SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER ) ) ) ) ) ) ) ) ) ) )

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1 Back to previous page: Law Offices of Attorney Attorney, SBN # Main St. Irvine, CA Telephone: ( - Fax: ( - Attorney for Defendant Jane Doe Hearing Time Estimate: Dept: Date: Time: NOT IN CUSTODY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER 0 PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs. JANE DOE Defendant. Case No.: HF NOTICE AND MOTION TO DISMISS COUNT AND THE ENHANCEMENT TO COUNT PURSUANT TO PENAL CODE SECTION ; POINTS, AUTHORITIES AND ARGUMENT IN SUPPORT OF MOTION. 0 PLEASE TAKE NOTICE that on, at a.m., or as soon thereafter as counsel may be heard, in Department of the above-entitled court, the defendant, JANE DOE, will move this court for an order dismissing the mayhem charge pending against her pursuant to Penal Code section and the enhancement pursuant to Penal Code section (a as to count on the grounds that the District Attorney did not present evidence at the preliminary hearing sufficient to provide probable cause to believe Ms. Doe committed the offenses as charged. This motion is based upon all the papers in the court's file, the transcript of the preliminary examination of September, 0, these moving papers, Points and - -

2 Back to previous page: Authorities incorporated herewith, and the argument of counsel at the hearing of the motion. I. STATEMENT OF CASE A. PROCEDURAL HISTORY On September, 0, preliminary hearing was held in Department H before the Honorable Matthew S. Anderson on the two felony counts and enhancements for which Ms. Doe was charged by the first amended complaint, to wit: Count, violation of Penal Code (/(a, attempted murder and Count, violation of Penal Code (a(, assault with a deadly weapon. Both counts were enhanced by Penal Code 0.(a, great bodily harm and 0(b(, use of a dangerous or deadly weapon. The acts which gave rise to the complaint were alleged to have occurred on March, 0. The Court held Ms. Doe to answer on the two counts and enhancements. On September, 0, the district attorney filed an information against Ms. Doe alleging the same counts and enhancements as those found in the first amended complaint. On December, 0, the district attorney amended the information to add one count of mayhem in violation of Penal Code 0 and an additional allegation that count was committed willfully, deliberately, and with premeditation. The first amended information, the charging document on which the defendant currently appears before this court, charges the defendant as follows: Count : Attempted Murder in violation of Penal Code (a/((a Enhancements to count :Penal Code (a (committed willfully, deliberately, and with premeditation, 0.(a (great bodily harm, and 0(b( (use of a dangerous or deadly weapon. Count : Mayhem in violation of Penal Code 0 Enhancements to count : Penal Code 0.(a (great bodily harm and 0(b( (use of a dangerous or deadly weapon. - -

3 Back to previous page: Count : Assault with a deadly weapon likely to produce great bodily injury in violation of Penal Code (a( Enhancements to count : Penal Code 0.(a (great bodily harm and 0(b( (use of a dangerous or deadly weapon. On December, 0, Ms. Doe pleaded not guilty to all charges and denied all enhancements. B. BRIEF STATEMENT OF THE FACTS Ms. Doe faces the charges for an alleged assault upon Mary S. with a kitchen knife. The alleged assault occurred after Ms. S. and her friend, Linda J., were asked by Ms. Doe and others to leave a house party. Ms. S. was heavily intoxicated and refused to leave. An altercation ensued, which also involved others at the party. Ms. S. and Ms. Doe began arguing and the confrontation became heated. Ms. S. and Ms. Doe began pushing each other. Allegedly Ms. Doe then grabbed a kitchen knife and while straddling Ms. S., who was lying on her back on the floor, struck her with the knife multiple times. Following this incident, Ms. S. left the party with Ms. J.. They got a ride with another attendee at the party who then dropped them off at a gas station. Ms. S. did not want to be taken to the hospital for her injuries but after calling her boyfriend to pick her up from the gas station, she was taken to the hospital at her boyfriend's insistence. Ms. S. injuries were described at the preliminary hearing as nine wounds that required sutures, a collapsed, partially collapsed, or punctured lung and broken ribs. Although the doctor who treated Ms. S. determined that her injuries were not lifethreatening, he kept her in the hospital for four days so that she could be monitored. Ms. S. testified that she had scars from the incident, but the extent of those scars were not described. Ms. Doe also allegedly struck Ms. J. with the knife but that allegation does not affect the argument herein. The injury was variously described at the preliminary hearing and it remains unclear as to the exact nature of the injury. - -

4 Back to previous page: II ISSUE PRESENTED A. THE EVIDENCE PRESENTED AT THE PRELIMINARY HEARING WAS INSUFFICIENT TO HOLD THE DEFENDANT TO ANSWER ON A CHARGE OF MAYHEM. B. THE EVIDENCE PRESENTED AT THE PRELIMINARY HEARING WAS INSUFFICIENT TO ALLEGE THAT THE CHARGE OF ATTEMPTED MURDER WAS COMMITTED WILLFULLY, DELIBERATELY, AND WITH PREMEDITATION. III. STATEMENT OF FACTS On March 0, 0, Mary S. and her friend Linda J. were drinking alcohol at a local outdoor location. (RT :-,,, :-. Ms. J. testified that she drank approximately 0 shots of rum and that Ms. S. drank more than she did. (RT :-. They then went to a house party where they drank more alcohol. (RT :-; :-, 0:-; :-. Ms. S. had more than three shots of vodka at the party. (RT :-. Ms. S. characterized her condition as "heavily intoxicated" that night. (RT :-. According to the testimony of Ms. J., Ms. Doe, who was also at the party and whom neither Ms. J. nor Ms. S. knew prior to that evening, asked Ms. S. and Ms. J. to leave the party. (RT :-; :-; RT :-, 0:-; :-.. They did not leave and about 0 minutes later, Ms. Doe and Ms. S. got into a verbal argument that escalated to the point that both Ms. Doe and Ms. S. began pushing each other. (RT :-; :-; :; :; :-; :-0. Ms. J. testified that Ms. S. was pushed to the ground. Ms. Doe straddled Ms. S., who was lying on her back, and started stabbing Ms. S. with a knife in an up and down motion. Ms. J. described the knife as something like a steak knife. Also described to Orange County Sheriff Department Investigator Adam Kohila by a witness to the incident as a serrated kitchen knife. (RT :-. - -

5 Back to previous page: (RT : -; :-. Ms. S. testified that she recalled a verbal altercation with Ms. Doe but did not remember much more about the incident. (RT 0:0-, :-. Following this altercation, Ms. S. and Ms. J. left the party whereupon they "hopped" into a friend's car and were taken to a gas station. (RT :-; :-0. At about :0 a.m., Ms. S. called her boyfriend, John M., and asked him to pick them up at the gas station. (RT 0:-; :-; 0:-. Although, Ms. S. had not called her boyfriend so that he could take her to the hospital and she was refusing medical treatment, Mr. M. insisted that he take them to the hospital. (RT 0:-; 0:-. Ms. S. testified that her injuries were nine stab wounds, a collapsed lung, and broken ribs. (RT :0-. She testified that she spent four days in the hospital and received stitches but no surgery. (RT :-. Ms. S. described her stab wounds as one in the chest, four in her left arm, three in her rib cage, and one in her face. (RT :0-. The prosecutor then asked Ms. S.: "And do you have scars from this incident?" (RT :. Ms. S. responded, "Yes." (RT :. The prosecutor continued: "And could you describe - - and those would be located, one on your face, four on your arms, and then once on your torso?: (RT :-. Ms. S. responded, "And one on my chest, correct." (RT :. On March, 0 at approximately :0 a.m., Orange County Sheriff's Deputy Art Arellano was dispatched to Mission Hospital. He first spoke with Linda J.. She was reluctant to speak with him about the incident and told the officer she didn't remember the details because she had been drinking. (RT :-; :-. She did tell the officer that while at a party, a female asked Ms. S. to leave twice and Ms. S. refused both requests. (RT :-; : -. Ms. J. also reported to the officer that a fight ensued and Ms. Doe and Ms. S. ended up on the ground; Ms. S. was then attacked with a knife by Ms. Doe. (RT :, :-. Ms. J. told the officer she was injured (described as two - -

6 Back to previous page: lacerations to her hand and a bump on her head as she tried to help Ms. S.. (RT :-, -. Deputy Arellano also spoke briefly with Ms. S. but she was uncooperative, so much so that the doctors and nurses had to hold her back as she kept trying to walk away and was yelling and screaming as the medical staff was trying to treat her; the officer found it difficult to get any information from Ms. S.. (RT :-; :-. The officer described Ms. S. as heavily intoxicated and she did not remember much of the incident that occurred at the party. (RT :-; :-.. The officer was able to see the injuries on Ms. S., which he described as an injury on her face, lacerations above and underneath her left breast, and some lacerations to her left arm. He recalled the lacerations to be an inch or two, with some being very deep. (RT : -. He also spoke with the physician treating Ms. S. who told him that Ms. S. suffered nine injuries, five of which were considered serious. (RT :-. The doctor told the officer that Ms. S.' injuries required stitches and that, although her injuries were not life-threatening, he was going to monitor her collapsed lung (also described as "partially" [collapsed] and "punctured". (RT :-, :-; :-. Another witness to the incident, Katherine K., who was questioned by Orange County Sheriff Department Investigator Adam Kohila told Investigator Kohila that she saw Ms. Doe stab Ms. S. three or four times. (RT :-. Ms. K. also confirmed that Ms. S. and Ms. J. were asked to leave the party by several people, including Ms. Doe, because they were very intoxicated and argumentative, but they refused to leave. (RT 0:-0; :-, :-. She described the incident to the investigator as a pushing match between Ms. Doe and Ms. S.. She further described a large group of people out on the patio swinging beer bottles at each other. (RT :-. The altercation then moved to the kitchen where she saw Ms. Doe stab Ms. S.. (RT :-. Ms. Zuver alleged that the knife wound was inflicted by Ms. Alawi but that the bump on her head was inflicted by someone else. - -

7 Back to previous page: Ms. Doe told Orange County Sheriff Department Investigator Michael Laros that she was "rushed" by Ms. J. and Ms. S., who was holding a broken bottle. She told the investigator that she "saw red" when Ms. S. and Ms. J. were coming at her and she thought she was going to be hurt so she grabbed the kitchen knife to defend herself. (RT 0:-, -. According to the testimony of Investigator Laros, another witness (Mr. S. corroborated Ms. Doe 's statement that Ms. S. was throwing bottles and other things at Ms. Doe. (RT 0:-, 0:-, -0. At the close of testimony, the People moved that Ms. Doe be bound over on the two counts in the complaint; the defense submitted without argument. The Court held Ms. Doe to answer to the offenses charged in the complaint, attempted murder (Penal Code (a/(a and assault (Penal Code (a, and to all enhancements to the charges. (RT 0:-, :-. IV. POINTS AND AUTHORITIES A. STANDARD OF REVIEW In order for a defendant to be put on trial for a particular offense, the preliminary hearing must present such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that he committed the crime. (People v. San Nicolas (00 Cal. th,, internal citation and quotation marks omitted. There must be some showing as to the existence of each element of the charged crime. (Rideout v. Superior Court ( Cal.d,. An information must be set aside if the defendant has been committed without reasonable or probable cause. (, subd. (a((b. A section motion may be used to set aside individual charges (People v. Hudson ( Cal.App., or enhancement allegations (People v. Superior Court (Mendella ( Cal.d, 0- & fn., disapproved on another point in In re Jovan B. ( Cal.th 0,, fn.. including an allegation that the crime was premeditated and deliberated within the - -

8 Back to previous page: meaning of section, subdivision (a. (Huynh v. Superior Court ( Cal. App. th Ms. Doe, by this motion, challenges the mayhem charge and the added enhancement to count, neither of which were alleged against her at the time of the preliminary hearing. "[A]n information which charges the commission of an offense not named in the commitment order will not be upheld unless ( the evidence before the magistrate shows that such offense was committed (Pen. Code,, and ( that the offense `arose out of the transaction which was the basis for the commitment' on a related offense. [Citations omitted.]" (J. v. Superior Court, Cal.d 0, -. B. THE EVIDENCE PRESENTED AT THE PRELIMINARY HEARING WAS INSUFFICIENT TO HOLD THE DEFENDANT TO ANSWER ON A CHARGE OF MAYHEM. "Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem." (Penal Code 0. The current pattern jury instruction enumerates six injuries that constitute mayhem: ( Removal of a part of someone's body; ( An injury that disables or makes useless a part of someone's body and the disability is more than slight or temporary; ( An injury that permanently disfigures someone; ( Cutting or disabling someone's tongue; ( Slitting someone's nose, ear, or lip; or ( Putting out someone's eye or injuring someone's eye in a way that so significantly reduces his or her ability to see that the eye is useless for the purpose of ordinary sight. (CALCRIM NO.0 (February 0. In this case, it is presumed that the prosecution is alleging (since no other could - -

9 Back to previous page: plausibly apply that Ms. Doe committed mayhem under the theory that she disabled or made useless a part of Ms. S. body that was more than slight or temporary and/or that she permanently disfigured Ms. S.. The testimony at the preliminary hearing did not establish probable cause to believe that Ms. S. suffered an injury which disabled her in a way that was more than slight or temporary. From the preliminary hearing evidence, we learn only that Ms. S.'s lung was either punctured, collapsed, or partially collapsed; that the injury was not life threatening and did not require surgery; and whatever the injury may have been, it was resolved, at most, within four days. We also learn that Ms. S. suffered nine wounds, described as being anywhere from an inch or two. Since it is unclear if the prosecution bases the mayhem charge on the theory of disablement that was more than slight or temporary it is difficult to rebut the charge. But why beg the question for what testimony at the hearing suggested any one of Ms. S. injuries disabled her, even slightly or temporarily? By Ms. S. own testimony, we know that she left the party under her own power and furthermore, we learn from Deputy Arellano that the medical staff at the hospital had to hold Ms. S. down on her hospital bed as she was trying to get up and walk away. This certainly does not suggest any disabling injury. What constitutes a disabling injury under the statute is not defined by statute or law, and there appears to be only one published case that considered such an injury. Nonetheless, it cannot be reasoned, even under the liberal evaluation permitted to bind over the defendant on the charge, that there was any evidence presented that Ms. S. suffered an injury that disabled her. In Thomas, supra, Cal. App. 0, the victim's ankle was seriously disabled and remained disabled for over six months. The Thomas Court concluded, "[a]ssuming that some slight and temporary disability would not arise to Although not further described, it is understood from the context of the testimony (at RT :- that the reference was to the length of the scars. People v. Thomas ( Cal.App.d 0, - -

10 Back to previous page: the level of mayhem, the disability here was sufficiently disabling, for an extended period of time to amount to mayhem." (Id. at p.. There was not a shred of evidence presented in the preliminary hearing testimony that Ms. S. was similarly disabled by any of the injuries she suffered allegedly at the hand of Ms. Doe. Likewise, the preliminary hearing testimony failed to establish probable cause to believe that Ms. S. suffered an injury that disfigured her (if that is the underlying condition upon which the charge is based. At the preliminary hearing, which was held approximately five and one-half months after the incident, Ms. S. testified that she had scars from her wounds. However, there was no evidence presented whatsoever that those wounds were disfiguring. " '[N]ot every visible scarring wound can be said to constitute the felony crime of mayhem.' [Citation.]" (People v. Pitts (0 Cal.App.d.. Furthermore, there was no testimony that whatever scars Ms. S. had at the time of the preliminary hearing were permanent. Although section 0 does not require that the disfigurement be permanent, case law has determined that the injury must be permanent in order to constitute mayhem. (People v. Newby (00 Cal.App.th,. "The word permanent means continuing or designed to continue indefinitely without change; abiding, lasting, enduring; persistent. Opposed to temporary." (Ibid, internal punctuation omitted. In People v. Newble ( 0 Cal.App.d, the court observed: "In Goodman [v. Superior Court ( Cal.App.d ], the court examined cases under statutes similar to our own and found that mere disfigurement constitutes mayhem `only where the injury is permanent. Thus, the cutting of a lip requiring several stitches but which would heal without serious scarring was not mayhem. [Citation.]' [Citation.]" (Newble, supra, 0Cal.App.d at p.. The Newble Court concluded that the "infliction of a three-inch facial laceration which extends from the bottom of the left ear to just below the chin, which is likely to leave a permanent scar, constitutes disfigurement.... " (Id at - 0 -

11 Back to previous page: p.. In the case at bar, there was certainly no evidence presented that any one of Ms. S.'s scars caused similar disfigurement, or in fact, any disfigurement at all. The severity of the various mayhem injuries in contemporary case law makes clear that the testimony, or more accurately the lack of testimony, concerning Ms. S.'s injuries in no way suggested that Ms. S.'s injuries justified adding a charge of mayhem. (People v. Newby (00 Cal.App.th [nose pushed into nasal cavity, several facial bones broken, permanent facial scarring]; People v. Sekona ( Cal.App.th [loss of vision in an eye]; People v. Hill ( Cal.App.th [metal plates and wires permanently implanted in victim's head to hold facial bones in place, sunken eye with double and triple vision, tear duct injury, loss of sensation in upper lip]; People v. Page (0 0 Cal.App.d [forced tattoos on the victim's left breast, left thigh, abdomen]; People v. Keenan ( Cal.App.d [both breasts burned with cigarettes]; People v. Pitts (0 Cal.App.d [box cutter attack, nearly severed breasts]; People v. Newble ( 0 Cal.App.d [three-inch permanent facial scar from bottom of left ear to just below the chin]; People v. Thomas ( Cal.App.d 0 [broken ankle during rape with disability that lasted more than six months]; Goodman v. Superior Court ( Cal.App.d [face terribly marred by four- to five-inch scar down the side of victim's face]. C. THE EVIDENCE PRESENTED AT THE PRELIMINARY HEARING WAS INSUFFICIENT TO ALLEGE THAT THE CHARGE OF ATTEMPTED MURDER WAS COMMITTED WILLFULLY, DELIBERATELY, AND WITH PREMEDITATION. "A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." (CALCRIM No. 0 (February 0, see also, People v. Thomas ( Cal. d 0, "It has been judicially declared that '[d]eliberation means careful consideration and examination of the reasons for and against a choice or measure[;]" - -

12 Back to previous page: the verb "premeditated" means "[t]o think on, and revolve in the mind beforehand; to contrive and design previously." (People v.hillman (, 0 Cal App d 0, 0-0, internal citations and punctuation omitted. Evidence of no more than the infliction of multiple wounds on the victim, is insufficient to show that the alleged attempt "was the result of careful thought and weighing of considerations." (People v. Anderson ( 0 Cal.d, -. The testimony at the preliminary hearing showed only that Ms. S. suffered multiple wounds and suggested nothing more than a rash and impulsive act when Ms. Doe grabbed a kitchen knife in the heat of an argument with Ms. S.. Indeed, the evidence at the preliminary hearing showed only that the two women started pushing each other and then Ms. Doe grabbed a knife. There was no testimony that remotely suggested Ms. Doe thought about her action. As Ms. Doe told Detective Laros, she grabbed the kitchen knife when she was rushed by Ms. S. and Ms. J. and "saw red." (RT 0:-. There was no testimony that conflicted with that account. A deliberate and premeditated act of attempted murder requires evidence of planning, or motive with evidence of either planning or manner. (People v. Romero (00 Cal.th, 0, citing (People v. Anderson ( 0 Cal.d,. The preliminary testimony established only that Ms. Doe grabbed a kitchen knife during a scuffle, perhaps because according to Investigator Laros's testimony, she felt threatened. Whatever the circumstances, there was no evidence at all that she planned to grab the knife and strike Ms. S. with it. Likewise, there was no evidence of motive; Ms. Doe and Ms. S. did not even know each other before that night. That the wounds Ms. S. allegedly suffered at Ms. Doe 's hand were not life-threatening and were minor enough that Ms. S. walked away from the incident and did not want any medical care, is further indicative that Ms. Doe 's acts were not deliberate or premeditated. Even though deliberation and premeditation may be found in an act that appears to be spontaneous, the evidence must show probable cause to believe the defendant reflected on - -

13 Back to previous page: 0 her act before committing it. The testimony at the preliminary hearing offers no such support for the allegation. V. CONCLUSION For the reasons discussed above, it is respectfully requested that this motion made pursuant to section be granted. Dated:, 0 Respectfully submitted, Attorney Attorney for Jane Doe 0 - -