1 LAW OFFICES OF THE PUBLIC DEFENDER

MARY J. GREENWOOD (99728)

2 CASEY CLIFT (160150 )
RODERICK O’CONNOR (209074)
3 PAULINE VILLANUEVA, Certified Law Clerk
County of Santa Clara
4 120 West Mission Street
San Jose, CA 95110
5 Telephone: (408) 299-7758

6 Attorneys for Defendant

Bob Jones
7
8
9
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
IN AND FOR THE COUNTY OF SANTA CLARA
11
12
PEOPLE OF THE STATE OF CALIFORNIA, NO. CC123456
13
Plaintiff,
14 NOTICE OF MOTION AND MOTION TO
vs. DISMISS PURSUANT TO PENAL CODE
15 SECTION 995; MEMORANDUM OF POINTS
AND AUTHORITIES
16
BOB JONES* (all party names and locations have been
17 changed), Date:
Defendant Time:
18 Dept.:
Time Est.:
19
20 TO THE CLERK OF THE ABOVE-ENTITLED COURT, AND
TO THE DISTRICT ATTORNEY FOR SANTA CLARA COUNTY:
21
22 NOTICE IS HEREBY GIVEN that on the 28th day of February, 2009, at 9:00 a.m., in

23 Department of the above-entitled court, the above named defendant will move the court to dismiss all

24 counts pursuant to Penal Code section 995, on the grounds that the evidence presented at the

25 preliminary examination was not sufficient to justify a holding order.

26 It is anticipated this motion will be based upon this notice, the attached Memorandum of Points

27 and Authorities, the transcript of the preliminary examination held on January 23, 2009, before the

28 Honorable Judge Eugene Hyman, and oral argument.

1
NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 1 The motion will require an estimated 15 minutes to hear, argue and submit.

2 Dated: February 1, 2009

3 Respectfully submitted,
4 MARY J. GREENWOOD
Public Defender
5
6
______________________ ________
7 RODERICK O’CONNOR
Deputy Public Defender
8
PAULINE VILLANUEVA
9 Certified Law Clerk
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 1 MEMORANDUM OF POINTS AND AUTHORITIES

2
3 ISSUE PRESENTED
4 The denial of a substantial right at a preliminary hearing results in an unlawful commitment,
5 thus requiring a holding order to be set aside upon a timely 995 motion. At his preliminary hearing,
6 Bob Jones was denied a substantial right, namely, the right to present the affirmative defense of
7 entrapment, because the committing magistrate incorrectly applied a subjective standard when
8 analyzing the defense. Because of this, Mr. Jones’s commitment was unlawful and the holding order
9 should be set aside
10 1. Did the court incorrectly apply subjective standard when looking at Mr. Jones’s
11 affirmative defense of entrapment?

12 2. Did this application constitute a denial of Mr. Jones’s substantial rights?

13
STATEMENT OF FACTS
14
On August 29, 2008, at approximately 4:19 p.m., the San Jose Police Department was running
15
an undercover narcotics operation, targeting crack cocaine dealers. (Preliminary Examination,
16
hereinafter “PX,” Page 7: lines19 to Page 8: line 6.) During that time, Officer Ochoa was working
17
undercover, in plain clothes, acting as a potential buyer of drugs. (PX 8:7-18.) Officer Ochoa
18
approached Mr. Jones and asked him, “What’s up? Are you trying to catch a bus?” (PX 16:6-9.) Mr.
19
Jones responded that he needed change to catch the bus. (PX 16:19-21.) When Officer Ochoa
20
indicated that he only had money, not change, Mr. Jones told him that he had been left stranded by his
21
girlfriend and that he needed change to catch the train for his four-year-old son. (PX 16:22-19:3.) Mr.
22
Jones continued to ask Officer Ochoa for change and Officer Ochoa repeatedly denied having anything
23
smaller than “twenties and tens.” (PX 17:8-19.) Finally, Officer Ochoa told Mr. Jones, “I’m just trying
24
to score out here. Once I score, I’ll have some change and I’ll come back. I know it might not be
25
something you’re into, but I’m just trying to score, and I’ll be back with change.” (PX 17:20-25.) At
26
that point, Mr. Jones indicated that he could help Officer Ochoa “score” in exchange for some money.
27
(PX 18:9-17.) Mr. Jones then procured two crack cocaine blocks for Officer Ochoa. (PX 10:5-7.)
28
3
NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 1 Following the transaction, he was subsequently arrested and positively identified by Officer Ochoa as
2 being involved in the transaction. (PX 10:8-13.)
3 At the preliminary examination, Mr. Clift attempted to put on an affirmative defense of
4 entrapment. (PX 22:12-25:5.) However, the court denied the affirmative defense, pointing out that Mr.
5 Jones, when searched, had none of the money he claimed to have when he first talked to Officer Ochoa.
6 (PX 24:18.) Furthermore, a glass pipe used for smoking cocaine was also found on Mr. Jones.
7 Looking at these factors, the court concluded that Mr. Jones was “obviously lying” to Officer Ochoa
8 and that Mr. Jones had received other payment for the transaction. (PX 24:28-25:5.) This evidence, the
9 court determined, precluded a finding of an affirmative defense of entrapment. (PX 25:4-5.)
10 ARGUMENT OF LAW
11
I. THE MOTION TO DISMISS SHOULD BE GRANTED BECAUSE MR. JONES WAS
12 DENIED A SUBSTANTIAL RIGHT, NAMELY, THE RIGHT TO PRESENT AN
AFFIRMATIVE DEFENSE.
13
Where it appears that, during the course of the preliminary examination, the defendant has been
14
15 denied a substantial right, the commitment is unlawful within the meaning of section 995, and it must

16 be set aside upon timely motion. Jennings v. Superior Court (1967) 66 Cal.2d 867, 874. “Substantial

17 rights within the meaning of section 995 have been held to include the right to counsel, cross-
18
examination and the presentation of an affirmative defense at the preliminary hearing, and substantial
19
procedural rights such as the statutory right to complete the hearing in one session and to have a closed
20
hearing. [Citations.]” People v. Pennington (1991) 228 Cal.App.3d 959, 964. Thus, the presentation
21
of an affirmative defense has been held to be a substantial right and the denial of that right would result
22
23 in the commitment being overturned.

24 A. The standard for entrapment in California is an objective test that does not
take into consideration the character of the suspect, his or her predisposition to
25 commit the offense, and his or her subjective intent; under this standard, an
26 entrapment defense could properly have been found.

27 It is well-settled that, in California, the test for entrapment is an objective test. Such matters as

28 the character of the suspect, his or her predisposition to commit the offense, and his or her subjective

4
NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 1 intent are irrelevant. People v. Barraza (1979) 23 Cal.3d 675, 153 Cal. Rptr. 459, 591 P.2d 947;
2 People v. Lee (4th Dist. 1990) 219 Cal. App. 3d 829, 268 Cal. Rptr. 595; Arellanes v. Civil Service
3 Com. (2d Dist. 1995) 41 Cal. App. 4th 1208, 49 Cal. Rptr. 2d 73. The test is what effect the police
4 officer’s conduct would have on an ordinary law-abiding citizen in a similar situation. The objective
5 nature of the test ensures consistent application of the test and prevents the success of an entrapment
6 defense from “turn[ing] on differences among defendants.” Barraza, supra, 23 Cal.3d at 688.
7 Focusing on Officer Ochoa’s actions in this case, it is evident that, absent his pressure, Mr.
8 Jones would not have been involved in a drug transaction. Specifically, it was Officer Ochoa who first
9 approached Mr. Jones and made contact, asking Mr. Jones if he was trying to catch a bus. (PX 16:6-9.)
10 Mr. Jones replied, “Yes. For the love of God, you got any change?” (PX 16:19-21.) When Officer
11 Ochoa indicated that he did not have any change, only larger bills, Mr. Jones told him that he had been
12 stranded by his girlfriend and was trying to get home to his four-year-old son. (PX 16:22-28.) Mr.
13 Jones continued to ask for change, to which Officer Ochoa finally suggested, “I’m just trying to score
14 out here. Once I score, I’ll have some change and I’ll come back. I know it might not be something
15 you’re into, but I’m just trying to score, and I’ll be back with change.” (PX 17:11-25.) It was only
16 upon that suggestion that Mr. Jones finally agreed to help Officer Ochoa “score” some crack cocaine.
17 (PX 18:2-17.) From this conversation, it is clear that Mr. Jones would not have been involved in any
18 sort of drug transaction without Officer Ochoa’s inducement.
19 B. The court incorrectly applied a subjective standard in analyzing Mr. Jones’s
claim of entrapment and thus denied Mr. Jones his substantial right of
20
presenting an affirmative defense.
21
The court’s rationale for denying the claim of entrapment involved looking at Mr. Jones’s actual
22
circumstances at the time of the transaction. The court specifically considered the fact that, after being
23
arrested and searched, Mr. Jones actually had no money on him. (PX 24:22-28.) Because of this fact,
24
the court concluded that Mr. Jones must have been lying to Officer Ochoa to begin with. (PX 24:28-
25
25:1.) Furthermore, the court noted that, in the court’s opinion, Mr. Jones got a “piece” as payment for
26
the drug transaction and thus, “[the] other stuff [was] a bunch of crap.” (PX 25:2-5.) There was no
27
evidence presented at the hearing that supported the court’s position.
28
5
NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995
 1 In Barraza, the California Supreme Court explicitly stated, “The success of an entrapment
2 defense should not turn on differences among defendants.” Barraza, supra, 23 Cal.3d at 688. The
3 focus is not on the situation of the defendant, but rather the actions of the officer and the effect they
4 would have on an ordinary, law-abiding citizen. Though cases have recognized that other factors than
5 the conduct of the officer must also necessarily be considered, see Barraza, supra, 23 Cal.3d at 690, the
6 courts have reiterated that subjective matters concerning the defendant should not be among those
7 factors. Id. at 690-91. The court’s emphasis on whether Mr. Jones actually had the money he claimed
8 to have—which was not determined until after Mr. Jones had been arrested and searched—was
9 incorrect, as that fact was immaterial to the claim of entrapment. By substituting his own subjective
10 opinion regarding Mr. Jones for the correct objective standard, the magistrate denied Mr. Jones his
11 substantial right to present the affirmative defense of entrapment at the preliminary hearing.
12 CONCLUSION
13 When the committing magistrate took into consideration Mr. Jones’s subjective characteristics,
14 he applied the incorrect standard for the defense of entrapment. In so doing, he improperly prevented
15 Mr. Clift from raising the affirmative defense of entrapment. This constituted a denial of Mr. Jones’s
16 substantial rights. For these reasons, Mr. Jones respectfully requests that all counts of the information
17 be dismissed.
18
19 Dated: February 1, 2009
20 Respectfully submitted,
21 MARY J. GREENWOOD
Public Defender
22
23
______________________ ________
24 RODERICK O’CONNOR
Deputy Public Defender
25
26 PAULINE VILLANUEVA
Certified Law Clerk
27
28
6
NOTICE OF MOTION TO DISMISS PURSUANT TO P.C. CODE SECTION 995