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

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LAW OFFICES OF THE PUBLIC DEFENDER MARY J. GREENWOOD (99728) CASEY CLIFT (160150 ) RODERICK O’CONNOR (209074) PAULINE VILLANUEVA, Certified Law Clerk County of Santa Clara 120 West Mission Street San Jose, CA 95110 Telephone: (408) 299-7758 Attorneys for Defendant Bob Jones

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

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

Defendant

NO. CC123456 NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO PENAL CODE SECTION 995; MEMORANDUM OF POINTS AND AUTHORITIES Date: Time: Dept.: Time Est.:

TO THE CLERK OF THE ABOVE-ENTITLED COURT, AND TO THE DISTRICT ATTORNEY FOR SANTA CLARA COUNTY:

NOTICE IS HEREBY GIVEN that on the 28th day of February, 2009, at 9:00 a.m., in

Department of the above-entitled court, the above named defendant will move the court to dismiss all

counts pursuant to Penal Code section 995, on the grounds that the evidence presented at the

preliminary examination was not sufficient to justify a holding order.

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

and Authorities, the transcript of the preliminary examination held on January 23, 2009, before the

Honorable Judge Eugene Hyman, and oral argument.

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

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The motion will require an estimated 15 minutes to hear, argue and submit. Dated: February 1, 2009 Respectfully submitted, MARY J. GREENWOOD Public Defender ______________________ ________ RODERICK O’CONNOR Deputy Public Defender PAULINE VILLANUEVA Certified Law Clerk

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

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MEMORANDUM OF POINTS AND AUTHORITIES

ISSUE PRESENTED

The denial of a substantial right at a preliminary hearing results in an unlawful commitment,

thus requiring a holding order to be set aside upon a timely 995 motion. At his preliminary hearing,

Bob Jones was denied a substantial right, namely, the right to present the affirmative defense of

entrapment, because the committing magistrate incorrectly applied a subjective standard when

analyzing the defense. Because of this, Mr. Jones’s commitment was unlawful and the holding order

should be set aside 1. Did the court incorrectly apply subjective standard when looking at Mr. Jones’s

affirmative defense of entrapment? 2. Did this application constitute a denial of Mr. Jones’s substantial rights?

STATEMENT OF FACTS

On August 29, 2008, at approximately 4:19 p.m., the San Jose Police Department was running

an undercover narcotics operation, targeting crack cocaine dealers. (Preliminary Examination,

hereinafter “PX,” Page 7: lines19 to Page 8: line 6.) During that time, Officer Ochoa was working

undercover, in plain clothes, acting as a potential buyer of drugs. (PX 8:7-18.) Officer Ochoa

approached Mr. Jones and asked him, “What’s up? Are you trying to catch a bus?” (PX 16:6-9.) Mr.

Jones responded that he needed change to catch the bus. (PX 16:19-21.) When Officer Ochoa

indicated that he only had money, not change, Mr. Jones told him that he had been left stranded by his

girlfriend and that he needed change to catch the train for his four-year-old son. (PX 16:22-19:3.) Mr.

Jones continued to ask Officer Ochoa for change and Officer Ochoa repeatedly denied having anything

smaller than “twenties and tens.” (PX 17:8-19.) Finally, Officer Ochoa told Mr. Jones, “I’m just trying

to score out here. Once I score, I’ll have some change and I’ll come back. I know it might not be

something you’re into, but I’m just trying to score, and I’ll be back with change.” (PX 17:20-25.) At

that point, Mr. Jones indicated that he could help Officer Ochoa “score” in exchange for some money.

(PX 18:9-17.) Mr. Jones then procured two crack cocaine blocks for Officer Ochoa. (PX 10:5-7.)

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

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It is well-settled that, in California, the test for entrapment is an objective test. Such matters as

the character of the suspect, his or her predisposition to commit the offense, and his or her subjective

Following the transaction, he was subsequently arrested and positively identified by Officer Ochoa as

being involved in the transaction. (PX 10:8-13.)

At the preliminary examination, Mr. Clift attempted to put on an affirmative defense of

entrapment. (PX 22:12-25:5.) However, the court denied the affirmative defense, pointing out that Mr.

Jones, when searched, had none of the money he claimed to have when he first talked to Officer Ochoa.

(PX 24:18.) Furthermore, a glass pipe used for smoking cocaine was also found on Mr. Jones.

Looking at these factors, the court concluded that Mr. Jones was “obviously lying” to Officer Ochoa

and that Mr. Jones had received other payment for the transaction. (PX 24:28-25:5.) This evidence, the

court determined, precluded a finding of an affirmative defense of entrapment. (PX 25:4-5.)

ARGUMENT OF LAW

I. THE MOTION TO DISMISS SHOULD BE GRANTED BECAUSE MR. JONES WAS DENIED A SUBSTANTIAL RIGHT, NAMELY, THE RIGHT TO PRESENT AN AFFIRMATIVE DEFENSE.

Where it appears that, during the course of the preliminary examination, the defendant has been

denied a substantial right, the commitment is unlawful within the meaning of section 995, and it must

be set aside upon timely motion. Jennings v. Superior Court (1967) 66 Cal.2d 867, 874. “Substantial

rights within the meaning of section 995 have been held to include the right to counsel, cross-

examination and the presentation of an affirmative defense at the preliminary hearing, and substantial

procedural rights such as the statutory right to complete the hearing in one session and to have a closed

hearing. [Citations.]” People v. Pennington (1991) 228 Cal.App.3d 959, 964. Thus, the presentation

of an affirmative defense has been held to be a substantial right and the denial of that right would result

in the commitment being overturned.

A. The standard for entrapment in California is an objective test that does not take into consideration the character of the suspect, his or her predisposition to commit the offense, and his or her subjective intent; under this standard, an entrapment defense could properly have been found.

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

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intent are irrelevant. People v. Barraza (1979) 23 Cal.3d 675, 153 Cal. Rptr. 459, 591 P.2d 947;

People v. Lee (4th Dist. 1990) 219 Cal. App. 3d 829, 268 Cal. Rptr. 595; Arellanes v. Civil Service

Com. (2d Dist. 1995) 41 Cal. App. 4th 1208, 49 Cal. Rptr. 2d 73. The test is what effect the police

officer’s conduct would have on an ordinary law-abiding citizen in a similar situation. The objective

nature of the test ensures consistent application of the test and prevents the success of an entrapment

defense from “turn[ing] on differences among defendants.” Barraza, supra, 23 Cal.3d at 688.

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The court’s rationale for denying the claim of entrapment involved looking at Mr. Jones’s actual

circumstances at the time of the transaction. The court specifically considered the fact that, after being

arrested and searched, Mr. Jones actually had no money on him. (PX 24:22-28.) Because of this fact,

the court concluded that Mr. Jones must have been lying to Officer Ochoa to begin with. (PX 24:28-

25:1.) Furthermore, the court noted that, in the court’s opinion, Mr. Jones got a “piece” as payment for

the drug transaction and thus, “[the] other stuff [was] a bunch of crap.” (PX 25:2-5.) There was no

evidence presented at the hearing that supported the court’s position.

Focusing on Officer Ochoa’s actions in this case, it is evident that, absent his pressure, Mr.

Jones would not have been involved in a drug transaction. Specifically, it was Officer Ochoa who first

approached Mr. Jones and made contact, asking Mr. Jones if he was trying to catch a bus. (PX 16:6-9.)

Mr. Jones replied, “Yes. For the love of God, you got any change?” (PX 16:19-21.) When Officer

Ochoa indicated that he did not have any change, only larger bills, Mr. Jones told him that he had been

stranded by his girlfriend and was trying to get home to his four-year-old son. (PX 16:22-28.) Mr.

Jones continued to ask for change, to which Officer Ochoa finally suggested, “I’m just trying to score

out here. Once I score, I’ll have some change and I’ll come back. I know it might not be something

you’re into, but I’m just trying to score, and I’ll be back with change.” (PX 17:11-25.) It was only

upon that suggestion that Mr. Jones finally agreed to help Officer Ochoa “score” some crack cocaine.

(PX 18:2-17.) From this conversation, it is clear that Mr. Jones would not have been involved in any

sort of drug transaction without Officer Ochoa’s inducement.

B. The court incorrectly applied a subjective standard in analyzing Mr. Jones’s claim of entrapment and thus denied Mr. Jones his substantial right of presenting an affirmative defense.

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

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In Barraza, the California Supreme Court explicitly stated, “The success of an entrapment

defense should not turn on differences among defendants.” Barraza, supra, 23 Cal.3d at 688. The

focus is not on the situation of the defendant, but rather the actions of the officer and the effect they

would have on an ordinary, law-abiding citizen. Though cases have recognized that other factors than

the conduct of the officer must also necessarily be considered, see Barraza, supra, 23 Cal.3d at 690, the

courts have reiterated that subjective matters concerning the defendant should not be among those

factors. Id. at 690-91. The court’s emphasis on whether Mr. Jones actually had the money he claimed

to have—which was not determined until after Mr. Jones had been arrested and searched—was

incorrect, as that fact was immaterial to the claim of entrapment. By substituting his own subjective

opinion regarding Mr. Jones for the correct objective standard, the magistrate denied Mr. Jones his

substantial right to present the affirmative defense of entrapment at the preliminary hearing.

CONCLUSION

When the committing magistrate took into consideration Mr. Jones’s subjective characteristics,

he applied the incorrect standard for the defense of entrapment. In so doing, he improperly prevented

Mr. Clift from raising the affirmative defense of entrapment. This constituted a denial of Mr. Jones’s

substantial rights. For these reasons, Mr. Jones respectfully requests that all counts of the information

be dismissed.

Dated: February 1, 2009 Respectfully submitted, MARY J. GREENWOOD Public Defender ______________________ ________ RODERICK O’CONNOR Deputy Public Defender

PAULINE VILLANUEVA Certified Law Clerk