Preview
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Apr-03-2013 3:24 pm
Case Number: CGC-12-517517
Filing Date: Apr-03-2013 3:17
Filed by: VICKI MACK
Juke Box: 001 Image: 04004002
TRIAL BRIEF
MILAGROS LIBRE VS. BRIAN HART et al
001004004002
Instructions:
Please place this sheet on top of the document to be scanned.Francis J. Shehadeh (SBN 251130)
LAW OFFICE OF FRANCIS J. SHEHADEH
819 Eddy Street
San Francisco, CA 94109
Phone 415-771-6174
Fax 415-474-3748
Attorney for Plaintiff
MILAGROS LIBRE
LED
San Francise> Gaunty Superior Court
CLERK CF THE
By: LL?
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
MILAGROS LIBRE,
Plaintiff,
v.
BRIAN HART,
Defendants.
Case No. CGC-12-517517
PLAINTIFF’S TRIAL BRIEF RE
ADMISSIBILITY OF DEFENDANT’S
PRIOR PLEA OF NOLO
CONTENDERE FOR LEWD
EXPOSURE OF HIS PRIVATE
PARTS IN PUBLIC; PENAL CODE
SECTION 314.1
Plaintiff respectfully submits the following brief regarding the admissibility of
defendant Brian D. Hart’s conviction on August 26, 1997 of disorderly conduct within the
meaning of Penal Code §314.1, lewd exposure of his
Copy, Attached Exhibit A.)
private parts in a public place. (Certified
I. IN DETERMINING THE CREDIBILITY OF A WITNESS, THE COURT OR
JURY MANY CONSIDER ANY MATTER THAT HAS ANY TENDENCY IN
REASON TO PROVE OR DISPROVE THE TRUTHFULNESS OF HIS
TESTIMONY.
All relevant evidence is admissible. Evid. Code § 351. Although this provision alone
permits the admission of evidence relating to a witness’ credibility, Evidence Code § 780
further reinforces this concept by making “it clear that matters that may not be ‘evidence’ in a
technical sense can affect the credibility of a witness,
and [by] provid[ing] a convenient list of
PLAINTIFF'S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO.
CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE
SECTION 314.1Oo em IN DH BF BW NY
Sb NY YY N NN DY Be Be Be ee ewe ew ee
oN DUM FF YBN =F SSH RA AA RAH AS
the most common factors that bear on the question of credibility.” Evid. Code § 780, Law
Revision Commission Comments. Among the potential factors are:
(e) His character for honesty and veracity or their opposites;
(i) The existence or nonexistence of any fact testified to by him; and
(j) His attitude toward the action in which he testifies or toward the giving of testimony.
The section also serves to eliminate the inflexible common-law rule that evidence
attacking the credibility of a witness be independently relevant to the issue being tried. Jd., Law
Revision Commission Comments. Although evidence of specific instances of conduct relevant
as tending to prove a trait of character that are not felony convictions are generally inadmissible
to attack or support the credibility of a witness (Evid. Code §§ 787, 788), evidence of prior
misdemeanor convictions has been held admissible to contradict a witness’ statements on direct
examination. People v. Reyes (1976) 62 Cal.App.3d 53, 61.
A no contest plea to crime punishable as felony or misdemeanor is admissible in a civil
action even though offense ultimately punished as misdemeanor. Rusheen v. Drews (2002) 99
Cal.App.4th 279, 283.) Here, violation of Penal Code section 314.1 is punishable as a felony.
IL. BECAUSE DEFENDANT’S CONVICTION IS FOR AN ACT INVOLVING
MORAL TURPITUDE, IT BEARS UPON HIS CHARACTER FOR HONESTY
OR VERACITY.
In People v. Castro (1985) 38 Cal.3d 301, the California Supreme Court observed that it
could be inferred that a person who has committed a crime of moral turpitude is more likely to
be dishonest than a witness who has not. Jd. at 315. Courts have yet to give a precise definition
of what entails moral turpitude. In Castro, the Court found that possession of heroin for sale
necessarily evinced a character trait which could reasonably be characterized as “immoral.” Id.
at 317, fn. 13. Other measures that have been applied include a “readiness to do evil,” Id. at
315; People v. Rodriguez (1992) 5 Cal.App.4th 1398, and acts “of baseness, vileness or
depravity in the private and social duties which a man owes to his fellowmen, or to society in
general ... [including] those which are ‘extremely repugnant to accepted moral standards such
as ... serious sexual offenses.” People v. Jaimez (1986) 184 Cal.App.3d 146, 150 (internal
citations omitted).
PLAINTIFF'S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO
CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE
SECTION 314.1Co OY DH PB WN
BN YP YY PR NN DY eee eB we ee De LL
eS ND e F YH FF SESE we RIAA EBH TS
Here, Defendant pleaded no contest to a violation of willfully and lewdly exposing his
person or the private parts thereof in a public place or a place where other persons were present
to be offended and annoyed thereby. Penal Code section 314.1. Not only does the section
describe conduct that is repugnant to accepted moral standards, but the offense is also
registerable under Penal Code § 290. Thus it is a “serious sexual offense” involving moral
turpitude, and proof of Defendant’s conviction under this section is relevant insofar as it tends
to disprove his character for honesty and veracity
I. THE PREJUDICIAL EFFECT OF THE DEFENDANT’S CRIMINAL RECORD
DOES NOT OUTWEIGH ITS PROBATIVE VALUE.
In order to be admissible, the probative value of a defendant's prior acts must not be
substantially outweighed by the probability that its admission would create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury. People v. Davis (2009)
46 Cal.4th 539. In weighing the probative value against the of prejudice admitting evidence of
prior sex offenses, the Court must be balance four factors: (1) the inflammatory nature of the
conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the offenses; and
(4) the amount of time involved in introducing and refuting the evidence of uncharged offenses.
People v. Hollie (2010) 180 Cal.App.4th 1262.
In the present case, while the conduct alleged does not cast the defendant in a positive
light, the offense charged is not so violent or notorious as to prove unduly inflammatory. There
is not possibility of confusion of issues, as the type of conduct defendant pleaded guilty to is
not also part of the fact pattern of the present case, and thus an instruction from the court that
evidence of the prior conviction is only for the purpose of challenging the credibility of
Defendant’s testimony is likely sufficient. Lastly, although the conduct is relatively remote in
time, relatively little time shall be required to prove it. Pursuant to Evidence Code § 452.5,
evidence of a prior conviction, as well as the fact that the underlying conduct complained of
occurred, may be accomplished by certified court records. People v. Duran (2002) 97 Cal.4th
1448, 1460.
PLAINTIFF'S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO
CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE
SECTION 314.1
3cf Om NIN DH FB WD
Because the potential prejudicial impact of evidence of Defendant’s prior conviction
does not substantially outweigh its probative value, the Court should rule that the evidence is
admissible.
Ill. CONCLUSION
Based upon the foregoing, Plaintiff requests the court admit certified records of
Defendant’s conviction for a violation of Penal Code § 314.1 as effecting his credibility as a
witness pursuant to Evidence Code § 780.
Date: April 3, 2013 LAW OFFICE OF _ FRANCIS J.
-AGROS LIBRE
PLAINTIFF’S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO
CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE
SECTION 314.1
40 ON DH BF WwW YY Ye
°o
11
PROOF OF SERVICE
I Francis J. Shehadeh am a resident of the State of California, over the age of 18 years
and not a party to the within action. My business address is Law Office of Francis J. Shehadeh,
819 Eddy Street, San Francisco, CA, 94109. On April 3, 2013, I caused the parties herein to be
served in the manner indicated below, at the addresses set forth below, with the attached
document, to wit:
PLAINTIFF’S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA
OF NOLO CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN
PUBLIC; PENAL CODE SECTION 314.1
[ xx_] Personal Service
[__] 1* Class Mail: I served the documents by enclosing them in an envelope and
depositing the sealed envelope with the United States Postal Service with the
postage fully prepaid and putting the same in a United States mailbox located at
San Francisco, California the same business day.
[_] Facsimile: I served the documents by transmitting via facsimile the documents
listed above to the facsimile numbers set forth below on this date before 5:00 p.m.
The envelopes were addressed and served as follows:
Mr. Kevin Allen
Low Ball & Lynch
505 Montgomery Street, 7" Floor
San Francisco, CA 94111
I declare under penalty of perjury under the laws of the, Shia that the
foregoing is true and correct.
Dated: April 3, 2013
PLAINTIFF’S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO
CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE 5
SECTION 314.11
19
24
27
28
| JAMES P FOX
| DISTRICT ATTORNEY
|SAN MATEO COUNTY
|STATE BAR NO. 45169
|BY: LAURA M HANNEY
[DEPUTY DISTRICT ATTORNEY
|1050 MISSION RD
|SOUTH SAN FRAN, CA 94080
|
|TELEPHONE: (415) 877-5454
|
J|ATTORNEYS FOR PLAINTIFF
BRIAN D HART
152 CRESCENT AV APT 2
BURLINGAME, CA 94010
I
|
|
!
|
|
|
|
|
|
|
|
|
|
|
|
|
|
!
|--------------------------
FILED
MUNICIPAL COURT
NORTHERN BRANCH __
MAY 5 1997
PEGGY THOMPSON, Court
Offi
a
\
Deputy
THE PEOPLE OF THE STATE OF CALIFORNIA,
PLAINTIFF,
DEFENDANT(S).
SAN MATEO COUNTY JUDICIAL DISTRICT
CRNM274038
) BU CASE
MUNICIPAL COURT OF CALIFORNIA, COUNTY OF SAN MATEO
) DA CASE: COM 0151887
)
)
)
>
)
>
)
)
>
)
)
( MISDEMEANOR )
COMPLAINT
I, THE UNDERSIGNED, SAY, ON INFORMATION AND BELIEF, THAT
IN THE COUNTY OF SAN MATEO,
STATE OF CALIFORNIA:
COUNT: 001, ON OR ABOUT 04/04/1997, BRIAN D
WILLFULLY, UNLAWFULLY, AND LEWDLY EXPOSE HIS/HER
HART DID
PERSON OR THE
THERE WERE PRESENT OTHER PERSONS TO BE OFFENDED- AND ANNOYED
THEREBY, IN VIOLATION OF PENAL CODE SECTION 314.1, A
MISDEMEANOR.
|
|
|
|
|
|
|
|
|
|
|
|
|PRIVATE PARTS THEREOF, IN A PUBLIC PLACE, OR IN A PLACE WHERE
|
|
|
|
|
|
|
|
|
|
|13
14
|
|
|
|
|
|
|
!
|
|
|
|
|
|
I
|
|
!
|
!
|
!
|
|
|
I
|
|
|
|
|
|
1
!
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
|
|
!
|
PURSUANT TO PENAL CODE SECTION 1054.5(B), THE PEOPLE ARE
HEREBY INFORMALLY REQUESTING THAT DEFENSE COUNSEL PROVIDE
DISCOVERY TO THE PEOPLE AS REQUIRED BY PENAL CODE SECTION
1054.3, AND PURSUANT TO THE PROVISIONS OF PENAL CODE SECTION
1054.7.
TRUE AND CORRECT EXCEPT FOR THOSE THINGS STATED ON INFORMATION
I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS
AND BELIEF AND THOSE I BELIEVE TO BE TRUE.
EXECUTED ON of.
94080.
NNW
OME,
STATE OF CALIFORNIA
COUNTY OF SAN MATEO
1, John C, Fitton, the Clerk of the Superi
County, do hereby certify that the foregoing is a
and correct copy of the original on fite in say office, and that I have |
carefully compared sane with the original t
Witness my nana and seal of said Supericr Court
ee
‘Clerk of the Superior APN aa
py Ain in
Deputy Clerk
'y
g. , AT SOUTH SAN FRANCISCO, CA
oa
INANT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
\
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
iMUNICIPAL COURT OF CALIFORNIA 3.005. oe,
COUNTY OF SAN MATEO
THE PEOPLE OF THE STATE OF CALIFORNIA, )
) No. (4/7) 204 LED
)
) WAIVER OF RIGHTS MOA
) UILTY
)
}
Plaintiff,
vs. OF PLEA OF G
OR NOLO CONTENDBHE 2 6
BRiaP Hyer INO CONTE yi
By
Deputy
|, the undersigned, understand the nature of the charges against me.
| understand that | have a right to be represented by an attorney at all stages of the Proceedings and if | can't
afford an attorney, to have the Court appoint one.
ICHECK ONE ONLY]
[1 hereby give up the right to be represented by an attorney.
s4_ My attorney is present and | have discussed the charges and possible defenses with my attorney.
{ 1 J hereby give up my right to be personally Present at all stages of the proceedings and authorize my
attorney to appear on my behalf and enter a plea of guilty or nolo contendere. | have previously
discussed the charges and the possible defenses thereto with my attorney.
| HEREBY GIVE UP THE FOLLOWING RIGHTS:
1. The right to a trial and specifically the right to a trial by jury.
2. The right to use the power of the Court to subpoena witnesses and present evidence on my behalf,
including my right to testify on my own behalf.
3. The right to confront and cross-examine the witnesses against me.
4, The right against self-incrimination, which means the right not to testify against myself.
My decision to plead guilty or nolo contendere has been made freely and voluntarily without threat or fear to me or
anyone closely related to or associated with me. There have been No promises to me of rewards, immunity,
probation, or anything else to induce my plea of guilty or nolo contendere, except
Wie pat [Ade W RAG Sika AS A Shy
DEERNghA Gah 78 A Avent Tis le Widus 2k Leda Avy
WA bin, Bs pe ot DIE Ea oF DHS (Aig
ASS >
PaSona he the maximum penalty which may be imposed is as indicated below: .
COUNT NWMBER AND CHARGE MAXIMUNJ PENALTY
Cry PER Byy pL, {22 0
! understand that | will be ordered to make restitution to the victim, if the offense involved a victim and that the
restitution order shall be enforceable as a civil judgment. | understand that a restitution fine of not less than $100
nor more than $1000 will also be imposed.
(TURN OVER]STATE OF CALIFORNIA get 30 897
Cob drain.
No. Ajo 8) f epaly
THE wees ‘OF THE E STATE OF CALIFORNIA,
oe _ gga
Plaintiff,
< on bout Defendant.
The undersigned Deputy District Attorney, Pow \ Wil cho & deposes and says upon
information and belief:
That Defendant was convicted on Sy L 26/ q z in the above entitled action, of a violation of
Sul andon___ 5/26 (4 Bvas admitted to summary probation by the Court for a
AFFIDAVIT OF SUMMARY
PROBATION VIOLATION
Police Agency & Report Number:
weer ee
period of 2 on the terms and conditions as contained in the Order Admitting Defendant to
Summary Probation; and that Defendant acknowledged and accepted the terms of. probation set forth in said Order.
That Defendant has violated the terms of such probation in that:
1) Drove a vehicle in violation of Vehicle Code § _- on
_____ 2) Committed a violation of Penal Code § on
A940 n & ft I ee Brian Heurt- Suncidayecl | hsmse ‘fa the Court
4)__ oi { wohes The ribose f alceboe wa unbiken A CS 64 zC ¢)
ve the People sespectlly move this scart to revoke summary probation andi to:
____~_ Issue a Bench Warrant for the arrest of the Defendant.
Order the issuance of a Notice to Appear to the Defendant on this action for revocation of Summary Probation.
_______ Order this Summary Probation Violation action calendered on at , a date and time
at which Defendant is presently scheduled to appear before this court in action
I DECLARE under penalty that the foregoing is true and correct. Executed at
pate: (OAY (i hake Wickes
, . ' Deputy District Attorney
ITIS HEREBY ORDERED that Defendant’s Probation be summarily fees pending an evidentiary hearing
and that a Bench Warrant issue for Deféndani’s arrest in the amount of, 000 .0D :
OCT 3 0 1997
California.
DATE:
‘NORMAN J. GATZERTSAN MATEO COUNTY MUNICIPAL COURT DISTRICT
COUNTY OF SAN MATEO, STATE OF CALIFORNIA
BURLINGAME P.D. case # 44#O|G])
PEGGY THOMPSON, Coyrt,Exec. Officer
* l uty
CLERK’S FILE STAMP
COURT COURT USE ONLY
CASE NUMBER: [ ]
[ ]
DEFENDANT: HART Pian) 9 [ ; waht Or ]
[ NORTHERN BRANCH J
ARREST DATE: 4-4-4} [ ]
/ [ Y 5 89T ]
BOOKING DATE: Y-U-Qe [ WS ]
ARRESTING AGENCY: [ ]
[ ]
[ ]
I ]
AFFIDAVIT OF COSTS (FDACJ) CRNMZ'74038
| hereby certify that the defendant was arrested and booked on the dates indicated above which
resulted in a complaint being filed. If a Judgment of Conviction is entered against the defendant
in this case, it is hereby requested that the Court order the defendant to pay a Criminal Justice
Administration Fee to the Arresting Agency, pursuant to Government Code Section
29550(b)/29550. 1/29550.3.
The Arresting Agency has incurred expenses in the amount of $ 45, a3 and hereby
certifies that this amount does not exceed the actual administrative costs, including applicable
overhead costs as permitted by federal Circular A-87 standards, incurred in booking or otherwise
processing the above-named defendant.
Dated: tA . 2a ee
(Signature of/Authorized Agency Representative)
CERTIFICATION OF JUDGMENT (SECJF)
named defendant to pay a Criminal Justice Administration Fee in the amount of $
to the ARRESTING AGENCY, pursuant to the provisions of Government Code Sectio
19550(b)/29550.1/29550.3.
Dated: LA
| hereby certify that, a Judgment of Conviction having been entered, the Court ae me above-
L.
Deputy
nee Cc |
By: : :
[ORIGINAL and one copy required to be filed with the court]
[Distribution after entry of Judgment: Orig-Agency; Copy-file (wp/cjat/92))
Peggy Thompson i
|
5
|
|
i
j
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Apr-03-2013 3:24 pm Case Number: CGC-12-517517 Filing Date: Apr-03-2013 3:17 Filed by: VICKI MACK Juke Box: 001 Image: 04004002 TRIAL BRIEF MILAGROS LIBRE VS. BRIAN HART et al 001004004002 Instructions: Please place this sheet on top of the document to be scanned.Francis J. Shehadeh (SBN 251130) LAW OFFICE OF FRANCIS J. SHEHADEH 819 Eddy Street San Francisco, CA 94109 Phone 415-771-6174 Fax 415-474-3748 Attorney for Plaintiff MILAGROS LIBRE LED San Francise> Gaunty Superior Court CLERK CF THE By: LL? SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION MILAGROS LIBRE, Plaintiff, v. BRIAN HART, Defendants. Case No. CGC-12-517517 PLAINTIFF’S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE SECTION 314.1 Plaintiff respectfully submits the following brief regarding the admissibility of defendant Brian D. Hart’s conviction on August 26, 1997 of disorderly conduct within the meaning of Penal Code §314.1, lewd exposure of his Copy, Attached Exhibit A.) private parts in a public place. (Certified I. IN DETERMINING THE CREDIBILITY OF A WITNESS, THE COURT OR JURY MANY CONSIDER ANY MATTER THAT HAS ANY TENDENCY IN REASON TO PROVE OR DISPROVE THE TRUTHFULNESS OF HIS TESTIMONY. All relevant evidence is admissible. Evid. Code § 351. Although this provision alone permits the admission of evidence relating to a witness’ credibility, Evidence Code § 780 further reinforces this concept by making “it clear that matters that may not be ‘evidence’ in a technical sense can affect the credibility of a witness, and [by] provid[ing] a convenient list of PLAINTIFF'S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO. CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE SECTION 314.1Oo em IN DH BF BW NY Sb NY YY N NN DY Be Be Be ee ewe ew ee oN DUM FF YBN =F SSH RA AA RAH AS the most common factors that bear on the question of credibility.” Evid. Code § 780, Law Revision Commission Comments. Among the potential factors are: (e) His character for honesty and veracity or their opposites; (i) The existence or nonexistence of any fact testified to by him; and (j) His attitude toward the action in which he testifies or toward the giving of testimony. The section also serves to eliminate the inflexible common-law rule that evidence attacking the credibility of a witness be independently relevant to the issue being tried. Jd., Law Revision Commission Comments. Although evidence of specific instances of conduct relevant as tending to prove a trait of character that are not felony convictions are generally inadmissible to attack or support the credibility of a witness (Evid. Code §§ 787, 788), evidence of prior misdemeanor convictions has been held admissible to contradict a witness’ statements on direct examination. People v. Reyes (1976) 62 Cal.App.3d 53, 61. A no contest plea to crime punishable as felony or misdemeanor is admissible in a civil action even though offense ultimately punished as misdemeanor. Rusheen v. Drews (2002) 99 Cal.App.4th 279, 283.) Here, violation of Penal Code section 314.1 is punishable as a felony. IL. BECAUSE DEFENDANT’S CONVICTION IS FOR AN ACT INVOLVING MORAL TURPITUDE, IT BEARS UPON HIS CHARACTER FOR HONESTY OR VERACITY. In People v. Castro (1985) 38 Cal.3d 301, the California Supreme Court observed that it could be inferred that a person who has committed a crime of moral turpitude is more likely to be dishonest than a witness who has not. Jd. at 315. Courts have yet to give a precise definition of what entails moral turpitude. In Castro, the Court found that possession of heroin for sale necessarily evinced a character trait which could reasonably be characterized as “immoral.” Id. at 317, fn. 13. Other measures that have been applied include a “readiness to do evil,” Id. at 315; People v. Rodriguez (1992) 5 Cal.App.4th 1398, and acts “of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general ... [including] those which are ‘extremely repugnant to accepted moral standards such as ... serious sexual offenses.” People v. Jaimez (1986) 184 Cal.App.3d 146, 150 (internal citations omitted). PLAINTIFF'S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE SECTION 314.1Co OY DH PB WN BN YP YY PR NN DY eee eB we ee De LL eS ND e F YH FF SESE we RIAA EBH TS Here, Defendant pleaded no contest to a violation of willfully and lewdly exposing his person or the private parts thereof in a public place or a place where other persons were present to be offended and annoyed thereby. Penal Code section 314.1. Not only does the section describe conduct that is repugnant to accepted moral standards, but the offense is also registerable under Penal Code § 290. Thus it is a “serious sexual offense” involving moral turpitude, and proof of Defendant’s conviction under this section is relevant insofar as it tends to disprove his character for honesty and veracity I. THE PREJUDICIAL EFFECT OF THE DEFENDANT’S CRIMINAL RECORD DOES NOT OUTWEIGH ITS PROBATIVE VALUE. In order to be admissible, the probative value of a defendant's prior acts must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. People v. Davis (2009) 46 Cal.4th 539. In weighing the probative value against the of prejudice admitting evidence of prior sex offenses, the Court must be balance four factors: (1) the inflammatory nature of the conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses. People v. Hollie (2010) 180 Cal.App.4th 1262. In the present case, while the conduct alleged does not cast the defendant in a positive light, the offense charged is not so violent or notorious as to prove unduly inflammatory. There is not possibility of confusion of issues, as the type of conduct defendant pleaded guilty to is not also part of the fact pattern of the present case, and thus an instruction from the court that evidence of the prior conviction is only for the purpose of challenging the credibility of Defendant’s testimony is likely sufficient. Lastly, although the conduct is relatively remote in time, relatively little time shall be required to prove it. Pursuant to Evidence Code § 452.5, evidence of a prior conviction, as well as the fact that the underlying conduct complained of occurred, may be accomplished by certified court records. People v. Duran (2002) 97 Cal.4th 1448, 1460. PLAINTIFF'S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE SECTION 314.1 3cf Om NIN DH FB WD Because the potential prejudicial impact of evidence of Defendant’s prior conviction does not substantially outweigh its probative value, the Court should rule that the evidence is admissible. Ill. CONCLUSION Based upon the foregoing, Plaintiff requests the court admit certified records of Defendant’s conviction for a violation of Penal Code § 314.1 as effecting his credibility as a witness pursuant to Evidence Code § 780. Date: April 3, 2013 LAW OFFICE OF _ FRANCIS J. -AGROS LIBRE PLAINTIFF’S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE SECTION 314.1 40 ON DH BF WwW YY Ye °o 11 PROOF OF SERVICE I Francis J. Shehadeh am a resident of the State of California, over the age of 18 years and not a party to the within action. My business address is Law Office of Francis J. Shehadeh, 819 Eddy Street, San Francisco, CA, 94109. On April 3, 2013, I caused the parties herein to be served in the manner indicated below, at the addresses set forth below, with the attached document, to wit: PLAINTIFF’S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE SECTION 314.1 [ xx_] Personal Service [__] 1* Class Mail: I served the documents by enclosing them in an envelope and depositing the sealed envelope with the United States Postal Service with the postage fully prepaid and putting the same in a United States mailbox located at San Francisco, California the same business day. [_] Facsimile: I served the documents by transmitting via facsimile the documents listed above to the facsimile numbers set forth below on this date before 5:00 p.m. The envelopes were addressed and served as follows: Mr. Kevin Allen Low Ball & Lynch 505 Montgomery Street, 7" Floor San Francisco, CA 94111 I declare under penalty of perjury under the laws of the, Shia that the foregoing is true and correct. Dated: April 3, 2013 PLAINTIFF’S TRIAL BRIEF RE ADMISSIBILITY OF DEFENDANT’S PRIOR PLEA OF NOLO CONTENDERE FOR LEWD EXPOSURE OF HIS PRIVATE PARTS IN PUBLIC; PENAL CODE 5 SECTION 314.11 19 24 27 28 | JAMES P FOX | DISTRICT ATTORNEY |SAN MATEO COUNTY |STATE BAR NO. 45169 |BY: LAURA M HANNEY [DEPUTY DISTRICT ATTORNEY |1050 MISSION RD |SOUTH SAN FRAN, CA 94080 | |TELEPHONE: (415) 877-5454 | J|ATTORNEYS FOR PLAINTIFF BRIAN D HART 152 CRESCENT AV APT 2 BURLINGAME, CA 94010 I | | ! | | | | | | | | | | | | | | ! |-------------------------- FILED MUNICIPAL COURT NORTHERN BRANCH __ MAY 5 1997 PEGGY THOMPSON, Court Offi a \ Deputy THE PEOPLE OF THE STATE OF CALIFORNIA, PLAINTIFF, DEFENDANT(S). SAN MATEO COUNTY JUDICIAL DISTRICT CRNM274038 ) BU CASE MUNICIPAL COURT OF CALIFORNIA, COUNTY OF SAN MATEO ) DA CASE: COM 0151887 ) ) ) > ) > ) ) > ) ) ( MISDEMEANOR ) COMPLAINT I, THE UNDERSIGNED, SAY, ON INFORMATION AND BELIEF, THAT IN THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA: COUNT: 001, ON OR ABOUT 04/04/1997, BRIAN D WILLFULLY, UNLAWFULLY, AND LEWDLY EXPOSE HIS/HER HART DID PERSON OR THE THERE WERE PRESENT OTHER PERSONS TO BE OFFENDED- AND ANNOYED THEREBY, IN VIOLATION OF PENAL CODE SECTION 314.1, A MISDEMEANOR. | | | | | | | | | | | | |PRIVATE PARTS THEREOF, IN A PUBLIC PLACE, OR IN A PLACE WHERE | | | | | | | | | | |13 14 | | | | | | | ! | | | | | | I | | ! | ! | ! | | | I | | | | | | 1 ! | 1 | | | | | | | | | | | | | | | 1 | | | ! | PURSUANT TO PENAL CODE SECTION 1054.5(B), THE PEOPLE ARE HEREBY INFORMALLY REQUESTING THAT DEFENSE COUNSEL PROVIDE DISCOVERY TO THE PEOPLE AS REQUIRED BY PENAL CODE SECTION 1054.3, AND PURSUANT TO THE PROVISIONS OF PENAL CODE SECTION 1054.7. TRUE AND CORRECT EXCEPT FOR THOSE THINGS STATED ON INFORMATION I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS AND BELIEF AND THOSE I BELIEVE TO BE TRUE. EXECUTED ON of. 94080. NNW OME, STATE OF CALIFORNIA COUNTY OF SAN MATEO 1, John C, Fitton, the Clerk of the Superi County, do hereby certify that the foregoing is a and correct copy of the original on fite in say office, and that I have | carefully compared sane with the original t Witness my nana and seal of said Supericr Court ee ‘Clerk of the Superior APN aa py Ain in Deputy Clerk 'y g. , AT SOUTH SAN FRANCISCO, CA oa INANT | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | \ | | | | | | | | | | | | | | | iMUNICIPAL COURT OF CALIFORNIA 3.005. oe, COUNTY OF SAN MATEO THE PEOPLE OF THE STATE OF CALIFORNIA, ) ) No. (4/7) 204 LED ) ) WAIVER OF RIGHTS MOA ) UILTY ) } Plaintiff, vs. OF PLEA OF G OR NOLO CONTENDBHE 2 6 BRiaP Hyer INO CONTE yi By Deputy |, the undersigned, understand the nature of the charges against me. | understand that | have a right to be represented by an attorney at all stages of the Proceedings and if | can't afford an attorney, to have the Court appoint one. ICHECK ONE ONLY] [1 hereby give up the right to be represented by an attorney. s4_ My attorney is present and | have discussed the charges and possible defenses with my attorney. { 1 J hereby give up my right to be personally Present at all stages of the proceedings and authorize my attorney to appear on my behalf and enter a plea of guilty or nolo contendere. | have previously discussed the charges and the possible defenses thereto with my attorney. | HEREBY GIVE UP THE FOLLOWING RIGHTS: 1. The right to a trial and specifically the right to a trial by jury. 2. The right to use the power of the Court to subpoena witnesses and present evidence on my behalf, including my right to testify on my own behalf. 3. The right to confront and cross-examine the witnesses against me. 4, The right against self-incrimination, which means the right not to testify against myself. My decision to plead guilty or nolo contendere has been made freely and voluntarily without threat or fear to me or anyone closely related to or associated with me. There have been No promises to me of rewards, immunity, probation, or anything else to induce my plea of guilty or nolo contendere, except Wie pat [Ade W RAG Sika AS A Shy DEERNghA Gah 78 A Avent Tis le Widus 2k Leda Avy WA bin, Bs pe ot DIE Ea oF DHS (Aig ASS > PaSona he the maximum penalty which may be imposed is as indicated below: . COUNT NWMBER AND CHARGE MAXIMUNJ PENALTY Cry PER Byy pL, {22 0 ! understand that | will be ordered to make restitution to the victim, if the offense involved a victim and that the restitution order shall be enforceable as a civil judgment. | understand that a restitution fine of not less than $100 nor more than $1000 will also be imposed. (TURN OVER]STATE OF CALIFORNIA get 30 897 Cob drain. No. Ajo 8) f epaly THE wees ‘OF THE E STATE OF CALIFORNIA, oe _ gga Plaintiff, < on bout Defendant. The undersigned Deputy District Attorney, Pow \ Wil cho & deposes and says upon information and belief: That Defendant was convicted on Sy L 26/ q z in the above entitled action, of a violation of Sul andon___ 5/26 (4 Bvas admitted to summary probation by the Court for a AFFIDAVIT OF SUMMARY PROBATION VIOLATION Police Agency & Report Number: weer ee period of 2 on the terms and conditions as contained in the Order Admitting Defendant to Summary Probation; and that Defendant acknowledged and accepted the terms of. probation set forth in said Order. That Defendant has violated the terms of such probation in that: 1) Drove a vehicle in violation of Vehicle Code § _- on _____ 2) Committed a violation of Penal Code § on A940 n & ft I ee Brian Heurt- Suncidayecl | hsmse ‘fa the Court 4)__ oi { wohes The ribose f alceboe wa unbiken A CS 64 zC ¢) ve the People sespectlly move this scart to revoke summary probation andi to: ____~_ Issue a Bench Warrant for the arrest of the Defendant. Order the issuance of a Notice to Appear to the Defendant on this action for revocation of Summary Probation. _______ Order this Summary Probation Violation action calendered on at , a date and time at which Defendant is presently scheduled to appear before this court in action I DECLARE under penalty that the foregoing is true and correct. Executed at pate: (OAY (i hake Wickes , . ' Deputy District Attorney ITIS HEREBY ORDERED that Defendant’s Probation be summarily fees pending an evidentiary hearing and that a Bench Warrant issue for Deféndani’s arrest in the amount of, 000 .0D : OCT 3 0 1997 California. DATE: ‘NORMAN J. GATZERTSAN MATEO COUNTY MUNICIPAL COURT DISTRICT COUNTY OF SAN MATEO, STATE OF CALIFORNIA BURLINGAME P.D. case # 44#O|G]) PEGGY THOMPSON, Coyrt,Exec. Officer * l uty CLERK’S FILE STAMP COURT COURT USE ONLY CASE NUMBER: [ ] [ ] DEFENDANT: HART Pian) 9 [ ; waht Or ] [ NORTHERN BRANCH J ARREST DATE: 4-4-4} [ ] / [ Y 5 89T ] BOOKING DATE: Y-U-Qe [ WS ] ARRESTING AGENCY: [ ] [ ] [ ] I ] AFFIDAVIT OF COSTS (FDACJ) CRNMZ'74038 | hereby certify that the defendant was arrested and booked on the dates indicated above which resulted in a complaint being filed. If a Judgment of Conviction is entered against the defendant in this case, it is hereby requested that the Court order the defendant to pay a Criminal Justice Administration Fee to the Arresting Agency, pursuant to Government Code Section 29550(b)/29550. 1/29550.3. The Arresting Agency has incurred expenses in the amount of $ 45, a3 and hereby certifies that this amount does not exceed the actual administrative costs, including applicable overhead costs as permitted by federal Circular A-87 standards, incurred in booking or otherwise processing the above-named defendant. Dated: tA . 2a ee (Signature of/Authorized Agency Representative) CERTIFICATION OF JUDGMENT (SECJF) named defendant to pay a Criminal Justice Administration Fee in the amount of $ to the ARRESTING AGENCY, pursuant to the provisions of Government Code Sectio 19550(b)/29550.1/29550.3. Dated: LA | hereby certify that, a Judgment of Conviction having been entered, the Court ae me above- L. Deputy nee Cc | By: : : [ORIGINAL and one copy required to be filed with the court] [Distribution after entry of Judgment: Orig-Agency; Copy-file (wp/cjat/92)) Peggy Thompson i | 5 | | i j