SUPERIOR COURT OF CALIFORNIA SANTA CLARA COUNTY HONORABLE AARON PERSKY, JUDGE DEPARTMENT o0o--- PEOPLE OF THE STATE OF CALIFORNIA,

Transcription

1 SUPERIOR COURT OF CALIFORNIA SANTA CLARA COUNTY HONORABLE AARON PERSKY, JUDGE DEPARTMENT ---o0o--- PEOPLE OF THE STATE OF CALIFORNIA, vs. Plaintiff, BROCK ALLEN TURNER, Defendant. CASE NO. B ---o0o--- REPORTER'S TRANSCRIPT OF PROCEEDINGS Volume Pages - March, 0 A P P E A R A N C E S: FOR THE PEOPLE: FOR THE DEFENDANT: Court Reporter: Alaleh Kianerci Deputy District Attorney Mike Armstrong Attorney-At-Law CARLEY J. BAGATELOS, CSR Certificate No. CSR ---O0O---

2 Palo Alto, California March, PROCEEDINGS THE COURT: Good afternoon. Welcome to Department. This is the matter of the People versus Brock Allen Turner. If I could have appearances from counsel. MR. ARMSTRONG: Good afternoon, your Honor. Mike Armstrong appearing for Mr. Turner. He's not present, but there's a waiver on file. MS. KIANERCI: Good afternoon. Alaleh Kianerci on behalf of the People. THE COURT: Thank you. And Mr. Turner's appearance has been excused today. So we set this for a hearing on motions in limine. We have had some discussions in chambers and started our pretrial voir dire conference, which we'll put some on the record today, and we'll continue the matter for further hearing on any remaining motions as well as further pretrial voir dire conference to this Friday, this Friday, which is March th at :00 p.m. And so let me just state for the record what I've received in terms of motions and witness list, et cetera. So I've received the People's motions in limine, which I believe was filed on Monday. And I received an copy of that, which includes the motions and witness list as well as a first-amended information, which was attached. And next in order, I received defense in limine motions filed on March th as well and then, today, received some supplemental People's motions in limine, which contains also an exhibit on page, Exhibit, which has CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

3 0 the defense's, I believe, offer of proof, the summary of offer of proof with respect to character witnesses that are anticipated to be called. And then, I also received today some suggestive voir dire questions from the defense as well as the defense witness list. And Ms. Kianerci is going to me some suggested additional voir dire questions for the People. And so let me just put a few things on the record that I'm thinking of right now then we'll launch into the motions in limine. We discussed the voir dire process, and I believe that 0 we've agreed that we will have a written questionnaire hopefully no longer than two pages. I'll ask counsel to meet and confer as to the appropriate content for that two-page jury questionnaire. And we discussed what areas that would focus on. They include pretrial publicity, connections with Stanford University, issues relating to sexual assault, and issues relating to the alcohol use and abuse. And I've informed counsel that my voir dire is drawn pretty much straight from the Standards of Judicial Administration as reflecting the questions the Court should ask and that I'm happy to ask any additional questions on behalf of counsel coming from the Court. And so we will refine that process and, hopefully, by Friday, have a good sense of the voir dire. The Court will give -- we also talked about having a so-called "eight-pack." So we'll try to fit eight seats in this front row. We'll have a -- during jury selection, we will have jurors in the back two rows, eight up front. And when we CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

4 0 0 call our first 0 jurors, counsel agreed that a reasonable time for examination of that first group of 0 is up to 0 minutes. And then, for each additional group of nine, if necessary, approximately 0 minutes. Those aren't set in stone, and counsel can ask to extend the time. And also counsel doesn't need to obviously use that much time. Those are guidelines that I think counsel are comfortable with. And then, with respect to the actual process Monday, I'll circulate to counsel, hopefully, by Friday morning, the Court's anticipated voir dire, including some of the questions you've suggested as well as the introductory script that I typically use. So on Monday, we'll call about as many jurors as we could fit in the courtroom, because given the publicity surrounding this case, I think we'll probably need a lot of folks to go through the process. And we will also -- I'll start with my introductory comments, launch into hardships, and give those folks who are not requesting a hardship the questionnaire to fill out. And then as we do the charge, my practice is to do one by one. So I'll have everybody wait in the hallway and just arrange themselves alphabetically. As we do a hardship, either that person gets excused, and we say good-bye, or if they get called on the jury, they can fill out the questionnaire with the goal that we would have filled-out questions and responses by lunchtime Monday and then copy those for both counsel. I would continue with my voir dire Monday afternoon with CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

5 0 the assurance to counsel that I won't be expecting them to exercise any cause or preemptory challenges, although you're free to exercise cause challenges at any time, but I wouldn't expect any substantive input with respect to preemptories until Tuesday morning. So that if we're left with some time Monday afternoon, we can let everybody go early. But given the questions I think that I'll have, as well as the additional attorney-suggested court questions, we should be able to make use of Monday afternoon. And then, counsel will have a chance Monday during the day and in the evening to go over in greater detail the questionnaire responses so that when it comes time for your substantive voir dire and your exercise of preemptories, you'll have an opportunity to look at all of those. So that's the general plan with respect to voir dire. And we'll go over, again, the number of the challenges and the logistics of it on Friday afternoon after you've gotten my script. 0 As far as our, sort of, to-do list, with -- as I understand it, counsel is going to provide me with the two-page summary from the anticipated defense experts so that I'll have a better chance to resolve the issue of, with respect to in limine motions regarding that testimony. I'll ask counsel to provide me with CALCRIM, suggested CALCRIM jury instruction numbers ideally by Friday at o'clock. If not then, if that's impossible, then, hopefully, very early next week so we can get started. I'll take a look at the anticipated jury instructions. So CALCRIM numbers only and any special instructions that you anticipate requesting. The -- we'll hopefully get the two-page CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

6 questionnaire finalized by Friday afternoon. Ms. Kianerci has agreed to meet and confer with Mr. Armstrong with respect to a transcript of the telephone voic , and so if we can get that sooner rather than later. Then there's a question -- this will come up in the in limine motions -- but the People are requesting to amend the 0 0 information, to file a new information in the case. And defense counsel, as well as the Court, has requested some additional time so that we can take a look into any legal authority. Feel free to send me any legal authority in support of your positions with respect to that motion between now and Friday. And just make sure that you copy the other side. Those were all the sort of logistical issues that I had. Unless there are any comments, now we can launch into in limine motions. MS. KIANERCI: No. MR. ARMSTRONG: No comment. THE COURT: All right. So let's start with the People's first set of in limine motions. Again, these were filed on Monday. And I'll just go in numerical order. And just for the record, I did ask counsel to meet and confer before we had our in-chambers conferences. Counsel helpfully did it, and so a lot of these will go quickly. Motion in limine Number : The People move to exclude references to sentencing consequences. I understand the defense has no objection to that, so that motion is granted. Number is to exclude the evidence designed to solicit sympathy. And there's no objection to that, as I understand it, so that will be granted, too. CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

7 0 Number is a request to any objections to use the preemptory challenges made pursuant to People versus Wheeler. And any allegations of misconduct on behalf of either counsel will be heard at the bench, in other words, out of the presence of the jury. I understand there's no objection to that. That will be granted. Number is a motion to exclude witnesses from the courtroom during the time the witnesses are not under examination. There's no objection to that. That will be granted. Number is to designate a Stanford University detective, Mike Kim, of the Santa Clara County Sheriff's Office as the 0 People's investigating officer. I will grant that request. And that will allow him to be in the courtroom during other witnesses' testimony. Number is a request to -- for special accommodation for sexual assault victims in the form of A, a support person, and B, to have the -- refer to the victim and her family member by their first name and last name of Doe. And as I understand, there's no objection to that, so I'll grant the request to refer to [Jane] and [Jane II], their first names, and Doe to refer to them during trial. And also, with respect to the support person, I'll grant that request. And again, just any support person that is present needs to comply with the statutes in Penal Code section.. That's a citation. So as long as it's done according to the statutory guidelines, I will grant that in limine motion. People's motion in limine Number asked to exclude the CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

8 defense offer of any of the defendant's statements unless that evidence is to the police. I should say, specifically, unless evidence is first introduced by the People and Ms. Kianerci amended her written motion in limine to delete the reference to 0 0 or anyone else, which I've done in my copy. And so I will grant that motion. If there is a statement by the defendant that the defense seeks to introduce under some hearsay exception, I simply ask that you bring that to the Court and counsel's attention before you make mention of it in front of the jury so the Court could rule on that, if that situation arises. People's Number is a request to introduce the voic and text message that was captured on the witness, Lucas Motro's, phone. And that's described in motion in limine Number. And with respect to the voic , as I understand it, there's no objection. And as I said before, I've asked counsel to confer with respect to transcribing the content of that voic . And at the appropriate time, once we get a transcript that both counsel agree is relatively faithful to the actual words spoken, we intend to provide that transcript to the jury with the instruction that the actual evidence is the voic message and that any transcript we'll have is simply to aid them in their comprehension and isn't a substitute for what they actually hear on the recording. And with respect to the texts, I believe we discussed deferring the ruling on that pending a possible objection by the defense. So is partially granted as to voic , deferred CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

9 with respect to texts. Number is the request to permit the People to file a 0 0 first-amended Information, which defense counsel and I now have. And as I mentioned before, we will defer ruling on that pending further argument, which we'll have, if necessary, Friday afternoon. People's 0 is to ask to exclude any reference to the defense -- defendant's pending minor in possession case, possession of alcohol. And that is mirrored in one of the defense motions in limine Number. And I believe both sides have agreed that it's appropriate at this time to grant those respective motions. And then, if either side wishes, if circumstances change and if any doors open that might lead to one party asking to introduce that piece of evidence, that that party brings it to the attention of counsel and the Court before actually mentioning it in front of the jury. So that is granted and subject to modification if circumstances change. People's Number seeks to preclude any evidence relating to [Jane] Doe's sexual history pursuant to Evidence Code section and 0(c. And I believe there's no objection to that, so I will grant that motion. People's is a request to exclude any reference to the victim's manner of dress as indicative or suggesting of her consent. And as I understand it, as far as there's no objection to that, but the actual dress and the condition of the dress at or around the time of the incidents may be introduced into evidence. And I think the gist of this motion is to preclude any argument that the nature of that dress suggests consent. So CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

10 0 0 0 I'll grant that motion and leave in the statute itself Evidence Code section 0(. It talks about the so-called manner of dress doesn't include the condition of clothing before, during, or after the offense. So there's a preclusion on suggesting that that's indicative of consent but not a complete prohibition with respect to evidence of what the victim was wearing on the night in question. Number is basically a discovery-type request. And I think that's mirrored in Defense Motion in Limine Number. And so -- MS. KIANERCI: You said Number. I'm sorry. THE COURT: I'm sorry. Number. So the first paragraph of Number is sort of a general discovery motion in limine, which is, I think, sort of mirrored by Defense Motion in Limine Number. And so with respect to just those specific portions, I'll just order the parties to comply with the discovery statutes. If, at any time, either party feels that there's been a violation of the discovery rules or statutes, then bring it to the attention of counsel and the Court and we can address it more specifically beginning with the second paragraph of People's Motion in Limine Number. There's an issue as to the scope of the expert witness Dr. Kim Fromme 's testimony. And we discussed that at some length in chambers. And we're going to defer that to further discussion Friday afternoon pending the Court's review of the two-page summary as well as counsel's further consideration as to what the appropriate scope should be. So that will be Friday at approximately o'clock. MS. KIANERCI: If I could just quickly add to this. I CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

11 0 did receive the two-page opinion from counsel that Dr. Fromme wrote as well as her CV. I have requested more information, specifically, what items Dr. Fromme reviewed, what studies she bases her opinion on, you know, research literature, anything that she can provide. Because Dr. Fromme is based in Texas, we're limited in doing a 0 before trial. And so there is still a lot of outstanding questions. Counsel was going to, Number One, inquire from Dr. Fromme about the basis of her opinion as to whether certain items from the defendant's statements were considered when rendering an opinion. And Number Two, counsel was going to provide in advance 0 hypothetical questions that he intended to ask Dr. Fromme based on the People's written and oral, essentially, objections to, not only her testifying, but as an expert in qualifying, but relying on evidence, because she's going to be testifying essentially out of order to accommodate her schedule. And I did request that she be required to testify after the defendant testified in order for those facts to be considered in the hypothetical. So I guess the two things that are outstanding on this motion are the hypothetical questions by counsel and the question regarding the basis of her opinion regarding the defendant's statement. THE COURT: All right. Mr. Armstrong, do you think that's a fair summary of at least what's outstanding or what we discussed in chambers? MR. ARMSTRONG: Certainly the first part about whether or not her testimony or her opinions are taking into account CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

12 statements from Mr. Turner. The second part about providing hypothetical questions, I wasn't under the impression that 0 0 that's anything that I need to do by any timeline and that it's an exhaustive list of all the questions I intend to ask. I thought that was focused mainly on whether or not, because of she's testifying out of order, whether her questions have any -- whether her opinions have anything to do with Mr. Turner's statements. I thought those two were sort of tied together. Am I wrong? THE COURT: Ms. Kianerci? MS. KIANERCI: That wasn't my understanding. Because she is only available either the nd or th and because, at this point, we don't know when, not only when we're going to start evidence but, also, I have indicated to both the Court and Counsel that my witnesses have schedule issues as well; namely, finals schedules. I'm bringing people from out of town as well. So it's possible that there are not just the defendant's issues, but it's possible that other witnesses may not testify before Dr. Fromme on the nd as we have it scheduled right now. Based on that, that was my understanding that our conversation in chambers with respect to the specific hypothetical questions so that I have an idea of who I need to call before the nd, if I'm able to, so I know the full scope of her testimony. And if she was here locally, this wouldn't be an issue because we could do the 0 now or before I present my case and deal with that in advance. But because of her flying out and us having to do the 0 the day of, this hypothetical, I think, needs to be given in advance in order for me to agree to CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

13 0 0 call her out of order and to ensure that, you know, the evidence has been presented to the jury so that the hypothetical could be based on facts and there is a foundation that has been laid. THE COURT: All right. And Mr. Armstrong, you've provided to your defense expert certain materials in connection -- and she's already been given to you. And you've transmitted it to Ms. Kianerci, a summary of sort, of the substance of her testimony. MR. ARMSTRONG: Yes. THE COURT: And is your concern that you don't want to just, A, have to give up all your hypotheticals at this point in time as a matter of trial strategy, or do you think it's just, there's no need to give you something different, your understanding initially of what the complete concern was limited to whether she was relying on your client's statements? MR. ARMSTRONG: Well, I certainly don't want to be limited to what I turn over. First of all, I will make a good-faith effort to have the hypothetical questions that I intend to ask here Friday, and I will speak with Kim Fromme in the meantime. I don't want to be limited in later on to just what I turn in on Friday if it turns out that there's something more that needs to be asked. But I think I understand the concern. And since I've already turned over the opinions and, in fact, the bases for most of those opinions, if not all of them, I don't think there's a problem. It's not a matter of trial strategy of trying to hold anything back. I will do my best to provide those to the Court and counsel on Friday, and then, perhaps, we could discuss it a little further then. CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

14 0 0 THE COURT: Okay. So I won't -- and I'm not going to make an order. I'll just order you to make that good faith effort so that we can try to have the trial proceed according to witness availability and order of proof. And at this point, I'm not going to make any sort of limiting order that if, you know, you're limited by what you share with the Court and counsel Friday as to what you're saying if circumstances do change. And so, hopefully, we can just come to a resolution of that Friday or at least by the time -- and I think what we're anticipating is to have a 0 hearing at some level probably when Dr. Fromme gets here. MR. ARMSTRONG: Right. The morning of the nd. Yes. THE COURT: Right. The morning of the nd. So I guess from my perspective, the more that gets worked out before she actually arrives, the better. I'm not going to make a limiting order now, but sort of, counsels, you know, sort of both sides are a little bit at risk because of the unknown, and we don't know how the 0 is going to play out. So I'll just encourage the open exchange of information, including the hypotheticals, and for that matter, objections to hypotheticals before trial. MS. KIANERCI: Sure. And I would like to add that I have -- you'll see the opinion when I it -- or the report when I it to you later on today. But I have -- there is no indication. She indicates certain things that she relies on in rendering the opinion, but there's no information specifically what she reviewed, which was one of my requests for her. She is getting back to me. So she is -- she has been CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

15 responding. I think we're just, you know, dealing with the scheduling issue and the fact that she's out of the state. 0 0 THE COURT: Okay. And People's has other subparts, which we'll defer all of those. I mean, there are various objections now, but we'll go into greater length either on Friday and, if necessary, well, probably will be necessary, at the 0 hearing. And ultimately, we'll get rulings on all of those. So essentially, the balance of, other than the initial discovery obligations, is deferred. And I think that takes care of the People's first batch of in limine motions. And so let's go to the second People's submission, which were filed on March th. Number seeks to exclude any reference to the specific consequences of the defendant no longer being a Stanford student or swimmer. And let me just give a tentative ruling. We did have some discussion on this. The specific exclusions are that not to refer to the fact that the defendant is no longer on the Stanford swimming team or a student at Stanford University and to exclude any reference as to where the defendant is currently living. So my tentative ruling would be to grant that request as I don't see the relevance to the issues that we're asking the jury to decide. And there is a potential for misuse of that information by the jury, because I'm going to tell them, you're not to essentially consider sympathy or really consequences of their decision. And this could tap into that concern. But I will limit the ruling to those specific areas. And Mr. Armstrong, I want to give you a chance to be heard on that. CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

16 MR. ARMSTRONG: Well, as I expressed in chambers to Court and counsel, it seems to me that any witness, especially the defendant, should be allowed to convey to the jury what community they're a part of and, you know, where they live and 0 0 that kind of thing. I understand the Court's ruling about where he's currently living. I guess it's -- my sort of concern is that without being able to say that he, sort of, like, appears to be homeless to the jury. And I don't think that's exactly fair. I certainly understand the other rulings about no longer on the swim team or a student at Stanford. But I guess -- and I'm still not totally in agreement with the idea to strike any reference to where he lives. I'm trying to think of a way to -- because this ruling also affects all of the other defense witnesses, at least according to the way it's suggested to the Court here that all the witnesses are supposed to be admonished not to make any reference to these facts. And I assume that includes where he lives. I guess that just puts the defense in a sort of a catch- as to how do I present him and what can the witnesses say about recent contact with him since the incident, if none of that can come out. That's my concern. THE COURT: Okay. Ms. Kianerci, any comments on that? MS. KIANERCI: I just feel that if he does -- if it comes out that he's living in Ohio, currently, the jurors are going to naturally wonder -- (Interruption in proceedings. MS. KIANERCI: I'll start over. So with regards to the -- whether he lives in Ohio, I agree that, you know, if he CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

17 0 0 testifies or other character witnesses testify, their basis of knowing him and the basis of, you know, just being in recent communication with him is something that is, you know, relevant to their basis of familiarity with the defendant and, you know, their opinion as to his character. If you -- if he or they were to testify that he's currently living in Ohio, the jury is going to naturally think, well, maybe he got kicked out of Stanford. That can go both ways. That can both hurt the defendant and potentially help him. And either way, it goes to consequences and punishment. You know, the jury might say, well, if they think that he's currently living in Ohio, and therefore, make that logical leap or conclusion that they -- he was kicked out, they might make my verdict harder indicating that, well, he's already been punished. He's been punished enough so, you know, let's give him a break on the facts of this case. Or vice versa, they could say, well, if he's living in Ohio, and he's been living in Ohio since the incident, he must have gotten kicked out of Stanford. Maybe Stanford did their own internal review, and, you know, rubber-stamped that this happened. So either way, I don't think it's relevant. I think the introduction of where he lives and the jurors' natural inference about the meaning of that can greatly taint the jury and their ability to judge the facts based on what is heard in court. THE COURT: All right. Let me sort of refine my ruling. What -- I'll rule that the defendant may not basically tell the jurors where he's currently living. The character witnesses can relate their contacts with the defendant but not say, well, now he's living in Dayton, Ohio since this happened. CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

18 But I think they're free to relate their contacts with the defendant, and they can say where those contacts happened because that just is part of their testimony. I think that leaves enough gray area such that the jury wouldn't jump to the conclusion that he was kicked out of Stanford. I mean, we've had, essentially, a summer go by. 0 0 We've had a Christmas break, et cetera. So again, the defendant can't say where he's living. The character witnesses should not specifically say where he's living, but they can relate their contacts with him and where those contacts have occurred where relevant. And I think that's just basically a middle point, because there's some risk of, you know, the jurors not following the Court's instructions. But there's also, I think, it's important for the character witnesses to be able to explain why they have the opinion they have. All right. And then, Number is the People's request to limit the scope of the character witnesses' testimony. And that would be deferred until Friday. As I understand it, the character traits that have been identified by the defense as subject or subject of these witnesses' testimony will be character for honesty and nonsexual aggression, essentially. And so I want a chance to look at the cases and to have some further discussion on this one. So we'll revisit this Friday afternoon. That takes us to the defense motions in limine. Number One we've already dealt with, which is the same as the People's Number 0. Essentially, no mention unless circumstances change CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

19 and it becomes relevant. At such time, either party may or 0 0 shall address the Court and counsel with respect to introducing such evidence. Number is a motion to suppress referencing upon the word "finger banging" in relating Mr. Turner's statements to police. And as we discussed, if, in fact, Mr. Turner never said this to the police, a motion will be granted that I think counsel are certainly going to investigate whether that is the case. And it really becomes -- I would grant it if it's established that the defendant never said this; so, in essence, we'll defer that, pending a little bit of additional investigation. Maybe a stipulation may come out of that. Number is a motion to exclude cameras from the courtroom. The Court anticipates some media requests, including possibly a request to have cameras in the courtroom. And I'll evaluate those requests based on the Rule of the Court that's applicable. One of the factors in that Rule of Court is the attitude of counsel towards that. And I understand both counsel are against having cameras in the courtroom. So we'll take that into consideration. Number is a motion for substantial time for attorney voir dire. And as I mentioned earlier, we discussed this in chambers. I think both counsel are comfortable with a rough guideline of up to 0 with the first set of, and then, up to 0 minutes for each new group of nine with respect to each counsel/attorney voir dire and subject to extension if circumstances justify it. And then, finally, Defense Number is essentially a CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

20 request for filing additional discovery. I'll adopt the same ruling again with respect to the first part of People's, I think, Number, which is to order counsel to comply with the discovery statutes and bring to the attention of the Court any deviation from those statutes. And I think that concludes what we can do today with respect to the motions in limine. And so we will reconvene Friday at o'clock and continue the hearing at that time Anything else either counsel would like to state for the record, now? MR. ARMSTRONG: Just one thing. On the People's motions in limine that were filed today, the Court went through them pretty carefully, but the last paragraph, which is at the top of page of their motion Number. THE COURT: Yes. MR. ARMSTRONG: I don't think we talked about that. MS. KIANERCI: Oh. THE COURT: Okay. MR. ARMSTRONG: The request from Ms. Kianerci is, as it stated in there, finally, should the character witnesses be allowed to testify about the defendant's drinking history, the People should be allowed to ask about the defendant's pending minor-in-possession charge on cross-examination of those character witnesses. I guess it's not exactly clear to me. If I ask any questions about use or abuse of alcohol that they've witnessed or noticed, then they get to ask them if they know about the fact that he was cited. Is that what the question is? CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

21 0 0 MS. KIANERCI: Well, essentially, there's a couple, at least I believe, two -- I have to look back -- or maybe three mentioned Mr. Turner's lack of drinking and, you know, inexperience with drinking, something to that effect. So should they testify to something to that effect, I think I get to, on cross-examination, ask them, have you heard the question with regard to, you know, the general facts of that case that he was on campus drinking? And I don't know if the Court is familiar with those facts. Essentially, he's on campus drinking -- and please correct me if I'm wrong. It's been awhile since I read that report -- he's on campus drinking, he's contacted -- a police officer contacts him and a group of friends, and they all run. And somehow he catches up to them and cites him for being a minor in possession. And that case is pending in Department. And there are statements to the effect of, you know, him drinking and being a minor. He was drinking. So I don't know if that's an accurate summary from your recollection. MR. ARMSTRONG: Yeah. They're fair. THE COURT: Okay. And I'm just looking at Exhibit, which is the summary of the defense character witness testimony. So on Number, Jennifer Jervis, there's a reference that's about three-quarters of the way down. She was there to address any -- and she was unaware of any abuse of drugs or alcohol. And then there's a reference to Gary Galbreath's statement in the last sentence. He heard about another student abusing alcohol but not Brock. MS. KIANERCI: And then I think the first statement by CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

22 Andrew Cole, the second-to-the-last sentence. THE COURT: Yes. Thank you. They all used alcohol very rarely in high school due to swimming. So you know, this may be a case where simply have to sort of see what comes out. 0 0 I mean, I suppose if a witness were either asked or volunteered the opinion that, you know, he never drank or represented that he never drank, then it could be relevant. But I'm not -- based on the little that I know about the case, I'm not sure how probative it would be to, because the issue would be, you know, it would be one of those, are you aware of this, which would be to attack the foundation for the witness's opinion with respect to their knowledge of the defendant's character. And so unless you had a fairly extreme statement from the character witness about nonuse of alcohol, it would seem to me hard to justify the admission of that, pending an adjudicated case, to attack that witness's knowledge, especially since the knowledge was gained presumably mostly prior to the minor-in-possession case. So that's just my gut reaction to the request. And I think that's something we'll defer as well. And it may -- the Court's ultimate ruling may be just, let's see, sort of proceed at your own risk with respect to questioning the character witnesses, because depending on what gets said, it may open the door to some inquiry. But as I said, my general reaction at this point is that it probably won't. But I won't make a definitive ruling on that at this time. And we can continue to discuss it. CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

23 0 0 MS. KIANERCI: And as that just reminded me thinking about the character witnesses. If they are testifying to the character of nonsexual aggression towards women, there is the factual portion in the People's motions, the last paragraph with regards to the two other girls who, a week before, say that he was aggressive. I think that then opens the door to that. I would bring that up since we hadn't talked about that. THE COURT: Okay. MS. KIANERCI: Something that we can address on Friday. THE COURT: All right. Yeah. Let's discuss that and then settle that. MS. KIANERCI: It would be page -- the bottom, line, page of the People's motion. And that was the factual -- THE COURT: Okay. So I'll just put a Post-it on my -- that that -- we need to discuss that to -- we need to discuss that on Friday. We really didn't go into that much -- MS. KIANERCI: Right. THE COURT: -- in chambers either. Okay. All right. Thank you for your time. And we'll change the Information in advance of Friday, and we'll see you back here Friday at :00. MR. ARMSTRONG: Great. Thank you, your Honor. MS. KIANERCI: Thank you, your Honor. (At : p.m. an adjournment was taken until FRIDAY, MARCH, 0, at :00 p.m. ---ooo--- CARLEY J. BAGATELOS, CSR CERTIFICATE NO. CSR

24 STATE OF CALIFORNIA SS. - COUNTY OF SANTA CLARA I, CARLEY J. BAGATELOS, CSR, HEREBY CERTIFY: That I was the duly appointed, qualified shorthand reporter of said court in the above-entitled action taken on the above-entitled date; that I reported the same in machine shorthand and thereafter had the same transcribed through computer-aided transcription as herein appears; and that the foregoing typewritten pages contain a true and correct transcript of the proceedings had in said matter at said time and place to the best of my ability. I further certify that I have complied with CCP (a( in that all personal juror identifying information has been redacted, if applicable. DATED: AUGUST, 0 C O P Y Carley J. Bagatelos, CSR Certificate No. CSR California Government Code section (dstates: "Any court, party, or person who has purchased a transcript may, without paying a further fee to the reporter, reproduce a copy or portion thereof as an exhibit pursuant to court order or rule, or for internal use, but shall not otherwise provide or sell a copy or copies to any other party or person."