John J. Keller

 XXX XXX XXXX XXXXX Los Angeles, CA 90064 XXXXXXXX XXXXXXXX Attorney for Defendant SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs. JANE DOE, Defendant(s) ) ) ) ) ) ) ) ) ) ) Case No.: TA142819 DEFENSE MOTION TO DISMISS INFORMATION UNDER PEN C §995 Date: Time: Dept.: TO THE HONORABLE JUDGE PRESIDING IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES: PLEASE TAKE NOTICE that on , 2017 in Department , at 8:30 a.m. or as soon thereafter as the matter may be heard, the defendant will move that the Court set aside the information under Penal Code section 995 because (1) there is insufficient evidence to support the mental state required for the defendant’s commission of the murder, and (2) the court improperly admitted recording of interview with a witness as impeachment and then improperly used it to prove the government’s case. This motion will be based on the attached supporting memorandum, the preliminary hearing transcript, and on argument at the hearing on this motion. Date: February 28, 2025 Respectfully submitted, Clarence Darrow Attorney for Defendant MEMORANDUM OF POINTS AND AUTHORITIES SUMMARY OF ARGUMENTS 1. The evidence presented at the preliminary hearing is not sufficient to make a reasonable conclusion that Jane Doe had any knowledge that the victim would be shot; thus, there is no probable cause to establish the required mens rea for murder, and the two counts of murder should be dismissed. 2. The court improperly admitted a recording of a police interview with the prosecution’s sole eyewitness for impeachment purposes and then improperly allowed the prosecution to use it to establish probable cause to prove the government’s case; the case should be dismissed for lack of evidence of probable cause. STATEMENT OF THE CASE AND FACTS A.PERTINENT EVIDENCE ADDUCED AT PRELIMINARY HEARING The decedent’s companion that evening, Eric Smith, testified that he had no idea who shot the decedent. (RT p. 8, lines 12-13.) He testified that Paul, the decedent, was sitting in the passenger seat of the Ford Focus, while he, Eric, was in the driver’s seat. (RT p. 8, lines 16-20). He could not identify the female in the car or anyone else in the car from where the shots came. (RT pp. 26-27, lines 26-28 and 1-5.) Smith was a reluctant witness who testified that what he told police on the day of the incident was mainly what other people told him after the fact. (RT p. 28, lines 17-28.) He testified that he was drunk and excited, and that the description of a woman who was involved was from what he had heard and not seen. (RT p. 30, lines 3-12.) The police gave him the description of the female and all other facts that he described in the recorded interview. (RT p. 31-32, lines 18-28 and 1-11.) Detective John Jones testified that Smith gave him a description of the female driver of a Chrysler that pulled up prior to the murder and at a different location and the male passenger with her. (RT p. 42, lines 1-19.) He testified to Smith telling him that he and decedent had an argument with the same male and female at a 76-gas station. (RT p. 44, lines 18-22) He testified that Smith told him that the same car pulled up with the same female driver and male passenger and shot the decedent. (RT, p. 45, lines 7-11.) Smith told him that when the male pulled out the gun he thought at first that it was a cell phone. (RT p. 45, lines 24-27.) He testified again that Smith said that the “male fired a shot” that hit his friend. (RT p. 45, lines 22-24.) Smith told him that the car pulled up close to theirs. (RT p. 48, lines 8-11). Detective Jason Archie stated that Smith could not identify a perpetrator from a photographic line-up. (RT p. 78, lines 19-21). This detective’s testimony verifies that a Chrysler was rented by someone with the name of Jane Doe. (RT 82, lines 20-21). The defendant admitted to renting the Chrysler, according to Archie. RT p. 88, lines 18-19). His testimony revealed discrepancies regarding the locations from which calls were made from the defendant’s cell number. (RT pp. 90-93.) He admitted that the driver of the Chrysler made no gesticulations or pointing anything out while driving the car. (RT pp. 95-96, lines 1-28 and line 1). He admitted that the data base used to identify the defendant was dependent on what the detectives put into it. (RT p. 104, lines 1-2) Detective R Dell testified that there would have been about 75 to 150 members of the Hoovers gang who are female and almost all of those are black. (RT p. 119-120, lines 27-28 and 1-9.) The gang member’s purpose could be furthered by threatening individuals who are bothering prostitutes of the gang, it would not have to be a murder. (RT p. 126, lines 18-28.) It would be consistent with gang activity for members to set out to commit one crime, and an individual might improvise and commit a further crime. (RT p. 128, lines 1-4.) Defense counsel brought up both objections raised in this motion at the preliminary hearing. He moved the court to dismiss the charges on the basis of the mens rea argument raised in this motion. (RT pp. 131-132, lines 1-28 and 1-28) ARGUMENT A.DEFENDANT’S MENTAL STATE WAS NOT PROVEN TO ALLOW FOR EVEN AN INFERENCE OF THE REQUISITE MENS REA, NOR OF THE ALLEGED MALICE AFORETHOUGHT, WITH RESPECT TO THE MURDER CHARGES IN COUNTS 1 AND 2, AND THEY MUST BE DISMISSED. There must be some evidence to support each and every element of an offense, or the finding must fall. (Panos v Superior Court - CA3d 626; People v Superior Court (Mendella) (1983) 33 C3d 754; People v Shirley (1978) 78 CA3d 424.) There was no evidence at the preliminary hearing in this case to support the establishment of defendant Robinson’s intent that the victim be shot, killed or seriously injured. See, e.g., Rodriguez v Superior Court - CA3d 821 (no showing of intent before force was used against victim); People v Caffero - CA3d 678 (in felony-murder case, no showing of malice aforethought). There is insufficient evidence to even conclude that the defendant was driving the Chrysler identified at the preliminary hearing. Assuming arguendo, that she was driving the vehicle, there is no proof that she knew in advance that the passenger in the vehicle would pull out a gun and kill the decedent. It is indisputable that the defendant did not use or possess a gun and that she did not do the shooting. With there being no affirmative evidence of her mental state, directly or indirectly, there can be no conclusion that she intended to commit a murder, that she harbored malice aforethought, or that otherwise had the requisite mens rea for the crime of murder. The testimony indicates that it is just as likely that the driver could have been steering the car closely to the victim’s car to repeat the threats and taunts that took place earlier. The attributes of gang habits, verified by the prosecution’s gang expert, would be just as likely to continue the threats as to commit a murder, thus leaving no affirmative evidence that the defendant had knowledge, intent or malice aforethought that was directed toward committing a murder. B.THE COURT IMPROPERLY ADMITTED THE RECORDING OF AN INTERVIEW WITH THE KEY WITNESS AS IMPEACHMENT AND THEN IMPROPERLY ALLOWED THE PROSECUTION TO USE THE RECORDING TO ESTABLISH THE ELEMENTS OF THE MERITS OF THE CRIME; THE CASE SHOULD BE DISMISSED FOR LACK OF PROBABLE CAUSE. There is little doubt that the sole prosecution eyewitness to the events was a reluctant witness who did not contribute anything of substance to the prosecution’s case. The testimony of Eric Smith was entirely lacking in any testimony as to the identity of the perpetrators of the crime. He testified at the preliminary hearing that he only knew of the happenings of the events through hearsay conversations with other witnesses, and prominently, through suggestive commentaries made by the detectives to the effect that the defendant was one of the parties involved. He testified clearly at the preliminary hearing that he did not know who was driving the car and that he did not have a sufficient recollection of events to provide a description of the driver. He also testified that he was extremely drunk, had been excited and confused, and simply jumped on the facts and details that he heard others talking up in the aftermath of the crime. To the consternation of the prosecuting attorney, he did not corroborate one single bit of evidence that the government tried to lead him into adopting. This left a fatal gap in the government’s duty to establish probable cause of the elements of the crime. The prosecution, desperate for the necessary testimony, turned to the recorded interview that a detective had with Smith in the aftermath of the crime. Smith testified at the preliminary hearing that he was merely repeating various hearsay versions of events during that unsworn, hearsay interview. Despite his refusal to be impeached in any significant manner by the prosecution’s use of the recording, the prosecution decided to go over the line and to present the details in the recording as the truth of the events that transpired. The court facilitated that effort by denying the defendant’s objections to the use of the hearsay recording to facilitate a finding of probable cause. The court allowed the prosecution to replace the witness’ true testimony at the hearing with the unreliable, untested out-of-court police interview. His true testimony, made under oath in court, was that he did not remember anything about what happened and he certainly could not remember and could not identify the perpetrators involved. California law limits admission of prior inconsistent statements in criminal cases to impeachment purposes. People v. Johnson, 68 Cal. 2d 646, 658 (Cal: Supreme Court 1968), cert. denied 393 U.S. 1051, 89 S.Ct. 679 (1969). Otherwise, a defendant can be convicted on the unsworn testimony of witnesses. In this case, the sworn testimony of Smith must prevail over the unsworn statement to police, made at the suggestion of the detective in charge, and without cross-examination. The court facilitated the prosecution’s improper purpose and allowed the proof of probable cause to be established on that out-of-court material. The witness’ testimony at the preliminary hearing is clear in not supporting a finding of probable cause against this defendant. It is respectfully submitted that this court must hold that the preliminary hearing was infirm in that respect. The court should dismiss the murder charges because a finding of probable cause was made based on hearsay, i.e., impeachment evidence that was not made under oath nor was it subjected to cross-examination. The court made that finding in the face of overwhelming under-oath testimony by the witness that indicated his inability to identify the defendant or to recall the basic details of what occurred. CONCLUSION For all the reasons stated above, this court should dismiss the charges in Counts 1 and 2 for lack of probable cause to prove mens rea and malice aforethought, and for improperly using the recording intended for impeachment as evidence to establish the probable cause needed to initiate a viable prosecution. Date: February 28, 2025Respectfully Submitted, Clarence Darrow Attorney for Defendant CLARENCE DARROW, #310379 Olympic Blvd., Suite Los Angeles, CA 90064 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs. JANE DOE,Defendant(s) ) ) ) ) ) ) ) ) ) ) Case No.: TA142819 DECLARATION OF CLARENCE DARROW IN SUPPORT OF MOTION TO DISMISS UNDER PEN C §995 I, Clarence Darrow, declare under penalty of perjury: 1. I am the attorney representing Jane Doe. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: February 28, 2025 Clarence Darrow Attorney for Defendant CLARENCE DARROW, Olympic Blvd., Suite Los Angeles, CA 90064 Attorney for Defendant SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs. JANE DOE,Defendant(s) ) ) ) ) ) ) ) ) ) ) Case No.: TA142819 PROOF OF SERVICE I, Clarence Darrow, certify: I am an active member of the State Bar of California and am not a party to this action. My business address is Olympic Blvd., Suite xxx, Los Angeles, CA 90064. On February 28, 2025, I deposited in the United States mail at 1270 S. Alfred Street, Los Angeles, CA 90035, a copy of the attached MOTION TO DISMISS UNDER PEN C §995, in a sealed envelope, with postage fully prepaid, addressed to Department 71 Assigned DA, Fred Engell, 11701 South La Cienega Boulevard, Suite 601, Los Angeles, CA 90045. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: February 28, 2025 _______________________________ Clarence Darrow Attorney for Defendant