PEOPLE v. GREWALRespondent’s OppositionCal.December 24, 2014IN THE SUPREME COURTOF THE STATE OF CALIFORNIA SUPREME COURT PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff/Respondent, V. KIRNPAL GREWAL, Defendant/Appellant. PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff/Respondent, V. PHILLIP WALKER, Defendant/Appellant. PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff/Respondent, V. JOHN C. STIDMAN, Defendant/Appellant. LED CASE NO.$217896 DEC24 201 Appellate Case No: F065450, ; consolidated with F065451, Fooseuy* 4- McGuire Clerk Deputy Kern County Sup Ct No. CV-276959 Appellate Case No: F065451, consolidated with F065450, F065689 Kern County Sup Ct No. CV-276961 Appellate Case No: F065689, consolidated with F065450, F065451 Kern County Sup Ct No. CV-276958 RESPONDENT’S OBJECTION TO APPELLANTS’ MOTION TO TAKE JUDICIAL NOTICE LISA S. GREEN,District Attorney County ofKern, State of California GREGORYA. PULSKAMP,SBN 166784 Supervising Deputy District Attorney 1215 Truxtun Avenue, 4" Floor Bakersfield, California 93301 Telephone: (661) 868-1657 Attorneyfor Plaintiffand Respondent RESPONSE Appellants Grewal and Walkerfiled a Motion to Take Judicial Notice wherein they requested that this Court take judicial notice of several “sweepstakes websites,” “lawful gambling websites,” and “fantasy league sports websites.” The People note that much ofthe content contained on the various websites identified in the motion is a mishmash of unsubstantiated information which bearslittle to no resemblanceto the facts that are before this Court. Therefore, the People hereby formally object to Appellants’ request to take judicial notice of these websites on the basis that the content of the websites are not “capable of immediate and accurate determination” from indisputable sources within the meaning of Evidence Code Section 452(h). In addition, the wide range of factual variants presented by the websites establish that any probative value to be derived would be greatly outweighed by the risk of confusing the issues before this Court within the meaning ofEvidence Code Section 352. For these reasons, the People respectfully request that Appellants’ requestto take judicial notice of the websites be denied. Moreover, the only legal basis on which comparisons could be considered between Appellants and other entities would be for Appellants to assert that the People are engaging in the disparate treatment of Appellants. (People v. Toomey (1984) 157 Cal.App.3d 1, 12-13 [discussing the requisites for a showing of discriminatory prosecution in the context of an action under Business & Professions Code section 17200].) However, as a threshold showingfor such a claim, Appellants “‘must demonstrate that he has been deliberately singled out for prosecution on the basis of some invidiouscriterion.’ [Citations].” (/d. at p. 13, quoting Murgiav. Municipal Court (1975) 15 Cal.3d 286.) In this case, Appellants have not shown any kind of invidious discrimination or intentional discriminatory prosecution by the People. In an out-of-state case dealing with the onslaught of internet café sweepstakes schemes, the Court ofAppeals of New Mexico addressed almost this identical issue of disparate treatment as follows: Wefirst note that Defendant supports this argument by equating his lottery promotion as the same type of sweepstake gamesand promotions offered by McDonald's, Cola-Cola, or Albertsons. In essence, Defendant argues that any consideration paid to participate in his sweepstakes promotion wasidentical to the promotions offered by these national companies who have not been subjected to criminal prosecution. Although this argumentcould be interpreted as a selective prosecution violation under the Equal Protection Clause of the Fourteenth Amendmentto the United States Constitution, Defendant has not presented any authority or developed an Equal Protection argument, but limits his argumentto the sufficiency of the evidence. [Citations.] Despite Defendant's invitation to do so, we will not substitute our sufficiency of the evidence analysis with an evaluation of the numerous other sweepstakes-type promotions conducted in New Mexicobyother national companies whoare not defendants in this proceeding. [Citation.] (State ofNew Mexico v. Vento (2012) 286 P.2d 627, 634-635.) Similarly, an Appellate Court in California also refused to address a discriminatory prosecution argument on appeal because the record did not contain “an adequate showingofan intentional and purposeful singling out of defendants for prosecution on an ‘invidious discrimination’ basis.” (People v. Shira (1976) 62 Cal.App.3d 442, 464, fn. 15.) For the same reasonsstated in Vento and Shira, this Court, too, should decline Appellants’ invitations to compare themselves with entities not before this Court and deny Appellants’ request for judicial notice of the websites. CONCLUSION For the foregoing reasons, the People respectfully request that the Court deny Appellants’ request to take judicial notice ofvarious websites identified in their moving papers. Dated: DecemberZX, 2014 LISA S. GREEN Kern County District Attorney doeA. AULSKAMP Supervising Deputy District Attorney PROOF OF SERVICE I declare that I am employed in the County ofKern,State of California; that I am overthe age of eighteen years; that I am nota party to this action; and that my business address is 1215 Truxtun Avenue, Bakersfield, California 93301. I served a copy ofthe attached RESPONDENT'S OBJECTION TO APPELLANTS’ MOTION TO TAKE JUDICIAL NOTICEonall parties as follows, and in the mannerdescribed below, marked [xX]: SEE SERVICE LIST x] U.S.MAIL - (1) [_] Deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. (2) Pursuant to C.C.P. section 1013(a), placed the envelope for collection and mailing, following ordinary business practices. I am readily familiar with this business’s practice of collecting and processing documents for mailing. On the same day that documentis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. | OVERNIGHT MAIL — on December24, , 2014, pursuant to Code Civ. Proc. §1013(c), I caused such envelope with delivery fees fully preparedto be sent to Supreme Court of California by FEDERAL EXPRESS. [_] ELECTRONIC MAIL — bytransmitting the document(s) listed above, electronically to the Supreme Court, via the Court of Appeal, whichsatisfies the requirements for service on the Supreme Court under Rules of Court, rule 8.212(c)(2). X|_ (STATE) I declare under penalty of perjury under the laws ofthe State of California that the aboveis true and correct. | (FEDERAL)I declare that I am employedin the office of a member ofthe bar of this Court at whose direction the service was made. Executed on December 22 , 2014,at Bakersfield, California. Re Tina Roth SERVICE LIST Tory Edward Griffin [1] Copy; Regular Mail Hunt Jeppson & Griffin LLP _ Attorney for Defendant/Appellant, 1478 Stone Point Drive, Suite 100 John C. Stidman Roseville, California 95661 G. Randall Garrou, Esq. [1] Copy; Regular Mail Jerome H. Mooney, Esq. Attorneys for Defendants/Appellants, Weston, Garrou & Mooney Kirnpal Grewaland Phillip E. Walker 12121 Wilshire Blvd., Suite 525 Los Angeles, California 90025 Office of the Clerk [1] Original plus [8] copy sent via Supreme Court of California Federal Express Overnight Mail. 350 McAllister Street San Francisco, California 94102-4797
