| |
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE, WEST JUSTICE CENTER
PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff, )
)
vs. )
)
DEF DEF DEF, )
)
Defendant. )
)
Case Number 05NF1476
NOTICE OF MOTION; MOTION TO REINSTATE BAIL PENDING JUDGEMENT PURSUANT TO PENAL CODE § 1166; POINTS, AUTHORITIES, AND ARGUMENTS IN SUPPORT THEREOF; DECLARATION.
TO: THIS HONORABLE COURT AND THE DISTRICT ATTORNEY, COUNTY OF ORANGE,
PLEASE TAKE NOTICE that on April 27, 2007, at 9:00 a.m., or as soon thereafter as may be heard in Department W18 of the above entitled court, defendant Def Def Def will move this court to reinstate bail pending final judgement pursuant to Penal Code § 1166.
MOTION
Defendant Def Def Def, by and through his attorney, hereby moves this court to reinstate bail pending final judgement pursuant to Penal Code § 1166.
This motion is based on all papers in the court's file, these moving papers, points, authorities, and arguments, declaration, and any argument of counsel at the hearing herein.
STATEMENT OF THE CASE
On September 2, 2005, the prosecution filed an information against Def Def Def, alleging one count of Penal Code § 288 (a) that occurred on February 17, 2005. On September 12, 2005, this court arraigned Def on the information, and he entered a not guilty plea. This court deemed his present of bail of $100,000 as sufficient to assure his continued appearance. On February 27, 2007, this court held a jury trial for the charge alleged in the information, and on March 6, 2007, the jury came back guilty verdict. This court thereafter remanded Def into custody upon the prosecution's Penal Code § 1166 request without any further hearing. This court then relieved private counsel, and appointed the public defender to represent Def in all future proceedings.
STATEMENT OF THE UNDERLYING FACTS
In February of 2005, forty-one year old Def Def volunteered to pick up twelve-year old Jane Doe from a friend's house and bring her home. On the way back, Def parked his car on a street near Doe's home, put his arm around Doe, and "french-kissed" her for thirty seconds. Doe did not tell her parents about the kiss that night or the following day. But when Witness was driving her daughter and Doe to bible study, Witness overheard Doe matter-of-factly say to her daughter that her sister's friend's father had stuck his tongue in her mouth. Witness told Doe's mother what she overheard. Doe's father subsequently spoke with Doe, who said that Def kissed her. Brea Police Department placed a covert call to Def from Doe, and Def initially denied kissing Doe – only admitting that he hugged her, but later admitted to kissing her on the mouth, although denied using his tongue. The following day, Officer Start interviewed Def, and he admitted to hugging and kissing Doe, but never using his tongue.
In February of 1987, Def's step-sister Witness disclosed to the Santa Ana Police Department that Def had raped her around Christmas of 1986. The prosecution filed a case against Def, but dismissed it when Witness was unavailable for testimony. During the investigation in this case, Witness told Stark that her family sent her to Mexico to avoid testifying against Def.
In 1997, a thirteen year old Witness reported to law enforcement that she had been molested by Def, who was her mother's then boyfriend, but eventual husband. When she was ten or eleven, Witness said that Def would awaken her on the couch by putting his hands down her pants and touching her bare vagina. When later contacted by Stark for this case, Witness said when she was fourteen or fifteen, Def tried "french-kissing" her twenty to twenty-five times, and on one occasion he stuck his hand between her legs while he was driving a car. Her friends also refused to come over, because Def would slap them on their butts, and she was afraid of Def enough to put two locks on her door.
On July 21, 1987, Def was arrested for lewd conduct with a minor under Penal Code § 288 (a), but it was dismissed on August 14, 1987. In June 12, 1991, Def was arrested for violating a court order under Penal Code § 166 (4), and on June 13, 1991, Def pled guilty to the offense, receiving ten days in jail and three years of informal probation. On July 9, 1994, Def was arrested for grand theft auto under Penal Code § 487 (3), and on December 23, 1994, he was found guilty of grand theft property under Penal Code § 487 (1), receiving one year in jail and three years of probation. Def has not been arrested, pled guilty, or convicted of any other crime up until his conviction in this case.
On April 18, 2005, this court issued an arrest warrant for this matter with bail set at $100, 000. On April 19, 2005, the Brea Police Department served the arrest warrant, and Def posted the bond, with his sisters Witness and Guadalupe Def putting up their property as collateral for the bond. On May 18, 2005, this court issued and served a protective order prohibiting any contact by Def of the complaining witness in this case, and found the present bail sufficient to be continued. On September 12, 2005, after being held to answer and while being arraigned on the information, this court found present bail sufficient enough to be continued, and up to the beginning of trial, this court found bail sufficient enough to be continued. From the beginning of the trial on February 27, 2007, to just before revoking bail after the jury found Def guilty of the crime alleged on March 6, 2007, this court found bail sufficient enough to be continued.
Def's grandmother lives in Southern California, and has been a naturalized citizen since 1962. Def's mother is buried in Orange County. All of Def's brothers and sisters, Def's own children, and his extended family currently live in Orange County, except his oldest brother who owns a used auto dealership in Ensenada, Mexico. Def's current business is/was finding used automobiles in America, fixing them up, and sending them down to his oldest brother's for sale. Def's niece has been filling in while he has been in custody. If released, Def would live with his sister Witness, who is currently suffering from cancer. The bail bondsman who originally posted bail for Def has known Def since they were little, and knows Def's family well.
Defense counsel has been told by the court reporter that it will take two months for the trial transcripts to be made. While the defense has been reviewing the proffered discovery and court records, additional time will be necessary to review the voluminous transcripts, research if any areas raise ineffective assistance of counsel, and investigate whether ineffectiveness actually occurred. If it did occur, then the defense would need another four to sixth months to research, write, and file a new trial motion for this court to consider before sentencing Def for the conviction he sustained.
POINTS, AUTHORITIES, AND ARGUMENT
DEF REQUESTS THIS COURT TO EXERCISE ITS DISCRETION IN REINSTATING BAIL PENDING FINAL JUDGEMENT IN THIS MATTER.
At arraignment on the information, this court found the $100,000 bail amount originally set at arraignment on the complaint a year earlier to be sufficient to ensure Def's continued presence for the prosecution at hand – the lewd conduct of kissing a twelve year old in violation of one count of Penal Code § 288. Up through his conviction almost two years later, no major incidents occurred to give this court concern that Def would not return to finish the prosecution of these proceedings. On the day of his conviction, the prosecution moved to remand Def into custody pursuant to Penal Code § 1166, and apparently with no opposition by privately retained defense counsel, this court revoked Def's bail and remanded him into custody pending sentencing. This court also relieved private counsel from continued representation, and appointed the public defender to represent Def for all future possible motions and sentencing. Given the changed circumstances of new counsel knowledgeable of the trial court's discretion under § 1166, Def requests this court to reconsider exercising its discretion and reimpose bail previously set with additional terms and conditions necessary to alleviate any concerns this court may have about Def's return or the public's safety pending final judgment in this matter.
A defendant convicted of a felony not punishable by death is eligible for release or bail pending final judgement as a matter of the court's discretion. Penal Code § 1166, as amended in 1999, provides: "If a general verdict is rendered against the defendant, or a special verdict is given, he or she must be remanded, if in custody, or if on bail he or she shall be committed to the proper officer of the county to await the judgment of the court upon the verdict, unless, upon considering [1] the protection of the public, [2] the seriousness of the offense charged and proven, [3] the previous criminal record of the defendant, [4] the probability of the defendant failing to appear for the judgment of the court upon the verdict, and [5] public safety, the court concludes the evidence supports its decision to allow the defendant to remain out on bail." (People v. Seneca Ins. Co. (2003) 29 Cal. 4th 954, 957. )
The 1999 amendment requires the trial court to commit the defendant to custody unless, after considering five factors, the trial court concludes the evidence supports a decision to release the defendant on bail. (People v. Seneca Ins. Co., supra, at p. 957) Penal Code § 1166 works in tandem with Penal Code § 1129, which permits a trial court "in its discretion" to remand the defendant "at any time after his appearance for trial." Under Penal Code § 1166, that discretion becomes a presumption once the jury renders a verdict against the defendant; the trial court must commit the defendant to custody, unless it finds the statute's five-part test satisfied. (Id. at pp. 958-959.) The factors listed in Penal Code § 1166 replicate, almost verbatim, the factors that apply, under Penal Code § 1275 (a), when a judge or magistrate initially sets bail, and in fact, the Legislature appears to have modeled the 1999 amendment to section 1166 on section 1275 (a). (People v. Seneca Ins. Co., supra, at p. 961.)
The Protection of the Public
While it may always seem most expedient to protect the public by simply remanding a convicted defendant into custody, there are less drastic and more narrowly tailored means to ensure the public's continued protection. Significant bail, and it's immediate revocation for any violation – small or otherwise, is obviously the best less onerous method to ensure the convicted defendant's diligent compliance, and by default, the public's continued protection. Also at hand are newly imposed additional terms and conditions of recognizance to limit, restrict, and/or prohibit the convicted defendant's interaction with the public short of physical custody. Finally, reaffirming any prior recognizance orders as well as any imposed protective orders similarly ensures the convicted defendant fully complies with a court's previous and continued efforts to ensure the public's safety.
In this matter, this court has previously imposed a protective order at the inception of this case that still remains in effect today that prohibits Def from contacting Doe and other related witnesses, which Def has complied with. In addition, this court previously imposed bail of $100, 000 scheduled for the crime alleged that Def has never violated over the two years it has taken to litigate this case. Finally, if this court reimposes the bail amount or even more if found necessary, then Def is more than willing to accept any additional terms and conditions this court may deem necessary to protection the public. Included in these new terms and conditions may be home confinement, an ankle bracelet, and/or a GPS unit to limit, restrict, and/or confine Def's interaction with the public from a monitoring program supervised and/or approved by the detention release/probation department.
Def's acceptance, compliance, and adherence to this court's prior recognizance terms throughout the pendency of the trial is a proven track record that these new narrowly tailored recognizance terms will be as equally effective as continued incarceration to ensure the public's safety.
The Seriousness of the Offense Charged and Proven
While it is always serious when a much older man unwantedly kisses an underage female, no more force was used to effectuate even greater serious sexual acts against Doe, nor was any violence utilized to overcome Doe's initial reluctance. Instead, Def discontinued any further conduct upon become fully aware of Doe's reluctance, and she was dropped off at her residence soon thereafter without any further incident. Doe did not tell her parents of the experience that night or the next morning, and actually spoke of the incident in a matter-of-fact tone to her friend a few days later. Certainly not appropriate conduct to engage in with a minor, on the scale of criminal conduct prohibited under the penal code, kissing with no other criminal acts to compel greater sexual contact is less serious than forcibly violent rape, digital penetration, sodomy, and/or death.
Troubling for this court's consideration may be Def's unwanted sexual advances with Witness and Witness, which both involved similar unsolicited underage sexual contact. But these much older unsolicited sexual allegations – one over eighteen years old and another over eight years old – were not offenses charged and proven, but were instead used as only propensity evidence under Evidence Code § 1108 to substantiate the current less serious charge alleged. Witness's allegations never resulted in charges being filed against Def, and Witness's allegations resulted in charges, but they were ultimately dropped for her lack of appearance. Def has never had a chance to fully litigate these prior allegations, and could only confront these allegations in the limited and restricted context of propensity evidence in this case.
While serious in general, viewed in context to much greater serious and/or violent sexual conduct under the penal code that did not occur, the seriousness of the offense alleged and proven should not automatically exclude this court from exercising its discretion to grant Def bail pending the resolution of this matter.
The Previous Criminal Record of the Defendant.
Prior to his conviction to this case, Def was previously arrested, but not convicted over eighteen years ago for lewd conduct involving Witness under Penal Code § 288 (a). Several years later, Def was arrested and convicted for violating a court order under Penal Code § 166 (4), and received only ten days jail time and three years of informal probation. Shortly, thereafter Def was arrested for grand theft auto under Penal Code § 487.3, but found guilty of only grand theft property under Penal Code § 487 (1), receiving one year in jail and three years of probation. However, since this conviction thirteen years ago, Def has not been arrested, pled guilty to, or convicted of any other crime up until his conviction in this case.
Importantly, none of these crimes involved significant violence by weapon or by hand. Moreover, Def appeared to have substantially complied with all court orders of the two older crimes he was convicted of or pled guilty to. Finally, Def remained free from criminal conduct for over thirteen years before being convicted of the crime at hand.
Thus, Def's minimal prior criminal record should also not significantly hinder this court's exercise of discretion in granting Def bail pending final resolution of this matter.
The Probability of the Defendant Failing to Appear for the Judgment of the Court upon the Verdict
Much has been made (or will be made) of a family business in Ensenada, Mexico and the presumed threat that Def will simply cross the border to take up residence there and avoid punishment in this matter. However, Def only has one brother who lives in Ensenada and runs a small used car lot out on his front lawn. For years, Def has been finding suitable used cars in America and sending them down to his older brother to sell. Def continued in this business throughout the prosecution of this case, and at any time up to his conviction, Def could have simply left America to avoid punishment for what was increasingly becoming apparent as a losing effort by his previously retained attorney.
But Def instead chose to remain and fight, even in the face of certain loss and continued protracted appellate litigation. That is because his grandmother has lived in this country for over forty years and is an United States citizen. Because his wife, his five children, his five brothers and sisters, all their children, and his extended family all live in Orange County and the greater southern California area. Because his two sisters put up their houses as collateral for the $100,000 bail bond that this court repeatedly found was sufficient to ensure Def's return and to continue protecting the public. One of these sisters – Witness – has cancer and needs Def's support and assistance. Despite her illness, this same sister is offering her house for Def to stay in as a party of this court's order to release him on bonding pending resolution of this matter. Finally, as the greatest symbol of his connection to this country and county, Def's mother is buried in Orange County, and deep, long-standing cultural beliefs require the continued respect paid to a deceased mother that brought him into this world in the first place.
With significant, and long-standing family ties in Orange County, their request for him to stay with them, their substantial loss if he leaves, and the prospects of work while review for a new trial motion and/or sentencing occurs, Def – as has he always has felt over the two years it took to go to trial – has every incentive to stay and substantial loss to his family and to himself if he leaves. While one can surmise that Def can just take off to Mexico to be with his older brother to escape punishment, such a leap in logic must be viewed in the context of his earlier behavior throughout the pendency of this matter, which only suggests that Def intends to stick around and continue to fight the charges. Def could have pulled up stakes and left a long time ago. But with such significant ties to family, friends, and work, Def has every incentive to stay and intends on doing so if this court feels so inclined grant discretion for bail pending final judgment in this matter.
Public Safety
As previously argued above, the public's safety must be considered only to the extent granted in Proposition 4 and amended in the California Constitution, and not as defined in Proposition 8 and codified in Penal Code § 1275. That being said, this concern is grounded in more general considerations than the more specific concern of the immediate protection of the public – namely the complaining witness and the corroborating witnesses. Viewed in the context of his limited prior criminal behavior, the less serious sexual conduct of only a kiss, and his substantial compliance with prior and current court orders, the public's safety will not be significantly endangered by his continued release on bond after his conviction, anymore than it was before his conviction. He was not and is not a man prone to violence, and any inappropriate criminal sexual behavior engaged in the past can be easily prevented in the future with narrowly tailored bail terms and conditions limiting and/or prohibiting Def's contact with minors and/or the public through home confinement or heavily restricted movement in public to conduct business only.
Certainly a potential threat to a few, Def is not a threat in general to the public. And any threat to the few or the public can be prevented or avoided by additional terms and conditions of bail that severely curtail and/or eliminate his interaction with the public through home confinement, but short of incarceration pending final judgment in this matter. Consequently, with well-placed restrictions on Def's freedom, this court will be able to ensure the public's safety as well as Def's if it exercises its discretion in granting Def's recognizance on bail in this matter. The defense is still at least a month away from receiving any transcripts in this matter to review if error exists to file a new trial motion. The defense also expects to have to reinvestigate the case if a new trial motion is viable, and the researching, writing, and filing of a new trial motion would take several more months to write given the length of the current records. Exposing Def to the dangers of incarceration while newly appointed defense counsel investigate and begin writing a new trial motion would be unnecessary if this court reimpose bail pending the sentencing in this matter.
CONCLUSION
For all the above reasons, the defendant Def Def respectfully requests that this court reinstate bail under terms and conditions judicially equitable to allay any concerns and ensure public safety pending final judgement in this matter pursuant to Penal Code § 1166.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE, WEST JUSTICE CENTER
PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff, )
)
vs. )
)
DEF DEF DEF, )
)
Defendant. )
)
DECLARATION OF COUNSEL IN SUPPORT OF MOTION FOR BAIL PENDING JUDGEMENT.
1. That I am a senior deputy public defender for the County of Orange and as such I have been assigned to represent the defendant in the above-entitled action;
2. That I am informed and believe that in February of 2005, forty-one year old Def Def volunteered to pick up twelve-year old Jane Doe from a friend's house and bring her home. On the way back, Def parked his car on a street near Doe's home, put his arm around Doe, and "french-kissed" her for thirty seconds. Doe did not tell her parents about the kiss that night or the following day. But when Witness was driving her daughter and Doe to bible study, Witness overheard Doe matter-of-factly say to her daughter that her sister's friend's father had stuck his tongue in her mouth. Witness told Doe's mother what she overheard. Doe's father subsequently spoke with Doe, who said that Def kissed her. Brea Police Department placed a covert call to Def from Doe, and Def initially denied kissing Doe – only admitting that he hugged her, but later admitted to kissing her on the mouth, although denied using his tongue. The following day, Officer Start interviewed Def, and he admitted to hugging and kissing Doe, but never using his tongue.
3. In February of 1987, Def's step-sister Witness disclosed to the Santa Ana Police Department that Def had raped her around Christmas of 1986. The prosecution filed a case against Def, but dismissed it when Witness was unavailable for testimony. During the investigation in this case, Witness told Stark that her family sent her to Mexico to avoid testifying against Def.
4. In 1997, a thirteen year old Witness reported to law enforcement that she had been molested by Def, who was her mother's then boyfriend, but eventual husband. When she was ten or eleven, Witness said that Def would awaken her on the couch by putting his hands down her pants and touching her bare vagina. When later contacted by Stark for this case, Witness said when she was fourteen or fifteen, Def tried "french-kissing" her twenty to twenty-five times, and on one occasion he stuck his hand between her legs while he was driving a car. Her friends also refused to come over, because Def would slap them on their butts, and she was afraid of Def enough to put two locks on her door.
5. On July 21, 1987, Def was arrested for lewd conduct with a minor under Penal Code § 288 (a), but it was dismissed on August 14, 1987. In June 12, 1991, Def was arrested for violating a court order under Penal Code § 166 (4), and on June 13, 1991, Def pled guilty to the offense, receiving ten days in jail and three years of informal probation. On July 9, 1994, Def was arrested for grand theft auto under Penal Code § 487 (3), and on December 23, 1994, he was found guilty of grand theft property under Penal Code § 487 (1), receiving one year in jail and three years of probation. Def has not been arrested, pled guilty, or convicted of any other crime up until his conviction in this case.
6. On April 18, 2005, this court issued an arrest warrant for this matter with bail set at $100, 000. On April 19, 2005, the Brea Police Department served the arrest warrant, and Def posted the bond, with his sisters Witness and Guadalupe Def putting up their property as collateral for the bond. On May 18, 2005, this court issued and served a protective order prohibiting any contact by Def of the complaining witness in this case, and found the present bail sufficient to be continued. On September 12, 2005, after being held to answer and while being arraigned on the information, this court found present bail sufficient enough to be continued, and up to the beginning of trial, this court found bail sufficient enough to be continued. From the beginning of the trial on February 27, 2007, to just before revoking bail after the jury found Def guilty of the crime alleged on March 6, 2007, this court found bail sufficient enough to be continued.
7. Def's grandmother lives in Southern California, and has been a naturalized citizen since 1962. Def's mother is buried in Orange County. All of Def's brothers and sisters, Def's own children, and his extended family currently live in Orange County, except his oldest brother who owns a used auto dealership in Ensenada, Mexico. Def's current business is/was finding used automobiles in America, fixing them up, and sending them down to his oldest brother's for sale. Def's niece has been filling in while he has been in custody. If released, Def would live with his sister Witness, who is currently suffering from cancer. The bail bondsman who originally posted bail for Def has known Def since they were little, and knows Def's family well.
8. Defense counsel has been told by the court reporter that it will take two months for the trial transcripts to be made. While the defense has been reviewing the proffered discovery and court records, additional time will be necessary to review the voluminous transcripts, research if any areas raise ineffective assistance of counsel, and investigate whether ineffectiveness actually occurred. If it did occur, then the defense would need another four to sixth months to research, write, and file a new trial motion for this court to consider before sentencing Def for the conviction he sustained.
I declare under penalty of perjury that the foregoing is true and correct. Executed at Santa Ana, California, on February 4, 2010.
Declarant
|
|
 |
Los Angeles DUI Attorney & Violent Crime Lawyer
Los Angeles Employment Attorney
Site Map
The information on this California Criminal Defense Attorneys / Law Firm website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.
All case summaries are from public records and not associated with Dr. DUI or California Legal Team.
|
|
