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California Motion To Dismiss Indictment
California Motion To Dismiss Indictment
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF _______
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
v.
_______________________,
Defendant.
) Case: ________
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Respectfully submitted,
________________________
________________________
Attorney for Defendant,
________________________
Indictment was founded on less than reasonable or probable cause. (see, People v. Gnass (2002)
101 Clap.4th 1271; People v. Superior Court (Mouchaourab) (2000) 78 Clap.4th 403, 424-425)
For purposes of the Motion to Dismiss Count 1 of the Indictment, Conspiracy, Defendant
reasserts the Statement of Facts as set forth in his Motion to Suppress Evidence filed herein on
July 1, 2013. Additionally, Defendant requests that the Facts and Argument filed by Jessica
Garcia through her Attorney, Kirk Endres on July 15, 2013 commencing on Line 8 of Page 3 and
ending on Line 21, Page 6, as it addresses the issue of Misstatement of the Law by the
Prosecution when instructing the Grand Jury as to the elements of Conspiracy and what the
Prosecution has proven as to Count 1 of the Indictment.
3. INCOMPETENT AND INSUFFICIENT EVIDENCE AS TO COUNT 4,
EMPLOYMENT OF A MINOR TO SELL OR CARRY MARIJUANA, PRESENTED TO
THE GRAND JURY.
(a) Defendant, Carlos Espinoza, adopts the Statement of the Case; Grand Jury Evidentiary Rules:
Evidence of Youth and Arguments asserted by Defendant, Mario Baguada, through his attorney,
Jeffery Stulberg, as set f forth in his Motion to Set Aside the Indictment, filed on or about July
16, 2013 herein, (contained in Page 2, commencing on Line 9 and concluding on Page 6, Line 16
of the Defendant, Mario Baguadas Motion) and the Statement of the Case, Evidentiary Rules,
Evidence of Youth and related Arguments contained in the Motion to Dismiss filed by Codefendant Jesus Garcia Guzman, by this attorney Jeffry Radding on July 5, 2013, commencing at
Page 3, Line 6 and concluding on Page 9, Line 3, in addition to the Partial Grand Jury Transcript
commencing at page 100 and concluding on Page 103 Line 28, for the assertions that the
Prosecution failed to produce competent and sufficient evidence for the Grand Jury to return an
Indictment.
As to Defendant Carlos Espinoza, when detained, he was the sole occupant and driver of the
white Chevy Van. No evidence was produced to establish that Defendant Espinoza was aware of
the presence or age of the alleged minor, the subject of Count 4 of the Indictment.
(b) Testimony as to the minors age is based upon incompetent hearsay and thus inadmissible
in a Grand Jury Proceeding. Proposition 115, Truth in Evidence, does not apply to Grand Jury
proceedings. (see, for example, Crawford v. Washington (2004) 543 U.S. 1095 as it relates to
violation of confrontation clause) (The People have the burden of establishing by competent,
relevant and admissible evidence the fact of age. No such evidence was produced.
(c) The Prosecution must establish that Defendant, Carlos Espinoza, had knowledge of the
presence of a minor and that he knew that said minor was under the age of 18. It must
further be proven that the minor was employed by Defendant, or involved in the proscribed
conduct. No such evidence was produced. The Prosecution concurrently has the burden of
proving that the defendant did not reasonably and actually believe that the minor was at least
18 years of age. The Prosecution had the obligation to inform the Grand Jury of the Prosecutions
burden and that if that burden had not been met, an Indictment shall not be returned.
4. INSUFFICIENT EVIDENCE PRODUCED AT THE GRAND JURY PROCEEDINGS
TO WARRANT THE FILING OF THE GUN ENHANCEMENT AS TO COUNT 4
For purposes of this Argument, Defendant Carlos Espinoza asserts that the gun allegedly found
in a defendants possession, was allegedly located in a vehicle other than Defendant Espinozas.
There is no assertion nor evidence that Defendant Espinoza knew of the existence or presence of
said firearm. The prosecution will assert that they need not prove that Defendant Espinoza was
aware of the presence of the firearm in order to satisfy the requirements of possession if
Defendant Espinoza is a principal in the commission of one of the related offenses. (see,
People v. Overten (1994) 28 CA4th 1497, 1501)
For purposes of this Argument, Defendant reasserts his argument contained in Paragraph (2) for
the premise that the Prosecution has failed to establish the existence of a conspiracy as it
relates to Defendant Espinoza. Additionally, Defendant asserts that to uphold an almost 20 year
old ruling that is devoid of any equal protection or due process consideration is violative of
Defendant Espinozas Fifth and Fourteen Amendment U.S Constitutional protections.
CONCLUSION
Based upon the foregoing Argument and Statement of Facts, this Court is requested to Dismiss
the Indictment in its entirety as the People have failed to produce competent, relevant, reliable
evidence and legally correct instructions to the Grand Jury. In the alternative, Defendant requests
that Count 4 be dismissed in its entirety, including ;the Gun Enhancement.
Dated: April 27, 2015
Respectfully submitted,
________________________
ROBERT THOMAS ALLEN
Attorney for Defendant,
CARLOS ESPINOZA