Notice of Hearing no fee

Cal. Super. - 6th Dist.October 19, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 21AP002754 Santa Clara - Civil R. Anagon . . Electronically Filed Wllllam Safford, CA Bar #286948 by Superior Court of CA, P.O. BOX 13241 County of Santa Clara, Chicago, Illinois 60613 on 2,3,2022 3:20 pM (847) 744-4903 . Reviewed By: R. Aragon saffordlegal@gma11.com case #21Ap002754 E I : 821 1 681 Attorneyfor Defendant-Appellant nve Ope IN THE SUPERIOR COURT FOR THE STATE 0F CALIFORNIA COUNTY 0F SANTA CLARA APPELLATE DIVISION PEOPLE 0F THE STATE 0F CALIFORNIA, Case No.: 1-21-AP-002754 Plaintiff and Respondent, (Misdemeanor Case N0. C2002864 ) V. UNOPPOSED MOTION T0 AUGMENT JUSTIN SAUL VANDERGRIFF, RECORD; MEMORANDUM 0F POINTS AND AUTHORITIES; SUPPORTING Defendant and Appellant DECLARATION BY COUNSEL [ Cal. Rules 0fC0urt, rule 8.873(6) ] UNOPPOSED MOTION T0 AUGMENT RECORD TO THE PRESIDING JUDGE OF THE APPELLATE DIVISION OF THE SUPERIOR COURT, THE CLERK OF THE ABOVE-ENTITLED COURT, THE DISTRICT ATTORNEY, AND ALL INVOLVED COUNSEL: Defendant-Appellant Justin Vandergriff, through counsel, hereby moves this Court for an order, pursuant to California Rules 0f Court, rules 8.873(0) and 8.841(a)(1), augmenting the record With transcripts of oral proceedings from: (1) the hearing and denial 0f Mr. Vandergriffs motion t0 suppress; and (2) the voir dire examination ofjurors. As cause for this Motion, Mr. Vandergriff asserts as follows: 1. Mr. Vandergriff appeals his conviction following a jury trial. 2. Upon information and belief, transcripts 0f oral proceedings, described in the attached memorandum, are either designated for inclusion by the Rules of Court 0r are likely t0 contain information directly relevant t0 claims of error to be asserted in this appeal. MOTION TO AUGMENT RECORD; MEMORANDUM; DECLARATION Page I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3. Pursuant to California Rules of Court, rule 8.873(c), this Court has the authority to order augmentation of the record. 4. Augmentation is necessary to preserve Mr. Vandergriff’s rights t0 due process and effective assistance of counsel in this appeal. 5. Mr. Vandergriff is indigent and cannot afford the cost 0f transcript preparation. 6. The People do not oppose augmentation 0f the record. In support of this Motion, Mr. Vandergriff asks this Court t0 consider the attached Memorandum 0f Points and Authorities and Supporting Declaration by Counsel, and any supplemental papers, exhibits, or arguments later submitted. Respectfully submitted this 3rd day of February, 2022. William Safford 286948 for Defendant-Appellant MOTION TO AUGMENT RECORD; MEMORANDUM; DECLARATION Page 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MEMORANDUM OF POINTS AND AUTHORITIES Defendant-Appellant Justin Vandergriff appeals the judgment of conviction in his criminal case, following a finding of guilty by a jury. However, the record (not yet been filed) Will be inadequate to allow a proper exploration 0f likely claims 0f error. In the memorandum that follows, undersigned counsel identifies records Which will be omitted and explains why these are necessary. I. PROCEDURAL HISTORY Mr. Vandergriff was found guilty by a jury on September 1, 2021, at the end 0f a seven-day trial (including deliberations). He filed a timely notice of appeal and undersigned counsel was appointed to represent him. Counsel recently obtained the clerk’s transcript and reviewed all materials therein. The reporter’s transcripts have been ordered, but not yet received and served. In the clerk’s transcript, counsel discovered a Penal Code section 1538.5 motion to suppress (CT 13-24), a prosecutorial opposition memorandum (CT 25-28), and a minute order indicating that the motion was heard and denied 0n February 19, 2021 (CT 41). Yet, according to the Notice to Court Reporter, a transcript 0f oral proceedings from that date has not been requested. (CT 264.) Additionally, counsel recently spoke t0 Mr. Vandergriff’ s trial attorney, Deputy Public Defender Roxane Farmer. During that conversation, counsel learned that, during voir dire examination ofjurors, the trial judge imposed significant limitations on Ms. Farmer’s ability to examine jurors. It is likely that the record contains objections t0 these limitations and offers of proof as to how Mr. Vandergriff’s rights were impaired by the limitations. II. LAW AND ARGUMENT Mr. Vandergriff may assign error in his opening brief based on either the denial 0f the motion to suppress 0r the imposition of limitations 0n the voir dire examination by Mr. Vandergriff’s attorney. However, it is too early, and the record too incomplete, to predict the Viability of these claims. The only MOTION TO AUGMENT RECORD; MEMORANDUM; DECLARATION Page 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 way to understand what happened, and determine Whether prejudicial error occurred, is t0 assemble a proper record. As to the first transcript - oral proceedings from hearing and denial 0f the suppression motion - inclusion of this in the appellate record is required by California Rules 0f Court, rule 8.865(a)(9)(A) [“oral proceedings 0n any defense motion denied in whole or in part”]. Accordingly, Mr. Vandergriff asks the Court t0 order its inclusion. As t0 the second transcript - oral proceedings from voir dire examination - this is not one of the proceedings designated by rule. (Cal. Rules of Court, rule 8.865(a)(3) [exempting “voir dire examination of jurors” from the designation of trial proceedings].) Yet, this Court has the power t0 order augmentation 0f the record With any documents or transcripts 0f oral proceedings not otherwise designated for inclusion. (Cal. Rules of Court, rule 8.873(0); rule 8.841(a)(1).) The goal 0f all this is a complete record, allowing for proper review and articulation 0f legitimate claims of error. The California and United States Supreme Courts point t0 “at least two ‘basic tools’ . . . that are constitutionally necessary for a ‘complete and adequate’ appeal by an indigent: (1) a competent attorney on appeal, acting as an advocate on behalf of the indigent . . . ; and (2) an appellate record that will permit a meaningful, effective presentation 0f the indigent’s claims”. (People v. Barton (1978) 21 Cal.3d 513, 518, quoting Britt v. North Carolina (1971) 404 U.S. 226, 227, further citations omitted.) The Supreme Court “considered What showing is required for augmentation . . . and concluded that ‘[all] that is required 0f [the moving party] is that he signify With some certainty how materials not included in the normal transcript may be useful to him on appeal.’” (People v. Gaston (1978) 20 Cal.3d 476, 482, quoting People v. Hill (1967) 67 Cal.2d 105, 124.) In response to confusion over this requirement, and erroneous claims that a high degree 0f specificity was necessary, the court clarified: “The showing 0f ‘some certainty’ must be made as t0 the manner in Which the materials may be useful, not as to the contents of the materials themselves.” (Gaston, supra, original emphasis.) MOTION TO AUGMENT RECORD; MEMORANDUM; DECLARATION Page 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 This relatively 10W standard recognizes the problem facing appellate counsel in identifying What errors might be recorded in a transcript not yet created. “The difficulty is compounded When a new attorney represents a party 0n appeal. As one commentator has noted, ‘[recollecti0ns] and notes 0f trial counsel and of others are apt to be faulty and incomplete. Frequently, issues simply cannot even be seen - let alone assessed - without reading an accurate transcript. Particularly is this true of questions relating to evidence or to the judge’s charge; and it may also apply to many other types 0f questions. Moreover, the actual record (if appellate counsel could have it t0 inspect) might disclose issues substantial enough t0 constitute probable 0r possible ‘plain error,’ even though trial counsel was not aware 0f their existence . . . . In short, a conscientious counsel freshly entering the case at the appellate stage normally is likely to conclude that a full or partial transcript 0f the trial proceedings will be indispensable if the requisite ‘dependable record’ is to be obtained as a basis for evaluating the case.” (Gaston, supra, 20 Cal.3d 476, 483, quoting Boskey, The Right t0 Counsel in Appellate Proceedings (1961) 45 Minn.L.ReV. 783, 793.) As explained above, the transcripts requested “may be useful” in analyzing potential claims 0f error. (Gaston, supra, 20 Cal.3d 476, 482.) Inclusion, under these circumstances, is necessary and just. III. POSITION 0F OPPOSING COUNSEL Prior t0 submitting these papers, undersigned counsel conferred With Deputy District Attorney Cheri Hawkins, counsel for the People. Ms. Hawkins indicated that the People do not oppose the augmentation request articulated above. Respectfully submitted this 3rd day 0f February, 2022. William Safford 286948 for Defendant-Appellant MOTION TO AUGMENT RECORD; MEMORANDUM; DECLARATION Page 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I, WILLIAM SAFFORD, California Bar #286948, under penalty of perjury, declare as follows: 1. 10. 11. 12. 13. MOTION TO AUGMENT RECORD; MEMORANDUM; DECLARATION SUPPORTING DECLARATION BY COUNSEL I am the attorney 0f record for Defendant-Appellant Justin Saul Vandergriff in Santa Clara County Superior Court Appellate Division matter number 1-21-AP-002754, an appeal taken from a conviction in Criminal Division matter number C2002864. Each and every statement herein is true t0 the best 0f my knowledge and belief, and is based 0n my own review of documentation or the credible assertions 0f individuals Who have personal knowledge of the facts 0f this matter. I am submitting this Declaration in support 0f the Unoggosed Motion t0 Augmem‘ Record, concurrently filed. I am in receipt of a partial record and have completed my review 0f the clerk’s transcript. On February 19, 2021, the trial court in docket C2002864 conducted a hearing of Mr. Vandergriffs Penal Code section 1538.5 motion to suppress evidence, and denied the motion. A copy 0f the minute order from that proceeding is attached as Exhibit A. The Clerk of Courts has directed preparation 0f transcripts 0f oral proceedings in this matter, a transcript of proceedings from February 19, 2021 has not been directed. A copy 0f the Notice t0 Court Reporter, issued October 19, 2021, is attached as Exhibit B. On August 23 and 24, 2021, the trial court in docket C2002864 conducted voir dire examination ofjurors. Copies 0f the minute order and trial minutes from August 23, 2021 are attached as Exhibit C. Copies of the minute order and trial minutes from August 24, 2021 are attached as Exhibit D. After my appointment to represent Mr. Vandergriff, I conferred with his trial attorney, Deputy Public Defender Roxane Farmer. Based on that conversation and my own review of documentation, I believe that the trial judge imposed limits 0n Ms. Farmer’s ability to examine prospective jurors during voir dire, and that Ms. Farmer preserved obj ections and demonstrations of prejudice for appellate review. Page 6 14. Based 0n my experience reviewing records and briefing appeals, I believe there is a reasonable likelihood that transcripts of oral proceedings from the suppression motion hearing and the voir dire examination ofjurors Will contain material supportive of claims of error. 15. Accordingly, I am asking the Court to order augmentation of the record with the transcripts identified above. 16. Prior t0 submitting these papers, I conferred With Deputy District Attorney Cheri Hawkins 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 17. 18. regarding the possibility of augmentation. Ms. Hawkins indicated she does not oppose this request. A proposed order, granting the request, is submitted concurrently to this filing. Executed this 3rd day of February, 2022. MOTION TO AUGMENT RECORD; MEMORANDUM; DECLARATION William Safford/ Page 7 286948 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 EXHIBIT A Minute Order [February I9, 2021 ] MOTION TO AUGMENT RECORD; MEMORANDUM; DECLARATION Page 8 L 13 HALL OF JUSTlCE CASE No. 32002354190 W. HEDDING GEN 19047327 SAN JOSE. CA 951 10 DAT§2I19f2021 1:309M DEPT pEQPLE vs, VANDERGRIFF. JUSTIN SAUL QEGHQQS CA W325334 CDY BK‘N LM 39m THE WOODS DR WA Emma M CBZIO SAN JOSE m. 95136 mebaEFMonoN To 311999533 EVIDENCE pc°1533 s HON. RAMOS. LUIS M HEARING 195447304 22212 JACKSON L0m2! JUDGE GLENDENEN. AURA rsfigTLgs-a mw. on-pm WREPORTEWER PUBLIC DEFENDER .w Warmnmmt Wei Dt 1124201: DEF. Am. D.A K054“ [1A9 a‘l\ APo cHARGES om v023152(a) M , 002 VC23152(b) M om, Jaws W ng IT NEXT APPEARANCE / m/m QI q:® m4- Q D Defendant Present w Not Present dAtty Present V&rNu/ D@IDO .‘Specla1 App/General D Arr'd U Adv D ArrWav D Amend Compfainl D Arr D Plea U [DC D PTC D Prob/ Sent D Interpreter D Sworn D NG D Entered by CRT E] NGBRI [Adv U Bail! OR! SORP D VOP U Further D BailApp1y D Ba1ance Exonerated D Denies priorslAllegalionsl EnhancemenlsIRefusal D Readiness D Jury D CT U Prop 36 Review U Bail Exoneraled D Forfeited Bondfl D TW D TNW D TW/WD D TW Sentence U Referred: D Reassumptlon Filed D Forfeiture Set Aside D Ball Rein D LDM: D LDT: D Defendant Ordered to Appear D 5 Costs Within 30 Days to Court 8D Ref] App! PD I AD! IDO D Con Dec] U Adm AIF D Appearance ls waived D il' proofis In file SORPIOR D Revoked D Reinslaled c g Reliev- . 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Wav Righlto D Counsel D CounlJury Trial D SubpoenalConfronl r‘ Examine Witnesses D Self-incriminalion D Written Waiver filed D Plea [Absentia @c-j D COP D GUILTY D NOLO CONTENDERE lo charges a admits enhancements / allegalionslpriors D Arbuckle D Factual Basis found D Findings sta D Prop SGIPDP Granted I UnamendabIQI Refused I Rein I Term Fee S D APO Full Rpl/Waives Referral D CR110 Issued D BOF1022ICRm D Atty concur w/ plea admission D Sent Suspended FINESIFEES: D Report to DTAC to set up pymt plan wlin 30 days fifilease E] PROBATION DENIED Pay to: D DTAC D Coum Today a Audit # 3;L PROBATION D Imposition of sentence suspended for probation period COUNT $ + PA $ U SD COURT U FORMAL PROBATION GRANTED FOR Days I Mos/Yrs COUNT $ + PA S EMAT 5 3U - D Repun lo APO within Days D Terminated D Upon Release AIDS I CPP $ + PA $ SORP $ Z D Perform Hrs Volunteer Work as directed APO I SAP I CAP D in lieu o! fine/Jail LAB 5 + PA $ (D D May do in County DRF I RF S Add'l RF S Susp PC1202.44I45 D Not dn‘ve wlo valid DL a Ins D Adv V023500 D HTO D Re-refer AEF S Original Fine $ D MOP D FOP U 12 hrs D 3 mos D 9 mos Enroll m‘lhin days SECA S CTS P0290115 S D DL Susp I Restr’d I Rvk'd for D IID Noll Ordered! Rmv'd Term Yrs [CMF S TOTAL DUE ' S D No contact with victim 0r family I co-defendants unless appr by APO D Victim Present ICIN S Payments Granted] Modified I Pay wlin 90 days D PO issued I’mod I tenn'd Exp D No Contact/Peacefu1 AR S $ [Mo beginning D DSA med D Nol own/possess deadly weapons D Agency: SHELTER S FINE STAYED D Destruylrelum weapon Case No: DV S Commilled @ $ Iday D May Pay Oul D Slay away from ATTY S Consechonc lo D Submit Search I Testing D EdudVoc TrnglEmpl U No atmhot I drugs or where sold Fine! Fees D Deemed Satisfied U Commuted U Collecl CiV'Iily D Substance Abuse, Psych, Theft. Anger Mgmt, DV, Parenting‘ Minors In Possession PRNVEST S D PISUP $ [Mo U Waived U PCZQG (DNA) D PC1202.1 HIV TesllEducalion U CJAF $129.75I3259450 S D Addl'l FEE waived VOP: D Wav D Arr’d D Admilstenies Viol D COLll'l Finds VOP." N0 \{OP U SEGA, ICMF. ICIN. CJAF, PINVEST. PSUP FEES NOT COND. OF PROB Prob Rein I Mod! Term‘dl Revoked l Remains Revoked l Ext to U Gen U Restil 3 lo D Original Terms 8. Conditions Except as Amended herein D Obey All Laws U Reslit Admln Fee NTE 15% of lotal U Reslit Admin Fee Waived U Co-Iermlnous wilh D No Funher Penalties I Reviews Other: JAIUPRISON D See Attach! Pg D Dress oul for Trial UShower DHaircul County Jail Count M - Wolation HRS/ DAYS! MOS \ \-\ ' CTS = ACT + U PC4019 D ‘/2 = Total Total Term County Jail D Straight Time D WWP PC1209 Fees D Waived U Court Rec AH! Except D EMPIPSP/ERPIRCPIWWPIIN CAMP/NP D No ERP D Sent Deemed Served D May do WWP lhrough SAP D in County D Consec D Cont: lo D Bal CJ Susp D All but HrleayslMos/Yrs D On Cond CompIBIe Residential Treatment Prgm D Serve Consec MOH'U/WEITHJFRJSA/SU D Pre-process AMJPM D StayISurrender to @ AM/PM or Sooner D REMANDED-BAIL $ D REMAIN As SET D N0 BAIL U COMMITrED E] RELEASED EJ OR El SORP D JAC PHONE ASSM'T D AS COND OF SORP U BAIL INCREASE! REDUCE D TO PRGM AS REC BY JAC-DOC TO ARRANGE TRANSPORT UPON AVAIL BED D STATUS Remains DISTRIBUTION: ORIGINAL - FILE. GREEN - DOC. BLUE - CJIC I DOFI PURPLE - PROBATION. BROWN - DEFENDANT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 EXHIBIT B Notice t0 Court Reporter [ October 19, 2021 ] MOTION T0 AUGMENT RECORD; MEMORANDUM; DECLARATION Page I 0 SUPERIOR COURT 0F CALIFORNIA, COUNTY 0F SANTA CLARA FOR COURT USE ONLY STREET ADDRESS: 191 N. Hrszscreet San Jose Cairfomia 95113 Filed MAILING ADDRESS: 191 North firstsueet OCtObel’ 19, 2021 crrY AND ZIP CODE: SanJosé, California 95113 Clerk 0f the Court BRANCH NAME: Appeals Division Superior Court Of CA PLAINTIFF: THE PEOPLE 0F THE STATE 0F CALIFORNIA county 0f santa Clara . C2002864 RESPONDENT: JUSTIN SAUL VANDERGRIFF By; jrodriguez CASE NUMBER: C2002864 NOTICE TO COURT REPORTER A Notice of Appeal was filed in this office 0n (1 0l11/21 )2 (Copy of notice attached) A Certificate of Probable Cause was filed on (): (Copy of notice attached) The following proceedings are to be transcribed: (Please notify us immediately if you were not the reporter on the date assigned.) DATE PROCEEDING REPORTER] CSR # JUDGE 08/04/2020 Trial Minutes Electronic Recorder Nona L Klippen 08/23/2021 Jury Trial (Day 1) Keith Rowan #13548 Evette D Pennypacker 08/24/2021 Jury Trial (Day 2) Keith Rowan #13548 Evette D Pennypacker _ ‘ Jury Trial (Day 2) (PM)) Monica Comer #1 1017 Evette D Pennypacker 08/25/2021 Jury Trial (Day 3) Tanya Holland #1 1412 Evette D Pennypacker 08/26/2021 Jury Trial (Day 4) Jackie Barron #8049 Evette D Pennypacker 08/30/2021 Jury Trial (Day 5) Suzie Thomas #12622 Evette D Pennypacker 08/31/2021 Jury Trial (Day 6) Suzie Thomas #12622 Evette D Pennypacker 09/01/2021 Jury Trial (Day 7) Suzie Thomas #12622 Evette D Pennypacker 10/01/2021 Probation & Sentencing Keith Rowan #13548 Evette D Pennypacker * Indicates Lead Reporter (if one is assigned) ** indicates reporter is no longer employed by the court You are to transcribe the proceedings. opinions or arguments as listed in CRC 8320/8865 excluding voir dire examination and opening statements unless otherwise specified. You are directed t0 prepare and file with the Appeals Division an Original and TWO cogies (Felony cases require one paper copy for defendant) of the transcript 0n appeal within 20 days from the date of the filing 0f the Notice of Appeal or as ordered, unless the time is extended as provided by CRC 851618.866. If you have already prepared and Original and TWO cogies for one defendant, only make one more copy for each additional defendant. Copy of this notice mailed or delivered to the above named reporter(s) on this date: October 19, 2021 The Notice of Appeal was received by the Appeais Department 10/1 1121 Clerk of the Court ClerkM ‘ I V Deputy Jaymie Rodriguez CR-1 623 [Rev 419/1 9} Page 1 of 1 08/24/2021 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 EXHIBIT C Minute Order and Trial Minutes [August 23, 2021 ] MOTION T0 AUGMENT RECORD; MEMORANDUM; DECLARATION Page I2 C A EN . 11 Hmor JUSHCE ORRECTION _ 35,84 ° @002354 1%W HEDDING 19047327 PEOPLE VEAN JDSE, CABS‘ETQ AUG 2 @flwm1 9110M}! 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DTAC I CRT D Filed AR S [Mo begInning D Not awanossas deadly weapons D Dlsposey/retum weapon SHELTER FINE STAYED D Stay away from DV Committed @ S (day D May Pay Out D Submit Search [Testing D EdudVoc ITrnglEmpI D No alcoho1 [drugs orwhere sold ATFY ConsedConc to U Substance Abuse. Psych. Thefi. Anger Mgmt. DV. Parenfing cnsl f prgrn Fme I Fees D Deemed Satisfied D Commmed D P0296 (DNA) D PC1202.1 HIVTesH Education PflNVEST U PISUP S [Mo D Waived VOPIPRCSIMS: D Wav D Arr‘d D Admllleenies Viol U Court Finds VOP I No VOP D CJAF S129.75!$259.50 $ _ U Add” FEE waived PrUbIMS/PRCS Rein I Mod I Term'd I Ravnkedl Ramalns Revoked I' Ext to D SECA. ICMF. ICIN. CJAF. PINVEST. PSUP FEES NOT COND. 0F PROB D OriglnaiTenns a Conditions Emapl as Amended harem D Obey All Laws D Raslituflon D Gen S to D Co-lerminous with D No Furthar PenaMes I Reviews D Realitulian as detem‘lined by Court D Collect civilly Other: D Restlt Admln Fee NTE 15% or toIaI D RestitAdmIn Fae Waived JAIUPRISDN D See Anacht Pg U CDCRJParofe called restil [ram Dafs Earnings D Blend Sentence U Dress oul (or Trlal DShowar DHalrcut County Jail Pn'son T JY l ISUkn IMOS Enhancement Yrsls Enhancement YmIS Enhancemenl YmIS Enhancement YrslS Enhancement YrslS Total CTS = ACT+ U Pmmg D ‘/: D 1/3 D PC2933,1 = Total Total Ten'n CDCRI PC 1170hJ'CJ U Slraighl Time U WWP FC1209 Fees D Waived U Coud Rec All I Except D EMP/PSP/ERPIRCPIWWPIIN CAMPINP U Sent Deemed Served D Rpl lo Parole wfin D AdleRD YrslMos Paro1elMStPRCSIAppeal RJghls D Consec D Con: to U Bal Cd Susp U All but HlleayslMoleRS D 0n Cond Complete ResMenlial Treatment Prgm D Serve Cansec MOHUNVEFI’HIFR/SNSU D Pre-process AWPM D Slay! SurrenderlTranspon to @ AWPM or Sooner D REMANDED-BAIL S U REMAIN A5 SET D NO BAIL D COMMITTED U RELEASED D OR D SORP D JAG PHONE ASSM'T D P36 D AS COND OF SORP D BAIL lNCREASE/REDUCE U TO PRGM AS REC BY JAGDOC TO ARRANGE TRANSPORT UPON AVAIL BED U STATUS REMAINS nIDTDIDI I‘TlnM- nnlfllklfll _ Cll E aDZEM . nnr‘ III I [C . f‘ "P I nnn DI Ififil fl _ DDHDATIHKI nnnlllll - nCECKIHAKI‘I’ SUPERIOR COURT OF CALIFORNIA. COUNTY 0F SANTA CLARA FOR COURTUSE ONLY STREET ADDRESS: 190 W. Hedding Street, San Jose. CA 951 1 0' MA1L|NG ADDRESS: 191 N. First Street' CITY AND ZIP CODE: San Jose, CA 951 13" BRANCH NAME: Hall of Justice ESQRRESTION PLAINTIFF: AUG 2’1 2521 PEOPLE 0F THE STATE OF CALIFORNIA D GRISWELL DEFENDANT(3): 3%“ JUSTIN SAUL VANDERGRIF gm“m,“ CASE NUMBER: TR'AL MINUTES 02002364 08123121 DAY1 Judge; EVE‘I‘FE D PENNYPACKER Reporter; KEITH ROWAN Interpreter: Clerk: DAVID D CR'SWELL This cause came on regularly fortrial before the Court sitting with a jury. J Defl. No. 1 J Present wto attyA J with/by atty. ROXANE FARMER Defi. No. 2 Present w/o arty. withlby atty. Defi. No. 3 Present w/o atty. with/by attyA Deft. No. 4 Present w/o atty. with/by arty. I Deputy DistrictAtty. JOEL GORMAN Jurors were drawn, examined and chailenged according to the attached schedule, and there being no further challenges, the following jurors were sworn to try the case. and render a true verdict, according to the evidence All jurors being present at each session of the trial. and they having been admonished at each adjournment. (Sec. 1122 P.C.) 1. 5. 9. 2. 6. 10. 3. 7. 11. 4. B. 12. Alternate Jurors 1. 2. MOTION TO EXCLUDE WITNESSES: M Granted D Denied OTHER: MOTIONS IN LIMINE ARE HEARD AND RULED UPON [JURY SELECTION BEGINS OPENING STATEMENTS: By: and by: CR-6027 REV 10/06 TRIAL MINUTES - CRIMINAL Page1 of2 PLAINTIFF: PEOPLE OF THE STATE 0F CALIFORNIA CASE NUMBER DEFENDANT(S): C2002864 08123121 DA PROCEEDINGS: Wstnesses called by plaintiff: Exhibits on behalf of the plaintiff: marked / admitted l released 1. Sworn 1. D D D 2 Sworn 2. D D D 3. Sworn 3. D D D 4 Sworn 4. D D D \Mtnesses called by defendant: Exhibits 0n behalf of the defendant: marked [admitted / released 1. Sworn A. D D D 2. Sworn B D D D 3. Sworn C. D D D 4. Sworn D D D D BOTH l ALL PARTIES REST. ARGUMENTS: By and by MATTER SUBMITTED: The Court makes Its orderthat defendant(s) be found D guilty D not guilty of a violation of section The Court instructed thejury and they retired at , in charge of a sworn officer to consider a verdict andreturned at into open Court with the following verdict: THE PEOPLE OF THE STATE 0F CALIFORNIA, Plaintirrvs. JUSTIN SVANDERGRIFF . Defendant; VERDICT. WE THE JURY IN THE ABOVE MENTIONED CASE FIND THE DEFENDANT: Dated: Foreman: POLLING OF JURY: D Waived D Not Waived Requested by Jury returned into open Court and stated they were unable to agree upon a verdict, and after questioning by the Court. the Court determined thejury was unable to reach a unanimous verdict and declared a mistrial. The Court thanks, lifts the admonition, and discharges the jury. AII jury identifying information is ordered sealed. Jury returned into open Court Jury retired for further deliberation l Further trial continued to AUGUST 24, 2021 Exhibits ordered released pursuant to stipu1ation of all parties (see above listing) CR-6027 REV 10:06 TRIAL MINUTES -- CRIMINAL Page 2 o! 2 SUPERIOR COURT OF THE STATE 0F CALIFORNIA COUNTY OF SANTA CLARA HONORABLE EVETTE D PENNYPACKER, Presiding DEPARTMENT 36 Clerk: David D Criswell Date: August 23, 2021 Reporter: Keith Rowan Deputy: Staff THE PEOPLE 0F THE STATE Case N0: C2002864 CALIFORNIA, Plaintiff, District Attorney: Joel German Vs. JUSTIN SAUL VANDERGRIFF Defense Attorney: Defendant, Roxane Farmer Nature ofProceedings: Jury Trial Day 1 Joel German is present for the People. Roxane Partner is present with Defendant. 11:20am Out 0f the presence 0f the venire. All are present and in their proper places. The Court calls the above entitled matter for trial by jury. The Court and counsel address Motions In Limine. Rulings as stated for the record. 11:56am Lunch. 2:10pm Ofi‘the record Jury panel 36-A assembles in the courtroom. 45 panelists are present in Department 36 and 45 are present in Department 35. The clerk takes roll and swears in the venire as prospective jurors. 2:30pm On the record: The Court calls the above entitled matter for trial byjury. The Court welcomes the venire. The Court addresses the venire regarding trial process and scheduling, and introduces them t0 the case and the parties. The Court explains hardship request process. Panelists requesting a Hardship Excuse fill out form. Nature ofProceedings: Jury Trial Day 1 PAGE 2 3: 1 5pm The Coun addresses Hardship Requests and excuses the following panelists: 1, 3, 12, 14, 16, 21, 23, 29, 33, 36, 39, 41, 42, 44, 45, 48, 52, 54, 61, 62, 66, 68, 71, 72, 74, 75, 78, 79, 81, 84, 85, 90. 3:30pm 24 members 0f the venire are seated. The Court begins voir dire ofthe first 24 panelists. 4:30pm The venire is given the statutory admonition and is excused to 9:30am on 08/24/21. Counsel and Defendant are directed t0 return at 9:00am. Adjourned. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 EXHIBIT D Minute Order and Trial Minutes [August 24, 2021 ] MOTION T0 AUGMENT RECORD; MEMORANDUM; DECLARATION Page I8 CASE NO. ’1 HA L CF JUSTICE GEN {32002834 90 W- 1 EDDING 19047327 “ "‘“ JCXEE, Cf-z £35113) PAIEUEEM 9:69AM DEPT- 38 PEOPLE VS Usmimfiir; min am: 9 :33.335 A ‘nmfifiifiL CDY Kt N L-KAA- "371‘. 3;"33"3333 BF: :3533 323:2: EF' 3’3 L. 5AM u ~35 CA 95135 CLERK JURY TRIAL mm. 7:. :9. .='.‘ 31:53: BETTE HEfiR'NG 4w: a - :19 2 - JAMSON JUDGE R3423; :LEZIH Wm}! u:- LFflTUS mr' oar"rmREPORTER/ER b.3413 LEf-‘Q;E;L QQ wmvm rt fin; gt 13 g DEF. ATrY. CHARGES 0m *1323152 a) m , 092 VC23 152(k)) M %ja§lo')1ng D56 N TAPPEARANCE 4,, fiefondant Present D Not Present U App. Wav filmy Present Fmfig AD®/.|DO I Special App/GeneraI D Arr'd D Adv U Arr Wav U Amend Comp/Info D Arr U Plea D IDC D PTC b Prob I Sent D Inlerpreter D Sworn D P0977 D Filed D On Fire D Replr. Adv/ Wav E] NG D Entered by CRT D NGBRI IAdv U Denies pn‘ors [Allegationsl Enhancements [Refusal DTW D TNW D‘IWIWD DTWSentenca D RefIAppl PDIADI [DO U Con Decl D Adm NF D Relieved Appt'd D Hrg on Mtanet. U Granted D Denied U Submitted D Off Cal D Stip to Comm D Drs. Appointed D Prelim Wav D Certified to General Jun’sdlclion D Amended to D (M) vc23103(awc12500(a) PLEA CondllIons: D Jail I Prison Term ol' D Ball! OR! SORP D Rect Dr Rpt D FAR! ERC U Bail Apply D Balance Exoneraled U PSal U Prelim U Readiness D S l B MTC D Bail Exonerated D Forfeited D Further D Rerd D APO] SUTSI Prop 35 U VOP Hrg D Crim Proc Susp D Rein D Status Hrg D Doubt Decl Pur PC 1368 U Capacity YeslNo D Subrn on Repofl D Found U Max Term U Commifled D MDA I COM Amended lo Bond# Jury D CT D Peo! DefWav Jury D Reassumplion Filed D Forfeiture SelAside D Bail Rein D S Cosls Within 30 Days lo Court SORPIOR D Revoked D Reinslated E] BW Ordered $ U Stayed D To Issue D No Cite Release/SCIT D No Request D Cash Only BW D SelAslde D Recalled D Remain Out D PurV023103.5 D DA Stmt Filed Other: D None D No Slate Prison D P017 afier1 Yr Prob D Includes VOP Drooom x w chm /c-{’))\ WP 2W”IQ l) J'CJWDM D Add lo Cal D VacalL pending dale D Dismissal! Striking i Subm time of Sent D Harvey Stip D Adv Max Pen l ParolelProb ilmmig lAppeaI D Reg HS11590IP0290/PC457.1IPC186.30 U FSF D Fineleees D PC29800129805/30305/D BOF1022/CR210 D Wav Right to D Counsel D Court I Jury Trial D SubpoenaIConfrontl Examinewnnesses D Self-incriminalion D Written Waiver med D Plea I Absentia filed D COP U GUILTY D NOLO CONTENDERE to charges & admits enhancements! allegatlons l priors fl PC17 U Arbuckfe U Factual Basis found D Flndings stated D Prop 36 Granted I Unamenable I Refused [Term D YA-DEJ Eliglb Flled U PDP/YA-DEJ Granted I Rein l Term Fee $ D Atty concur wlplea admission D Waives Referral D APO Full Rpt D CR11O Issued FINESIFEES: D Rpl DTAC D w/i 30 days D of release Pay to: D CourU Today D Audil# D Sent Suspended D PROBATION DENIED COUNT $ + P A S PROBATION D Execufion U Imposition of senlence suspended for probation period COUNT $ + P A $ D Pur P0290,3 D COURT D FORMAL PROBATION GRANTED FOR Days lMos/Yrs AIDS l CPP S + P A $ D Pur P012025 D Report to APOIPTS m‘lhin Days D Tenninaled D Upon Re!ease DPF $ + P A $ EMAT $ U Perform Hrs VolunteerWork as directed APO I SAP I CAP D in lieu of fineJJail LAB $ + P A S D Not drive wlo valid DL a Ins D Adv VC23EOO D HTO DRF I RF $ Add'l RF $ Susp PC1202‘44J'45 D MOP D FOP D 12 hrs U 3 mos U 9 mos Enroll wilhln days D Revrefer AEF $ Original Fine $ D DL Susp I Reslr'd/ Rvk'd for U IID Noll Ordered I Rmv'd TBrm Yrs SECA S CTS P029005 $ D No contact with victim or family] co-defs unless appr by APO U P0120205 ICMF $ TOTAL DUE S D DVPO Issued! mod Herm‘d Exp D Victlm Present ICIN $ Payments Granted I Modified/Pay D No Conlacl D Peaceful Contact DDSA thru APO! DTAC I CRT D Filed AR $ $ [Mo beginning D Nol ownlpossess deadly weapons D Disposey/return weapon SHELTER $ FINE STAYED D Stay away Irom DV $ Committed @ S Iday D May Pay Out D Submit Search I Testing D EdudVoc lTrnglEmpl D No alcohol] drugs orwhere sold ATTY $ ConsedConcto D Substance Abuse, Psych, Thefi. Anger Mgml, DV, Parenling cnsl Iprgm S Fine I Fees D Deemed Satisfied D Commuted D P0296 (DNA) D PC1202.1 HIV Test/ Educalion PIINVEST $ U P/SUP $ J’MO D Waived D CJAF 3129151525950 $ U Addl'l FEE waived D SECA. 1CMF. IClN. CJAF. F’INVEST, PSUF’ FEES NOT COND. OF PROB D Restitutlon U Gen 5 to D Restitution as determined by Court D Cotlect Civilly ‘JOPIPRCSIMS: D Wav U An”d D Admits/Denies V'IOI D Court Finds VOP! No VOP Prob/MSIPRCS Rein lMod I Term'dl Revoked I Remains Revoked I Ext to D Original Terms & Conditions Except as Amended herein D Obey All Laws D Co-terminous with D No Furiher Pena1liesi Reviews Olhar. D Reslit Admin Fee NTE 15% of total D Restil Admin Fee Waived JAILIPRISON D See Attachl Pg U CDCR/Parole oolleci restil from Def's Earnings D Blend Sentence D Dress out for TrIal DShower DHalrcut County Jair Counl FIM Vio1alion Prison Term I Yrs Enhancement! Priors Yrs! lStrkn HRS / DAV‘S l MOS Enhancement Yrs/S Enhancement YrslS Enhancement Yrs/S Enhancement YrsJS Enhancement YrslS Total CTS = ACT + U PC4019 D '/: D 1/3 CDCR/ PC 1170h/CJ D Slraighmme D WWP PC1209 Fees D Wa'wed D Coun Rec AJI/ Except E1 EMP/PSPIERPIRCPMWPIIN CAMP/NP D Sen! Deemed Served D Rp! lo Parole wfln_ D AdvIORD YrslMos ParolefMS/PRCSIAppeaI Rights D Consec E] Cone t0 D Ba! CJ SuSp D All but_Hrleays{MosNRS D On Cond Complete Residential Treatment Prgm D Serve Consec MOI'I'UM/EFI’I-UFRISAJSU D Pre-process AM/PM D Slay! Surrender/Transpon to @ AMIPM 01' Sooner D REMANDED-BAIL S U REMAIN AS SET D NO BAIL D COMMITTED D RELEASED U OR D SORP D JAC PHONE ASSM'T D P36 D AS COND OF SORP U BAIL INCREASE I REDUCE U TO PRGM AS REC BY JAC-DOC TO ARRANGE TRANSPORT UPON AVAIL BED D STATUS REMAIN GRFFN - DOC D P0293331 = Total Total Term A r‘IIQTDlRl ITIDM- ORIGINAI . l3” F HI [IF - CJIC I HOP F'l IHPI F - PROHATIDN RDOWN _ nFFFNnANT SUPERIOR COURT 0F CALIFORNIA. COUNTY OF SANTA CLARA FOR COURTUSE ON” STREET ADDRESS: 190 W. Hedding Street. San Jose. CA 95110' MAILING ADDRESS: 191 N. First Street" CITY AND ZIP CODE: San Jose. CA 951 13' BRANCH NAME: Hall OfJustice PLAINTIFF: PEOPLE OF THE STATE OF CALIFORNIA DEFENDANT(S): JUSTIN SAUL VANDERGRIFF CASE NUMBER: TR'AL M'NUTES c2002864 8124121 DAY 2 Judge: EVETTE D PENNYPACKER Reporter; KEiTH ROWAN I MONICA COMER Interpreter: Clerk: DAVID D CRISWELL This cause came on regularly fortn'al before the Court sitting with a jury. _/_ Deft. No. 1 LPresent_w/o atty. / with/by atty. ROXANE FARMER_ Deft. No. 2 _Present w/o arty. with/by atty. __ Defl. N0. 3 _Present wlo atty. with/by atty._ Deft. N0. 4 _Present_wlo atty. withlby atty. J Deputy Distn'ctAtty. JOEL GORMAN Jurors were drawn, examined and chalienged according to the attached schedule, and there being no funher challenges, the following jurors were sworn to try the case, and render a true verdict, according to the evidence. All jurors being present at each session of the trial, and they having been admonished at each adjournment. (Sec. 1122 P.C.) 1, 57 5. 38 9. 7 2. 70 6. 10 1o. 24 3. 17 7_ 15 11. 9 4. 34 8. 27 12. 30 Alternate Jurors 1.47 2. MOTION TO EXCLUDE WlTNESSES: M Granted D Denied OTHER: MOTIONS IN LIMINE ARE HEARD AND RULED UPON OPENING STATEMENTS: By: and by: CR-6027 REV 10/06 TRIAL MINUTES - CRIMINAL Page 1 or2 PLAINTIFF: PEOPLE 0F THE STATE OF CALIFORNIA CASE NUMBER: DEFENDANT(5,; 02002864 8I24I21 DAY 2 PROCEEDINGS: Witnesses called by pfaintiff: Exhibits on behalf of the plaintiff: marked / admitted I released 1 Sworn 1. D D D 2 Sworn 2. D D D 3. Sworn 3. D D D 4 Sworn 4. D D D \Mtnesses called by defendant: Exhibits on behalf of the defendant: marked {admitted I released 1, Sworn A‘ D D D 2. Sworn B D U D 3. Sworn C. D D U 4‘ Sworn D D D D BOTH [ALL PARTIES REST. ARGUMENTS: By and by MATTER SUBMITTED: The Court makes its order that defendant(s) be found D guilty D not guilty of a violation of section The Court instructed thejury and they retired at . in charge of a sworn officer to consider a verdict andretumed at into open Court with the following verdict: THE PEOPLE OF THE STATE 0F CALIFORNIA, Plaintirfvs. JUSTIN SVANDERGRIFF . Defendant; VERDICT, WE THE JURY IN THE ABOVE MENTIONED CASE FIND THE DEFENDANT: Dated: Foreman: POLLING OF JURY: D Waived D Not Waived Requested by Jury returned into open Court and stated they were unable to agree upon a verdict, and after questioning by the Court. the Court determined the jury was unable t0 reach a unanimous verdict and declared a mistrial. The Court thanks, lifts the admonition, and discharges the jury. All jury identifying information is ordered sealed. Jury returned into open Court Jury retired for further deliberation ( Further trial continued to AUGUST 25. 2021 at 9100M“ Exhibits ordered released pursuant to stipulation 0f ail parties (see above listing) CR6027 REV 10:06 TRIAL MINUTES - CRIMINAL Page 2 or 2 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA HONORABLE EVETTE D PENNYPACKER, Presiding DEPARTMENT 36 Clerk: David D CrisweII Date: August 24, 2021 Reporter: Keith Rowan AM Deputy: Staff Monica Comer PM THE PEOPLE OF THE STATE Case N0: C2002864 CALIFORNIA, Plaintiff, . District Attorney: Joel Gorman Vs. JUSTIN SAUL VANDERGRIFF Defense Attorney: Defendant, Roxane Farmer Nature 0f Proceedings: Jury Trial Day 2 Joel Gonnan is present for the Pe0ple. Roxane Farmer is present with Defendant. 9:12am Out 0fthe presence 0fthe venire. The Court calls the above entitled matter for continued trial byjury. The Court and counsel address Motions In Limine. 9:29am Recess to allow venire to assemble. Venire assemble in Department 36 and Department 48. 9:40am On the record. All are present and in their prOper places. The Court welcomes the venire. The Court resumes voir dire. 10:36am Sidebar. 10:40am Return. Jurors 4, 60, 82, and 88 are excused for cause. 10:44am Break. 11:05am The Court resumes voir dire. llzléam The Defense begins voir dire 0fthe venirc. l 1:57am Sidebar. 11:59am Jurors 20 and 43 are excused for cause. 12:00pm Lunch. Nature of Proceedings: Jury Trial Day 2 PAGE 2 1:45pm Off the record. Reporter Monica Comer replaces Reporter Keith Rowan. The venire assembles. 1:47pm On the record. All are present and in their proper places. 1:48pm The Defense resumes voir dire. 1:50pm The People begin voir dire. 2: 1 0pm Sidebar. 2:13pm Jurors 46, 49, 67, and 69 are excused for cause. 2: I 5pm Peremptory challenges are exercised. The People thank and excusejurors 18, 27, 65, and 65. The Defense thank and excusejurors 8, 13, and 83. 2:28pm The Court resumes voir dire. 3: 1 6pm Break. 3:28pm Off the record thejury assembles. 3:32pm All are present and in their proper places. The Defense resumes voir dire. 3:45pm The People resume voir dire. 3:55pm Sidebar. 4:01 pm Return. Jurors 22, 31, and 56 are excused for cause. 4:07pm Twelve members 0f the venire are sworn as jurors. _ Panelist 57 becomes Juror 1, 70 becomes Juror 2, 17 becomes Juror 3, 34 becomes Juror 4, 38 becomes Juror 5, IO becomes Juror 6, 15 becomes Juror 7, 27 becomes Juror 8, 7 becomes Juror 9, 24 becomes Juror 10, 9 becomes Juror 11, 30 becomes Juror 12. 4:09pm Sidebar. 4: I 0pm Return. One member ofthe venire is sworn as an Alternate Juror. Panelist 47 becomes Juror 13 /A1temate Juror I. The venire is thanked and excused. 4:21pm The Court addresses logistics and scheduling with thejury. The Court answers questions from the jury as t0 same. The jury is reminded 0f the statutory admonition and excused to 08/25/21 at 9:00am. 4:25pm Out of the presence 0f thejury the Court and counsel address cause challenges. The Court and counsel address Motions In Limine. 4:52pm Adjourned t0 08/25/21 at 9:003m. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CERTIFICATE 0F SERVICE I, the undersigned, am a citizen 0f the United States, over 18 years 0f age, and not a party to the above-entitled action. I hereby certify that, 0n this 3rd day of February, 2022, I caused a true and accurate copy of the foregoing UNOPPOSED MOTION T0 AUGMENT RECORD, MEMORANDUM 0F POINTS AND AUTHORITIES, and SUPPORTING DECLARATION BY COUNSEL to be served upon each of the following, either by electronic service With the consent 0f the party served, 0r placement With the United States Postal Service in a sealed envelope with postage prepaid, as indicated below: Kaci Lopez, Supervising Deputy Cheri Hawkins, Deputy Pablo Wudka-Robles, Deputy SANTA CLARA COUNTY DISTRICT ATTORNEY k10pez@dao.sccg0v.org chawkins@dao.sccgov.org pwudka-robles@dao.sccgov.org m0ti0ns_dropbox@dao.sccgov.0rg William Safford/ 286948 for Defendant-Appellant MOTION TO AUGMENT RECORD; MEMORANDUM; DECLARATION Page 24