the plea was entered without due deliberation.

                “A party should not be allowed to trifle with the court by deliberately entering a plea of `guilty' one day and capriciously withdrawing the next.  But when there is reason to believe that the plea has been entered through inadvertence, and without due deliberation, or ignorantly, and mainly from the hope that the punishment to which the accused would otherwise be exposed, may thereby be mitigated, the court should be indulgent in permitting the plea to be withdrawn.” People vs. McCrory, supra, 462.

    The defendant, in his declaration, alleges that the plea bargain was offered before the third day of trial commenced.  That the offer was made in the hallway in a rushed atmosphere without due deliberation.  His free will was overborne by the pressure to settle that was put on him by defense counsel.  The threat of prison was used as a tool to coerce the defendant to give up valuable constitutional rights.

    He had been offered a no state prison deal prior to the commencement of the trial.  It was only when defense counsel appeared to abandon the fight that the defendant became frightened and fearful that he was in this alone.  He was told he had no choice.  He had to plead guilty.

    Clearly, the defendant wanted his trial.  He was unduly influenced to abandon that choice without due deliberation.

    1. CONCLUSION

    The court should permit him to withdraw his plea in this case.

    Dated: 

    Respectfully submitted,

     

    __________________________

    [Attorney Name]

    Attorney for Defendant


    I, [ATTORNEY NAME] declare:

    1. I am an attorney duly licensed to practice law in the State of California. I am a Certified Criminal Law Specialist. I am the attorney for the defendant in this matter. This matter is set for trial on April 13, 2020.
    2. I represent [NAME OF DEFENDANT] (“Defendant”) who is accused of

    I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true. 

    Executed in Pleasant Hill, CA on March 19, 2024.

     

    [Attorney Name], SBN

     


    EXHIBIT LIST