995 Writing Sample - GBI

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

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

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN DIEGO

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs. JOHN SMITH* (all party names and locations have been changed),

Defendant

CASE NO.: SCD123456 DA NO.: ACN789 MOTION TO DISMISS PURSUANT TO PENAL CODE SECTION 995; MEMORANDUM OF POINTS AND AUTHORITIES Date: Time: Dept.: Time Est.: 30 min. Witnesses: 0-3 Readiness Date: November 23, 2009 Trial Date: December 3, 2009

MEMORANDUM OF POINTS AND AUTHORITIES

ISSUE PRESENTED

On June 20, 2009, at approximately 1:30 a.m., there was a fight outside of San Diego Bar in San

Diego. There were approximately five or six black males involved in the fight. One man injured his

head in the fight and was transported to a hospital. Shortly after the fight, Mr. Smith, along with his co-

defendant, Michael Jones, were arrested at a friend’s residence. At the preliminary examination, no

witness was able to positively identify Mr. Smith as being involved in the fight.


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1. Do these facts give rise to a rational inference that Mr. Smith committed battery

with serious bodily injury on either Bob Robertson or William Chavez, in violation of Penal Code section 243(d)?

2. Do these facts support a rational inference that Mr. Smith personally inflicted

great bodily injury on either Bob Robertson or William Chavez, in violation of Penal Code section 1192.7(c)(8)?

3. Do these facts support a rational inference that Mr. Smith committed assault by

means likely to produce great bodily injury on either Bob Robertson or William Chavez, in violation of Penal Code section 245(a)(1)?

4. Do these facts support a rational inference that Mr. Smith personal inflicted

great bodily injury on either Bob Robertson or William Chavez, in violation of Penal Code sections 1192.7(c)(8) and 12022.7(a)?

5. Do these facts support a rational inference that Mr. Smith committed assault on

Patrick Williams, in violation of Penal Code section 240? 6. Do these facts support a rational inference that Mr. Smith aided and abetted the

charged crimes?

STATEMENT OF FACTS

On June 19, 2009, several people were at San Diego Bar in San Diego for a party. (Preliminary

Transcript, “PX,” 8:25-9:8.) Near closing time, at about 1:30 a.m., Patrick Williams observed a group

of African-American males attempting unsuccessfully to enter the bar. (PX 36:7-16, 37:6-10.) Shortly

thereafter, a fight broke out outside the bar. (PX 38:13-18.) Several people were involved in the fight.

(PX 7:28-8:2.) Some were injured. (PX 10:25-26.) William Chavez was hit and fell to the ground, as

was Patrick Williams. (PX 9:21-24.) A third man, Bob Robertson, was stomped on while on the

ground. (PX 69:8-10.)

Police eventually responded to the scene. (PX 100:18-20.) Witnesses described a group of

African-American males who had been involved in the fight and had fled. (PX 80:22-81:1.) A

broadcast was sent over police dispatch, describing the males as muscular and indicating that they were

still outstanding. (PX 114:27-115:3.) Detective Craig Daniels and Officer Jason Martin helped

conduct a search for the individuals. (PX 115:4-6.) At approximately 2:40 a.m., Detective Daniels

observed three-African American males and two females in a 7-11 parking lot about three blocks away

from San Diego Bar. (PX 115:4-6.) Two of the men were later identified as John Smith and Michael


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Jones. (PX 116:2-7.) When Officer Martin attempted to contact them, Mr. Jones fled. (PX 118:11-18.)

The other individuals, including Mr. Smith, stayed in place. (PX 118:18-19.) Mr. Jones was eventually

caught and taken into custody. (PX 119:5-24.) Mr. Smith was later detained at a residence located at

2225 Main Avenue, (PX 120:5-6, 121:11-18.)

Todd Jackson was interviewed by multiple officers that night and asked to do multiple curbside

lineups. (PX 24:14-18.) He identified both Mr. Smith and Mr. Jones as being involved in the fight,

each at a separate curbside lineup. (PX 122:9-20.) Mr. Jackson admitted that he was drunk that night

and the lineups were conducted late at night. (PX 10:9-10.) During one of the interviews, he had

trouble recalling previous interviews, previous identifications, and even the incident itself. (PX 24:19-

25:8, 133:8-11.) At the preliminary hearing, Mr. Jackson could not specify what role either Mr. Smith

or Mr. Jones had played in the fight. (PX 11:1-3.) Nor could he positively identify Mr. Smith as being

involved in the fight. (PX 11:4-10.) When asked, he stated that Mr. Smith was not the person who had

struck Mr. Chavez. (PX 28:8-15.)

Subsequent photographic lineups were also conducted. (PX 124:14-17, 125:15-17.) Ray

Stevens, when presented with the lineup, stated that Mr. Smith “looked familiar” and that he had been

at the fight. (PX 135:18-21.) Babs McKenzie indicated the same in a separate photographic lineup.

(PX 136:11-16.) At the preliminary examination, Mr. Stevens stated that he did not know whether he

recognized Mr. Smith. (PX 98:13-16.) Ms. McKenzie was not present to testify at the preliminary

hearing.

Mr. Chavez testified at the preliminary hearing that he did not recall being struck that night.

(PX 110:10-11.) He had been drinking quite a bit that night and described himself as being “pretty

drunk.” (PX 111:24-28.) He did not recall checking for any injuries and the only injury he

remembered was a small bump on the back of his head. (PX 110:25-111:8.)

Judicial notice was taken at the preliminary hearing of medical records detailing Mr.

Robertson’s injuries, which included a skull fracture. (PX 155:14-156:1.)

At the preliminary hearing, Mr. Smith was held to answer for all charges against him. (PX

168:25-169:8.) Following the hearing, the prosecution amended the information to include two

additional charges. The first is a charge of battery with serious bodily injury, in violation of Penal Code


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At the preliminary hearing, the prosecution called four witnesses who had been present at the

time of the incident. None of these witnesses could testify, with certainty, that Mr. Smith was at all

involved or even present at the scene of the incident. The prosecution could only offer the testimony of

Mr. Jackson, who admitted that he was drunk on the night of the incident. (PX 10:10.) During direct

examination, Mr. Jackson testified as follows:

section 243(d), upon Mr. Chavez, with the additional allegation of great bodily injury within the

meaning of Penal Code section 1192.7(c)(8). The second is a charge of assault by means likely to

produce great bodily of injury, in violation of Penal Code section 245(a)(1), also upon Mr. Chavez,

with the additional allegation of great bodily injury within the meanings of Penal Code sections

1192.7(c)(8) and 12022.7(a).

ARGUMENT OF LAW

I. THE MOTION TO DISMISS SHOULD BE GRANTED BECAUSE THE PROSECUTION FAILED TO PROVIDE SUFFICIENT EVIDENCE AT THE PRELIMINARY HEARING TO SHOW THAT MR. SMITH WAS INVOLVED IN THE FIGHT.

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

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

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

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

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

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

surmise, conjecture, or guess work. (People v. Morris (1988) 46 Cal.3d 1, 21.) A finding of fact must

be an inference drawn from evidence rather than a mere speculation as to probabilities without

evidence. (Ibid.)

In this case, there was no evidence presented from any of the witnesses at the preliminary

hearing to support any of the charges of battery and assault, as well any allegations of great bodily

injury.

A. The prosecution provided no evidence to show that Mr. Smith was involved in any way in the incident.


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Q: With regard to the African-American males you saw, do you see any of those males

in the courtroom today?

A: You know, honestly, it is easy for me to say it would be one of these guys, but it was

late at night and it was dark and I was drunk. And I know it will come back to me as

part of the questioning, but I would say it would be either one of these guys, or at least

him. (indicating)

Q: By “him,” you are indicating the individual in the blue suit?1

A: Yeah.

(PX 10:5-16.) When asked how confident he was with his in-court identification, Mr. Jackson

indicated that he was not confident, saying, “Well, like I said, I can’t stand up here and swear to God

that’s him because obviously I did have cocktails. It was late at night.” (PX 10:17-21.) Furthermore,

Mr. Jackson admitted that he could not specifically state what, if any, involvement Mr. Smith had in the

fight. (PX 11:1-3.) The court made note of Mr. Jackson’s uncertainty, stating, “There is not a positive

I.D.” (PX 11:8.)

Similarly, Mr. Stevens was unable to identify Mr. Smith at the preliminary hearing, stating that

Mr. Smith was not the one who hit him or the person who hit Mr. Robertson. (PX 97:15-23.) In fact,

Mr. Stevens could not testify as to whether he recognized Mr. Smith at all. (PX 98:13-16.)

Neither Mr. Williams nor Mr. Chavez could identify anyone involved in the fight. On the night

of the incident, Mr. Williams told officers that he could not pick any of the black males he saw out of a

lineup. (PX 40:4-5.) He could not testify as to who hit or kicked him that night. (PX 52:8-12.) Mr.

Chavez testified that he was not even aware of any fight occurring outside the bar. (PX 109:15-23.) He

therefore could not identify anyone involved. (PX 109:15-18.)

The only other evidence the prosecution can rely upon is the testimony of Detective Daniels.

Detective Daniels testified that multiple witnesses were able to identify Mr. Smith out of a lineup as

being involved in the incident. However, none of these identifications were confirmed in court.

It is true that extrajudicial identifications do not, as a matter of law, have to be corroborated in

court in order to be sufficient for purposes of a preliminary hearing; however, the reliability and the

1 The individual Mr. Jackson motioned to was Mr. Smith.


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veracity of such identifications must still be tested. (People v. Cuevas (1995) 12 Cal.4th 252, 273

(“The prosecution must then demonstrate that the out-of-court identification, and not the in-court

repudiation, was correct.”).) The court in Cuevas discussed different methods of testing veracity and

reliability, including cross-examination of the identifying witnesses. (Ibid.) In this case, under cross-

examination, the prosecution simply failed to provide the requisite proof of reliability of these out-of-

court identifications to overcome the lack of in-court identifications. Mr. Jackson testified that, at the

time of his identifications, it was dark, he had been drinking, it was late, and he was tired and wanted to

go home. Mr. Stevens, when testifying, consistently repeated that he was not “100-perecent sure” with

his identifications and appeared to have trouble identifying either Mr. Jones or Mr. Smith at the

preliminary hearing. The third person that Detective Daniels named as having identified Mr. Smith,

Ms. Babs McKenzie, was not even made available for cross-examination; therefore, there was no way

to test the reliability of her out-of-court identifications.

It is evident that any identification of Mr. Smith as even being present at the scene of the

incident is, at best, tentative and unreliable. Even assuming that presence, the prosecution failed to

provide any substantive evidence to show that Mr. Smith threw any punches, struck any alleged

victims, or otherwise acted affirmatively to encourage the fight. Mere presence at the scene with

knowledge that a crime is occurring is insufficient grounds to support a holding order. (Pinell v.

Superior Court (1965) 232 Cal.App.2d 284.)

Because the prosecution was unable to provide sufficient evidence to support a reasonable belief

that Mr. Smith was present during the fight or that he was involved in any way, all charges of assault

and battery against him should be dismissed.

B. The prosecution did not produce any evidence that Mr. Smith personally inflicted great bodily injury on Mr. Robertson, as charged under Penal Code sections 1192.7(c)(8) and 12022.7(a).

In addition to the charges of assault and battery on Mr. Robertson, Mr. Smith faces additional

allegations. Specifically, for each charge, the prosecution has alleged that Mr. Smith personally

inflicted great bodily injury on Mr. Robertson, in violation of Penal Code sections 1192.7(c)(8) and

12022.7(a), which act as sentencing enhancements. However, “[o]nly those crimes in which the


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defendant personally inflicted great bodily injury on any person, other than an accomplice. . . . are

serious felonies qualifying under [Penal Code section 1192.7(c)(8)].” (Ortiz-Magana v. Mukasey (9th

Cir. 2008) 542 F.3d 653.) The phrase “personally inflict,” within meaning of a sentencing enhancement

for a defendant who “personally inflicts” great bodily injury, does not differ from its non-legal

meaning, which is that someone, directly and not through an intermediary, causes something damaging

or painful to be endured. (People v. Cross (2008) 45 Cal.4th 58, 66.)

In this case, there was absolutely no evidence that Mr. Smith was involved in the incident with

Mr. Robertson. Mr. Jackson testified that he could not describe any of the individuals he saw kicking

Mr. Robertson. (PX 16:25-27.) Mr. Williams did not recognize anyone involved in the fight. (PX

40:1-5.) No other witnesses even suggested that Mr. Smith was Mr. Robertson’s assailant.

Instead, the evidence presented at the preliminary hearing indicated that Mr. Jones was

responsible for Mr. Robertson’s injuries. Mr. Stevens testified that the person who struck Mr.

Robertson was more like Mr. Jones, rather than Mr. Smith. (PX 98:6-10.) Officer Buttle identified the

pattern on Mr. Jones’s shoes as matching the pattern on Mr. Robertson’s face, where he was kicked.

(PX 105:3-14.) This is not a case where there were a group of individuals involved in an altercation

and the person who actually inflicted the injury could not be sufficiently identified. (Contra People v.

Corona (1989) 213 Cal.App.3d 589 (when evidence demonstrated that defendant and one or more other

individuals personally engaged in physical beating which resulted in great bodily injury to victim and it

was not possible to determine which assailant inflicted which injuries, defendant could be convicted for

a great bodily injury enhancement).) Here, Mr. Jones was identified by multiple witnesses as the one

who was fighting with Mr. Robertson and the one who had caused his injury.

Nor can Mr. Smith be held to answer on these allegations under an aiding and abetting theory.

“Mere aider and abettor cannot receive the special sentence enhancement for personal infliction of great

bodily injury; only a person who directly participates in the physical attack can receive the

enhancement.” (People v. Banuelos (App. 4 Dist. 2003) 131 Cal.Rptr.2d 639.)

At the preliminary hearing, the prosecution itself recognized the weakness of these allegations,

stating, “With regard to the actual personal infliction of the GBI, the testimony hasn’t shown at this

point Mr. Smith’s personal infliction of that GBI. While we would be prepared to go forward on a


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There was no evidence presented at the preliminary hearing that connected Mr. Smith in any

way with the alleged assault on Mr. Chavez. Mr. Jackson testified that, because Mr. Chavez was his

friend, he was more focused on that incident than others and more focused on Mr. Chavez’s assailant.

(PX 28:16-20.) He saw one punch being thrown toward Mr. Chavez. (PX 12:24-26.) Mr. Jackson

described Mr. Chavez’s assailant as a beefy, bigger guy who was “at least 250 pounds.” (PX 12:4-18.)

When asked directly on cross-examination, Mr. Jackson stated that Mr. Smith was not the person he

saw strike Mr. Chavez. (PX 28:3-15.) This was later corroborated by Officer Moon, who confirmed

that Mr. Jackson never told the police that Mr. Smith was the one who struck Mr. Chavez. (PX 162:5-

group beating theory, we don’t believe that at this juncture that personal infliction elements have been

met.” (PX 168:10-16.) Based on the lack of evidence to support these enhancements, acknowledged

by the prosecution at the preliminary hearing, the allegations of great bodily injury should be dismissed.

II. THE MOTION TO DISMISS SHOULD BE GRANTED AS TO COUNTS THREE AND FOUR BECAUSE INSUFFICIENT EVIDENCE WAS ADDUCED AT THE PRELIMINARY HEARING TO SUPPORT THE NEW CHARGES AND ENHANCEMENTS.

Following the preliminary hearing, the prosecution amended the information to include two

additional charges against Mr. Smith. The first was a charge of battery with serious bodily injury, in

violation of Penal Code section 243(d), upon Mr. Chavez, with the additional allegation of great bodily

injury within the meaning of Penal Code section 1192.7(c)(8). The second was a charge of assault by

means likely to produce great bodily of injury, in violation of Penal Code section 245(a)(1), also upon

Mr. Chavez, with the additional allegation of great bodily injury within the meanings of Penal Code

sections 1192.7(c)(8) and 12022.7(a).

Additional charges not filed prior to the preliminary hearing may be added to the complaint

afterwards, so long as they arise out of the same transaction as the original charges and sufficient

evidence is adduced at the preliminary hearing to support the charge. (Jones v. Superior Court (1971)

4 Cal.3d 660, 664-65.) However, these additional charges may still be set aside pursuant to Penal Code

§995. In this case, there was no evidence adduced at the preliminary hearing to support the additional

charges. A. There was no evidence presented at the preliminary hearing to show that Mr.

Smith struck or attempted to strike Mr. Chavez.


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8.) Thus, it is evident that Mr. Jackson’s testimony provides no support for these charges and

allegations.

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Furthermore, when Mr. Chavez himself testified, he told the court that not only did he not

remember being struck, he was not even aware of a fight going on outside the bar. (PX 110:10-11,

109:15-23.) Though Mr. Chavez is the alleged victim in these charges, his testimony likewise does not

provide a rational basis for believing that Mr. Smith committed the alleged crimes.

The only evidence the prosecution provided that connected Mr. Smith in any way to the alleged

assault on Mr. Chavez was Officer Moon’s statement in his police report, indicating that Mr. Smith was

the person who struck Mr. Chavez. (PX 161:15-162:6, 164:3-18.) However, Officer Moon testified

that this identification was not the result of any eyewitness statements, but rather was his own

conclusion and was added by him when he created the report. (PX 162:5-22, 163:17-21.) This

conclusion was not supported by any other evidence elicited at the preliminary hearing and, as such, is

insufficient to support the charges of assault and battery against Mr. Smith.

B. There was no evidence presented at the preliminary hearing to support an enhancement alleging great bodily injury, within the meaning of Penal Code sections 1192.7(c)(8) and 12022.7(a).

Great bodily injury is defined as “a significant or substantial physical injury.” (Cal. Pen. Code §

12022.7, subd. (f); People v. Taylor (2004) 118 Cal.App.4th 11, 24.) The related jury instruction notes

that the injury must be more than minor or moderate. (CALJIC No. 17.20; People v. Nava (1989) 207

Cal.App.3d 1490, 1495.) Proof that a victim’s bodily injury is “great”—that is, significant or

substantial within the meaning of section 12022.7—may be established by evidence of the severity of

the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury.

(People v. Cross, supra, 45 Cal.4th at 66 (internal citations omitted).) No such evidence was presented

at the preliminary hearing with regards to Mr. Chavez.

At the preliminary hearing, the prosecution did not call any medical personnel to present

evidence about any injury Mr. Chavez may have suffered. Though Mr. Chavez did testify at the

preliminary hearing, he stated that he did not remember being struck by anything that night. (PX

110:10-11.) Nor did he remember checking for injuries. (PX 110:25-27.) The only injury he was able


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to testify to was a “little bump on the back of [his] head.” (PX 111:3-8.) He did not state that he had

sought any medical attention for any injury. This is clearly not enough to show that he had suffered

any great bodily injury.

Mr. Jackson could only testify that Mr. Chavez appeared to be unconscious and unresponsive.

(PX 15:24-16:13.) He did not testify as to any visible injuries on Mr. Chavez. Mr. Jackson is not a

doctor or any type of medical personnel. He does not have the requisite training and experience to

testify as to the severity of Mr. Chavez’s injury. As such, his testimony cannot support the allegation

that Mr. Chavez suffered great bodily injury.

The prosecution simply could not rationally demonstrate that Mr. Chavez suffered even one

substantial or significant injury, as required for a violation of Penal Code section 12022.7.

Furthermore, for reasons similar to those stated above, there is no evidence to show that Mr. Smith

personally inflicted any injury at all upon Mr. Chavez. Therefore, the alleged enhancements of great

bodily injury should be dismissed.

CONCLUSION

The evidence presented at the preliminary hearing was insufficient to support any rational

inference that Mr. Smith was involved in the fight giving rise to these charges or was even present at

that time. Even assuming he was present, the prosecution failed to show that Mr. Smith struck any

blows or otherwise acted affirmatively to encourage a fight in any way. Likewise, there was no

evidence adduced to show that Mr. Smith personally inflicted any injury on any alleged victim. For

these reasons, Mr. Smith respectfully requests that all charges against him be dismissed.

Dated: October 30, 2009 Respectfully submitted, VINCENT GARCIA Alternate Public Defender ______________________ ________ BROOKE LAFRANCE Deputy Alternate Public Defender

995 Writing Sample - GBI

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