Brief Bank # B-631
NOTE: The text of the footnotes appears at the end of the document.
NEAL I. SANDERS
Attorney at Law – State Bar 87681
123 F Street, Suite C
Eureka, California 95501
Telephone: (707) 442-4200
Attorney for
JOHN DOE
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT DIVISION
JOHN DOE,
Petitioner,
vs. WRIT OF PROHIBITION/
MANDATE
SUPERIOR COURT OF THE STATE OF
CALIFORNIA IN AND FOR THE COUNTY
OF HUMBOLDT
Respondent,
THE PEOPLE OF THE STATE OF CALIFORNIA
Real Party in Interest,
__________________________________________/
TO: THE HONORABLE PRESIDING JUSTICE AND HONORABLE ASSOCIATE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT
Petitioner, petitions this Court for a Writ of Prohibition/Mandate compelling Respondent court to set aside its ruling of September 9, 1994, denying Petitioner’s Motion to Dismiss Made Pursuant to Penal Code §995 in People v. Humboldt County Superior Court case number and Petitioner further requests a stay of proceedings pending consideration of this writ. Petitioner alleges the following in support thereof:
I
Petitioner, is the defendant in the action entitled People v. Doe Humboldt County Superior Court case number
II
Respondent is the Superior Court of State of California in and for the County of Humboldt in which the case of People v Doe, is pending.
III
Real Party in Interest is the Humboldt County District Attorney’s Office which has an interest which is directly affected by this proceeding, in that said party is prosecuting the case of People v. Doe.
IV
Petitioner and two codefendants were arraigned on February 17,1994 on a criminal complaint filed in the Municipal Court of the Eureka judicial District, County of Humboldt, State of California, case number 00000 charging four counts. Petitioner and the codefendants each charged with: Count 1, a violation of Penal Code §182, [conspiracy to commit murder, shooting into an occupied building, assault with a firearm and participation in a criminal street gang]; Count 11, a violation of Penal Code §664/187, [attempted murder]; Count 111, a violation of Penal Code §246 [shooting into an occupied building]; Count IV, a violation of Penal Code §245, [assault with a firearm.] Each defendant was also charged with the following enhancements: 1) that the offenses were committed at the direction of and with the intent to promote a criminal street gang, Penal Code §186.22(b); 2) that a principal in the offenses was armed, Penal Code §12022(a)(1); 3) that the offenses were committed because of the victim’s race, Penal Code §4?9.75(b) and 4) that the defendant’s intentionally inflicted great bodily injury on the victim, Penal Code §12022.55. (A copy of the Municipal Court Complaint is attached as Exhibit.)
V
On March 8, 1994, the Humboldt County District Attorney’s Office convened a special grand jury in Petitioner’s case and testimony was taken on March 9, March 10, March 11, March 14, March 15 and March 16,1994. On March 17,1994 the prosecutor instructed the grand jury and argued the case. On March 17, 1994 the grand jury returned a four count indictment against Petitioner and the two codefendants. Petitioner was charge in indictment as he had been in the Municipal Court Complaint, namely: Count I, a violation of Penal Code §182, [conspiracy to commit murder, shooting into an occupied building, assault with a firearm and participation in a criminal street gang]; Count 11, a violation of Penal Code §664/187, [attempted murder]; Count 111, a violation of Penal Code §246 [shooting into an occupied building]; Count IV, a violation of Penal Code §245, [assault with a firearm.] Each defendant was also charged with the following enhancements: 1) that the offenses were committed at the direction of and with the intent to promote a criminal street gang, Penal Code §186-22(b); 2) that a principal in the offenses was armed, Penal Code §12022(a)(1); 3) that the offenses were committed because of the victims race, Penal Code §422.75(b) and; 4) that the defendant’s intentionally inflicted great bodily injury on the victim, Penal Code §12022.55. (A copy of the grand jury indictment is attached as Exhibit and the transcript of the grand jury proceedings is has been lodged with this court as Exhibit.)
VI
On March 24, 1994 Petitioner was arraigned on the indictment and entered pleas of not guilty to all counts. (See Superior Court minutes of March 24, 1994 attached as Exhibit .) Petitioner and both codefendants remain in custody having failed to post $500,000.00 bail.
VII
On May 17, 1994 petitioner filed a Motion to Dismiss the indictment pursuant to Penal Code §995. This motion was scheduled to be heard on July 27, 1994 at the hour of 8:30 a.m. (A copy of the Notice of Motion is attached as Exhibit.) A Supplemental Brief was filed by Petitioner on July 27, 1994. (A copy of the Supplemental Brief is attached as Exhibit.)
VIII
The Real Party in Interest, the Humboldt County District Attorney’s office, filed an two briefs in opposition to Petitioner’s Motion to Dismiss. Both briefs were filed on July 26, 1994. (A copy of the People’s Opposition Briefs are attached as Exhibit .) On August 1, 1994, Petitioner’s Motion to Dismiss was heard before Judge J. Michael Brown., Judge of the Superior Court. The arguments of counsel have been ordered prepared and will be filed with this court as soon as the transcript is completed. See the copy of the Order For Preparation of Transcript attached as Exhibit .) The court gave the prosecutor until August 5, 1994 to file a supplemental brief and gave Petitioner’s counsel until August 8, 1994 to respond. The court informed both counsel that the matter was stand submitted as of August 8, 1994. No further briefs were filed by either party on Petitioners motion. A ruling on Petitioner’s motion was filed on September 9, 1994. (judge Brown’s ruling is attached as Exhibit .) Judge Brown’s ruling denied Petitioner’s motion in its entirety.
IX
Respondent Superior Court, should be refrained from further proceedings for the reason that the information filed by the District Attorney of Humboldt County as Real Party in Interest is invalid and ineffectual to confer jurisdiction on the court to try Petitioner. Petitioner’s right to due process was denied by the grand jury proceedings in this matter and the Respondent, Superior Court, acted in excess of its jurisdiction by denying Petitioner’s Motion to Dismiss. Further, no evidence was presented to the grand jury supporting any charge or enhancement relating to a criminal street gang.
X
Petitioner has no plain, speedy or adequate remedy at law. No appeal lies from the order of the Respondent court denying Petitioner’s Motion to Set Aside the Indictment. Petitioner is particularly aggrieved by the denial of Petitioner’s Motion to Dismiss the Indictment in that unless restrained and prohibited by order of this court, the Respondent court threatens to, intends to, and will entertain, pass upon, hear, try, and decide motions, proceedings, and the trial based upon the improper indictment. The trial in this matter is scheduled to begin on December 19, 1994. (See Clerk’s minutes of September 15, 1994, attached as Exhibit .)
WHEREFORE, Petitioner prays that:
1. A Preemptory Writ of Prohibition be issued, restraining the Respondent Superior Court, it’s officers and agents, and all persons acting by and through it’s orders from taking any further steps or proceedings, including the trial currently scheduled for December 19, 1994, in the criminal action against Petitioner entitled People v Doe, Humboldt, County Superior Court case number , and that;
2. An alternate Writ of Prohibition be issued directing and requiring the Respondent Superior Court to show cause before this court, at a specified time and place, why it should not be absolutely and forever restrained from taking any further proceedings against or making any orders effecting Petitioner in the proceedings described, until further order of this court;
3. And that a Writ of Mandate be issued directing and compelling Respondent Superior Court, to vacate it’s order denying Petitioner’s Motion to Dismiss pursuant to Penal Code §995 and that Respondent Court be directed to make a new and different order granting said motion and dismissing the attempted murder and criminal street gang allegations against Petitioner, and that;
4. Petitioner be granted such other and further relief as may be appropriate and just.
Date:
Neal I. Sanders
Attorney for Petitioner,
MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS
On October 14,1993 codefendant Roe wrote on a wall at the Kentucky Fried Chicken restaurant in Eureka with a felt pen. No one else was claimed to have been present with Mr. Roe when this vandalism occurred. (G.J.T. p-1211-1213; p.1219-1221.)
On September 8, 1993, Mr. W, an alleged member of the 18th Street gang, was shot in the foot in a drive by shooting committed by four Asians. (G.J.T. p.1111, 1114, 1119 & 1121.) On November l, 1993, Mr. C, another alleged member of the 18th Street gang, was assaulted by 15-20 Asians believed to be members of the 2030 Bloods. No one was with Mr. C at the time of the assault. The assault occurred as Mr. C attempted to cross 2030 Park in Eureka. (G.J.T. p. 617,1303)
On December 31, 1993 at approximately 12:30 a.m. (0030 hours military time) a yellow Cadillac, owned by Mr. J, an alleged member of the 18th Street gang, was shot several times while it was unoccupied and parked at 301 West Del Norte Street, Eureka. (G.J.T. p. 603,
On December 31,1993 at approximately 6:00 p.m. a person, some witnesses identified as defendant, entered the Bayshore Mall in Eureka and walked up to two Asian males. This person asked, “What’s up?” and the two Asians walked away without comment. The person identified as defendant walked outside the mall. The two Asians walked over to a group of Asians sitting near the windows at the food court. They stood up and looked at a yellow Cadillac parked outside the mall and saw the passenger in the front seat pull a gun and fire. Mr. T was struck in the abdomen with the bullet. Mr. T’s brother testified that he does not believe the shooter aimed the gun before firing.
After the shooting, the person identified as defendant entered the yellow Cadillac and sat in the rear passenger area. The car then sped off.
Defendant, as well as several other people including the co-defendants, were identified as being members of a group called the 18th Street gang. According to Eureka Police Department Detective Neil Hubbard, there was no purpose for the group other than to assure their own protection (G.J.T. p.859 L12-25).
No evidence was introduced that Petitioner or any other members of the 18th Street gang had ever attempted or committed any of the seven enumerated types of offenses listed under Penal Code §186.22(e), defining “pattern of criminal gang activity” for purposes of a gang offense or enhancement, prior to the shooting in this case. However, the prosecutor, instructed the grand jury that a pattern of criminal gang activity could be established by a finding that one of the gang members had previously committed a misdemeanor vandalism.
STATEMENT OF LAW
I
THERE EXISTS NO EVIDENCE TO SUPPORT A GANG OFFENSE CONSPIRACY OR A GANG ENHANCEMENT
A. THERE EXISTS NO EVIDENCE THAT THE 18TH STREET GANG EVER
COMMITTED A PRIOR PREDICATE OFFENSE AS REQUIRED BY PENAL
CODE §l86.22(e)
The standard of proof to determine the sufficiency of the evidence to support an indictment is the same standard as used to determine the sufficiency of evidence to support on information. People v Crosby (1962) 58 C. 2d 713, 725; 25 Cal.Rptr. 847.
As noted in Cuimmisky v Superior Court (1992) 3 C. 4th 101 8, 1029; 13 Cal.Rptr. 2d 551, probable cause to indict:
“. . . means such a state of facts as would lead a man of ordinary caution and or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. ‘Reasonable and probable cause’ may exist although there is some room for doubt.”[emphasis in original]
In 1988 the Legislature enacted the Street Terrorism Enforcement and Prevention Act, §186.20 et. seq. The Act established a new substantive crime of participation in a criminal street gang (P.C.§186.22(a).) and an enhancement for committing a felony, “. . . for the benefit of, at the direction of, or in association with any criminal street gang.” (P.C.§186.22(b).) The new crime can be charged as a misdemeanor or felony and as a felony carries the range of terms of one year, two years or three years. The enhancement adds the same range of terms unless the underlying felony is punishable by a term of life imprisonment, then the enhancement prohibits release on parole until a minimum of 15 calendar years are served.
Both the new crime and enhancement require that the prosecution prove that the defendant actively participated in a criminal street gang.
“[C]riminal street gang” is the linchpin for the acts provisions. The phrase is defined specifically, and its application requires proof of multiple elements. A criminal street gang is defined as “[1] any ongoing organization, association, or group of three or more persons, whether formal or informal, [2] having as one of its primary activities the commission of one or more [of the eight specified crimes [footnote omitted]], [3] which has a common mane or common identifying sigh or symbol, [4]whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (P.C. §186.22, subd. (F), italics added.)
In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1000; 279 Cal.Rptr. 236.
In the present case Petitioner does not, at this level, contest the sufficiency of the evidence supporting elements one or three above. It is Petitioner’s position that no evidence supports elements two and four above, namely that the 18th Street gang has as one of its primary activities the commission of any of the enumerated felonies or that it has engaged in a pattern of criminal activity.
A “pattern of criminal gang activity” is defined as “the commission, attempted commission, or solicitation of two or more of the [seven specified crimes], [Footnote 1] provided at least one of those offenses occurred after [September 23, 1988] and the last of those offenses occurred within three years after a prior offense and the offenses are committed on separate occasions, or by two or more persons. . .” (Penal Code §186.22 (e).)
Several cases have discussed the ambiguities inherent in the above definitions. In re Lincoln J. (1990) 223 Cal.App.3d 322, 328; 272 Cal.Rptr. 852 reversed a finding that a juvenile had committed the substantive crime of a violation of P.C.§186.22(a). In Lincoln J. the juvenile, in the company of other members of the BTF gang, chased another youth with baseball bats and crowbars. The court found the petition true charging the juvenile with assault by means of force likely to produce great bodily injury (Penal Code §245 (a)(1)) and charging an enhancement and substantive offense of participating in a criminal street gang (Penal Code §186.22 (a) and (b).) The Court of Appeal held:
In this case, the requirement that “at least one of those offenses occurred after the effective date of this chapter [i.e., September 23, 1988, footnote omitted] is satisfied by the evidence establishing the offense charged in count II, i.e., assault by means of force likely to produce great bodily injury (§245, subd. (a)(1)), which occurred on March 28, 1989. However, there is no evidence in the record to establish this offense “occurred within three years after a prior offense” which was committed on a separate occasion, or by two or more gang members. No evidence was presented to show that members of the BTR gang had engaged in any of the eight enumerated offenses within three years previous to the charged offense.
People v. Gamez (1991) 235 Cal.App.3d 957 is another case interpreting P.C.§186.22(b). There the court discussed the temporal relationship between the charged crimes and the predicate offenses which is required to establish a pattern of criminal gang activity. In Gamez, certified copies of the other gang member’s convictions of predicate offenses were introduced. The court noted that “…[t]he predicate offenses were factually and temporally distinct, and thus occurred, as required, on separate occasions.” Id. at p.978 FN 8.
In the present case, no prior criminal conduct of the 18th Street gang members was shown. The deputy district attorney conceded that they were relying solely on the actions of the three defendants on December 31, 1993 to establish the gang allegations; i.e. the single gun shot into the Bayshore Mall which wounded the victim.
The trial court denied Petitioners Motion to Dismiss the gang allegations holding that no prior activity need be shown because the charged offenses were listed under P.C. §186.22(e) and there were “multiple gang participates.”
The trial court apparently relied upon language in In re Nathaniel C., supra, 223 Cal. App.3d 990,1003: “. . .that the offenses be committed on separate occasions, or by two or more persons. . . .” Evidently, the trial court did not consider the requirement, noted in In re Nathaniel C., that there exist at least one prior offense. Id. at p. 1002. In In re Nathaniel C. the appellate court assumed, without discussion, that a predicate offense could occur after the charged offense. (In that case, the charged offense occurred on October 12,1989 and the predicate offense occurred “. . . a few months before the March 1990 hearing.”) As later held in People v. Gamez, supra, 235 Cal.App.3d 957 the predicate offense(s) must precede the charged offense otherwise due process problems are created. (“In short, an individual who violates subdivision (b) [of Penal Code §186.22] does so at the peril that the history of the gang will reveal the predicate offenses.” Id. at p. 976.)
Thus, the pattern of criminal activity must occur prior to the charged offense. The statute requires that there be two enumerated offenses separately committed prior to the charged offense however, these offenses can occur in a single incident if the prior offenses are committed by two or more persons. In other words, the statute requires at least two prior offenses; these two offenses must have occurred on separate occasions if only one gang member is involved. If more than one gang member is “committing” offenses then the two offenses can arise during the same prior incident. In re Nathaniel C., supra, 228 Cal.App.3d 990,1003.
The above interpretation is, in fact, one of the holdings of Nathaniel C. In Nathaniel C. the juvenile was a member of a gang known as the Tongan Family or simply the “family.” In response to a rival gang’s stabbing of one of the family’s members, on October 12,1989 the family decided to retaliate by beating up the rival gang at a local park. Several Family members got into a van. Two of the members were armed with baseball bats and one was armed with a handrail piece.
When the van arrived at the park the Family members with baseball bats and the handrail got out and chased members of the rival gang. When one of the rival gang members turned and pointed what looked like a gun at them, the Family gang retreated. The gang member with the handrail testified at the hearing that he would have used the handrail to beat a rival gang member if one had been caught.
. . . [T]he statute does not require that each predicate offense be committed by two or more persons. To constitute a “pattern,” the statute requires only that the offenses be “committed on separate occasions, or by two or more person. . .” (§186.22, subd. (e), italics added.) The use of the disjunctive in defining “pattern or criminal gang activity” means a pattern can be established by two or more incidents, each with a single perpetrator, or by a single incident with multiple participants committing one or more of the specified offenses. For example, the October 12, incident in Cypress Park had the potential for constituting a “pattern of criminal gang activity.” However, the evidence failed to show that more than one member of the Family actually engaged in the “commission, attempted commission, or solicitation” of an assault with a deadly weapon. Therefore, that incident alone cannot establish the pattern as defined and required by the statute. The criminal street gang enhancement finding thus depends on the sufficiency of the evidence of assaults committed on separate occasions.
The court did not find that because others aided and abetted the juvenile with the assault with the handrail they committed the multiple acts required Penal Code §186.22 (e). Separate criminal acts by more than one gang member in the incident were required. (See People v. Jose T. (1991) 230 Cal.App.3d 1455,1462-1463; 282 Cal.Rptr. 75.)
The term being defined is “pattern of criminal gang activity”. The word “pattern” has a clear unambiguous meaning i.e. a regular, mainly unvarying way of acting or doing. One act clearly does not make a pattern, under anyone’s definition. Every case that has considered the question has held that at least one prior enumerated felony must have occurred before upholding the finding of a criminal street gang. In the present case, as concede by the prosecutor at argument on Petitioner’s motion, no prior criminal conduct was ever presented to the grand jury. The trial courts ruling on the issue is clearly erroneous.
B. NO EVIDENCE EXISTS THAT THE 18TH STREET GANG HAS AS ONE OF ITS
“PRIMARY ACTIVITIES” THE COMMISSION OF ANY OF THE OFFENSES
ENUMERATED IN PENAL CODE § 186.22 (e)
The Grand Jury Transcript is devoid of any evidence that one of the primary activities of the 18th Street Gang, is one or more of the offenses listed in Penal Code §186.22(b)
Even viewed in a light most favorable to the judgment, the evidence is insufficient to show that a primary activity of the Family is commission of one or more of the eight specified offenses, as required by section 186-22, subdivision (f). [Footnote omitted.] This is not to say that the evidence failed to show that criminal conduct is a primary activity of the Family. But the statutes focus is much narrower than general criminal conduct; evidence must establish that a primary activity of the gang is one or more of the listed offenses.”
In re Nathaniel C. , supra , 228 Cal. App.3d 990,1004
In the present case, there was no evidence of any prior criminal conduct by the 18th street gang, much less conduct that would fall,within the enumerated felonies of P.C.§186.22(e). The only evidence presented to the grand jury concerning the activities of the gang was in response to a grand jurors question to Eureka Police Department Detective Neil Hubbard.
A GRAND JUROR: He had mentioned that the 18th Street Gang is a coalition, if you will, or a group for, it looks like, self-protection. Does 18th Street Gang here that we’re talking about and the people that he mentioned have any other purpose, perhaps free enterprise, for [lack of] a better word than that?
BY [PROSECUTOR]:
Q. Mr. Hubbard, have your investigations regarding the 18th Street Gang disclosed evidence to you that there is another purpose for the formation of that group or the continued existence of that group?
A. Other than?
Q. Other than for their own protection.
A. Not that I know of.
(Grand Jury Transcript p. 859 L12-25)
For the foregoing reasons, Defendant respectfully requests that the gang allegations contained in Court 1 of the indictment and the P.C. §186.22(b) enhancement be dismissed.
II.
PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED BY THE PROSECUTORS CONDUCT AT THE GRAND JURY PROCEEDINGS
The first California case to address the issue of due process in relation to grand jury proceedings was People vs Backus (1979) 23 Cal. 3d 360. There the California Supreme court noted that both the United States Supreme Court and California Supreme Court had not, prior to that time, confronted the issue.
“In Johnson [v Superior Court (1975) 15 Cal. 3d 2481, this court found it unnecessary again to reach the due process issue since we determined that the prosecutor is compelled under State law to reveal to the grand jury the existence of exculpatory evidence in order that the grand jury may exercise its power under Penal Code § 939.7 to obtain that evidence. We recognize, however, that the Fifth Amendment guarantee that a defendant not be held to answer in a federal prosecution and for capital or otherwise infamous crimes “unless on a presentation or indictment of a grand jury” presumed a grand jury acting independently of the prosecutor or judge, and that the function of the grand jury, “as a protective bulwark standing solidly between the ordinary citizen and an over zealous prosecutor” [citation omitted], was equally that of a state grand jury. (Johnson vs Superior Court, Supra, 15 Cal.3d 248, 253-254.) If the grand jury can not fulfill its obligation to act independently and to protect citizens from unfounded obligations (In Ray Tyler (1984) 64 Cal. 434, 437 [1 p.88841]) when not advised of relevant exculpatory evidence, neither can it do so if it is invited to indict on the basis of incompetent or irrelevant evidence.” People v Backus, supra, 23 Cal. 3d at p. 392-393.
The court in Backus held that the nature and extent of the inadmissible evidence “. . . was not such that it may have compromised, the independence of the grand jury and contributed to the decision to indict. “[Emphasis added] Id at p.393. The court thus did not grant reversal.
The court in Backus considered the issue of inadmissible evidence overcoming the grand jury’s fact finding function. In this case certain inadmissible evidence was allowed to come before the grand jury (e.g. the district attorney’s accusations of perjury against several witnesses, the request for certain witnesses to take polygraph tests, the unsupported opinions of officers concerning the interpretation of gestures, etc.) Of equal importance to these grievous errors are the due process violations occasioned by the prosecutor’s misinstruction of the grand jury. The prosecutor’s simple, clear and totally inaccurate instructions to the grand jury fatally infected grand jury’s deliberations concerning the gang charge and enhancement and the attempted murder charge.
The prosecutor instructed the grand jury that they should base a gang finding upon the predicate offense of vandalism. (G.J. T. p. 1442) Even one of the grand jury members questioned the district attorney’s instruction,
“A GRAND JUROR- I’m a little — it’s a little circular, and so I may be off and may be picking up part of it that I don’t understand, but what I understand was these crimes had to be listed under the — included under the phrase “felonious criminal conduct,” and my questions is, is graffiti-painting a felony?
MS. TUNISON-CAMPBELL: I think that I need to read it [to you] again, because the term “felonious criminal conduct” is part of this section, but it is not a requirement of a pattern of criminal gang activity.” (See G.J.T. p. 1444 L9-18)
The grand juror, obviously confused, points at a significant paradox, yet the district attorney says that the “pattern of criminal gang activity” need not be a felony. This is a clear, unequivocally wrong statement of the law.
The whole purpose of a grand jury is perverted if the prosecutor is allowed to present any evidence to the grand jury and then instruct the grand jury that that evidence is sufficient to establish the crime. Such a procedure appears to have been borrowed from Lewis Carol’s Alice in Wonderland. It certainly does not comport with any reasonable notion of due process. (See Samdstrom v Montana (1979) 442 U.S. 510, 521-523; 61 L.ed. 2d 39).
Not only did the prosecutor misdirect the grand jury on the gang enhancement but also instructed the grand jury that attempted murder may be based upon implied malice.
The district attorney began her discussion of attempted murder by discussing the requirement that there be an intent to murder, a correct statement of the law. (G.J.T. p. 1389). However, she immediately confuses the legal issues by describing a case where “intent” was found because the defendant shot into a passenger train. The prosecutor states that such conduct shows “… the most premeditated, willful behavior with an intent so egregious that there can be nothing worse.”) G. J. T. p. 1389). She then discusses the “abandon and malignant heart” theory of implied malice (Penal Code §188) as if that would be a sufficient finding for the grand jury to make in determining the intent issue relating to attempted murder.
Attempted murder is a specific intent crime and the specific intent required is the intent to unlawfully kill a human being. (See CALJIC 8.66.) Yet, the prosecutor reinforces the misdirection again and again. (See p. 1391 and 1393.)
The error is particularly egregious because of the prosecutor uses the implied malice definition to establish the willful and deliberate elements of the attempted murder enhancement. (G.J.T. p. 1389)
Clearly, the prosecutors instructions to the grand jury were erroneous. The magnitude of the errors here clearly establish that the grand jury could not have performed its deliberative function independent of the errors. The errors committed by the prosecutor in her instructions to the grand jury deprived defendant of even the minimal due process required of grand jury proceedings.
CONCLUSION
For the foregoing reasons, Petitioner respectfully requests this court grant a stay in proceedings in the lower court until this Writ proceeding is concluded and that a Writ of Mandate issue directing the Respondent court to grant Petitioner’s Motion to Dismiss made pursuant to Penal Code §995.
Dated:
Neal I Sanders
Attorney for Petitioner,
Writ of Prohibition/Mandate Footnote:
Footnote 1: P.C.§186.22 as it existed on the date of the offenses charged in the indictment (December 31, 1993) list seven categories of offenses: 1) P.C.§245(a); 2) P.C. §211; 3) Unlawful homicide or manslaughter; 4) various drug offenses involving sale; 5) P.C.§246; 6) P.C.§450, and; 7) P.C.§136.1.
