1 VINCENT GARCIA

Alternate Public Defender

2 JEFFREY REICHERT
Deputy Alternate Public Defender
3 PAULINE VILLANUEVA
Certified Law Clerk
4 Office of the Alternate Public Defender
110 West C Street, Suite 1100
5 San Diego, CA 92101
Telephone: (619) 446-2900
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Attorneys for Defendant
7 Bob Jones
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SAN DIEGO
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PEOPLE OF THE STATE OF CALIFORNIA, CASE NO.: CD123456
12 DA NO.: ACO789
Plaintiff,
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vs. NOTICE OF MOTION AND MOTION TO
14 DISMISS PURSUANT TO PENAL CODE
SECTION 995; MEMORANDUM OF POINTS
15 AND AUTHORITIES
BOB JONES* (all party names and locations have been
16 changed),
Defendant Date:
17 Time:
Dept.:
18 Time Est.:
Witnesses: 0-3
19 Trial Date:
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TO THE CLERK OF THE ABOVE-ENTITLED COURT, AND
21 TO THE DISTRICT ATTORNEY FOR SAN DIEGO COUNTY:
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NOTICE IS HEREBY GIVEN that on the 8th day of November, 2009, at 9:00 a.m., in
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Department of the above-entitled court, Mr. Jones will move the court to dismiss Count One pursuant
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to Penal Code section 995, on the grounds that the evidence presented at the preliminary examination
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was not sufficient to justify a holding order.
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NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 1 It is anticipated this motion will be based upon this notice, the attached Memorandum of Points

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

3 Honorable Judge Kerry Wells, and oral argument.

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

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6 Dated: October 5, 2009

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Respectfully submitted,
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9 VINCENT GARCIA
Alternate Public Defender
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______________________ ________
12 JEFFREY REICHERT
13 Deputy Alternate Public Defender

14 PAULINE VILLANUEVA
Certified Law Clerk
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NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 1 MEMORANDUM OF POINTS AND AUTHORITIES

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3 ISSUE PRESENTED

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

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

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

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

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

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

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1. Was the lab report, as well as testimony based upon hearsay concerning the
11 results, properly admitted as a business record under Evidence Code section
12 1271?
STATEMENT OF FACTS
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On June 5, 2009, Officer Joe Smith was working undercover with the San Diego Police
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Department Central Narcotics team. (Preliminary Transcript, “PX,” 3:6-25.) At approximately 6:55
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p.m., Officer Smith was working near 200 Main Street in San Diego. (PX 3:23-28.) At the time, he
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observed Bob Jones in the area. (PX 4:14-17.) Officer Smith approached Mr. Jones and indicated that
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he wanted to purchase rock cocaine. (PX 5:16-27.) Mr. Jones gave Officer Smith a package that, based
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on Officer Smith’s training and experience, appeared to be rock cocaine. (PX 6:3-7.) A subsequent
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N.I.K. test of the substance, done by Officer Smith, indicated that the substance was rock cocaine. (PX
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23:21-26, 26:18-23.) At that time, Officer Smith believed that the offense committed was the sale of
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cocaine base. (PX 27:2-5.) The substance was later impounded in the San Diego Police Department
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Crime Lab under the tag number 075978. (PX 7:2-9.)
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At the preliminary examination, the prosecution called Officer Smith to testify as the
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investigating officer. (PX 2:10-16.) Approximately five to ten minutes prior to his testimony, Officer
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Smith spoke to Mary Meadows, a criminalist for the San Diego Police Department Crime Lab. (PX
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7:10-20.) Ms. Meadows did not prepare the lab report for impound number 075978, which was
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prepared by Lara Leftwich, another criminalist at the Crime Lab. (PX 10:18-20, PX 13:27-14:1.)
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NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 1 Officer Smith was permitted to testify regarding his conversation with Ms. Meadows pursuant to

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

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

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

5 admitted over Mr. Jones’s appropriate objections.

6 ARGUMENT OF LAW

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I. THE MOTION TO DISMISS SHOULD BE GRANTED BECAUSE INADMISSIBLE
8 EVIDENCE PROVIDED THE SOLE BASIS FOR COMMITMENT.
9 An information will not be set aside nor a prosecution prohibited if there is some rational basis
10 for believing that there is a possibility that an offense has been committed and the defendant is the
11 person who is guilty of it. Rideout v. Superior Court (1967) 67 Cal.2d 471, 474. While proof beyond a
12 reasonable doubt is not necessary, “the burden is on the prosecution to produce evidence that there is a
13 reasonable probability, enough to induce a strong suspicion in the mind of a man of ordinary caution or
14 prudence, that a crime has been committed and that the defendant is guilty.” Garabedian v. Superior
15 Court (1963) 59 Cal.2d 124, 126-127.
16 Penal Code §995 requires that an information or charge be set aside where the defendant has
17 been committed without reasonable or probable cause. Pen. Code §995(a)(2)(B). The court may draw
18 only reasonable inferences from the evidence presented at the preliminary hearing. Williams v. Superior
19 Court (1969) 71 Cal.2d 1144. Inferences which derive their substance from guesswork, speculation or
20 conjecture are not reasonable. Birt v. Superior Court (1973) 34 Cal.App.3d 934. A reasonable
21 inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise,
22 conjecture, or guess work. People v. Morris (1988) 46 Cal.3d 1, 21.
23 A finding of fact must be an inference drawn from evidence rather than a mere speculation as to
24 probabilities without evidence. Ibid.
25 In this case, any finding of fact was drawn from inadmissible evidence and, as such, the
26 commitment cannot stand.
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NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 A. The lab report from the San Diego Police Department Crime Lab was
1 generated under circumstances that would cause an objective witness to believe
2 it would be used at trial and thus does not qualify as a business record.
The testimony and the lab results were admitted as business records, within the meaning of
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Evidence Code section 1271, which provides an exception to the general hearsay rule. Documents kept
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in the regular course of business may ordinarily be admitted at trial despite their hearsay status.
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Melendez-Diaz v. Massachusetts (2009) 129 S. Ct. 2527, 2538. However, this exception does not apply
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“if the regularly conducted business activity is the production of evidence for use at trial.” Ibid.; see
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also Palmer v. Hoffman (1943) 318 U.S. 109.
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The Court in Melendez-Diaz dealt with the admissibility of lab reports, similar to those in the
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case at hand. Melendez-Diaz, supra, 129 S. Ct. at 2530. It noted that “the sole purpose of the
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[documents] was to provide ‘prima facie evidence of the composition, quality, and the net weight of the
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composition.” Id. at 2532 (emphasis in original). The Court opined, “We can safely assume that the
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analysts were aware of the [documents’] evidentiary purpose[.]” Ibid. Thus, the Court found that the
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lab reports in question were generated for the purpose of litigation and would not qualify as business or
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public records. Id. at 2538,
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Mr. Jones’s case presents a number of similarities. Here, the lab results offered into evidence
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were clearly made under circumstances which would lead an objective witness to believe that the
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statements would be available for use at a later trial. Melendez-Diaz, supra, 129 S. Ct. at 2532;
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Crawford v. Washington (2004) 541 U.S. 36, 52. The San Diego Crime Lab is a division of the San
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Diego Sheriff’s Department and the forensic testing was done pursuant to an earlier arrest for sale of a
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controlled substance. A criminalist at the crime lab, testing a substance that was believed to be cocaine
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base, would be well aware of the evidentiary purpose of the test results. Because the primary purpose
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of these results would be to establish or prove some past fact for use in a criminal trial, the results are
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testimonial in nature and are not business records within the meaning of Evidence Code section 1271.
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People v. Dungo (2009) 176 Cal.App.4th 1388, 1401; see also Melendez-Diaz, supra, 129 S. Ct. at
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2538.
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The mere fact that there are certain procedures and guidelines for criminalists to follow with
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regards to their testing does not automatically render results reliable. As the Court in Melendez-Diaz
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NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 1 pointed out, “A forensic analyst responding to a request from a law enforcement official may feel

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

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

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

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

6 inherent untrustworthiness of hearsay statements.

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B. There was no other evidence presented at the preliminary examination, other
8 than inadmissible hearsay, that would support a holding order.
9 The only evidence presented to support Count One was inadmissible hearsay. Absent Officer
10 Smith’s testimony and the lab results, there is no reasonable basis for holding Mr. Jones to answer on
11 this charge. Officer Smith testified that, based on his training and experience, he believed the substance
12 to be rock cocaine. (PX 6:3-7.) Officer Smith has been a detective in the San Diego Police Department
13 for eight years and was assigned to the Central Narcotics Team Eight, which is an undercover team that
14 attempts to purchase narcotics at the street level. (PX 3:7-15.) His formal training with regards to sales
15 of controlled substances included twelve hours of academy training and eighty hours at the DEA
16 School of Narcotics Investigators. (PX 3:16-19.) He had been involved in over 200 undercover
17 operations and had purchased controlled substances in an undercover capacity over 100 times. (PX
18 3:19-22.) Clearly, Officer Smith’s training and experience is significant and, at the time of the sale, he
19 believed that what he purchased was a controlled substance. (PX 6:3-7.)
20 Furthermore, Officer Smith also conducted a chemical test on the substance, known as a N.I.K.
21 test. (PX 23:21-26.) This was a test he had previously conducted in other purchases, to determine
22 whether the substance was a controlled substance. (PX 24:4-14.) When he conducted the N.I.K. test in
23 this case, he was satisfied that the substance he had bought from Mr. Jones was cocaine base and there
24 was nothing in that test that made Officer Smith think differently. (PX 27:2-12.) Thus, there was no
25 testimony elicited at the preliminary hearing, other than inadmissible hearsay statements, nor any other
26 evidence presented to support a charge of sale of a substance other than a controlled substance.
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NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 1 CONCLUSION

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

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

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

5 Count One be dismissed.

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7 Dated: October 5, 2009

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Respectfully submitted,
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10 VINCENT GARCIA
Alternate Public Defender
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______________________ ________
13 JEFFREY REICHERT
14 Deputy Alternate Public Defender

15 PAULINE VILLANUEVA
Certified Law Clerk
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NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995