10GEORGE GASCON DISTRICT ATTORNEY GEORGE GASCON (SBN 132345) District Attorney 2,3,2; 3:er Alexis ?Feigen Fasteau, (SBN 213044) Assistant District Attorney Gerlie Ventura 2 Bar Certi?ed Law Clerk 850 Bryant Street, Room 322 San Francisco, California 94103 (415) 734-3109 Attorneys for Plaintiff IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO THE PEOPLE OF THE STATE OF 15001156 CALIFORNIA, TO T0 7 Plaintiff, COMPEL DISCOVERY OF CHILD PORNOGRAPHY v. Date: February .6, 20115. - David PetrUcelli, Time: 9:00 am. Dept: 20 7 Defendant. TO THE HONORABLE JUDGE OF THE SUPERIOR COURT AND TO DEFENDANT BY AND THROUGH HIS ATTORNEY Christopher Hite PLEASE TAKE NOTICE that on February 6, 2015, or as soon thereafter as the matter can be heard in Department 20 of the above?entitled court, the People will oppose the Defendant?s Motion to Compel Discovery of Child Pornography. STATEMENT OF THE CASE Assistant District Attorney Alexis eigen Fasteau has given notice to counsel for the defendant, as to the existence Of this potential evidence and our opposition to discovering a copy of the videos containing child pornography. Defense counsel has two paths by which he 1 Swag, 1'0 11_DISTRICT ATTORNEY could view the videos. Notice ofOpportunity to Impact Evidence The defense was provided with a letter entitled Notice of Opportunity to Inspect Evidence. The defense counsel and any experts he wishes to retain would be permitted to inSpect the evidence at the District Attorney?s Of?ce any time during the hours of 0800 and 1700. The District Attorney?s Of?ce would make available to the defense, a private room to inspect all evidence of child pornography. The defense is invited to return as many times as necessary and to take as much time as necessary to inspect the material. In the letter, the People made it clear that the defense would be permitted to ?inspect any and all computer evidence and images.? Further, the letter alsoi?states that "?eVery conceivable effort will be mac by-the Peeple to not interfere with the defense attorney? to con?dential-1y consUlt With his/herexpert during the examination 'of the evidence.? Offer to Inspect the Evidence at the Silicon Valley Regional Computer Forensics Laboratory, In the alternative, the defense team is being offered the opportunity to inspect the evidence at the Silicon Valley Regional Computer Forensics Laboratory. The ?defense team? includes counsel for the defendant, persons employed by the defense who are assisting with the preparation of the defense, any expert retained to assist the defense in the case, or any investigator retained on behalf of the defendant to assist in the defense of this matter. Any defense experts?would be able to perform their own forensic analysis. The Silicon Valley Regional Computer Forensics Laboratory would provide the defense with a forensic copy of all seized media. Experts would be permitted to-bring whate?Ver hardware, software, books, or ?recordsit believes necessary to conduct the examination, including?a Computer on which it?: Opposition to Defendant?s Motion to Compcl Discovery DISTRICT ATTORNEY may conduct a forensic analysis. The defense team would have?access to the viewing room on Monday through Friday, during the hours of 0800 and 1700. Further, while the defense team is reviewing the evidence, no law enforcement agents will be permitted inside the viewing room. At the conclusion of the defense team?s use of the viewing area, the workstation provided by the Silicon Valley Computer Forensics Laboratory would be forensically ?wiped.? 'No law enforcement agents would be able to review the defense team?s con?gurations on the workstation at any time. ARGUMENT The defendant?s motion to compel the duplication and distribution of the child pornographic images seized by the prosecution in this case shouldbe'deniedbecause-2' (1) there is a Compelling state interest in protecting victims of childabuse; (2) Penal Code, section prevents the People from reproducing child pornography unless speci?cally permitted to do so by the court and the People have made two paths for thedefenSe to inspect the evidence pursuant to (3) Other courts looking at this issue have held that the prosecution refraining from reproducing the evidence does not violate the defendant?s right to discovery, so long as the defense is given reasonable opportunity to view and inspect the evidence. A. There Is a Compelling State Interest in Protecting Victims of Child Abuse ?The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.? (New York v. Ferber (1982) 458 US. 747, 755.) The United States Supreme Court has found that ?the use of children as subjects of pornographic materials?is harmful to the physiological, emotional, and mental health of the child.? (Id. at p. 758.) Further, the child suffers harm,? (id. at p. 775 [O?Conner, 1., Opposition to Defendant?s Motion to Compel Discovery 10DISTRICT ATFORNEY concurring]), and an invasion of the child?s ?vulnerability? (id. at p. 776 [Brennan, ., concurring]), from the pornographic depiction. There is no question that child pornography represents a permanent record of the, sexual exploitation of a child, which is only exacerbated by its duplication and distribution. (New York v. erber, supra, 458 US. at p. 759.) More recently, the Supreme Court observed that ?as a permanent record of a child?s abuse, the continued circulation [of child pornography] itself would harm the child who had participated. Like a defamatory statement, each new publication would cause new injury to the child?s reputation and emotional well-being.? (Ashcroft v. Free Speech Coalition (2002) 535 US. 234, 249.) Similarly, the compelling state interest in protectingchil'drenxfrom sexual exploitation: lies behind the California Legislature?s decision to create a comprehensive prohibiting the possession, duplication and distribution of images of child sexual exploitation. (See PeOple v. Cantrell (-1992) 7 Cal.App.4th M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225; In re Duncan (1987) 189 Ca1.App.3d 1348, 1358.) The Victim?s Bill of Rights codified in 2008 and known as Marsy?s Law ?irther compels the courts to always consider in their balancing the actual victims affected by every court process; speci?cally Marsy?s Law confers upon victims the right be treated with respect for his or her privacy. to prevent the disclosure of con?dential information which could be used to locate or harass the victim.? Child pornography is so pernicious that every abused child so depicted is further victimized by each subsequent duplication and distribution of the contraband image, even within the context of criminal discovery; Opposition to Defendant?s Motion to Compe] Discovery 10DISTRICT B. Penal Code Section 1054.10 Prevents the People from Reproducing Child Pornography Unless Specifically Permitted to do so by the Court Penal Cdde section 1054.10 reads: Except as provided in subdivision no attorney may disclose or permit to be disclosed to a defendant, members of the defendant's family, or anyone else copies of child pornography evidence, unless speci?cally permitted to do so by the court after a hearing and a showing of good cause.? Notwithstanding subdivision an attorney may disclose or permit to be disclosed copies of child pornography evidence to persons employed by the attorney or to persons appointed by the court to assist in the preparation of a defendant's case if that disclosure is required for that preparation. Persons provided this material by an attorney shall be informed by the attorney that further dissemination of the material, except as provided by this section, is prohibited.? (emphasis added.) In compliance with section it has long been the practice of the People to avoid duplication?of child pornography, always make every reasonable effort to allow the defense to inspect the evidence. Section 10541003) permits disclosure of copies of child pornography when disclosure is required for the preparation of the defendant?s case, but section 1054.10(b) does not compel the People to reproduce and distribute child pornography. Here, the defense has two paths by which the People would disclose the child pornography, as permitted by section A thorough inspection of the evidence allows the People to comply with section 1054.10(a) and allows the defense to prepare their case, as envisioned by section In the interest of not re-victimizing the children depicted in the child pornography at issue in this case the People ask the court to refrain from compelling reproduction of the child pornography until the defense has exhausted the two Options outlined above. ll Opposition to Defendanl?s Molion lo Compel Discovery DISTRICT ATTORNEY C. The Defendant?s Right to Discovery is Satisfied when the Defense is Given Access to the Evidence In UnitedStates v. Kimbrough (5th Cir. 1995) 69 F.3d 723, the US. Attorney?s of?ce refused to duplicate the charged item of child sexual exploitation, offering instead to allow the defense and their expert access to it. The defendant moved to dismiss based on a violation of discovery and the trial court denied the motion. The Fifth Circuit Court of Appeals af?rmed the trial court?s ruling, ?nding that the government?s actions were reasonable and permissible under the Federal Rule of Criminal Procedure Implicit in this ruling is the ?nding that the government?s actions were also reasonable and permissible under the United States Constitution. The court held ?nd that any prejudice or technical violation of Rule 16 is insuf?cient to comprise a deprivation of Kimbrough's constitutional rights.? (Id. at p. 731.) Similarly, in the case of United States v. Horn (5th Cir. "1999) 187 F.3d 781, the trial Court properly denied the defendant?s motion-to obtain. copies of the?video-tapes that were going to be used against him at his trial on child sexual exploitation charges. The court found it suf?cient for the defendant?s expert to view the original tapes, especially since the tapes were themselves primafacie contraband. Both of those cases were premised-on the fact that the compelling interest in protecting the children depicted in the graphic images outweighed any countervailing interest by the defense in obtaining physical copies of those images, and that the defendant?s constitutional rights were fully satis?ed by simply having suf?cient access to the materials. In this regard, the federal courts recognized that such images are properly viewed as contraband, such as narcotics, stolen property, or a weapon, rather than traditional decumentary evidence. As contraband, it need only be made available to the defense and to defense expert for testing and analysis, but need not be reproduced and freely distributed to the defense. This logic is all the . FRCP provides in relevant part, ?upon request from the defendant that the government shall permit the defendant to inspect, and copy or photograph, books, papers . . . which are material to the preparation of the defendant?s defense or are intended for use by the government as evidence in chief at trial or were obtained from or belonging to the defendant." Opposition to Defendant?s Motion to Compel Discovery DISTRICT ATTORNEY more compelling in the context of child sexual exploitation given the harms associated with each additional reproduction and distribution as described by the US. Supreme Court in Ferber; supra. By expressly identifying who could possess and distribute such materials and identifying the speci?c purposes and circumstances under which those people could lawfully possess and distribute such materials, the Legislature evinced an unmistakable intent to narrow the class of people who possessed this type of contraband and to curtail the circumstances justifying reproduction and distribution of such harmful materials. Additionally, the Adam Walsh Child and Safety Protection Act, enacted in 2006, restricts defense access to property or material that constitute child pornography. One provision in the Act, codi?ed in 18 US. Code Section 3509(m), provides in pertinent part: (1) In any criminal proceeding, any property or material that constitutes child pornography shall remain in the care, Custody, and control of either the Government or the court. Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, a court shall deny in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography, so long as the GOVernment makes the property or material reasonably available to the defendant. (B) ..property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial. The requirement that all child pornography used in criminal trials remain in the possession of the government or the court, and the prohibition against the copying and duplication of child pornography do not unduly burden the defendant?s Fifth and Sixth Amendment rights to due process and a fair trial, so long as the defendant is provided ample opportunity for inspection. (US. v. Flirm (2007) 521 F.S-upp.2d 1097; US. v. Knellmger Opposition to Defendant?s Motion to Compel Discovery DISTRICT ATTORNEY (2007) 471 F.Supp.2d 640.) The court in US. v. O?Rourke held that the Government made genuine and reasonable attempts to providethe ?ample opportunity? required by section 3509(m)(2)(B) when defense attorney and his experts were given the opportunity to examine a hard drive containing child pornography at the Of?ce of the United States Attorney at a mutually agreed upon date and time. (US. v. 0 ?Rourke (2007) 470 F. Supp.2d 1049.) The defense counsel and their experts were allowed to bring their own computers for their analysis, provided they deleted any child pornography images from the computers upon completion of their analysis. (Id. at p. 1057.) The Government was additionally required to provide a'private and locked room for the defense counsel and their experts to view the hard drive; all persons were prohibited from entering the room without defense counsel or experts present. (161.5 The defense in the present case has two paths by which he could view the videos. The defense was provided with a ietter giving notiCe of opportunity tocounsel', __or any experts, to inspect theevidenceat the Hall of Justice. In the alternative, any experts. retained by the defensegor any person onthe defense team, are offered the Opportunity to View the evidence at the Silicon Valley Computer FOrensics Laboratory. Further, any defense experts will be given the opportunity to perform their own forensic analysis and to bring their own equipment necessary to perform their analysis. The defense will be given a wide berth for inspection and every conceivable effort will be made by the People to not interfere with the defense attorney?s right to consult with his experts during the examination. The People have therefore provided ample opportunity for inspection as required by the Adam Walsh Child and Safety Protection Act and the provisionsin section 3509(m). Opposition to Defendant?s Motion to Compel Discovery .10DISTRICT ATTORNEY CONCLUSION The People have not reproduced the child pornography on the defendant?s hard drive because Penal Code section 1054.10(a) prohibits disclosure of child pornography unless the court compels it. Section 1054.10(b) permits the disclosure but it does not compel disclosure and it certainly does not compel the reproduction of child pornography. Allowing the defense to inspect the videos at his convenience is suf?cient to allow the defendant to prepare his case. Further, the court should refrain from compelling the reproduction of child pornography until the defense has exhausted the two other means through which the defense attorney and his experts can examine the child pornography and the hard drive on which it was found. .The defense may argue that possessingla copy'is. more practical for their expert. However, the'compelling need to protect the aCtual children depicted in these photos from being re~victimized, as they are with every duplication, should be balanced against mere convenience. For the above stated reasons, Defendant?s motion to compel discovery should be denied. Date: February 2, 2015 Respectfully submitted, George Gascon, District Attorney Alexis eigen Fasteau Assistant District Attorney Opposition to Defendant?s Motion to Compel Discovery DECLARATION OF SERVICE MCN 15001156 I, Alexis'Feigen Fasteau, state: That I am a citizen of the United States, over eighteen years of age, an employee of the City and County of San Francisco, and not a party to the within action; that my business address is 850 Bryant St., San Francisco, California 94103. That on February 2, 2015, I served the attached OPPOSITION TO MOTION TO COMPEL DISCOVERY OF CHILD PORNOGRAPHY by placing a true copy thereof in the in the Public Defender?s basket at the District Attorney?s Of?ce, forpick-up by: CHRISTOPHER HITE declare under penaity of perjury that the foregoing is EXecuted on February 2015 at San Francisco, California. (I. Mani" Alexis Feigen Fasteau Assistant District Attorney San Francisco Public Defender {Pt rip JEFFREY G. ADACHI t" Public Defender Mir U. I .31 i i a! Chief Public Defender - in Ur CHRISTOPHER C. HITE (SBN #183817) Deputy Public Defender 555 Seventh Street, Second Floor San Francisco, California 94103 (415) 553-4911 Attorney for Defendant DAVID PETRUCELLI SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, VS. DAVID PETRUCELLI, Defendant. TO THE DISTRICT ATTORNEY FOR THE CITY AND COUNTY STATE OF CALIFORNIA: Case No. 15001156 NOTICE OF MOTION AND MOTION TO COMPEL DISCOVERY. Date: February 6, 2015 Time: 9:00 am. Dept: 20 Trial: None Assigned OF SAN FRANCISCO, PLEASE TAKE NOTICE that on the date and time mentioned above, or as soon thereafter, as the matter may be heard in Department 20 of the Superior Court, in and for the City County of San Francisco, located 850 Bryant Street, San Francisco, California, defendant, DAVID PETRUCELLI, will move this Court for an order compelling discovery compliance by the San Francisco District Attorney?s Office of the items requested in the informal discovery request made by the defense in court. Motion to Compel Discovery San Francisco Public Defender U143th This motion is based upon this notice, the attached memorandum of points and authorities, the Declaration of Christopher C. Hite, the files and records in this case, oral and documentary evidence to be presented at the hearing of this motion, and any such further evidence as this Court may wish to consider. Dated: January 770 2015 Respectfully submitted, CHRISTOPHER C. HITE Deputy Public Defender Attorneys for Defendant DAVID PETRUCELLI Motion to Compel Discovery San Francisco Public Defender MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF CASE On January 16, 2015, Defendant, DAVID PET RUCELLI, while in custody, waived instruction and arraignment and entered a plea of not guilty to all the counts and allegations in the complaint. The complaint alleged in Count One, a violation of Penal Code section 31 1. a felony (distribution of child pornography); and in Count two, a violation of Penal Code section 31 a felony (possession of child pornography). (See Declaration of Christopher C. Hite attached hereto and incorporated herein.) On January 16, 2015, as part of the discovery disclosed to defense, the San Francisco District Attorney?s Office included a letter from Assistant District Attorney, Marianne L. Barrett, entitled ?Notice of Opportunity to Inspect Evidence,? which indicated the alleged child pornography in this case would not be directly provided to defense counsel but would be made available for inspection at the District Attorney?s Office. (See Letter from Assistant District Attorney, Marianne Barrett, from Christopher C. Hite, dated January 16, 2015, attached to the Declaration of Christopher C. Hite and incorporated herein as Exhibit A.) On January 28, 2014, defense counsel informally requested the discovery and offered a protective order. Assistant District Attorney, Alexis asteau, argued against direct disclosure and this Court ordered briefing on the issue. To date, Defendant has not received the items mentioned in the informal discovery request. Defendant hereby submits this motion to compel discovery and request for protective order as Defendant has no other reasonable means of remedy. Motion to Compel Discovery San Francisco Public Defender II. DISCUSSION A. BACKGROUND: STATUTORY SCHEME AND RELEVANT CASE LAW Penal Code section 1054.1 provides that: The prosecuting attorney shall disclose to the defendant or his or her attorney of record, all of the following materials and infOI-mationdefendant is entitled as a matter of law, and without any need to make a specific showing, to these items if they are in the possession of the prosecutor or if the prosecutor has knowledge of their existence. (Penal Code ?1054.1; Penal Code ?1054(e); People v. Washington (1997) 57 Cal. App.4th 945; People v. Kosim (1997) 56 Cal. App.4th 1360; People 12. Robinson (1995) 31 Cal. App.4th 494.) A defendant is also entitled as a matter of federal law to any evidence which the prosecution can obtain through the exercise of due diligence U. S. v. uevas Alvares (1996) 86 F.3d 901; Kyles v. Whitley (1995) 514 US 419; Evans v. Janing (8th Cir. 1973) 489 F.2d 470), and to any evidence favorable to the defendant on the issue of guilt or punishment. (Davis v. Alaska (1974) 415 US. 308; US. v. Bagley (1985) 473 US. 667.) In the present case, the San Francisco District Attorney?s Office has failed to provide the documents requested by Defendant?s informal discovery request and objected in court to the disclosure of the items with a protective order. The District Attorney?s Office is requesting defense counsel inspect the requested evidence at the District Attorney?s Office. Motion to Compel Discovery San Francisco Public Defender $300-qu214:- B. THE DISCLOSURE OF CHILD PORNOGRAPHY IS SPECIFICALLY ADDRESSED IN PENAL CODE SECTION 1054.10. The disclosure ofchild pornography is specifically addressed in Penal Code section 1054.10, which states that: Except as provided in subdivision no attorney may disclose or permit to be disclosed to a defendant, members of the defendant's family, or anyone else copies of child pornography evidence, unless specifically permitted to do so by the court after a hearin and a showing of good cause. Notwithstanding subdivision an attorney may disclose or permit to be disclosed copies of child pornography evidence to by the attorney that further dissemination of the material, except as provided by this section, is prohibited. Penal Code section 1054.10 et. seq. sets forth the protective procedures and limitations for the disclosure of child pornography. Section 1054.10(a) prohibits the disclosure of the evidence by defense counsel to anyone without Specific permission by the court after a hearing and showing of good cause. Section 1054.10(b) sets forth the limitations on the disclosure of the evidence to experts. Nothing in the Penal Code permits the District Attorney?s OffiCe from failing to disclose these materials to defense counsel or holding them for inspection as outlined in their Notice of Opportunity to Inspect Evidence. (See Exhibit A.) In addition, nothing in the Penal Code limits the disclosure based on the number of images, photos or videos. The amount of material is irrelevant to the discovery obligation and Due Process rights of the Defendant to effective assistance of counsel. This motion is controlled by the decision in Wester?eld v. Superior Court (2002) 99 Cal. App.4th 994, which is directly on point, and controlling in this matter. The Wester?eld court specifically ordered the prosecution to make c0pies of the alleged child pornography and turn it over to defense counsel in preparation for the defense. (Id. at 997?998.) It specifically rejected the prosecution?s inspection request as unreasonable and untenable to effective assistance of counsel. (Id. at 998.) It further rejected the prosecution?s argument that they would be violating the law by disclosing the materials to defense counsel by stating, ?[t]he People?s interpretation of the statute-that the deputy district attorney would violate the law if he copied the images for the defense-not only defeats the purpose of the law and exalts absurdity over common sense, but it is -5- Motion to Compel Discovery San Francisco Public Defender also logically ?awed.? The Westei?eld court then concluded that where there is ?any genuine concern about the disposition of the material provided to the defense, the court can issue a protective order limiting disclosure to counsel and their agents . . (161., emphasis added.) The Wester?eld court does not specifically mention the protective disclosure language found in Penal Code section 1054.10, but clearly relies upon it in connection with Penal Code section 312 (the destruction of the evidence at the conclusion of the case). This Court should follow the Westei?eld decision and order the immediate disclosure of the evidence as requested. If the Court finds it necessary, it can issue a protective order limiting disclosure to counsel and his agents or order the return of the images to the Court for destruction at the conclusion of the case as suggested by Wester?eld. (Wester?eld, supra, 99 Cal. App.4th at 998.) These areas are addressed in defense counsel?s proposed protective order. To date, defense counsel has not received the items listed in the informal discovery request. These items specifically include the following: (1) A copy of the alleged child pornography in this case. These items are relevant, material, and non?privileged. They are in the possession of the San Francisco District Attorney?s Office, and/or an affiliate of that governmental agency. Therefore, this Court shoeld order the immediate disclosure of the requested evidence, and execute a protective order in relationship to their further disclosure by defense counsel. CONCLUSION Based on the foregoing, the defendant respectfully requests that this Court order immediate compliance with the informal request within five (5) days of the execution of the protective order. Dated: January 3Q 2015 Respectfully mitted, CHR OPHER C. HIT De Public Defender Att rneys for Defendant DAVID PETRUCELLI Motion to Compel Discovery San Francisco Public Defender DECLARATION OF CHRISTOPHER C. HITE I, CHRISTOPHER C. HITE, hereby declare as follows: 1. I am an attorney duly licensed to practice before all of the courts of the State of California and am a Deputy Public Defender at the San Francisco Office of the Public Defender. 2. I am the attorney of record for the defendant in the above?referenced action and as such am familiar with the evidence required for the trial of this matter. 3. On January 16, 2015, defendant, DAVID PETRUCELLI, while in custody, waived instruction and arraignment and entered a plea of not guilty to all the counts and allegations in the complaint. The complaint alleged in Count One, a violation of Penal Code section 31 l. a felony (distribution of child pornography); and in Count Two, a violation of Penal Code section 31 1.1 a felony (possession of child pornography). (See Declaration of Christopher C. Hite attached hereto and incorporated herein.) 4. On January 16, 2015, as part of the discovery disclosed to defense counsel, the District Attorney?s Office included a letter from Assistant District Attorney, Marianne L. Barrett, entitled ?Notice of Opportunity to Inspect Evidence,? which indicated the alleged child pornography in this case would not be directly provided to defense counsel but would be made available for inspection at the District Attorney?s Office. A true and correct cepy of the Letter from Assistant District Attorney, Marianne Barrett, dated January 16, 2015, is attached hereto and incorporated herein as Exhibit A. 5 . On January 28, 2014, defense counsel informally requested the discovery and offered a protective order. Assistant District Attorney, Alexis Fasteau, argued against direct disclosure and this Court ordered briefing on the issue. 6. Based on the materials involved in this case, defense counsel believes it would take at least 40 to 50 hours to analyze these materials properly. It is unreasonable to assume defense counsel could commit to memory and effectively cross?examine based on this type of inSpection format. The very essence of cross?examination is based upon the concept of confrontation. Confrontation with in-?court documentation is the most powerful tool at the disposal of a defense Motion to Compel Discovery San Francisco Public Defender attorney. It can not be done effectively with vague suggestions, thoughts or conjecture. 7. The amount of time it would take to effectively review these items through the method of inspection suggested by the prosecution will unreasonany drive up expert costs by requiring travel and parking expenses and additional time not incurred were the evidence discovered in the normal course of the discovery statutes and with the protection of a protective order. Furthermore, defense counsel often consults with experts whom he may have no intention of calling at trial. This information is work?product and attorney-client privileged. These concepts would be destroyed by the inspection format, where an expert is brought to the inspection at the District Attorney?s Office. The inspection format also improperly reveals affirmative defenses and infringes upon defendant?s right to the effective assistance of counsel, where it may not be wise tactically to reveal the expert during inspection. 8. It is extremely inconvenient for counsel to analyze this evidence anywhere other than defense counsel?s office and on defense counsel?s time. Defense counsel has an extremely large case load and has to balance his use of time based on case priority and seriousness of the case. The evaluation of files and evidence must be done when time is available and can not reasonably be subject to outside in?uences, including the schedule of the prosecution or the San Francisco Police Department. As was stated in Waste/?eld, ?requiring the defense to view?and apparently commit to memory-the ?thousands? of images at the computer crimes office obviously impacts Westerfield?s right to effective assistance of counsel and his right to a speedy trial.? (Wester?eld v. Superior Court (2002) 99 Cal. App.4th 994, 998.) While defense counsel maintains the number of images or items of evidence is irrelevant to the discovery issue, the number of photographic images and other documents in this case is significantly high. 9. To date, the district attorney has provided no legal justification for withholding these items or making them available solely on the basis of inspection. The suggested offer of inspection is not supported by legal justification, the criminal discovery statutes or case law. The district attorney has provided nothing contrary to these assertions. Rather, it requests that this Court ignore a controlling case. Motion to Compel Discovery 2 San Francisco Public Defender 10. This motion is controlled by the decision in Westei?eld v. Superior Court (2002) 99 Cal. App.4th 994, which is directly on point. It is controlling on the matter. 11. The requested evidence constitutes Brady material and is required to be disclosed prior to preliminary hearing, independent of the discovery statutes. (See People v. Gutierrez (2013) 214 Cal. App.4th 343; and Bridgeforth v. Superior Court (2013) 214 Cal. App.4th 1074. In addition, the failure to provide the requested evidence prior to preliminary hearing would constitute a due process violation. 12. request. 13. 14. discovery. 15. To date, Defendant has not received the items mentioned in the informal discovery These items are relevant, material and non-privileged. Defendant has no other reasonable means of remedy other than this motion to compel A true and correct copy of the Proposed Protective Order is attached hereto and incorporated herein as Exhibit B. Ideclare under penalty of perjury that the foregoing is true and correct. Executed this a Motion to Compel Discovery day of January, 2015, at San Francisco, California. c. HITE Deputy Public Defender EXHIBIT A f. A. . rs CITY AND COUNTY OF SAN OFFICE 0r DISTRICT ATTORNEY George Gasc?n MARIAN NE L. BARRETT District Attorney Assistant District Attorney DIRECFDIAL: (415) 553-1421 E-MAIL: MARIAN RG January 16, 2015 People v. Adric Petrucelli Court #2 15001156 Re: NOTICE OF OPPORTUNITY TO INSPECT EVIDENCE The People of the State of California place the defendant through his attorney of record on Notice of Opportunity to Inspect Evidence, and in support thereof state as follows: For the above entitled cause the People put the defendant on formal notice of this opportunity through his attorney of record to inspect any and all computer evidence and images seized as evidence. Recognizing that child pornography is contraband, the People intend to treat it as such by avoiding any duplication of said evidence. The People would like to make every reasonable effort to facilitate the inspection of this evidence by defendant?s attorney Of record and any expert he/she wishes to retain. The People hereby invite the defense attorney and his/her expert to view and inspect any evidence and/or visual images (consisting of photographs, videos, digital images, etc.) which are booked in evidence. Defense counsel and his/her expert will not be permitted to remove the evidence, photographs, videos or digital images, nor will they be permitted to duplicate the evidence/images. The People will make the original or a forensic copy of all seized computer evidence available for inspection by the defendant?s attorney of record &/Or expert up to ten days before the trial of the above?entitled case. Every conceivable effort will be made by the People to not interfere with the defense attorney?s right to confidentially consult with his/her expert during the examination of the evidence. Please coordinate the inspection of evidence with the Alexis Fasteau, the Assistant District Attorney assigned to this case. She can be reached at (415) 734-3109. Very truly yours, George Gasc?n District Attorney arianne L. Barrett Assistant District Attorney 85o BRYANT STREET, THIRD FLOOR- SAN FRANCISCO, CALIFORNIA 94103 RECEPTION: (415) 553?1752 - FACSIMILE: (415) 553-9054 EXHIBIT SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO THE PEOPLE OF THE STATE OF CASE NO. 15001156 Plaintiff, v. PROTECTIVE ORDER DAVID PETRUCELLI Defendant. PROTECTIVE ORDER REGARDING DISCOVERY OF CHILD PORN OGRAPHY IT IS HEREBY ORDERED that the San Francisco District Attorney?s Office make available to defense counsel copies of any and all alleged evidence of child pornography held in this case subject to the following protective order: 1. Defendant?s counsel of record may not disclose or permit to be disclosed to Defendant or members of Defendant?s family, or anyone else copies of the discovery reasonably construed to constitute child pornography, unless specifically permitted to do so by the Court after a hearing and a showing of good cause, in accordance with Penal Code section This does not prohibit defense counsel from showing Defendant these images where necessary for the preparation and assistance of defendant?s case. Under no circumstances, however, shall the defendant be given c0pies of any part of these materials to keep, nor shall the Defendant be left alone with the materials. Defendant?s counsel of record may disclose or permit to be disclosed copies of items or images reasonably construed to constitute child pornography to persons employed by the attorney or to persons appointed by the Court to assist in the preparation of Defendant?s case, if that disclosure is required for the preparation and defense of this case, in accordance with Penal Code section Persons provided these materials shall be informed by the attorney that further dissemination of the material, except as provided by section 1054.10(b) is prohibited. Any person to whom these materials or their contents are disclosed must be provided with a copy of this Protective Order. The above-described materials shall not be copied, sent, exhibited, or printed unless necessary for the preparation of the defense in this proceeding. Any copy of the materials that is made shall be accompanied at all times by a copy of this Protective Order. These materials are only to be used for preparation of this case and shall not be used for any other purpose, including teaching or training. The above-described materials shall not leave the State of California and they shall not be put on the Internet or disseminated through the Internet or any electronic means for any reason, except as provided in Paragraphs #1 and #2 of this Protective Order. Digital media containing the images may be physically transferred between persons authorized to view the images for trial preparation purposes. The materials provided to defense counsel pursuant to this Protective Order, and any c0pies thereof, shall be returned to the court at the conclusion of this case. Dated: Dated: Dated: The materials provided to defense counsel pursuant to this Protective Order, and any copies thereof, shall be returned to the Court at the conclusion of this case or be destroyed. All reasonable precautions shall be taken to keep any contraband images from being inadvertently c0pied on to any electronic, optical or digital media that cannot be returned for destruction. This Protective Order is ongoing and contraband images must be returned to the Court or destroyed whenever they are found and are no longer necessary for the defense of this case. BRENDON CONROY JUDGE OF THE SUPERIOR COURT CHRISTOPHER C. HITE DEPUTY PUBLIC DEFENDER ALEXIS FASTEAU ASSISTANT DISTRICT ATTORNEY San Francisco Public Defender 4: PROOF OF SERVICE People v. Petmcelli, Case No. 15001156 I, the undersigned say: I am over eighteen years of age and not a party to the above action. My business address is 555 Seventh Street, Second Floor, San Francisco, California 94103. I further certify that I caused a copy of the following: 1. NOTICE OF MOTION AND MOTION TO COMPEL DISCOVERY to be served on the date of execution listed below by PERSONAL SERVICE upon the following: Alexis Fasteau, Esq. Office of the District Attorney City and County of San Francisco 850 Bryant Street, Room 300 San Francisco, California 94103 I declare under penalty of perjury that the foregoing is true and correct. Executed on 220 day, of January, 2015, at an Francisco, California. c. HITE Motion to Compel Discovery GEORGE GASCON District Attorney of the City and County of San Francisco ALEXIS F. FASTEAU Assistant District Attorney State Bar No. 213044 GERLIE VENTURA Bar Certi?ed Law Clerk 850 Bryant Street, Suite 322 San Francisco, California 94103 Telephone: (415) 734-3109 Attorneys for Plaintiff a SuPe?eF Gaul-t af a Ifernia Ceunty at San Francisco JAN 2015 THECDURT BY: Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, v. DAVID PETRUCELLI, Defendant. C.N. 15001156 OPPOSITION TO MOTION FOR RELEASE OF DEFENDANT ON OWN OR IN THE ALTERNATIVE REDUCING BAIL Date: January 27, 2015 Time: 9:00 am. Dept: 20 To defendant DAVID PETRUCELLI and his attorney, Deputy Public Defender Christopher Hite: PLEASE TAKE NOTICE that on January 27, 2015, or as soon at 9:00 am, thereafter as counsel may be heard in the above?entitled court, the People will move for this court to deny the release of the defendant on his own recognizance pursuant to Penal Code Sections 1270.1(0) and 1275, or in the alternative, the People will move for his court to deny reduction of bail. The motion is based upon Penal Code Sections 1270.1(c) and 1275, the Points and Au? thorities herein, as well as any evidence and arguments that may be presented at the hearing on the matter. The motion is basedprimarily on the below described procedural history? and posture of this case. I. PROCEDURAL POSTURE REGARDING CHARGES AND BAIL On January 16, 2015 in Department 9, David Petrucelli was arraigned on a felony complaint alleging one count of Penal Code Section distribution of a child pornography, on or about the 26th of January, 2012; and one count of Penal Code Section 311.11(a) possession or control of child pornography, on or about the 15th of August 2012. The bail was set by the judge at $200,000 II. STATEMENT OF FACTS On January 26, 2012, federal authorities working out of New Haven, Connecticut set up an internet sting operation through a ?le sharing program called Through GIGATRIBE, special agents conducted a direct single source download of 15 video ?les from a GIGATRIBE user Ad0070. The user account was later linked to Defendant. User Ad0070 had a picture of a naked adult male lying on his back, masturbating. During a search of Ad0070?s ?les, federal of?cers concluded that the ?les contained videos of children engaged in sexually explicit conduct. Federal of?cers determined the IP address was attached to an active account for Charles Ratcliff, located at 5 30 Grove Street, Apt. #5 in San Francisco with an email address of ad- Federal authorities later determined that Defendant, David Petrucelli, aka Adric Petrucelli, was listed as the current resident of 530 Grove Street, Apt. Federal of?cers also concluded that Defendant matched the depiction of the pro?le picture of user Ad0070. on August 15, 2012, Of?cers executed a search of the residents and seizure of numerous media devices that were determined to belong to Defendant. Defendant told of?cers that the internet service was under the name of Charles Ratcliff because Defendant could not obtain service himself due to poor credit, but that Defendant paid the bills for the services. Charles Ratcliff did not reside at this residence during the search, nor has he ever resided at this residence. Defendant told of?cers that he knew of the sharing program GIGATRIBE, but Defendant denied using it. At one point Defendant said that agents could use his password to access his 2 2'7 28' GIGATRIBE account, before insisting again that he never used it. Defendant said he modeled, and that someone must have put together the GIGATRIBE account in his name, using his date of birth. He said that he had many men over at his house and it was entirely possible that one of them downloaded the child pornography. He told them he was not into child pornography and had never downloaded it. However Defendant admitted that the naked photo on the account pro?le of Ad0070 was indeed a photo of Defendant. A full forensic examination was conducted on August 8, 2013 by the Silicon Valley Regional Computer Forensics Laboratory. From this. examination, 804 video ?les with evidence of child exploitation were found. According to Special Agent Basanez, approximately half of the videos were of pre-pubescent toddlers engaged in sexual acts with adults. Defendant was ?rst arrested in connection with this crime on January 15, 2015. POINTS AND AUTHORITIES IN SUPPORT OF DENYING DEF OWN RECOGNIZANCE RELEASE Pursuant to Penal Code section at the hearing on the defendant?s motion, the court shall consider the danger that may be posed to other persons. Penal Code Section 1275(a) states ?in setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration.? Seriousness of the Offense Charged The Defendant has been charged with possession and distribution of child pornography. These offenses, serious on their own, become particularly egregious given the sheer volume of child pornography that was found in Defendant?s possession. Defendant?s hard drive contained 804 videos depicting pubescent and pre?pubescent juveniles, and approximately half of the videos were of toddlers engaging in sexual acts with adults. The offense is further aggravated by the fact that Defendant completely denies fault. He stated to of?cers that, although he was aware of what GIGATRIBE wasfurther stated that he is not into child pornography, and that he never downloaded it. Despite his contin? ual denials, when Defendant was shown the GIGATRIBE account pro?le of Ad0070, Defendant agreed the individual in the photo was in fact him. He further agreed all the listed information on the pro?le was an accurate description of Defendant?s likes and preferences, and the birthday listed matched his birthday. The current maximum exposure for possession of child pornography alone, is 5 years when the matter contains more than 600 images and 10 or more images involving a pre?pubescent minor. (Penal Code Section Each video is equivalent to 50 images equating Defendant?s 804 videos to 40,200 images. The fact that Defendant was arrested in 2012 means he cannot face the enhanced penalty for possession of child pornography that was enacted in 2014. However in enacting Penal Code Sec- tion the Legislature emphasizes the importance in the quantity of images involved in this crime. Had Defendant been arrested in 2014, he would have faced 5 years imprisonment. Proclivity for child pornography poses an enormous public safety risk. Defendant has displayed that he is sexually aroused by children. Additionally, where Defendant could have demonstrated accountability or sought help for his problem, he instead has displayed complete denial of his actions. Thus, if Defendant is released, while still being aroused by children and without any indication of seeking help, Defendant poses an enormous public safety risk. Probability of Defendant Appearing at Trial or Hearing of the Case Defendant has been charged with two serious offenses involving child pornography. Over 804 videos of child pornography have been found on his hard drive. Some particularly egregious videos involve children and toddlers engaged in sexual acts with adults. Given the nature of the crimes with which the Defendant was charged, it is uncertain whether Defendant will appear in court. Defendant does not have particularly strong ties to the community. He is neither married or in a serious relationship. He has no children. Additionally, Defendant does not currently have ajob. Defense?s motion points to the fact that Defendant remained at his residence and did not ?ee jurisdiction between the initial seizure of evidence and his arrest. The circumstances have changed for Defendant, however. At the time of the initial seizure, Defendant denied fault, he was not arrested, and not yet charged with an offense. He therefore had little reason to ?ee. In contrast, Defendant has now been arrested and charged with 2 serious felony offenses. The volume and content of child pornography connected to his offenses only adds to its seriousness, presenting Defendant with very real consequences, and giving Defendant strong incentive to ?ee. Defendant?s lack of ties to the community and the drastic change in his circumstances therefore reduces the possibility that Defendant will appear at the trial or hearing of the case. IV. POINTS AND AUTHORITIES IN SUPPORT OF DENYING REQUEST TO REDUCE BAIL Penal Code Section 1275 states ?in setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record 0f the defendant, and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration.? Article I, section 12 of the California ConstitutiOn, prohibit excessive bail. In order to consti- tute excessive bail, it must be per se, unreasonably great, and clearly disproportionate to the of- fense involved, or the peculiar circumstances appearing must Show it to be so in the particular case. Ex parte Ryan (1872) 44 Cal. 555, 558). This .statement has been repeated in later decision invariably upholding the discretion of the lower court. (See In re Williams (1889) 82 Cal. 183, 184; In re Black (1934) 140 Cal.App. 361; In re Grimes (1929) 99 Cal.App2d. 10, 12; In re Horiuchz? (1930) 105 Cal.App.4th 714, 715). The cases plainly state a reviewing court should exercise its discretion with great restraint on the question of bail reduction. The bail set by the judge in the present case is not of the character of per se, unreasonably great, or clearly disproportionate to the offense. The San Francisco Bail Schedule for the offense of possession of child pornography is $40,000. There is no indicated bail schedule for the offense of distribution of child pornography. The most similar offense to distribution is advertisement of child pornography; that is set at $40,000. Given the sheer number of ichild pornography found on Defendant?s hard drive, and the egregiousness of the videos, the previous Court has properly set bail in the amount of $200,000. V. CONCLUSION Given the seriousness of the offenses charged, the nature and quantity of the pornography found on Defendant?s hard drive, and continuous denial on the part of the defendant, there is an encrmous risk to public safety. There is also an additional risk that Defendant will fail to appear because Defendant is now faced with strong incentives to ?ee, without any real ties to the com- munity. Accordingly, the People respectfully submit that the motion to release Defendant on his own recognizance, or in the alternative, to reduce bail, should be denied. Respectfully Submitted, George Gasc?n District Attorney .- Mam/,0 @2594? 4/424; Alexis Feigen Fasteau Assistant District Attorney PROOFOF PERSONAL SERVICE I, The undersigned, declare: I am, and aT all Times menTioned herein was, over eighTeen years of age and noT a parTy To The above?enTiTled cause. I am employed in The CiTy and CounTy of San Fran? cisco, California. My business address is 850 BryanT, SuiTe 322, San Francisco, California 94103. On January 26, 2013, I served a True copy of The aTTached: OPPOSITION TO MOTION TO RELEASE THE DEFENDANT, POINTS AND AUTHORITIES AND DECLARATION by: personally deposiTing a True copy of each in The pickup baskeT for The Officer of The Public Defender, addressed To ChrisTopher HiTe, DepuTy Public Defender. I declare under penalTy of perjury ThaT The foregoing is True and correcT. ExecuTed on January 26, 201 3, 0T San Francisco, California. Alexis Feigen FasTeau AssisTanT DisTricT ATTorney JEFFREY G. ADACHI Public Defender _7 is City and County of San Francisco CO MATTHEW GONZALEZ I Chief Attorney i? ?r cr?n?gy CHRISTOPHER c. HITE, SBN #183817 3 Deputy Public Defender 555 Seventh Street San Francisco, CA 94103 Direct:(415) 553?4911 Main: (415) 553-1671 Attorneys for DAVID PETRUCELLI 2915,1513Hung: SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN RANCISCO Case No. 15001156 Plaintiff, NOTICE OF MOTION AND MOTION FOR RELEASE OF vs. DEFENDANT ON OWN OR IN THE People of the State of California, DAVID PETRUCELLI, ALTERNATIVE REDUCING BAIL. Defendant. Date: January 27, 2015 Time: 9:00 am. Dept: 20 Trial: None Assigned TO THE OFFICE OF THE DISTRICT ATTORNEY OF THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA, AND THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE that on the above-mentioned date and time, or as soon thereafter, as the matter may be heard in Department 20 of the Superior Court, in and for the City County of San Francisco, located at 850 Bryant Street, San Francisco, California, the defendant, DAVID PET RUCELLI, will move this Court for an order releasing the defendant on defendant?s own recognizance; or in the alternative, a reduction of bail. Bail Motion This motion is made on the grounds that the bail as currently set is excessive within the meaning of the Eighth Amendment of the United States Constitution and within the meaning of Article 1, Section 12 of the California Constitution, in that the amount of bail will result in the unnecessary pretrial detention of defendant because the 10% premium to the bondsman is not an affordable amount for defendant or her family and neither the defendant nor her family has other means or resources within which to post bail as currently set. The motion will be made on the further grounds that the defendant is not a ?ight risk and is not a danger to the community and therefore merits the court?s serious consideration for release on defendant?s own recognizance; or in the alternative, a reduction of bail to a reasonable amount. This motion is based upon this notice, the attached memorandum of points and authorities, the records and files in this action, the attached declaration of Christopher C. Hite, and such oral and documentary evidence as may be presented at the hearing of this motion and any such further evidence as the Court may wish to consider. Dated: January ,q 2015 Res ectfully bmitted, 47?? . Pu lic Defe CHRI OPHER C. HITE Depu Public Defender Attorneys for Defendant DAVID PETRUCELLI Bail Motion MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF THE CASE On January 16, 2015, defendant DAVID PETRUCELLI, while in custody waived instruction on arraignment and entered a plea of not guilty to all the counts and allegations in the complaint. This Court denied defendant?s request to be released on his own recognizance and set bail in the amount of $200,000. The matter was put over to set the preliminary hearing. Defendant hereby submits this motion to be released on defendant?s own recognizance, or in the alternative, have bail reduced. II. STATEMENT OF FACTS According to San Francisco Police Department Police Report, Incident No. 141-078-207, on December 23, 2014, at approximately 12:45 pm, FBI Special Agent Robert Basanez came to San Francisco Police Department Sgt. antroup?s office to hand over a federal investigation to the City and County of San Francisco to prosecute. According to the federal file, on January 26, 2012, the federal authorities working out of Connecticut set up an internet sting operation through a file sharing program, called ?Gigatribe.? During the course of the investigation, the federal officers searched one of the file sharing files entitled ?Ad0070?, which had a picture of a naked adult male lying on his back on the ?oor. During a search of Ad0070?s files, the federal officers concluded the files contained several videos of children engaged in sexually explicit conduct. The federal officers determined the IP address had a location in San Francisco, California. On January 27, 2012, the federal officers obtained a search warrant for the Comeast IP address and learned that it was attached to an active account for a Charles Ratcliff, located at 530 Grove Street, Apt. in San Francisco, with an email address of. On August 9, 2012, the federal authorities determined David Petrucelli, aka, Adric Petrucelli, was listed as the current resident of 530 Grove Street, Apt. in San Francisco. The federal officers also concluded Petrucelli matched the depiction of the profile picture of user ?Ad0070.? Bail Motion August 15, 2012, the federal officers executed a search warrant of 530 Grove Street, Apt. in San Francisco. After knocking on the door, Charles Ratcliff, answered the door and was detained along with David Petrucelli, who was located inside the residence. During a search of the residence, the federal officers seized numerous media devices, which they determined belonged to Petrucelli. Petrucelli told the federal officers the internet service was under Charles Ratcliff?s name because he had poor credit and was unable to get service under his own name. Ratcliff confirmed he did not live at the residence but often visits and that the internet account was under his name. However, Petrucelli paid the bills for the service. He told the officers he knew about the ?le sharing program, Gigatribe, but did not use it because he was afraid of getting computer viruses. He explained he was not into child pornography and had never downloaded it. He, however, acknowledged that the picture for the account profile for ?Ad0070? was his depiction. In May of 2013, the federal authorities conducted a forensic examination of all of the media devices seized during the search of Petrucelli?s residence. The federal authorities found sexually explicit material on a Buffalo External Hard drive found in Petrucelli?s bedroom. On December 24, 2013, the federal authorities learned from the file sharing website (Gigatribe) that ?Ad0070? had a user name of ?Adric? and email accounts linked to Petrucelli. A year later, on December 29, 2014, the federal authorties transferred all of the remaining evidence to Sgt. antroup. On December 31, 2014, SFPD of?cers completed the arrest warrant for Petrucelli. It is unclear when the arrest warrant was executed. However, CMS indicates Petrucelli was not arrested until January 15, 2015. Bail Motion FACTS SPECIFIC TO DAVID PETRUCELLI. David Petmcelli is a fourty-four (44) year old single male who has lived at his current address, located at 530 Grove Street, Apt. in San Francisco for the last eight years. He receives his SSDI disability checks due to AIDS at that address. David has a care provider, Kyle Clary, who has helped him for several years at his address. He also has family and friends that live in the bay area. IV. DISCUSSION A. BAIL SHOULD BE REDUCED TO A REASONABLE AMOUNT. Release is proper pursuant to the provisions of Penal Code Section 1270 which states in relevant part: Any person who has been arrested for, or charged with, an offense other than a capital offense may be released on his or her own recognizance by a court or magistrate who could release a defendant from custody upon the defendant giving bail, including a defendant arrested upon an out?of?county warrant. According to Penal Code Section 1270.1, where the alleged charge or charges are serious or violent felonies a hearing shall be held and the responding side shall be given two (2) court days written notice and an opportunity to be heard on the matter. The court shall consider the following factors during the hearing: The court shall consider evidence of past court appearances of the detained person, the maximum potential sentence that could be imposed, and the danger that may be posed to other persons if the detained person is released. In making the determination whether to release the detained person on his or her own recognizance, the court shall consider the potential danger to other persons, including threats that have been made by the detained person and any past acts of violence. The court shall also consider any evidence offered by the detained person regarding his or her ties to the community and his or her ability to post bond. Where the court sets the bail in an amount either more or less than the amount in the bail schedule, ?the judge or magistrate shall state the reasons for that decision and shall address the issue of threats made against the victim or witness, if they were made, in the record. This statement shall be included in the record.? (See Cal. Penal Code Bail Motion Where the defendant is detained in custody on a criminal charge prior to conviction, that defendant is ?automatically entitled to a review of the order fixing the amount of the bail by the judge or magistrate having jurisdiction of the offense.? (See Cal. Penal Code 1270.2). The review shall be held within five (5) days from the original order fixing the amount of the bail on the original accusatory pleading. (1.51.). In determining the bail amount, the court is guiding by the principles set forth in Penal Code Section 1275. Penal Code Section 1275 states in pertinent part: In setting, reducing, or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration. In considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant. In considering offenses wherein a violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code is alleged, the judge or magistrate shall consider the following: (1) the alleged amounts of controlled substances involved in the commission of the offense, and (2) whether the defendant is currently released on bail for an alleged violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code. Before a court reduces bail below the amount established by the bail schedule approved for the county, in accordance with subdivisions and of Section 1269b, for a person charged with a serious felony, as defined in subdivision of Section 1192.7, or a violent felony, as defined in subdivision of Section 667.5, the court shall make a finding of unusual circumstances and shall set forth those facts on the record. For purposes of this subdivision, "unusual circumstances" does not include the fact that the defendant has made all prior court appearances or has not committed any new offenses. However, insofar as Penal Code Section 1275 purports to require that public safety be the primary consideration for release, it violates Article I, Section 12 of the California Constitution and should not be relied upon for that purpose.1 Rather, the primary purpose of bail is to provide a practical assurance that the defendant will appear in court when ordered present. (People v. 1. There are no cases ruling on the validity of Penal Code Section 1275. However, its language tracks that of the bail provision of Proposition 8, which was disapproved by the voters in 1982 when they approved Proposition 4, which is embodied in Article I, Section 12. Bail Motion Norman (1967) 252 Cal. App.2d 381.) More specifically, it is the duty of the court when setting, reducing or denying bail, to take into consideration in addition to public safety, the seriousness of the offense, the defendant?s criminal record, the probability that the defendant will appear and the defendant?s ties to the community. (In re Weiner (1995) 32 Cal. App.4th 441.) Nevertheless, under no circumstances shall the setting of bail be used to punish the defendant, Ex Parte Newbern (1961) 55 Cal.2d 500, as excessive bail may not be required. (Cal. Constit., Article I, Section 12); McDermotr v. SnperiOr Court (l972) 6 Cal.3d 696, 695 (the purpose of bail is to ensure the attendance of the defendant in court and her obedience to the court?s orders and judgement, and there should be no suggestion of revenue to the government or punishment of the defendant or her surety). B. DEFENDANT DOES NOT POSE A DANGER TO SOCIETY. Mr. Petrucelli as a forty-four (44) year old man who has no prior criminal history. While it appears from the rap sheet provided to defense counsel he has a few detentions, he also has no prior bench warrant history. Furthermore, the initial seizure of evidence in this case occurred on August 15, 2012. Petrucelli was not arrested on that date remained out of custody. There is no evidence he continued to engage in conduct charged in this case after the seizure of his property in 2012. Even though he was facing federal charges related to the seizure of the evidence from his residence, he remained at his same residence and did not flee the jurisdiction. Mr. Petrucelli?s exposure was significantly higher in federal court and yet he remained in the jurisdiction. There is no reason to believe he would ?ee a state prosecution. C. DEFENDANT HAS STRONG TIES TO THE COMMUNITY. A fundamental consideration in determining the appropriate bail amount is the probability that the defendant will make all required court appearances. (Pen. Code l275(a)). Mr. Petrucelli has lived at the same address for almost ten years. He has family and friends in the bay area and receives his medical care and treatment here in San Francisco. He has strong ties to -7- Bail Motion the community that prevent him from leaving the jurisdiction, which is consistent with his conduct during the pendency of the federal prosecution. In the present case, bail has been set in the amount of $200,000. This amount is unreasonable under the factual circumstances of this case and with specific regard to the financial resources of this particular defendant. The bail, as presently set, is substantially the same as an outright denial. As presently set, bail is not simply functioning to ensure defendant?s appearance and/or protect society, rather it is functioning to punish defendant for charges for which she has yet to be convicted. This is in direct contradiction to the setting of a reasonable bail under the state and federal laws and constitutions. V. CONCLUSION Bail should be reduced in an amount reasonable under the circumstances of this case and the specific defendant accused. In view of .the above, defendant respectfully request that the defendant be released on her own recognizance, or in the alternative, that bail be reduced and set in a reasonable amount. The defendant is willing to undertake any restrictive conditions as this Court sees necessary, including a monitoring bracelet. Dated: January 2015 CHR (OPHER c. HITE Dept Public Defender Attorney for Defendant DAVID PETRUCELLI Bail Motion DECLARATION I, CHRISTOPHER C. HITE, declare as follows: 1. I am an attorney licensed to practice law in all of the courts of the State of California and am a Deputy Public Defender employed by the San Francisco Office of the Public Defender. 2. I am the attorney of record for the defendant in the above-referenced matter and as such am informed of the evidence necessary for the trial of this matter. 3. On January 16, 2015, defendant DAVID PETRUCELLI, while in custody waived instruction on arraignment and entered a plea of not guilty to all the counts and allegations in the complaint. 4. Bail is currently set at $200,000.00. 5. Defendant is unable to post bail in the amount currently set. 6. Defendant does not pose a threat to society. 7. Defendant has no significant bench warrant history. 8. Based on my discussions with defendant, his family and friends, I am informed and believe that he has significant ties to the community that will ensure his return to court. 9. I believe that the prospects of pecuniary loss and criminal penalty for failure to appear in accordance with the terms of a release on own recognizance or bail are well understood by the defendant and are a sufficient deterrent to ?ight. The foregoing is true and correct of my own knowledge, except as to those matters stated on information and belief, and as to those, I believe them {to be true. "1 Executed this 5 day of January, 2015, at San cisco, California. C. HITE Bail Motion PROOF OF SERVICE People v. David Petracelli, Case No. 15001156 I, the undersigned say: I am over eighteen years of age and not a party to the above action. My business address is 555 Seventh Street, Second Floor, San Francisco, California 94103. I further certify that I caused a copy of the following: 1. NOTICE OF MOTION AND MOTION FOR RELEASE ON OWN RECOGNAN CE, OR IN THE ALTERNATIVE, A REDUCTION OF BAIL to be served on the date of execution listed below by PERSONAL SERVICE upon the following: Alexis Fasteau, Esq. Office of the District Attorney City and County of San Francisco 850 Bryant Street, Room 300 San Francisco, California 94103 I declare under penalty of perjury that the foregoing is true and correct. 421? Executed on day of January, 2015, at San Fran ifsco, California. C. HITE -10- Bail Motion