This article explains how to prevail on a Motion to Dismiss a case involving a charge of Deliberate and Premeditated Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664: https://codes.findlaw.com/ca/penal-code/pen-sect-664.html & California Penal Code section 187(a): https://codes.findlaw.com/ca/penal-code/pen-sect-187.html).
In this particular case, the evidence against my client primarily consisted of video footage from a security camera overlooking the downtown LA parking lot in which the incident occurred. As any experienced defense attorney will tell you, it’s almost impossible to defeat a prosecution when your client is (allegedly) caught on tape committing the crime.
My client was facing life in prison and, therefore, was understandably concerned.
I eventually filed a Motion to Dismiss based on insufficient evidence, which, after being granted by a fair-minded judge, resulted in the dismissal of the attempted murder charge on January 12, 2020.
As any experienced criminal defense attorney also knows from painful personal experience, prevailing on a Motion to Dismiss – more commonly referred to as a “995 motion” (based on California Penal Code section 995: (https://codes.findlaw.com/ca/penal-code/pen-sect-995.html) – is a rare occurrence. (It is technically referred to as a “Motion to Set Aside Information”.) This motion involves filing a brief with the criminal court to have a specific charge or even the entire case dismissed.
A 995 motion – also simply known as a “995” – is classified as a dispositive motion because if you prevail, it may literally dispose of the entire case (in your favor, of course) if it gets granted.
This state law is grounded on the fundamental right of Americans to be free from unreasonable arrests – i.e., those lacking probable cause. See: Pen. Code § 995, subd. (a)(2)(B).
One of the reasons 995 motions are so hard to win is because you’re limited to the arguing against only that purported evidence contained in the court record to date, including the police report(s) and preliminary hearing transcript. See People v. Crudgington (1979) 88 Cal.App.3d 295, 299: https://law.justia.com/cases/california/court-of-appeal/3d/88/295.html
In other words, you’re not allowed to go beyond the “four corners” of the evidence and documentation submitted by the prosecution. This means, of course, that you can’t present any exculpatory or “counter-evidence” to support your motion.
In making his/her decision, the judge is entitled to make any reasonable inferences from the parties’ evidence and arguments relating thereto. Birt v. Superior Court (1973) 34 Cal App 3d 934, 938: https://law.justia.com/cases/california/court-of-appeal/3d/34/934.html
The Facts of the Case
The subject incident occurred on April 29, 2020 at approximately 11:00 pm in the area around the intersection of West 28th Street and West Boulevard in downtown Los Angeles. Shortly thereafter, LAPD Officer “Sinta” (not his real name) responded to a call about an alleged shooting at that intersection near a residence located in the 4600 block of West 28th Street (the “subject residence”).
As part of his investigation, Officer Sinta recovered and reviewed surveillance footage from a camera placed at a parking lot at the rear of an apartment complex across the street from that residence. In addition, he recovered a single .45-caliber cartridge casing and a single .45-caliber bullet casing from that area.
After reviewing the footage, Ofc. Sinta believed that several individuals involved in the shooting had previously emerged from the subject residence. As a result, after calling for backup, he went to that house and called out its five occupants, including my client, “Joe”, and his co-defendant, “Victor”.
The following day, April 30th, LAPD Detective “Garcia”, the lead investigator on the case, also reviewed this video footage.
The Search Warrants
On May 12, 2020, LAPD executed search warrants on the residences and vehicles of both suspects. Only dark clothing was seized from Joe’s vehicle, which he was alleged to have worn during the incident. Victor wasn’t so lucky – from his home police seized a .45-caliber magazine, as well as two .45-caliber shell casings, which purportedly matched that taken from the crime scene.
The Arrests and Charges
On May 13, 2020, both suspects were arrested. Joe was charged with the following:
“Attempted Willful, Deliberate, and Premeditated Attempted Murder” “with malice aforethought” (Penal Code section 664: https://codes.findlaw.com/ca/penal-code/pen-sect-664.html and Penal Code section 187(a)); https://codes.findlaw.com/ca/penal-code/pen-sect-187.html
Personally discharging a firearm (Penal Code section 12022.53(c)): https://codes.findlaw.com/ca/penal-code/pen-sect-12022-53.html;
Violent-felony strike offense (Penal Code section 1170(h)(3)): https://codes.findlaw.com/ca/penal-code/pen-sect-1170.html; and
Sentencing enhancements (Penal Code section 1203(e)(4): https://codes.findlaw.com/ca/penal-code/pen-sect-1203.html).
The case was filed in the downtown Criminal Courts Building (CCB).
The Preliminary Hearing
On July 20, 2020, the preliminary hearing in this matter was held. Det. Garcia testified that he believed the video depicted the shooting incident, including the two suspects coming from and returning to the subject residence before and after the incident. (During the hearing, the surveillance video was played in the courtroom.)
Specifically, Det. Garcia testified that he believed the video showed the following:
The victim backed up his vehicle into the parking lot until he struck a parked vehicle, then drove forward towards the entrance of the lot. At that moment, the two suspects emerged from the subject residence across the street, walking in tandem towards the lot;
As the vehicle approached the entrance to the lot, the two suspects suddenly separated with Joe moving to the left of the vehicle, and Victor to the right.
Then, just as the vehicle turned left onto the street (again, West 28th Street), both suspects pulled out handguns, “took up shooting stances on each side of the vehicle -- you can see muzzle flashes emitting from their extended arms”, and fired as it drove away.
Det. Garcia specified that the video showed that each suspect held his firearm with one hand fully extended while cupping that hand with the other. (The victim was not injured);
Next, Victor bent over twice to pick up something from the street, which Det. Garcia believed were shell casings. (This was the same area where Ofc. Sinta discovered the expended cartridge and casing.) Moments later, the two suspects walked back to the residence.
Later, a .45-caliber bullet fragment was recovered from the victim’s lower right rear bumper, and a bullet hole was discovered in the same spot. No other physical evidence was recovered from the vehicle.
Preparation of the Motion to Dismiss
I’ve handled more murder and attempted murder cases than I can count in the 16 years I’ve been practicing criminal law (including my first four as a Deputy PD for LA County). The primary element to attack in first-degree murder (California Penal Code section 190: (Elements of First-Degree Murder: https://codes.findlaw.com/ca/penal-code/pen-sect-190.html; and first-degree Attempted Murder charges (Penal Code section 664: https://codes.findlaw.com/ca/penal-code/pen-sect-664.html and Penal Code section 187(a): https://codes.findlaw.com/ca/penal-code/pen-sect-187.html are the elements of premeditation and deliberation (which are really just a single element).
According to the Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”), “The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting.” See CALCRIM Jury Instruction No. 601, “Attempted Murder: Deliberation and Premeditation: Pen. Code §§ 21a, 189, 664(a))”: https://www.justia.com/criminal/docs/calcrim/500/601/
After my first viewing of the surveillance video, I knew the Deputy DA prosecuting the case was going to have a very tough time proving that Joe and Victor carefully and coldly planned to execute the victim. Detectives and prosecutors always see evidence in a manner that befits their case and this was certainly no exception. Here, they were convinced that the video proved that the two suspects had ambushed the victim and tried to kill him in a strategic cross-fire.
But they didn’t count on Joe hiring someone like me. (Victor couldn’t hire a private attorney so went with a Deputy PD.)
On November 20, 2020, I filed the 995 motion with the court. However, it was not heard until January 12, 2021 because of multiple Covid-quarantine delays.
Attacking the Element of Premeditation and Deliberation
I fired my best shot at the outset of the 995: no evidence – most particularly the video itself – had been presented thus far that proved Joe (and by extension, Victor) had carefully planned the murder, much less that he/they planned to do so after carefully weighing the pros and cons.
First, I pointed out that both Det. Garcia and the prosecutor conveniently ignored the fact that the real-time video clearly showed that immediately after the victim bashed into the car behind him, he floored the gas and accelerated at a high rate of speed.
As a result, the two suspects were forced to literally jump out of the way in opposite directions to avoid being hit. In other words, this wasn’t a carefully planned ambush as they only had a second or two to avoid being struck by the car. (Indeed, the video showed that Victor missed being struck by mere inches.) Therefore, they lacked the time to form the “specific intent” necessary for the DA’s Office to sustain an attempted murder charge.
More specifically, I argued that the video clearly showed the suspects acting in a knee-jerk reaction to the near hit-and-run. (Importantly, I never once admitted that a shooting had actually taken place – see below. Nor did I ever even admit Joe or Victor had been present at the scene -- instead, I only referred to them as “Suspect 1” [Victor] and “Suspect 2” [Joe]).
I wrote that as a result of this instantaneous response:
The video then appears to show S-1 [Victor], who is apparently in fear from this near-death experience and acting in self-defense, pull out what appears to be a handgun, and extend his arm. Meanwhile, equally alarmed and terrified, the video shows S-2 [Joe] – in an instantaneous self-defense reaction – extend his hand towards the driver’s-side of the car in an apparent attempt to frighten [the victim] as he drives away.
Second, I argued that no other evidence had been presented as to the suspects’ mindset prior to the alleged shooting. There were no confessions from the suspects to that end, nor did either testify against each other. There were no percipient witnesses who testified about what the suspects were saying to each other or to any such witness beforehand. There were no communications, either before or after the incident, such as texts or social media postings, proving their intent. In fact, all the prosecution had presented thus far was pure speculation.
Finally, I wrote:
Without a single shred of evidence as to this specific intent, [the] judge [who presided over the prelim and held the defendants to answer] had absolutely no grounds, much less “sufficient cause”, to hold the defendants to answer for that [attempted murder] charge.
Based on this utter lack of evidence, it cannot be reasonably disputed that the Second Circuit Court of Appeal would agree that [the prelim judge] lacked such cause.
Please note that the judge who presides over the prelim will not be the same who rules on your 995 motion.
Finally, as you can see from the last sentence in that paragraph, I added a not-so subtle indication that I would appeal any denial of my 995 to the local appellate court. There’s nothing a superior court judge detests more than having a ruling overturned by a higher court.
Attacking the Suspects’ Motive for the Alleged Shooting
Next, I argued that the prosecution had failed to provide any evidence whatsoever of a motive. On the contrary, I pointed out the victim’s statements to Det. Garcia wherein the victim admitted he had never before seen the suspects. I also emphasized that there were no allegations that the alleged shooting was gang or drug-related. In short, there was no reason for the suspects to want to harm the victim, much less murder him.
I also emphasized the fact that at no time – either at the time of the incident itself or afterwards when police showed him a photo line-up – was the victim able to identify either suspect.
Bizarrely and inexplicably, the victim admitted that after the alleged shooting, he had driven around the block to get a good look at the suspects, who were then standing on the porch of the subject residence. But even then he was unable to identify them as the alleged shooters.
(By the way, I overreached a bit when I suggested that “the suspects were simply crossing the street, probably to retrieve their own vehicle from the parking lot….” The judge cautioned me during the hearing that I shouldn’t “speculate” in my motion. Point well taken.)
Attacking the Allegations that My Client Had a Gun in His Hand and that He Fired It
As stated above, I clearly indicated in my motion that Joe had only extended his arms and hands in a shooting gesture to frighten off the victim after the latter nearly plowed into him with his vehicle. So first, I returned to this point in the last major section of my motion by arguing that the video did not reveal anything, much less a firearm, in Joe’s hands. I also noted that during the prelim, Det. Garcia testified that Suspect 2 had a “dark object” in his hand; however, this was directly refuted by the video itself.
Second, I argued that the video showed that no muzzle flashes emitted from Joe’s hands. During the hearing, I went through the video frame by frame to argue the same. (By contrast, however, muzzle flashes can clearly be seen in the video emitting from Victor’s hands – an obvious fact that I mentioned in passing in my motion. Because this was so obvious, I decided not to ignore it, but use it to my client’s benefit.)
Third, I highlighted a key comment by the Deputy Public Defender who had represented Joe during the prelim, wherein the former pointed out to the court that the supposed muzzle flash Det. Garcia testified about was actually a nearby white fence. Specifically, I quoted the P.D.’s statement to the judge as follows:
Det. [Garcia] pointed to a … video where the white line ends in a bright dot. If we look at the video, that’s the fence. I’m gonna go back and show Your Honor … the video one more time and go frame by frame. He pointed to that white line there, basically the frame of the entrance of the gate, the bottom of it. That never changes. That’s been there the entire time. A muzzle flash looks like that what we saw on the other side [i.e., from Victor]. [Here,] there was no muzzle flash.
Fourth, I noted that the video never showed Joe/Suspect 2 bending over to pick up anything, which supported my contention that – unlike apparently Victor – he hadn’t fired a gun.
Fifth, I pointed out the fact that no physical evidence had ever been recovered that purportedly tied Joe to the alleged shooting. Specifically, no weapons or ammunition were ever recovered from his residence or vehicle following the LAPD’s execution of the search warrant. (By contrast, a semi-automatic handgun and multiple rounds of ammo that matched the recovered cartridge and shell casing had been seized from Victor’s home, which turned out to be the subject residence.)
Sixth, I tried to deal with the only potentially damaging evidence against Joe, which was the victim’s statement to the police that when he turned left onto West 28th Street, he saw gunfire on his left/driver’s side, which, of course, was where Joe was allegedly standing. I never ignore incriminating evidence against my client, but try to refute it or, barring that, to somehow deflect, minimize, or mitigate it.
Here, I underscored the fact that the victim had also told police that as he pulled out of the parking lot, he saw as many as four individuals walking across the street from the residence towards him. After arguing that the victim had been mistaken as to which side of the vehicle he saw gunfire coming from, I then wrote that any of these additional individuals could have fired from his left side.
Finally, I argued that the fact that the bullet fragment recovered from the lower right rear bumper, plus the bullet hole discovered in that same spot, definitely proved that the shooting could only have come from the right side of the vehicle (where Victor was allegedly standing) and not from the left.
Attacking the Credibility of Both the Detective and the Prosecutor
Throughout my motion, I consistently sought to convince the judge – sometimes subtly, sometimes overtly – that the prosecution was self-servingly viewing the evidence and facts in a myopic manner, and simultaneously ignoring all the exculpatory evidence.
For example, I hammered home the fact that neither Det. Garcia nor the Deputy DA would acknowledge that the victim had driven at high speed out of the parking lot and nearly run over the suspects – clearly a glaring omission that directly undermined the prosecution’s contention that the suspects had carefully planned to ambush the victim.
I also pointed out Det. Garcia’s testimony at the prelim where he admitted he had never bothered to ask the victim why he had driven so quickly out of the lot in a way that clearly endangered the suspects. I wrote:
Det. [Garcia] did not ask [the victim] those questions because he did not want to hear the answers – answers that he knew, or at least feared, would eviscerate his theory of deliberate and premediated attempted murder.
Det. [Garcia] – and the People – thereby intentionally ignored the split-second circumstances at play – particularly in [the victim] being the catalyst for S-1’s apparent firing upon him in self-defense.
Similarly, in my motion, I pointed out that during the prelim, Det. Garcia appeared to contradict himself in regard to the perceived muzzle flash coming from Joe’s outstretched hands. Specifically, whereas he initially testified that he saw a muzzle flash in the video, he later testified that it could have merely been a “reflection” of some kind.
To put the final nail in Det. Garcia’s testimonial coffin, I finished my motion by arguing to the court that he flat-out lied about what he “believed” the video depicts:
By claiming to see imaginary muzzle flashes emitting from an imaginary dark object in S-2’s [Joe’s] hands, Det. [Garcia] sought to intentionally mislead the court into believing there was at least a strong suspicion that S-2 had fired at [the victim].
This is the same reason Det. [Garcia] repeatedly testified to S-2 taking a “shooting stance” prior to [the victim] nearly running him and S-1 down.
In other words, I hammered home my allegation that Det. Garcia only saw what he wanted to see because it helped his case, and not because it was the truth.
Finally, I always save the best for last in my 995s. In this case, it involved the shocking revelation that Det. Garcia had never bothered to thoroughly interview the sole eyewitness to the incident – a local woman who had told Ofc. Sinta that she had witnessed a White male firing multiple times at the victim before running away. As both suspects are Black, this was obviously extremely helpful evidence for us. In addition, she identified the shooter as wearing a red shirt, whereas the suspects were alleged to have been wearing dark clothing.
I therefore quoted at length Det. Garcia’s prelim testimony where he admitted briefly speaking to the eyewitness. Notwithstanding, Det. Garcia repeatedly confirmed at the prelim that he had never followed up with any additional questions, nor sought to subpoena her to the prelim. Specifically, I wrote:
Quite tellingly, the fact that Det. [Garcia] – the lead detective on this case – couldn’t be bothered to “go into detail” [as he testified] about the sole eyewitness’s observations of the actual shooter (again, a White male wearing a red shirt) goes beyond sloppy police work.
Instead, just as with his side-stepping of the near hit-and-run, he deliberately chose to ignore the independent eyewitness because what she saw did not fit into his preconceived notion of what he wanted the court to believe – i.e., that no one else except the two Black suspects with dark clothing could have been responsible for the alleged shooting incident.
Notably, and again tellingly, despite having ascertained the identity and address of this eyewitness, the People did not deem it necessary to call her to testify at the preliminary hearing.
Nor would they, in light of the fact that her testimony would clearly refute their own conclusory and unsubstantiated allegations that S-2 [Joe] was the other alleged shooter.
Boom. At the 995 hearing, the judge was clearly aggravated at both Det. Garcia and the Deputy DA about failing to call this witness to the prelim, or even to follow up with her to complete their investigation.
The Judge’s Ruling and Final Disposition
At the hearing, the judge emphatically agreed with almost all of my arguments. In fact, he actually stated on the record that it wasn’t clear at all that Joe even had a gun, and that it certainly didn’t appear from the video that he fired any weapon. As a result, he granted the motion, thereby dismissing with prejudice the attempted murder charge against both defendants.
But neither Joe nor Victor was immediately released because the Deputy DA told the judge that she intended to file a new complaint for a lesser firearm charge against them. I told Joe that in light of the judge’s belief that the video – which was fortunately quite grainy – didn’t believe he even had a gun in hand, and in light of all the foregoing exculpatory evidence, I was confident I could beat this case at trial.
Nevertheless, Joe was desperate to get out of jail, having already spent nine months (by the time of disposition) inside. Thus, when the Deputy DA offered him (as well as Victor) a greatly reduced assault plea that allowed for immediate release and no further jail, Joe (and Victor) took it. I was obviously disappointed because this would have been an excellent case to try in front of a jury. However, I also understood Joe’s desire to go home, which he did right after accepting the plea.
For a free consultation with our criminal defense attorney Ninaz Saffari please contact us at (310) 341-7970.