SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MONTEREY

Transcription

1 MONTEREY COUNTY PUBLIC DEFENDER JAMES S. EGAR, PUBLIC DEFENDER William R. McLennan, Contract Deputy Public Defender 1022 Mill Street San Luis Obispo, CA (805) / / Mon. Pub. Def. (831) Cal. Bar No Attorney for Petitioner Patrick Lee McCurdy SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MONTEREY PATRICK LEE McCURDY, ) Case No. ) SC No. SSO62430A Petitioner, ) ) PETITION FOR WRIT OF ) HABEAS CORPUS; ON HABEAS CORPUS ) VERIFICATION; PROOF OF SERVICE ) ) ) PETITION FOR WRIT OF HABEAS CORPUS Petitioner, Patrick Lee McCurdy, by and through his attorney, William R. McLennan, Contract Deputy Public Defender for the County of Monterey, petitions for a writ of habeas corpus and by this verified petition states as follows: I INTRODUCTION Petitioner was involved in an automobile accident at 6:39 p.m. on August 11, A blood sample drawn at 8:15 p.m. at Watsonville Community Hospital was subsequently tested by 1

2 the Department of Justice Freedom Regional Laboratory (hereinafter DOJ Freedom Lab) on its BARS 2 unit on September 5, 2006, and the reported blood alcohol content was.07. Petitioner relied on the accuracy of this testing, pled nolo contendere to the charges against him on October 19, 2006, and was sentenced to five years in state prison. Prior to petitioner s plea, the DOJ Freedom Lab knew the BARS 2 unit and petitioner s test results were unreliable and his sample needed to be retested. Unknown to petitioner, DOJ Freedom Lab had performed a proficiency test, as required by Title 17, section (a)(2) to maintain its licence, on September 7, 2006, just two days after it tested petitioner s blood sample on the same BARS 2 unit. On October 5, 2006, DOJ Freedom Lab was told by the Department of Health Services that this proficiency test was unsatisfactory and the BARS 2 unit was taken out of service. Since the most recent successful proficiency test was performed on March 29, 2006, this failure impacted a large number of cases. DOJ Freedom Lab did not retest petitioner s sample, although it was readily identifiable, and did not notify the Monterey County District Attorney of this problem until March 21, In turn, the Monterey County District Attorney s Office did not notify the Monterey County Public Defender until September 17, 2007, six months after it received official notification of this problem from DOJ Freedom Lab, and only after Public Defender James S. Egar heard information informally and made inquires to the Monterey County District Attorney. Petitioner s sample was retested and the blood alcohol content was discovered to be.05, rather than.07, a significant difference in the context of this case. These basic facts demonstrate that petitioner is entitled to habeas corpus relief based on Penal Code section1475(b)(2), the denial of his right to state and federal due process, and his right to effective assistance of counsel. (Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215; 2

3 83 S.Ct.1194]; Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052; 80 L.Ed.2d 674]; Barber v. Municipal Court (1979) 24 Cal.3d 743, ) The failure to immediately reveal the unreliability of blood alcohol testing at DOJ Freedom Lab was a calculated decision to minimize risk that impacted many cases and could be repeated in the future. Further facts presented at an evidentiary hearing may demonstrate this conduct justifies suppression of evidence or dismissal. (Maine v. Moulton (1985) 474 U.S. 159 [106 S.Ct. 477; 88 L.Ed.2d 481]; Morrow v. Superior Court (1994) 30 Cal.App.4th 1252; United States v. Morrison (1981) 449 U.S. 361[101 S.Ct. 665; 66 L.Ed.2d 564]; Barber v. Municipal Court (1979) 24 Cal.3d 743, ) II Petitioner Patrick Lee McCurdy, CDC # F 53185, is unlawfully incarcerated at the California Mens Colony in San Luis Obispo, California, by Warden John Marshall, and James E. Tilton, Secretary of the California Department of Corrections and Rehabilitation, pursuant to a plea of nolo contendere in Monterey County case number SSO 62430A to Vehicle Code Section 23153(a) and Penal Code section (a), before the Honorable Richard M. Curtis in the Monterey County Superior Court, Department I, on October 19, III Petitioner was originally charged on August 14, 2006, in a two-count complaint that alleged in count I a violation of Vehicle Code section 23153(a), and alleged in count II a violation of Vehicle Code section 23153(b). An amended complaint dated August 8, 2006, was filed and alleged in count I a violation of Vehicle Code section 23153(a), and alleged in count II a violation of Vehicle Code section 23153(b), with a sentence enhancement alleged for each 3

4 count pursuant to Penal Code section (a). Petitioner s preliminary hearing was waived on September 27, IV On October 19, 2006, an information was filed with charges and enhancements identical those in the amended complaint. On that same date, petitioner entered a plea of nolo contendere to count I of the information, a violation of Vehicle Code section 23153(a), and the sentence enhancement, Penal Code section (a). On November 17, 2006, Petitioner was sentenced to state prison for five years. Petitioner s anticipated release date is October 7, V Petitioner asserts that this petition should be assigned to his sentencing judge, the Honorable Richard M. Curtis, based on petitioner s right to state and federal due process, judicial economy, fundamental fairness and the principles stated in People v. Arbuckle ( (1978) 22 Cal.3d 749. Penal Code section 859(c) and Fuller v. Superior Court (2004) 125 Cal.App.4th 623, are not applicable in this case, because petitioner is not challenging a prior ruling of the Honorable Richard M. Curtis, but bases his claim on Penal Code section 1473(b)(2), and violations by the government of his state and federal constitutional right to due process and the effective assistance of counsel. VI Petitioner has not filed an appeal or a previous writ of habeas corpus in this case. VII The following facts demonstrate that petitioner has timely filed this habeas corpus petition: 4

5 Petitioner was involved in an automobile accident at 6:39 p.m. on August 11, He was given a preliminary alcohol screening tests in the ambulance between 7:16 p.m. and 7:20 p.m. that registered a blood alcohol content of.084,.09 and.086. (Declaration of Counsel, Exhibit A.) A blood sample drawn at 8:15 p.m. Watsonville Community Hospital was subsequently tested by the DOJ Freedom Lab on its BARS 2 unit on September 5, 2006, and the result was reported to be a blood alcohol content of.07. (Declaration of Counsel, Exhibit B.) Petitioner relied on this evidence, entered a plea of nolo contendere to the charges against him on October 19, 2006, and was sentenced to five years in state prison on November 19, On October 5, 2006, or shortly thereafter, the Department of Health Services notified the DOJ Freedom Lab that it failed the proficiency test, required to maintain its license pursuant to 17 Cal.Code Regs. section (a)(2), that was completed on September 7, (Declaration of Counsel, Exhibit C, page 1 of 2.) The BARS 2 unit used in this proficiency test was taken out of service. (Declaration of Counsel, Exhibit D.) Petitioner was not notified of this fact and did not know his blood alcohol test result was unreliable before he pled nolo contendere to the charges on October 19, 2007, and was sentenced to state prison on November 17, Although petitioner s sample was readily identifiable, it was not retested by DOJ Freedom Lab. (Declaration of Counsel, paragraph 17.) The Monterey County District Attorney, the Santa Cruz County District Attorney, and the San Benito County District Attorney were notified in a letter dated March 21, 2007, from Juan C. Bergado, Criminalist Supervisor of DOJ Freedom Lab, of the failed proficiency test, the removal of the BARS 2 unit from service, and a review of casework results during that time period. (Declaration of Counsel, Exhibit E.) The true facts were nothing was done or had been 5

6 done to review petitioner s blood testing or any other cases from Monterey County potentially impacted by this problem. (Declaration of Counsel, paragraph 17.) This matter was immediately investigated by the Santa Cruz County District Attorney and selective retesting was requested by that office. (Declaration of Counsel, Exhibits F and G, paragraph 17.) Petitioner was not notified at this time of the unreliability of his blood alcohol testing and it is unknown what immediate action, if any, was taken by the Monterey County District Attorney s Office. On August 22, 20078, Monterey County Public Defender James S. Egar attempted to verify information he received informally from an attorney concerning problems at the DOJ Freedom Lab by sending a letter of inquiry to Terry Spitz, the Assistant District Attorney of Monterey County. (Declaration of Counsel, Exhibit H.) On September 18, 2007, James S. Egar received a response to his inquiry from Edward Hazel, Managing Deputy District Attorney of Monterey County, who acknowledged the problem and provided a list of Monterey County Public Defender clients who may have been impacted by the unreliable blood alcohol testing at Freedom Regional Laboratory. (Declaration of Counsel, Exhibit I.) On November 11, 2007, William R. McLennan was hired as special counsel to review the selected public defender case files and investigate this matter. After reviewing all potential cases, a letter was sent from Mr. McLennan to Assistant District Attorney Terry Spitz, requesting discovery, a meeting with DOJ Freedom Lab personnel, and retesting of client samples. (Declaration of Counsel, Exhibit J.) In a letter dated January 12, 2008, from William R. McLennan to Juan C. Bergado, Criminalist Supervisor of the DOJ Freedom Lab, it was requested that petitioner s blood sample be expedited for retesting. (Declaration of Counsel, Exhibit K.) 6

7 On February 1, 2008, Petitioner s blood was retested by Forensic Analytical Laboratories. The blood alcohol content was determined to be.05 and not.07, as reported by DOJ Freedom Lab. (Declaration of Counsel, Exhibit L.) On February 11, 2007, a meeting was held between Juan Bergado, Criminalist Supervisor of DOJ Freedom Lab, Edward Hazel, Managing Deputy District Attorney of the Monterey County District Attorney s Office, and William R. McLennan, representing the Public Defender s Office. Juan C. Bergado provided documents to counsel prior to this meeting, but the October 5, 2006, letter from the Department of Health Services was not included in those documents. Juan C. Bergado stated at the meeting that the cases impacted by the failed proficiency tests were easily ascertainable and the blood samples were available for retesting. (Declaration of Counsel, paragraph 17.) On February 13, 2007, a page missing from the discovery was provided to petitioner s counsel by Managing Deputy District Attorney Hazel, and on February 25, 2008, a copy of the DOJ Freedom Lab testing was provided to petitioner s counsel. Following the events described above, it was decided that a petition for writ of habeas corpus was necessary to remedy the wrongs suffered by petitioner. These facts demonstrate that this petition is timely. VIII GROUNDS FOR RELIEF Petitioner s imprisonment is unlawful because: Ground 1: Penal Code section 1473(b)(2) specifically grants petitioner habeas corpus relief because he relied on false physical evidence that he believed to be factual, probative or material on the 7

8 issue of guilt, and this false physical evidence was a material factor that directly related to his plea. Ground 2: Petitioner was deprived of his federal right to due process and suffered prejudice when material, exculpatory evidence, known to the prosecution investigative team, was not disclosed to him prior to this plea of nolo contendere to Vehicle Code section 23153(A) and Penal Code section (A). (Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215; 83 S.Ct.1194]; People v. Zambrano (2007) 41 Cal.4th 1082; In re Brown (1998) 17 Cal.4th 873; In re Sassounian (1995) 1995) 9 Cal.4th 535.) The failure to disclose material exculpatory evidence was a calculated decision that destroyed petitioner s right to due process, impacted many other cases and could be repeated in the future. Further facts presented at an evidentiary hearing may demonstrate this conduct justifies suppression of evidence or dismissal. (Maine v. Moulton (1985) 474 U.S. 159 [106 S.Ct. 477; 88 L.Ed.2d 481]; Morrow v. Superior Court (1994) 30 Cal.App.4th 1252; United States v. Morrison (1981) 449 U.S. 361[101 S.Ct. 665; 66 L.Ed.2d 564].) Ground 3: Petitioner was denied the effective assistance of counsel, in violation of state and federal due process, and the Sixth Amendment of the United States Constitution and article I, section 15, of the California Constitution, when the government knowingly withheld material exculpatory evidence from his attorney prior to petitioner s plea. Petitioner s counsel could not and did not provide him with competent advice because the government knowingly failed to disclose material exculpatory evidence to petitioner s counsel. Relying on this manipulated advice, petitioner pled to the charges. Absent this interference with the attorney-client relationship, there 8

9 is a reasonable probability that... the results of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 692, 694 [80 L Ed 2d 674, 104 S Ct. 2052]; see generally Barber v. Municipal Court (1979) 24 Cal.3d 742.) The failure to disclose material exculpatory evidence was a calculated decision that destroyed petitioner s right to counsel, impacted many other cases, and could be repeated in the future. Further facts presented at an evidentiary hearing may demonstrate this conduct justifies suppression of evidence or dismissal. ( Maine v. Moulton (1985) 474 U.S. 159 [106 S.Ct. 477; 88 L.Ed.2d 481]; Morrow v. Superior Court (1994) 30 Cal.App.4th 1252; United States v. Morrison (1981) 449 U.S. 361[101 S.Ct. 665; 66 L.Ed.2d 564]; Barber v. Municipal Court (1979) 24 Cal. 3d 742.) IX FACTS SUPPORTING GROUNDS FOR RELIEF The facts supporting the three grounds for relief as stated above are as follows: Petitioner attempted to avoid an accident and rolled his Ford Ranger truck on Salinas Road in Watsonville, California at approximately 6:39 p.m. on August 11, He was given a preliminary alcohol screening tests in the ambulance between 7:16 p.m. and 7:20 p.m. that registered a blood alcohol content of.084,.09 and.086. A blood sample was drawn at 8:15 p.m. at Watsonville Community Hospital. (Declaration of Counsel, Exhibit A.) This blood sample was sent to the DOJ Freedom Lab to determine its blood alcohol content. DOJ Freedom Lab is a California Department of Justice Laboratory, located in Watsonville, California. The laboratory regularly performs blood analysis for local law enforcement agencies, including those in Monterey, Santa Cruz and San Benito Counties. To maintain its licence, DOJ Freedom Lab must demonstrate satisfactory performance in a 9

10 proficiency testing program conducted by or approved by the Department. (17 Cal.Code Regs section (a)(3).) A proficiency test involves known samples sent from the Department of Health Services to a laboratory for analysis. The sample test results are returned to the Department of Health Services for review. Test failure could mean a loss of license. (17 Cal.Code Regs. section 1216 (1)(c).) (Declaration of Counsel, paragraph 18.) Petitioner s passenger was seriously injured, and petitioner was charged in an amended complaint with violations of Penal Code section 23153(a) and 23153(b), with a sentence enhancement alleged for each count pursuant to Penal Code section (a). On August 30, 2006, five days before petitioner s blood sample was tested, proficiency test samples were received at DOJ Freedom Lab from the Department of Health Services. (Declaration of Counsel, Exhibit C, page 2 of 2.) Petitioner s blood sample was tested by DOJ Freedom Lab on its BARS 2 unit on September 5, 2006 and the reported blood alcohol result was.07. (Declaration of Counsel, Exhibit B.) Two days later, on September 7, 2006, Scott Armstrong of the DOJ Freedom Lab analyzed the recently received proficiency test samples on the same BARS 2 unit and sent a completed Forensic Alcohol Proficiency Test Laboratory Analysis Report to the Department of Health Services. (Declaration of Counsel, Exhibit C, page 2 of 2.) On September 27, 2006, petitioner waived his preliminary hearing and was subsequently charged in an information with violations of Penal Code section 23153(a) and 23153(b), and with a sentence enhancement alleged for each count pursuant to Penal Code section (a). On October 5, 2006, DOJ Freedom Lab was notified by Clay Larson, Chief of the Abused Substances Analysis Section, Food and Drug Laboratory Branch, Department of Health Services, that the proficiency test performed on September 7, 2006, was unsatisfactory. DOJ 10

11 Freedom Lab was instructed to notify the Department of Health Service of actions taken to correct the source of the unsatisfactory performance within 15 days. (See Declaration of Counsel, Exhibit C, page 1 of 2) The BARS 2 unit was immediately removed from service on October 9, 2008, and was not approved for use until February 21, (See Declaration of Counsel, Exhibit D.) Since the BARS 2 unit had not been subjected to a proficiency test since March 29, 2006, it was immediately known by DOJ Freedom Lab that the blood alcohol testing since that date was unreliable. (Declaration of Counsel, paragraph 17.) Of more significant importance in this case, the analysis on petitioner s blood sample was performed on the same BARS 2 unit only two days before that machine failed the proficiency test. (Declaration of Counsel, Exhibit C, page 2 of 2.) Petitioner pled nolo contendere to count I of the information on October 19, 2006, fourteen days after DOJ Freedom Lab received notice from the Department of Health Services that it FAILED the proficiency test conducted on September 7, Petitioner, however, relied on the accuracy and reliability of the test results received from DOJ Freedom Lab, and did not know that the BARS 2 unit failed a proficiency test performed two days after his blood sample was tested on the same unit. When petitioner pled to the charges, he did not know his test results were unreliable, that his sample must be retested, and he could have a defense to the allegations against him. In addition to the problems associated with the BARS 2 unit, the DOJ Freedom Lab BARS 1 unit became inoperable on November 7, 2006, and was taken out of service until December 5, On January 31, 2007, DOJ Freedom Lab was notified that the BARS 1 unit 11

12 failed a proficiency test and it was taken out of service until February 21, (Declaration of Counsel, Exhibit M.) On March 21, 2007, the Monterey County District Attorney, the Santa Cruz County District Attorney and the San Benito County District Attorney were notified in a letter from Juan Bergado, Criminalist Supervisor of the DOJ Freedom Lab, of the failed proficiency test, the removal of the BARS 2 unit from service, and of a review of casework results during that time period. (Declaration of Counsel, Exhibit E.) The true facts were nothing was done or had been done to review petitioner s blood testing or any other cases in Monterey County potentially impacted by this problem. (Declaration of Counsel, paragraph 17.) This matter was immediately investigated by the Santa Cruz County District Attorney and retesting was requested by that office. (See Declaration of Counsel, Exhibits F and G, paragraph 17.) Petitioner was not notified at this time of the unreliability of his blood alcohol testing, and it is unknown what immediate action, if any, was taken by the Monterey County District Attorney s Office. On August 22, 2007, Monterey County Public Defender James S. Egar attempted to verify information he received informally from an attorney concerning problems at the DOJ Freedom Lab by sending a letter of inquiry to Terry Spitz, the Assistant District Attorney of Monterey County. (Declaration of Counsel, Exhibit H.) On September 18, 2007, Public Defender James S. Egar received a response to his inquiry from Edward Hazel, Managing Deputy District Attorney of Monterey County, who acknowledged the problem and provided a list of Monterey County Public Defender clients who may have been impacted by the unreliable blood alcohol testing at DOJ Freedom Lab. (Declaration of Counsel, Exhibit I.) Petitioner s case was included in this group. 12

13 On November 11, 2007, William R. McLennan was hired as special counsel to review the selected public defender case files and investigate this matter. After reviewing all potential cases, a letter was sent from William R. McLennan to Assistant District Attorney Terry Spitz requesting discovery, a meeting with DOJ Freedom Lab personnel, and retesting of client samples. (Declaration of Counsel, Exhibit J.) In a letter dated January 12, 2008, from William R. McLennan to Juan C. Bergado, Criminalist Supervisor of the DOJ Freedom Lab, it was requested that petitioner s blood sample be expedited for retesting. (Declaration of Counsel, Exhibit K.) Petitioner s blood was retested by Forensic Analytical Laboratories on February 1, The blood alcohol level was discovered to be.05 and not.07, as reported by DOJ Freedom Lab. (Declaration of Counsel, Exhibit L.) The difference is significant in the context of this case. The result reported by DOJ Freedom Lab in petitioner s case was not only unreliable, it was also inaccurate. On February 11, 2007, a meeting was held between Juan C. Bergado, Criminalist Supervisor of DOJ Freedom Lab, Edward Hazel, Managing Deputy District Attorney of the Monterey County District Attorney s Office, and William R. McLennan, representing the Public Defender s Office. At that meeting, Juan C. Bergado disclosed that the files impacted by the failed proficiency test were readily identifiable, and that no retesting had been done on the Monterey County cases. (Declaration of Counsel, paragraph 17, Exhibits A and B.) On February 13, 2007, a page missing from the discovery was provided to petitioner s counsel by Managing Deputy District Attorney Hazel, and on February 25, 2008, a copy of the Freedom Regional Laboratory report of petitioner s blood testing was provided to petitioner s counsel. 13

14 X Petitioner has not presented the grounds set forth in this petition to any state or federal court in any petition, motion or application. Petitioner did not file an appeal in this case following his pea of nolo contendere to count I of the amended complaint in case number SSO 62430A in the Monterey County Superior Court, Department I. XI Petitioner has no plain, speedy, or adequate remedy at law. Petitioner pled nolo contendere to count I of the complaint against him, was sentenced to state prison and filed no appeal. The issues present in this habeas corpus petition are fully cognizable, and this court has jurisdiction, pursuant to California Penal Code sections 1473(a), 1473(b) (2) and the Federal and State Constitutions. The facts necessary to decide the issues presented in this petition are outside the facts and records in the court file. XII Petitioner was processed and placed at the West Facility of the California State Prison at San Luis Obispo, a level 2 facility, on February 2, He was chairman of the Narcotics Anonymous (NA) meetings from April 15, 2007 to February 2008, has been a Substance Abuse Program (SAP) mentor at the West Facility since October 2007, and started a SAP program in the camp yard in February He has received no 115 (written) or 128 (oral) disciplinary reports. (Declaration of Counsel, paragraph 19.) Petitioner was on felony probation in Santa Barbara County in case number following his conviction on August 28, 2003, for a violation of Health and Safety Code section On April 5, 2007, petitioner was sentenced to the middle term of 2 years, with credits for 14

15 710 days in custody pursuant to Penal Code section 4019, and he is no longer in custody for this offense. (Declaration of Counsel, Exhibit N.) Petitioner s parents live in Solvang, California, and petitioner will live with them if he is released on bail or on his own recognizance. (Declaration of Counsel, paragraph 20.) XIII Petitioner incorporates by reference the accompanying memorandum of points and authorities and declarations. Petitioner s claims are based on the petition, the accompanying points and authorities, the attached declarations, and all records, documents, and pleadings on file with this Court in case number SSO 62430A, and on further material and evidence that may be presented at an evidentiary hearing. WHEREFORE, petitioner respectfully requests that this court: 1. Take judicial notice of the court file in this case; 2. Order respondent to show cause why petitioner is not entitled to the relief sought; 3. Order discovery between parties; 4. Vacate petitioner s judgment and commitment to state prison, order petitioner discharged from custody and released on his own recognizance or bail; 5. Conduct an evidentiary hearing to answer the factual questions necessary to determine the merits of petitioner s claims and the appropriate remedy for the government s misconduct; 6. After full consideration of the issues raised by this petition, grant the petition and vacate petitioner s plea of nolo contendere to Vehicle Code section 2153(a) and Penal Code section (a) in case number SSO 62430, and either dismiss this case or suppress the blood alcohol results from DOJ Freedom Lab and grant him a new preliminary hearing and trial; and 7. Grant such other and further relief as may seem just under the circumstances. 15

16 Date: April 11, 2008 Respectfully submitted, William R. McLennan Attorney for Petitioner 16

17 VERIFICATION William R. McLennan declares as follows: I am an attorney admitted to practice law in the state of California. I was retained by the Monterey County Public Defender as a contract deputy public defender to represent petitioner and prepare the accompanying petition for writ of habeas corpus. I make this verification because petitioner is incarcerated the California State Prison in San Luis Obispo, California. The matters stated in this petition for habeas corpus are more within my personal knowledge than within the personal knowledge of petitioner. I have read the petitioner the writ of habeas corpus and declare that the contents of the petition are true. I declare under penalty of perjury that the foregoing is true and correct. Executed this 11 th day of April, 2008, at San Luis Obispo, California. Respectfully submitted, William R. McLennan Attorney for Petitioner 17

18 PROOF OF SERVICE I, the undersigned, declare: I am employed in the County of San Luis Obispo and the County of Monterey, State of California. I am over the age of eighteen (18) years, a citizen of the United States of America, and not a party to this lawsuit. My place of employment is the Law Office of William R. McLennan, 1022 Mill Street, San Luis Obispo, California, 93401, and the Monterey County Public Defender, 111 West Alisal Street, Salinas, California, I served a true copy of the attached Petition for Writ of Habeas Corpus, Memorandum of Authority in Support of Writ of Habeas Corpus, and the Declarations of Counsel and Declaration of Petitioner by placing a true copy in a sealed envelope with postage fully prepaid, in the Unites States mail at San Luis Obispo, California, on April 11, 2008, addressed as follows: Honorable Russell D. Scott Presiding Judge, Department 4 Monterey County Superior Court 240 Church Street Salinas, California Assistant District Attorney Terry Spitz Monterey County District Attorney s Office 230 Church Street, Bldg. Three Post Office Box 1131 Salinas, California California Attorney General Edmund G. Brown, Jr. Office of the Attorney General 455 Golden Gate Avenue Suite 110 San Francisco, California District Attorney Gerald Shea San Luis Obispo County District Attorney s Office San Luis Obispo, California

19 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on April 11, 2008, in San Luis Obispo, California. William R. McLennan Attorney at Law 19