PEOPLE v. DAVEGGIO & MICHAUD

Appellants, Michelle Lyn Michaud and James Anthony Daveggio, Request for Judicial Notice

Cal.June 22, 2010

fy bes AY Rape HanusLae JUN 22 2016 Froceriak , Ohiren Clerk Deputy — IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, California Supreme Court No. $110294 vs. Superior Court No. JAMES ANTHONY DAVEGGIO AND No. 13414 MICHELLE LYN MICHAUD Defendants and Appellants. APPELLANTS’ MOTION FOR JUDICIAL NOTICE APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY THE HONORABLE LARRYJ. GOODMAN, PRESIDING David H. Goodwin, State Bar #91476 P.O. Box 93579 Los Angeles, Ca 90093-0579 (323) 666-9960 Attorney for appellant James Anthony Daveggio Janyce Keiko Imata Blair State Bar No. 103600 302 W. Grand Avenue Suite 3 El Segundo, CA 90245 (310) 606-9262 Attorney for Aapellant Michelle Lyn Michaud IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Superior Court No. Plaintiff and Respondent, No. 134147 VS. California Supreme JAMES ANTHONY DAVEGGIO AND MICHELLE LYN MICHAUD Court No. S110294 Defendants and Appellants. MOTION FOR JUDICIAL NOTICE; DECLARATION OF COUNSEL; [PROPOSED] ORDER TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Appellants James Daveggio and Michelle Michaud, by and through their attorneys of record, David Goodwin and Janyce Keiko Imata Blair, hereby respectfully request, pursuant to Evidence Code sections 452 and 459 and Rules 8.252, subdivision (a)(2) and 8.630, subdivision (h) ofthe California Rules of Court, that this Court take judicial notice of the transcripts of certain proceedings in the trial record oftwo other automatic appeals now pending before this Court, People v. Ropati Seumanu (S093803) and People v. Keith Lewis (S086355). In People v. Ropati Seumanu, appellants request that this Court take judicial notice ofthe portion of the Reporter’s Transcript found at 17RT 3429. In People v. Keith Lewis, appellants request that this Court take judicial notice ofportions of the Reporter’s Transcript found at 25RT 4346-4347, 26RT 3992-3993, 4007-4008, 4345-4347, 4451- 4652, 4468, and 27RT 4659, 4665. In People v. Keith Lewis, appellants also request that this Court take judicial notice ofportions of the Clerk’s Transcript found at SCT 1151-1156. The pertinent portions of the transcripts are attached hereto, per Rule 8.252(c)(3), as is a proposed order. The motion is based on the Declaration of David Goodwin, also attached hereto, and on all the other files and recordsin this case pertaining to appellants Daveggio and Michaud. A court of appeal has the same poweras trial court to take judicial notice of any fact relevant to the action. Therefore, if the matter is an appropriate one for judicial notice, judicial notice may be taken by a court of appeal. (Evidence Code Section 459; Witkin, Cal. Evidence (3d ed., 1986) "Judicial Notice", §122,p. 103). Judicial notice in a capital case is governed by Rule 8.630, which incorporates Rule 8.252 by reference. Under Evidence Code section 452, subdivision (d), judicial notice may be taken of records of any court of this state. The documents attached hereto are records ofboth the Superior Court and this Court. DATE: June 2010 David Goodwin DATE: June 2010 ShiuaanJu,/2hes, { (aghyce Kdko Imata Blair DECLARATION OF DAVID GOODWIN I, David Goodwin,declare: 1. I am counsel for appellant James Daveggio. If called upon to do so, I could and would testify competently as follows. 2. Contemporaneously with this motion, I am filing appellant’s opening brief. 3. One of the arguments raised in appellant’s opening brief raises the issue of prosecutorial misconduct by Deputy District Attorney Angela Backers, the prosecuting attorneyattrial. 4. In particular, appellant has argued that the prosecutor in this case engaged in misconductby appealing to the passions and sympathiesof the jury, by engaging in highly emotional conduct, including engaging in arguments that had minimal probative value, but were conducted in a manner to maximize the emotional impact inherent in this type of case, and by seeking to admit irrelevant evidence of a highly emotional nature. 5. Additionally, it appears in the record that Ms. Backers’ voice was breaking with emotion during argument and she may havebeencrying. 6. In two prior cases of which appellants are asking this court to take judicial notice, it appears that Ms. Backers engaged in similar misconduct in maximizing the emotional impact of marginally relevant evidence and introducing highly emotional but questionably relevant evidence. Furthermore, in Lewis it also appears that Ms. Backers may havebeencryingin front of the jury. 7. Consideration of the above-cited record excerpts in People v. Ropati Seumanu and People v. Keith Lewis is probative in this cause becausethe record in those cases provide further confirmation that Prosecutor Backers engaged in such conductin the past, from which one can infer that this conduct wasintentional. 8. Furthermore, the fact that another attorney in a prior case claimed to observe similar conduct in the form of Ms. Backers crying, confirms the allegations made by the trial attorney in this case, due to the fact that if two people apparently independently claim to have observed this behavior, it corroborates the allegations of the people claiming to observe this conduct. 9. Copies of the transcript pages in Seumanu and Lewis cited above have been provided to me by appointed counsel in those cases, and copiesare included with this motion, in conformance with Rule 8.252, subdivision (c)(3). Those transcripts are also on file with this Court and in the offices of respondent, the Attorney General. These portions of the record include: Motion to Reduce Penalty to Life without Parole dated January 18, 2000, Lewis 5CT 1151-1156, is attached as Exhibit A A copy of 17RT 3429 from People v. Seumanuis attached as Exhibit B A copy of 26RT 3992-3993 from People v. Lewis is attached as Exhibit C A copy of 26RT 4007-4008 from People v. Lewis is attached as Exhibit D A copy of25RT 4345-4347 from People v. Lewis is attached as Exhibit E A copy of 26RT 4451- 4652 from People v. Lewisis attached as Exhibit F A copy of27RT 4659 from People v. Lewis is attached as Exhibit G A copy of27RT 4665from People v. Lewis is attached as Exhibit H A copy of27RT 4668 from People v. Lewis is attached as Exhibit I 10. This matter was not the subject ofjudicial notice in the trial court, as it does not appear that appellants’ defendants were aware of this conduct in other cases. 11. This matter relates to proceedings occurring prior to the judgmentthat is the subject of this appeal. I declare under penalty of perjury of the laws ofthe State of California that the foregoingis true and correct. Executed at Los Angeles, California, on June, 2010. David Goodwin Attorney for Appellant JAMES DAVEGGIO EXHIBIT A 10e oO o f e n DO oO FF WO N H N ® X ’ S & R R B B R B S E S R R E A E B E E S E E S 1151 FILED Marvin E. Levy ALAMEDA COUNTY Lorna Brown 201 University Avenue Berkeley, CA 94710 JAN 1 8 2000 510-8452769 CLERK OF THE SUPERIOR COURTBar No. 42944 By Qee2 su . - . wy CALIFORNIA SUPERIOR COURT, COUNTY OF ALAMEDA PEOPLE OF THE STATE OF NO. 128675 CALIFORNIA, Plaintiff, Dept. 13 vs. MOTION TO REDUCE PENALTY ) TO LIFE WITHOUT PAROLE KEITH LEWIS, ) (Penal Code §190.4(e)) Defendant THIS COURT HAS A LEGAL AND MORAL OBLIGATION TO REDUCE THE JURY’S VERDICT TO LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE A. THETRIALJUDGE’S DUTY Section 190.4(e) of the Penal Code requires that thetrial Judge shall review the evidence and make a determination as to whetherthe jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstancesare contrary to the law or the evidence presented. In part because, as usual, the codeis poorly written (outweigh substantially is omitted) the courts have been forced to interpret 190.4(e}. + — © O N A n a w h N O e t t fe et S X F HF E F E B B R B E S R R R E R E B I S 1152 While the penal code sets forth the general obligation ofthe trial judge, the California Supreme Court hastried to set forth in a little more detail the actual responsibilityPlaced upon the trial judge, and that responsibility places upon the trial judge the sole burden of personally and individually deciding the appropriate penalty, death orlife without the possibility of parole. In People v Rodriguez (1986) 42 Cal.3d 730, 793, the Court held that in determining whetherin his or her independent judgmentthe weightof the evidence supported theverdict, the judge was required to assess the credibility of the witnesses, determine the probative force of the testimony, and weigh the evidence. In People v Frierson (1991) 53 Cal.3d 730,751, the Court held that the trial judge must independently reweigh the evidence and then determine whether, in the trial court’s independentjudgment, theweight of the evidence supports the jury verdict. In People v Marshall (1990) 50 Cal.3d 907,942, the Court held that thetrial judge must determine whetherthe jury’s decision that death is appropriate under all circumstances is adequately supported, and he must make that determination independently; that is, in accordance with the weight he himself believes the evidence deserves. In People v Crew (1991) 1 Cal.App.4% 1591, 1601, the appellate court, citing Supreme Court cases, held thatthetrial judge’s function in ruling on a section 190.4(e) motion is independently to reweigh the evidence of aggravating 2 o o a n A n oN B WO N Y b a t t e d P X Y R & R R S S R S E S R B R R R E E B R E E = ® 1153 and mitigating circumstances and then to determine whether,in the judge’s independentjudgment, the weightof the evidence supports the jury verdict. In People v Williams (1988) 45 Cal.3d 1268, 1329, the Court, by strong implication, held that under 190.4(e) thetrial court reviews the law and the evidence as the “thirteenth juror.” (The defense had argued thatthe thirteenth juror standard should have been used by the trial judge. The Supreme Court held that, “Assuming withoutdeciding that the court was in fact required to apply such a standard, we are of the opinion that the court did indeed review the law and evidenceas thethirteenth juror.”) Andfinally, in the case of People v Hatch (1998) 66 Cal.App.4t 1510, the appellate court distinguished a dismissal under P.C. 1385, insufficient evidence, from the granting of a new trial based on a verdict contraryto the evidence. The former constituted an acquittal while the latter was not an acquittal. The court here, in Footnote 4, cited the case of Tibbs v Florida (1982) 457 U.S. 31, 102 S.Ct 2211, which held that an appellate court acts a thirteenth juror whenit disagrees with the jury’s resolution of conflicting evidence. The moral and common senseconclusion that must be reached from the case lawis that the laweffectively and literally places uponthetrial judge the sole responsibility to determine the penalty under 190,4(e). In effect, and in reality, the trial judge must make an independent judgment. As the jury wasinstructed, so too thetrial judge hastotal and absolute discretion to choose the penalty the trial judge personally and morally believes to be appropriate. . Ae me ee n e e e e Ae r e e r m e e t e e oO o n OO OG BR WD NO eo N D R e t t S X Y S R R S E S L B R S R B R R E R E R B E R U E 1154 In the end the trial judgeis free to chooselife without parole because of sympathy, mercy, understanding, moral or religious beliefs, or personal or moral doubts. B. THE EVIDENCE DOES NOT JUSTIFY THE DEATH PENALTY Based on the entire record, including the court’s observations of all parties in the trial, and throughoutthetrial, the trial judge should conclude that the evidence did notlegally or morallyjustify the verdict of death. The evidence of defendant's state of mind, the entire day of the killing, was absolutely overwhelming; he acted “crazy”, a person whose years of cocaine addiction lead to a state of cocaine induced psychosis. Call it what you will, the fact of the utter craziness of his behavior that entire day, and all that lead to the terrible tragedy, must dictate that the only legal and moral verdict to belife without parole. The onlyjustification for the death penalty is the fact of his killing a “beautiful” six year old “baby.” There simply, andtragically, is no other justification for the juryr’s verdict. Thetrial judge must look beyond the killing itself, and consider the defendants life and his state of mind. The so-called kidnappingitself was carried out by a person who did not know whathe was doing, whose drug induced mind just acted without thought and reason. Without a kidnapping there was no death eligibility. A reasonably objective evaluation of the events ofthatterrible day should considerthis factor, and again, lead to the legally and morally correct verdict of life without parole. 4 N e w e r te e e e S e e m e a e s e 8 f e w e e . o o N O O Oo fF © N & B O N D O N t t t e t h ® o X ’ e a k R S S E S B R V H K G E R S B H E E S | 1155. C. THE JURY WAS EXPOSED TO EXCESSIVE, UNLAWFUL, AND INLAMMATORY EMOTION During the District Attorney’s opening statement, at the beginning of the trial, she cried for an extended periodof time. During testimonyat least 4 police | officers and other non police witnesses cried during significant portionsoftheir testimony. And during someofthis testimony, the District Attorney also cried. In the District Attorney’s final argument,in both the guilt and penalty phasesof the trial she cried, and in her final penalty argument, shecried for at least the last 30 minutes of her argument. This extensive amount of crying and emotion was extremely inflammatory, andin effect, such emotion displayed by professional witnesses and the District Attorney effectively conveyed to the jury the personal opinionsof these professional persons. Such display of emotion, so inflammatory, affected the juror’s verdict, absolutely. In People v Clark (1992) 3 Cal.441, the Court held that under the Constitution the jury must ignore emotional responsesthat are not rooted in the aggravating and mitigating evidence introduced during the (trial). In People v Ghent(1987) 43 Cal.3d 739, 771, it was held that references to retribution or community vengence are potentially inflammatory. Such might not be misconduct so long as such arguments do not form the principle basis for advocating imposition of the death penalty. o O O N W D wm i h WO NO & N O N D t e e d e 8 a a n r s S & F o a e r a a n r e a e c e r e s 1156 Theeffect of the District Attorney’s and police display of extreme emotion by; continual crying, was to advocate the death penalty, only becauseof the age and beauty of the “baby.” In this case such emotion was so prevalent that one has no reasonable way ofarguing anythingbut that the inflammatory emotion became the principle basis for advocating the death penalty, advocating not only by the District Attorney, but also by the professional police officers who so openly displayed their emotionsto the jury. In Ghent, at page 772, the court states that in future cases prosecutors should refrain from expressing personal views which might unduly inflame the jury against the defendant. This is exactly what the prosecutor did. As a result of such inflammatory influence on the jury thetrial judge should reduce the sentence to life without parole. CONCLUSION The court is strongly urged, for both legal and moral reasons, to reduce the jury’s verdict! Dated: January 17, 2000 EXHIBIT B 3429 CLOSING SUMMATION MS. BACKERS: MAY IT. PLEASE THE COURT, COUNSEL AND THE DEFENDANT, AND NOLAN'S FAMILY. THIS CASE IS ABOUT GOOD AND EVIL. IT IS ABOUT THE | JOYFUL BLISS OF THE ANTICIPATION OF YOUR WEDDING DAY WHICH IS --|REPLACED WITH SHEAR AND UNENDING TERROR; IT IS ABOUT NOLAN, AN INNOCENT BRIDEGROOM, A SON, A BROTHER, WHO BECOMES PAKI'S CAPTIVE. AND THE FIRST DAY OF THE REST OF YOUR LIFE NEVER | 4 nouns, | Mg ut hte IT IS ABOUT A BRIDE'S GIFT TO HER HANDSOME HUSBAND THAT BECOMES A MURDERER'S TROPHY. IT IS ABOUT A WEDDING THAT ‘BECOMES A FUNERAL, A PLEA FOR MERCY WHICH IS DENIED WITH AN INTENSE EXPLOSION THAT RIPS APART YOUR HEART. THE BREATH OF LIFE BECOMES BLOODY LUNGS FILLED WITH HOT PELLETS. AND YOU DIE, SCARED TO DEATH, BEGGING FOR YOUR LIFE, _|ALL ALONE ON YOUR WEDDING DAY. THAT IS THE DEFENDANT'S CRIME. THAT IS PAKI'S CRIME, THE CRIME FOR WHICH HE IS ON TRIAL. AND TODAY IS THE DAY WHICH HE MUST BE HELD ACCOUNTABLE FOR THIS HORRIBLE, BRUTAL MURDER.. | | ALMOST A MONTH AGO, MR. CIRAOLO STOOD BEFORE YOU AND | TOLD YOU THAT HIS GOAL WAS TO HAVE YOU ACQUIT HIS CLIENT OF THESE CHARGES, ACQUIT HIM OF MURDER, FIND HIM INNOCENT OF MURDER. HE WANTED YOU TO FIND HIM INNOCENT OF ALL THE CHARGED CRIMES: KIDNAPPING, ROBBERY, AND MURDER. HE WANTED YOU TO 36 |ACQUIT HIS CLIENT BECAUSE HE TOLD YOU HE WASN'T THERE. HE TOLD YOU HE WAS HOME WITH HIS WIFE. MR. CIRAOLO CLAIMED THAT THE EVIDENCE IN THIS case woutp /":“% LINDA D. THISSELL, CSR #5912 | < ANh EXHIBIT C 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3992, name is LaKeisha. Q. Is LaKeisha Franklin your godsister? A. Yes, ma'am. Q. And your niece is Shakuri? A Yes. Q How old was she at the time this happened? A. About two. Q. Were all three of you, you and LaKeisha and Shakuri, all three inside Pete's? A. Yes. Q. What happened after Fred tells you about that guy with a gun over on 64th? A. Well, I see all these police cars passing by, and I seen them behind this car. So I just was looking, and as I was looking, and then all of a sudden the car just -- I'm looking out the door, and the car just come to a halt in front of the other car, and Fred's -- it bumped into his car a little bit. And all of a sudden, it's the police cars behind, they tell the guy in the car to throw the gun out. So he put his hand out the window, threw the gun out, and police came to the car and apprehended him, you know, and put him in the car. And after they put him in the car, they came around to the other side and to get the girl out the car and try to bring her back. And I couldn't look no more, and the police came in the store. It was just a sad day. Everybody was just JAMES LEE, CSR NO. 4820 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3993 crying, everything. Q. What do you mean you just don't look no more? A. After they brought the little girl out the car, I seen all the blood. I couldn't look no more. Q. Where did you go? A. Back in the -- from the doorway back into the store. Q. Did you ever see the baby out on the sidewalk when they're trying to save her? A. All I seen, her -- when they pulled her out. That's all. And did you see blood on her? Yeah. Yes. Q. Thank you. When Fred Bell came into the store and told you about the guy with a gun, did you see Fred's car out front? A. Yes. Q. The car that ended up getting a little bit hit was his? A. Yes, it was. Q. Let me show you this photograph. That's People's Exhibit 10 for identification. In photograph A up in the right-hand corner, is that Pete's Market at 63rd and Avenal? A. Yes, ma'am. Q. Right out front along the curb, is that Fred Bell's car? A. Yes, it is. Q. There's a couple guys that are standing at the door JAMES LEE, CSR NO. 4820 N yY ~ HA NW PP W 10 11 12 13 14 15 16 17 18 i9 20 21 22 23 24 25 26 27 28 3994 in that picture. A. That the store owner. Q. The guy who is on the right, the older gentleman -- A. Yeah. Q. -- is that one of the store owners? A. Yes, ma‘am. Q. Is that the guy you referred to as Mohammed's brother? | A. Yep. Q. And then tell me, the car that he came in and tapped, Fred's car, is that shown on the right of that picture? A. Yes, that's it right there. Q. When was it that you recognized the driver of that car? A. After they pulled him out. MR. LEVY: I'm sorry, after what? Ms. BACKERS: They pulled him out. THE WITNESS: After they pulled him out. MS. BACKERS: Q. So before that -- before the driver of this car pulled to a halt, did you hear sirens before that? A. Yes, ma'am. Q. And did you go outside when you heard the sirens? A. I went to the door, and looking out the door, I seen all the police cars coming in. Q. Did you see the driver of that car actually hit Fred's car? A. Yes. JAMES LEE, CSR NO. 4820 EXHIBIT D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4007 Q. Did he seem crazy? No. You seem like you crazy the way you keep asking me so many illiterate questions. THE COURT: Mr. Starnes, you need to just answer the questions. MR. LEVY: Q. You noticed Keith before? A. No, no, no. MR. LEVY: That's it. No more questions. That's it. THE COURT: Miss Backers, anything further? REDIRECT EXAMINATION MS. BACKERS: Q. I want to make sure I heard you. You said that Keith didn't seem crazy? A. No, ma'am. Q. Can you describe how the police were? A. It was a very sad day. They were in the store crying and real upset. MR. LEVY: I -- MS. BACKERS: Excuse me? MR. LEVY: I'm muttering. I was going to object, but I'm not going to. MS. BACKERS: Q. When you said that -- when the defense attorney was asking you about a lot of activity, describe how the police were handling themselves. A. All the police were trying to really deal with it. It was really upset. The police was in the store real upset, erying. MR. LEVY: I'm objecting to this answer. It's not JAMES LEE, CSR NO. 4820 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4008 relevant, and it’s not -- MS. BACKERS: Counsel brought this up. THE COURT: The objection is overruled. The answer remains. MS. BACKERS: Q. Did you see more than one officer crying? A. Yes, I did, ma'am. MS. BACKERS: I don't have anything else. THE COURT: Thank you, Miss Backers. Mr. Levy. RECROSS-EXAMINATION MR. LEVY: Q. I guess I'll ask you this. If I could help you get out of prison earlier, would you be a little kinder to me? A. I'd be the same way to you, sir. You know what I mean? Wouldn't be nothing else I can say to change from you helping me. MR. LEVY: Okay. I have nothing else. THE COURT: Okay. Thank you. Miss Backers, anything further? MS. BACKERS: No thank you. THE COURT: May Mr. Starnes step down? THE WITNESS: I'd like to ask you a question, sir. THE COURT: I think what we better do, Mr. Starnes, is take a break now. THE WITNESS: Okay, sir. No problems. MS. BACKERS: I don't have any additional witnesses this morning, Your Honor. JAMES LEE, CSR NO. 4820 EXHIBIT E Ww W NN wo &© 1 HA H MH hf 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4345 And I believe that’s all we discussed in chambers. If I missed anything or either counsel wants to add to the record or correct me, please do. Ms. Backers? MS. BACKERS: That was accurate, your Honor, MR. LEVY: May I just sort of comment on it? THE COURT: Sure. Sure. MR. LEVY: Our objection was basically it wasn’t relevant to any issues involved in this case and that the prejudicial -- prejudice totally outweighed any probative value. And I claim there was no probative value. I would also indicate that Ms. Backers indicated that one -- I thought she meant, but she did Say, one of the reasons for his testimony was to show the movement of evidence by him. He never did that other than the backpack. Anyway, that was my objection. THE COURT: Okay. Do you want to respond to that, Ms. Backers? MS. BACKERS: The movement of the backpack is exactly what he did move and did describe and that is one of the major pieces of evidence in this case. He also described the position of Chantel when he found her. In addition to all the other reasons I stated, which the court has already included, for why it was relevant. Connie J. Parchman, CSR #6137 -» WwW NN Bb 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4346 oO oO o JN HH Ww THE COURT: Okay. The record will show that I have considered, as I always do, and in particular with respect to this objection and this area of testimony: and evidence, I very carefully considered Evidence Code Section 352 weighing probative value against prejudicial effect. I previously defined prejudice as the Courts of the State define it. I will incorporate that definition. I feel there is probative value here and that it is substantial. The prejudicial effect as prejudice is defined by the case law is minimal. And so I have made that balancing test. I have considered it in that light and feel that the probative value substantially outweighs any prejudicial effect. But the record should reflect the objection was made and was made in a timely manner. MS. BROWN: May I add one thing, your Honor? THE COURT: Yes, you may. MS. BROWN: Just so the record is clear, basically our objection was that this was going to be extremely emotional testimony and as such was prejudicial to the jury. In fact, I hope the record will note that Sergeant Traylor did end up crying at the end of his testimony, which was about ten minutes in length during the period of time after the objection. THE COURT: Well, I don’t think he cried for ten minutes. Connie J. Parchman, CSR #6137 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4347 MS. BROWN: No, but he did cry at the end of his testimony. THE COURT: You're absolutely correct. Sergeant Traylor was dis -- displayed some level of emotion and I think if he wasn’t actually crying, he was verging on tears when he was describing the life-saving efforts with respect to the victim, Chantel. And it -- at the end of the direct testimony and before the beginning of cross-examination, I asked Sergeant Traylor if he wished to have a break and he indicated he did. That’s why we took the recess at that time. | Do you want to add to the record in that respect? MS. BACKERS: No. I do have one other matter, though, your Honor. The tape that’s 21A still has that Home Base incident on it, and so since I am seeking to introduce this tape, I wanted to borrow this exhibit and dub the first part out and make a new copy that doesn't include the Home Base incident. Does the court have any objection? THE COURT: I don’t. Any objection here? MR. LEVY: No. MS. BACKERS: I will keep this in its original -- THE COURT: I want to make sure 21A remains intact for any purposes, including appellate review. If you could make a new copy of the portion of the tape Connie J. Parchman, CSR #6137 EXHIBIT F m e o w w n 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4451 Q. Now, on the radio transmission tape -~ have you had a chance to listen to that? A. Yes, I did. Q. They were asking for a sergeant to come and help out with Sergeant Traylor, is that right? A. Yes. And I made one of those requests myself. Q. Okay. And is that because he needed some assistance? A. Yes, it was. Q. Why? A. Well, it was like two groups working the stop. Once the car crashed into the parked car, four of us focused on the suspect, and it seemed like a whole gang of blue was on the passenger side and they were -- they were taking out a little girl and Sergeant Traylor was over there. Q. And did you see him lose his composure? MR. LEVY: Objection under 352. THE COURT: Objection is overruled. You may answer. MR. LEVY: Also object under it is not relevant. THE COURT: Ruling is the same. You may answer. THE WITNESS: Yes, I did. MS. BACKERS: Q. At the time that this incident happened, were you a sergeant? A. Yes, ma’am. Connie J. Parchman, CSR #6137 oO @® «J vn w w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26— 27 28 4452 Q. And when they were asking for a sergeank to come and assist Sergeant Traylor, did you come on the radio and say, "this is K52, I’m on the scene," indicating that you were a sergeant on the scene? A. Yes, ma‘am. Q. Did you see the C.P.R. efforts on the baby? A. Yes, I did. | Q. Where were you? A. I was at the -- in the right -- I was at the right door of the suspect vehicle, of the gray car. Everybody was hollering -- MR. LEVY: Objection, he‘s not responding to the question. THE COURT: Sustained. Do you want to proceed by question and answer? MS. BACKERS: Sure. - MS. BACKERS: Q. Tell us what you saw once you got to the sidewalk. MR. LEVY: Then I object under 352 and it is not relevant. THE COURT: Objection overruled, you may answer. THE WITNESS: I saw about five or six, maybe more, officers bent over a little girl. MS. BACKERS: Q. And did you stay over there on that sidewalk? - A. Yes, I did. I was -- I was there and somebody was hollering trying to figure out how old she was and Connie J. Parchman, CSR #6137 EXHIBIT G ao ww F& F Ww NH N BR ~] 10 12 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4659 A. Um-hum. Q. Then what? A. The officer was -- was pretty upset at the time. He -- he was crying. And he -- he was so focused on breathing for her that he didn't want to get up. Q. What do you mean he didn't want to get up? A. He didn't want to leave her side. He didn't want to stop breathing for her, so we had to coax the officer away from her and -- and take over his job. And we began breathing for her using a -- excuse me -~ using a bag valve mask, which is it's essentially a big rubber ball that we squeeze with a mask on the end, and oxygen is supplied into the rubber ball. When we squeeze it, it gives a high concentration of oxygen, which is beneficial for the patient in this case. Q. When you first met this child, did she have vital signs? A. She had a strong radial pulses. She had strong pulses in her wrist, which indicates that she -- that she was profusing well, which means she's getting blood well, not only her vital organs, but her extremities as well. Q. Go ahead. A. She was not breathing. So we breathed for her. Q. So when you got there, all the breathing was being done by the officers? A. Yes. Q. And when you were able to coax the officer off of her, who took over the breathing for her? JAMES LBE, CSR NO. 4820 EXHIBIT H o © NJ BN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4665 Q. And is Children's the Alameda County trauma unit? A. Yes. Q. And what does that mean? A. It means the emergency medical services system in Alameda County has deemed Children's Hospital to be a trauma unit. If they were an adult, they would be taken to Highland General Hospital, which is the adult trauma center. Q. What time did you leave the scene to be en route to the hospital? You can take a look at your report if you need to refresh your memory as to the time. A. We left the scene ten minutes after we arrived, which is 1429. Q. What time did you arrive at Children's? A. 1438. Q. When you left the scene, do you remember what was going on at the scene when you got her in the ambulance? A. My recollection of everything outside of Chantel is -- is not -- I was pretty focused on her. I -- I remember the police officer weeping. I don't remember much else besides ~- besides that and her. Q. What happened once you got her to Children's? What do you do with her? A. We transfer her to the emergency department and give a report to the physician on duty and transfer care. MS. BACKERS: Thank you, sir. I don't have any other questions. JAMES LEE, CSR NO. 4820 EXHIBIT I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4468 A. Well, I saw the child -- Forgive me. I have daughters. This is a hard case. for me. I saw the child with a backpack with her seat belt on in front. She looked terrified. I saw the suspect with a gun, and as we approached, he got back in the vehicle. He had the gun, and we didn't want to press him into doing anything. He got in the car, proceeded westbound. Sergeant Traylor and I pursued. Q. What position were you in when you first saw that it was a little girl? A. Toward the rear of the vehicle. Q. What were you looking through, the back windshield of that car? A. Yes. Q. Could you see what the driver was doing with the gun? A, He was pointing it at the child. Q. And did you see part of the little girl's face? A. I did. Q. What part did you see? A. Well, the side of her face, the left side of her face. Q. And was your gun drawn at that point? A. Yes, Q. What did you do when you actually could see that he had a gun pointed at the little girl? A. Well, I pointed the gun at him initially. But as he JAMES LEE, CSR NO. 4820 CERTIFICATE OF SERVICE I, David H. Goodwin,certify that I am over 18 years of age and nota party to this action. I have my business address at P.O. Box 93579, Los Angeles, Ca 90093-0579. I have madeservice ofthe foregoing MOTION FOR JUDICIAL NOTICE; DECLARATION OF COUNSEL; [PROPOSED] ORDERby depositing in the United States mail on June _, 2010, a true andfull copy thereof, to the following: Attorney General 455 Golden Gate Avenue Rm. 11000 San Francisco, CA 94102 Attorney for Respondent Janyce Blair 302 W. Grand Avenue Suite 3 El Segundo, CA 90245 Counsel for Appellant Michaud (2 copies, one for delivery to Appellant Michaud) California Appellate Project ATIN Morey Garlick 101 SecondSt., Ste. 600 San Francisco, CA 94105 Assisting Attorney James Anthony Daveggio, T-68062 San Quentin State Prison San Quentin, CA 94974 Executed on June __, 2010, at Los Angeles, California I declare under penalty ofperjury that the foregoing is true and correct. David H. Goodwin