SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF RIVERSIDE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs. Case No. INF1800497 ROBERT ANTHONY GARCIA, Defendant . CALIFORNIA T0 REAR JUL 1 9 2018 V. Davnla TRANSCRIPT OF PRELIMINARY HEARING BEFORE THE HONORABLE OTIS STERLING, Jilly 9, 2018 2 APPEARANCES: :3 (:13 For the Plaintiff: OFFICE OF THE DISTRICT ATTOREEY BY: GARRETT BEHRENS 82-995 Highway 111, Suite No. 101 Indio, California 92201 For the Defendant: OFFICE OF THE PUBLIC DEFENDER BY: ROGER TANSEY 82?995 Highway 111, Suite No. 200 Indio, California 92201 Reported By: CARLA S. WALKER, CSR No. 6001 CARLA S. WALKER, CSR, RMR CHRONOLOGICAL INDEX OF WITNESSES WITNESSES: GETTE John Direct Examination By Mr. Behrens Cross-Examination By Mr. Tansey Redirect Examination By Mr. Behrens Recross-Examination By Mr. Tansey CHACON, JR., Edward James Direct Examination By Mr. Behrens Cross?Examination By Mr. Tansey TAPP, Michael Direct Examination By Mr. Behrens Cross?Examination By Mr. Tansey BERAIN, Arthur Direct Examination By Mr. Behrens Cross?Examination By Mr. Tansey Redirect Examination By Mr. Behrens Recross-Examination By Mr. Tansey GEROU, Robert T. Direct Examination By Mr. Behrens Cross?Examination By Mr. Tansey PAGE 140 148 148 151 158 CARLA s. WALKER, CSR, RMR EXHIBIT INDEX EXHIBITSpage containing thumbnail photographs 199?126 1 page containing thumbnail photographs 187?204 1 page containing thumbnail photographs 217-234 Facebook thread of Anthony Garcia and Lupe Alvarez Facebook thread of Anthony Garcia and Ivan Rodriguez 1 page containing 2 photos taken from Facebook 1 page containing 2 photos taken from Facebook 1 page containing a photo taken from Facebook 1 page containing a photo taken from Facebook 1 page containing a photo taken from Facebook 1 page containing a photo taken from Facebook Facebook thread of Anthony Garcia 1 page containing a photo taken from Facebook 1 page containing a photo taken from Facebook 1 page containing 2 photos taken from Facebook 1 page containing 2 photos taken from Facebook 1 page containing 2 photos taken from Facebook 1 page containing a photo taken from Facebook 1 page containing 2 photos taken from Facebook Facebook thread of Anthony Garcia 1 page containing a photo taken from Facebook 1 page containing a photo taken from Facebook 22 101 101 112 114 117 117 119 120 121 122 126 127 128 129 130 132 135 136 136 137 138 161 161 161 161 161 161 161 161 161 161 161 161 161 161 161 161 161 161 161 161 161 161 CARLA S. WALKER, CSR, RMR INDIO, JULY 9, 2018 BEFORE THE HONORABLE OTIS STERLING, THE COURT: All right. We'll call the matter of People of the State of California versus Robert Anthony Garcia. This is Case INF1800497. Appearances, please. MR. TANSEY: Thank you, Your Honor. Roger Tansey on behalf of Mr. Garcia, who's present, in custody, and is unshackled. THE COURT: Thank you. MR. BEHRENS: Good morning, Your Honor. Garrett Behrens on behalf of the People. THE COURT: And does either side have any motions you need to make before the People call their first witness for the People? MR. TANSEY: Yes, Your Honor. I would like to make a motion to exclude. THE COURT: That motion will be granted. MR. BEHRENS: Sorry, Your Honor. May I have a moment? THE COURT: Yes. MR. BEHRENS: All right. THE COURT: Any motions by the People? MR. BEHRENS: No motions at this time, Your Honor, but a couple housekeeping matters. THE COURT: Yes. MR. BEHRENS: The first of which at this time could I designate California Highway Patrol Investigator Arthur Berain CARLA S. WALKER, CSR, RMR investigating officer? THE COURT: Yes, sir. MR. BEHRENS: And we let the Court know at side bar, before the preliminary hearing began, that the exhibits would be voluminous for today's proceedings. We're going to try and cross?reference and include as much detail as possible to ensure the record's complete. I let Madam Clerk know ahead of time as far as the actual exhibits as I intend them to be both Facebook evidence as well as forensic computer imaging. Some of them are printouts of conversations that are multiple pages long. And my instruction was, at this time, that there was one conversation, despite being multiple pages long, would be incorporated as one exhibit. Is that agreeable? THE COURT: That's fine. MR. BEHRENS: And so and if the Court -- at this time I would request two additional requests: The first of which is I am going to have a certified rap sheet for Mr. Garcia. But the second of which is I would be requesting the Court take judicial notice of the same, which is Case Number Indio Nancy Frank 160009- -- MR. TANSEY: Your Honor, we'll stipulate for purposes of prelim only. THE COURT: Okay. So you're willing to stipulate for purposes of this prelim that Mr. Garcia has a prior felony conviction CARLA S. WALKER, CSR, RMR MR. TANSEY: Yes, sir. THE COURT: on or about February let, 2017, in Case INF1600094, and that he was convicted of a felony violation of Penal Code section 29805? MR. TANSEY: Yes, sir. MR. BEHRENS: And that purpose the purpose for judicial notice is that the minutes should contain information that Mr. Garcia was incarcerated for some period up until the date of February, 2017, at which point he was released. MR. TANSEY: That is correct. THE COURT: Okay. And those things are stipulated to? MR. TANSEY: Yes, sir. MR. BEHRENS: So thank you, Your Honor. Step by step. All right. Thank you. Your Honor, then, at this time, if it pleases the Court, the People would request to call California Highway Patrol Officer John Gette, spelled I believe I passed forward that information to Madam Reporter. THE DEPUTY: Stand here, face the clerk, and raise your right hand. THE CLERK: Do you solemnly state the testimony you are about to give in the matter now pending before this Court, shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: Yes, I do. THE CLERK: Thank you. Please take the witness stand, sir. If you would, CARLA S. WALKER, CSR, RMR please state and spell your first and last name for the record. THE WITNESS: John Gette, J?o-h?n G-e-t-t-e. THE COURT: GO ahead, Sir. MR. BEHRENS: Thank you. JOHN GETTE, called as a witness by the plaintiff, was sworn and testified as follows: DIRECT EXAMINATION BY MR. BEHRENS: Q. Sir, what's your current occupation? A. I'm an officer with the California Highway Patrol. Q. How long have you been a sworn peace officer? A. Nine?and?a?half years. Q. Were you working as a sworn peace officer on the date of June 20th of 2017? A. Yes, I was. Q. And on that date, were you part of a law enforcement unit that conducted a compliance probation check at Fred Waring address 81600, specifically Number 216, in the city of Indio, in the county of Riverside? A. Yes, I was. Q. Do you recall which officers were with you then? A. Yes, I do. Q. How many officers were there present? A. Five, I believe. Q. And do you recall, what was the target of the search at that address? CARLA S. WALKER, CSR, RMR PRCS compliance check. Q. Do you recall the name of the individual? A. Yes. It was Robert Anthony Garcia. Do you know if anyone else was residing with Mr. Garcia at that time in that location? A. Yes, there was. Q. All right. And who do you remember those people to be? A. At the house, there was his brother and his father. Q. All right. And specifically his brother, was his brother set with any terms and conditions of a law enforcement search? A. No, he wasn't. Q. As a result, did you and any other law enforcement personnel conduct a safely search and sweep of that location? A. Yes, we did. Q. All right. What, if anything, did you find at the location? A. We found a .22 caliber rifle, a .22 caliber revolver, and a .25 caliber semiautomatic handgun. Q. Did you find any ammunition that would correspond with those items? A. Yes, we did. Q. Now, I'd like to direct your attention, not to the rifle and not to the revolver, but specifically you mentioned a .25 caliber handgun; is that correct? A. Yes. Q. All right. Do you recall the general appearance of CARLA S. WALKER, CSR, RMR that item? A. I remember it was chrome in color. Q. Okay. Did you find aside from those firearms and the ammunition, did you find any other items of, I suppose, contraband inside the house? A. Not that I recall. Q. All right. And did you at that point, did your sweep and search of the house conclude? A. Yes. Q. Now, after that date, approximately three days later, were you alerted to any significance arising from your search of that location at Fred Waring? A. Yes, I was. Q. All right. What was the circumstances of that alert? A. I was contacted by an investigator from Border Division ISU from the California Highway Patrol, and he stated that, after we had left that residence, that Mr. Garcia had made some comments on Facebook that he was going to try and take a cop's life. Q. And -- and when you heard of that, especially under the circumstances of your search and your contact with Mr. Garcia, how did that make you feel as a law enforcement officer? A. Well, definitely put some fear in you, especially now days. You can't take any kind of threats on Facebook These are all serious things. Q. And did you speak about the contents of that Facebook post with any other officers that were present for the date of CARLA s. WALKER, CSR, RMR the June 20th search? A. Yes. During the briefing when we briefed it up, we all talked about what was stated on his Facebook page. Q. Did you feel, when you were discussing it, that you, being one of the searching officers, were, I suppose, a target or the recipient of that Facebook post? A. Yes, absolutely, just because we were the ones that went in there. Q. On the date of the 23rd, did you make contact with this gentleman seated here to my right? Yes, I did. Mr. I'm sorry, Investigator Berain? Yes. What was the purpose of that contact? It was to put together an operations plan to get Mr. Garcia into custody, mainly because he was in the California Highway Patrol hiring process, and he was slated to go to a physical agility test on Saturday, the following day. Q. And how many I guess, how did this task force come to be? How was it assembled if you can give the Court some context to that? A. The -- I'm sorry, I don't understand the question. Q. All right. Let me back it up so we can understand how the ball got rolling. My understanding is that that Facebook post was made, the California Highway Patrol division was alerted to it somehow, and a task force was formed to contact Mr. Garcia. CARLA S. WALKER, CSR, Rm How were you first contacted to be a part of that task force? A. So at the time, I was assigned to the Coachella Valley Violent Crimes Gang Task Force. I was contacted by the investigator from Border Division. From there, I ran into my sergeant who had me put together an ops plan and get all the other task force members together from Q. So was it your task to assemble all the other task force participants? A. Yes. Q. Why did you feel it was important to assemble one together right way? A. Just because of the threat assessment, something serious we need to get together right way, especially since he was slated to go to our agilities test that Saturday. Q. Knowing so you were given information that he was part of your background process, or had you known that on your own? A. I was given that information that Friday when I was contacted by the investigators. I did not know that at the time when we went on the 20th. Q. Okay. And after you had -- because it was your duty, did it in fact, a task force be successfully assembled for purposes of making additional contact with Mr. Garcia? A. Yes. Q. And at any point on the date of well, let me back up just a moment. Based did you run some sort of records check to CARLA S. WALKER, CSR, RMR see that's -- MR. BEHRENS: Sorry, withdrawn, Your Honor. Got ahead of myself. Q. BY MR. BEHRENS: Did you and the other law enforcement personnel respond again to that location of 81600 Fred Waring? A. Yes, we did. Q. How was it you approached the house? A. This time with a heightened level of officer safety concerns due to the Facebook post. So normally, when we do a PRCS or probation check, we knock on the front door and wait for a minute for them to answer, then we make entry and do our checks. Due to the nature of his post, we took a different route and did what we call a surround and callout. So we surrounded his location and utilized the public address system on one of the patrol units. Q. Who was the lead law enforcement officer in and I guess this is as far as commanding this surround unit? A. As far as putting the operation packet together or coming to the conclusion that this is what we were going to do? Q. And forgive me, because I'm partially ignorant as to how a command would be satisfied. Who was in command of that law enforcement task force at that location? A. At the time, it would have been Sergeant Tapp. Q. And what was your specific assignment or CARLA S. WALKER, CSR, RMR reSponsibility during that second contact? A. To hold -- hold fast until the person came out of the house and then help take him into custody. Q. Now, whenever when the first law enforcement -- or excuse me. When the law enforcement personnel surrounded the house, who was the first person to make, I guess, vocal or audible contact inside the house? A. Deputy Chacon is the one who gave the announcement over the PA system. THE COURT: Mr. Behrens, if you don't mind, can he identify when this second contact took place? I don't believe he did that. MR. BEHRENS: Sure. I'm sorry. Q. BY MR. BEHRENS: Perhaps it's my blubbery questions. Did this contact occur on the date of June 23rd, which was the date before that CHP physical? A. Yes, June 23rd. Q. Was this the evening of June 23rd? A. Yes, it was. Q. And do you recall the layout of this particular residence? A. Yeshouse or trailer or apartment? A. It was a trailer. Q. And where you were situated, were you at the front or were you at the back or sides? A. I would have been on the south side, which is where CARLA s. WALKER, CSR, RMR 10 the front door was located. Q. Were there any, from your to your knowledge, were there any other entrances or exits other than the one that you were watching? A. I don't recall. When we first made entry on the 20th to do the PRCS Check, that's where we made entry into the trailer. And it was right next to where they parked their vehicles, so it looked like that's the entry that they used pretty often as their entry and exit point. Q. All right. And on the date of the you stated already that you were present for that, what appeared to be the main entrance of the trailer. A. Yes. Q. And were you listening to hear these announcements being made to the occupants inside? A. Yes, I was. Q. Were you able to have a clear line of sight to anything that would have come in or out of that door? A. Yes. Q. Did any individuals come out of that door after the first announcements were made? A. No. So it took several announcements before a Hispanic male exited the residence. Q. And were you able to identify who that Hispanic male was? A. Yeah. That would have been Mr. Garcia's brother. Q. And is that the individual that you had previously testified to that you had knowledge that lived at that CARLA S. WALKER, CSR, RMR 11 location? A. Yes. Q. All right. After was his brother taken out of that location without incident? A. Yes, he was. Q. Were there any other individuals inside of the house? A. I asked him that. And he stated that he thought that Mr. Garcia was in the house. Q. Where was -- I know I think I remember you stated earlier that Mr. Garcia's father had lived at the residence. Was he there or was he not? A. He was not there. Q. After Mr. Garcia's brother had come out of the house, were additional commands made specifically for Mr. Garcia to exit the house? A. Yes. Q. And at any point did any other individuals exit the house? A. Just Mr. Garcia. Q. Okay. And do you recognize that individual named Mr. Garcia here today in this courtroom? A. Yes, I do. Q. Could you identify him and describe an article of his or her clothing? MR. TANSEY: Stipulate to identity for purposes of prelim. THE COURT: Thank you, Mr. Tansey. Q. BY MR. BEHRENS: When Mr. Garcia first came out of CARLA s. WALKER, CSR, RMR 12 the residence, could you describe what well, what was he wearing? A. He was wearing shorts, I believe a T?shirt. Q. All right. What that first entrance, was it level with the ground or was there some sort of, kind of, stairway that led up and in? A. There's a small stairway to a stoop, and then into the into the residence. Q. All right. When Mr. Garcia first came out, did he stand onto that stoop or did he walk down the stairs? A. He stood on the stoop and then began yelling Obscenities. Q. From the stoop, were you able to excuse me. When Mr. Garcia was on the stoop, can you please recite for this Court what the commands were specifically for Mr. Garcia to do? A. To place his hands above his head and walk to our location. Q. Approximately how many times did you hear that specific command or something close to it? A. Approximately five to ten. Q. Were these, then, over a megaphone or just voices shouting? A. Both, both the PA system and a lot of people using their voice. Q. Did you hear this coming from multiple different officers? A. Yes. CARLA S. WALKER, CSR, RMR 13 Were you one of those? A. Yes. Q. And at this point did you have did you and the surrounding law enforcement personnel have firearms ready? A. Yes, we did. Q. All right. So Mr. Garcia comes out of the trailer onto the stoop. And you mentioned a moment ago he was yelling Obscenities? A. Yes. Q. Was that directed at the law enforcement personnel? A. Yes, it was. Q. How long did this exchange occur of yelling back and forth? A. Estimate, a minute to two minutes before he actually started coming down the steps. Q. And can you describe, as best you can, his body language to the Court, that best that you can? A. Extremely agitated. Q. All right. And let me ask you this: Did you notice anything unusual about the way that he was using his hands, if at all? A. Yeah. He wouldn't take them out of his pockets. At one point he did remove his left hand, his left hand only. He was moving his hand around in his right pocket as if he had something in his hand. Q. And at any point did Mr. Garcia descend that stairwell or stairwell, staircase? A. Yes, he did. CARLA s. WALKER, CSR, RMR 14 this so I apologize. I'm trying to break it down frame by frame as best I can. So once Mr. Garcia descends the staircase, at this point are law enforcement personnel repeating the commands to put his hands behind his head or something similar? A. Yes, they are. Q. Did you or any other officers make commands for Mr. Garcia to lay onto the ground? A. As he began to walk towards us in a westerly direction, yes. And, again, we continued to tell him to take his hands out of his pockets, and he refused to take that right hand out of his pocket. Q. All right. At a certain point in this exchange, did you or any other law enforcement personnel demonstrate use of force to gain compliance? A. Yeah. At one point he bladed himself so you couldn't see his right pocket. And he was still moving his hand around. And at that point Sergeant Tapp began to utilize the pepper ball. Q. Okay. You mentioned the word "bladed.? What does that mean to you as a law enforcement officer? A. One foot behind the other, kind of making yourself small, I would say, more sideways. Q. All right. And do you interpret that to be some sort of aggressive or defensive stance? Or can you define that for us? A. To us, trying to hide something in his right pocket. And to us, we all were thinking he possibly could have had a CARLA S. WALKER, CSR, RMR 15 firearm, just the way he was acting. Q. And where was Sergeant Tapp related to you? A. He would have been well, so I was on the passenger side of his unit, and I he was on the driver's side. Q. So you shared a unit on the way there? A. Yes, we did. Q. And as part of this unit, did you, perhaps, anticipate, perhaps, needing I'm going to withdraw that. Are most CHP cars equipped with one of the pepper ball utility devices? A. Sergeant Tapp works for RSO. The task force that I was assigned to at the time was run by the Riverside County Sheriff's Department. And he's a sheriff's deputy, now lieutenant, but he was a sergeant. And we were in his car, and it's an unmarked RSO patrol vehicle. And he routinely carried pepper ball as a less lethal option. Q. Have you been trained specifically in the utilization of a pepper ball device? A. No. Q. Did you see Sergeant Tapp acquire the pepper ball instrument, and from the vehicle? A. Yes. Q. And does it operate similar as to the paint ball gun where the little balls are filled with pepper gas? A. Correct. It looks like a paint ball gun. Q. And did you see Sergeant Tapp utilize the device in compliance? A. Yes, I did. CARLA S. WALKER, CSR, RMR 16 Approximately how many times did he fire the device? A. I would estimate four to five. Q. Were you able to see whether or not those pepper balls had struck Mr. Garcia? A. Yes. Q. And when the -- let me and then when you -- was your focus then diverted to Mr. Garcia to see the effects of the pepper ball if any? A. Yes, it was. Q. All right. And what can you describe for the Court what you saw? A. He turned and put his back towards us and then became even more agitated toward us and began yelling and screaming even louder. Q. So that didn't work. A. No. It made him mad. Q. Okay. Now, at this point were you continuing to hear additional commands or the same commands or what's going on at this point? A. We also, at that time, had an RSO canine with us. It was Deputy Allertbegan giving commands to Mr. Garcia. Q. What commands were you hearing specifically by Deputy Allert? A. To get on the ground or he was going to send his dog. Q. Did Mr. Garcia respond to Deputy Allert? A. Yes, he did. Q. And what did he say? CARLA s. WALKER, CSR, RMR 17 said, "Go ahead and send your dog, and I'll kill that motherfucker." Q. And at the next point what was the next step by Deputy Allert? A. Deputy Allert released the canine. Q. And did you have a clear sight of the canine? A. Yes, I did. Q. How far away was the canine from Mr. Garcia when it was first released? A. Fifteen feet. Q. Is it fair to say the distance between you and I in the courtroom? A. Yes. Q. All right. Simply for the judge. Fifteen feet, more or less, that's your real estimate? A. Correct. Q. And did you watch the canine run at Mr. Garcia? A. Yes, I did. Q. Did it make a straight line, I guess, a beeline for him? A. Yes, it did. Q. Did you see Mr. Garcia before the police dog had gone after him? A. Yes. Q. All right. Can you describe his body language as the dog was coming towards him? A. Again, he was kind of bladed. He had one foot to the CARLA s. WALKER, CSR, RMR 18 rear. And as the dog advanced on him, it leaped toward him and he took one step out of the way and caught the dog in midair and put it in a headlock. Q. And could you tell whether or not the dog was able to latch on to Mr. Garcia at all? A. I couldn't tell, but it didn't look like it just by the way the dog's head was flailing around. Q. All right. And so at this point the dog jumps, Mr. Garcia's able to sort of catch the dog as it were. Are they staying standing or do they both go to the ground? A. He takes the dog to the ground and gets on top of it and begins to choke the dog out. Q. From your vantage point, were you able to see whether or not the canine appeared to be in distress? A. Yes. Q. Okay. Can you describe to the Court how you came to the conclusion? A. Just by the way the dog's rear legs -- that's all I could see were kind of like trying to, I guess, get himself out, flailing around, and he was stuck. Q. And as you and the other officers were witnessing this, what did you do next? A. Deputy Allert made a beeline and used his personal weapons on Mr. Garcia, trying to get the dog released. Q. Was Deputy Allert the first person to approach the, I guess, the two on the ground? A. Yes, he was. CARLA S. WALKER, CSR, RMR 19 Were you in short pursuit afterward? A. Yes, I was. Q. Now, when officers are forced to rush into a situation, is that more or less dangerous than if someone were to just simply have compliance? A. It's extremely dangerous. Q. And at this time were you or any other law enforcement personnel able to ascertain whether or not Mr. Garcia had any weapons in his pockets? A. No, we were not. Q. And were you part -- were you or any other personnel able to discern if there were any other people inside of that trailer? A. No, we were not. Q. So, at this point, how many officers had approached the melee on the ground? A. Four. Q. And when you approached, what were you able what were you able to see as you got closer? A. I saw Sergeant Tapp struggling with his right hand, and he wouldn't give either of his hands. And Deputy Chacon was trying to get his left hand out. And after Deputy Allert used his personal weapons, he did release the dog. And I remember the dog kind of coming out, and then us trying to get him in custody. He wouldn't give his hands. Q. All right. So at this point was Mr. Garcia stomach down? A. Yes, face down. CARLA S. WALKER, CSR, RMR 20 And were you able were and I know you said you were trying to get his hands. Were they underneath his body? A. Yes, they were. Q. Were you and other officers having to physically fight with Mr. Garcia to get his arms out? A. Yes. Q. All right. And I know that you stated, at least at this point, that -- was the canine released as if his arms were underneath him? A. Yes. Q. While you and other officers were still struggling with Mr. Garcia on the ground, did you notice what what the canine was doing? A. I didn't. And then I heard a loud scream from Mr. Garcia, and his hand came out instantly. So I was towards his lower back, and we began to get his arm around and take him into custody. And I looked in a westerly direction and noticed that the dog had bitten his calf. Q. Okay. And then at that point you were able to gain compliance with Mr. Garcia? A. Yes. Q. Was Mr. Garcia then successfully detained and taken into custody? A. Yes, he was. MR. BEHRENS: Could I have a moment, Your Honor? THE COURT: Yes. CARLA S. WALKER, CSR, RMR 21 MR. BEHRENS: My fear is getting all these exhibits jumbled out of order. THE COURT: Take your time. MR. BEHRENS: And if I may, I can discuss off the record, perhaps with Mr. Tansey's help, I have an image in my hand that likely will not have foundation laid for it just yet, but rather than have this officer take the stand and come up, may I approach for purposes of a question for identification of a picture of a firearm? THE COURT: Yeah. You can have him identify it now. MR. TANSEY: That's okay. MR. BEHRENS: May I approach? (Counsel conferring.) MR. BEHRENS: Your Honor, may I approach? THE COURT: Yes. Q. BY MR. BEHRENS: Showing what I anticipate will be marked as People's Exhibit Number 1, sir, referring do you see what I'm showing you? A. Yes, I do. Q. All right. And does it appear to you, at least, to be a kind of compilation of thumbnails of photographs? A. Yes, it does. Q. Now, directing your attention specifically to the middle row, and Items Number 205, 206, 207, and 208, do you see that there are thumbnails listed beneath each of those numbers? A. Yes, I do. Q. As you're sitting here, can you describe for the CARLA s. WALKER, CSR, RMR 22 Court what they appear to you to be? A. They appear to be Robert Anthony Garcia holding a .25 caliber semiautomatic handgun. Q. Now, specifically this -- this -- does this firearm appear to you, on its face, to be the same in each picture? A. Yes. Q. Meaning that they would be one and the same? A. Yes. Q. All right. Now, referring using this People's Exhibit 1, and specifically Items 205 to 208, and the thumbnails associated therewith, do those appear to be the same pistol that you had seized on the date of June 20th? A. Yes, it does. Q. All right. Now, are you able, based on these photographs, to definitively say that that is a matched firearm? A. Yes. MR. TANSEY: Your Honor, I'd object as vague as to "matched." THE COURT: Said "appears," so he's just giving us, I'm taking it, that his opinion is that the firearm depicted in these thumbnail photos appeared to him to match the firearm that was found on the 20th. MR. TANSEY: Would that be your understanding? MR. BEHRENS: Yeah. That's my understanding as well. MR. TANSEY: Okay. MR. BEHRENS: All right. And I will, for purposes of identification now my apologies for Madam Clerk I am CARLA s. WALKER, CSR, RMR 23 going to unofficially mark them as I go and try to keep them in some sort of semblance of order, and my apologies. All right. At this time, for Officer Gette, I have no further questions. THE COURT: All right. Cross? MR. TANSEY: Thank you, Your Honor. CROSS-EXAMINATION BY MR. TANSEY: Q. Is it Officer Gette? A. Yes. Q. Thank you for your service. Now, you just testified, I believe, that you went on a probation compliance check on June 20th A. Yes. Q. to Mr. Garcia's residence. Are you aware of or did you go on any previous probation compliance checks to at his residence? A. I did not. Other members of my team have. Do you know what dates they were? A. I do not. So the guns that you found on the 20th, would it it's correct to say they were not stolen; is that right? So were those guns stolen? A. Not that I'm aware of. Q. So were they confiscated because they were unregistered? A. Yes. And when we got to the location on the 20th, before they opened the door, there were several minutes of CARLA S. WALKER, CSR, RMR 24 people running around in the trailer. So, to us, he would have had Q. access to those guns. Well, they were found in Alberto's bedroom; isn't that correct? Correct. The bedroom was not locked. And Alberto confirmed, I believe, that those were his Yes. 80 is it correct to say you actually didn't find any guns in Robert's bedroom? K) K) Q. actually A. 0 C) of that. That's correct. No other contraband? That's correct, no other contraband. No other evidence of criminality by Robert Garcia. Not that I'm aware of. Now, in regard to the Facebook comments, did you see the post itself? Yes, I did. And you testified that post made you afraid? Yes. How long were you afraid? As far as the length of time? Yes. Until we got him into custody. Did the comment threaten you personally? No. Threatened all of law enforcement. I'm a part Did it threaten or mention anybody else? CARLA s. WALKER, CSR, RMR 25 name, no, just law enforcement. Q. Was that post sent out e-mail to you? A. By an ISU investigator or by? Q. No, I'm sorry, by Mr. Garcia, the defendant. A. No. Q. Did he send it to you in any other way or fashion? A. NO. Q. Did he communicate that to you in any other -- any way at all? A. From him to me? No. Q. Correct. To your knowledge, did Mr. Garcia communicate, send, e?mail, somehow communicate or get that post to anyone else? Personally, I mean? A. Not that I know of. Q. Now, you referenced an ops plan. What is that? A. It's an operations plan, just so we all know what we're doing when we get there. Q. And, I'm sorry, did you say you were tasked with developing that plan? A. Yes. Q. And what, generally speaking, what was the plan? A. To do a surround and callout due to the criminal threats in the heightened level of officer safety. Q. And the reason was you referenced it was a plan to say who would take him into custody, who would transport him into the jail? I mean, what level how detailed does it get? CARLA S. WALKER, CSR, RMR 26 just gets to, we're going to call him out, and he's going to go to our CATCH team which would have been Deputy Chacon, Officer Gaines, or Detective Gaines at the time. And when he didn't comply, then that's -- all bets were off. And we try and go, like, fluid, to get him into custody. Q. So the plan was take him into custody and then he would have been turned over to Deputy Chacon? A. I'm sorry. Once he got into custody, he would have been turned over to Border Division ISU. We were assisting them. I'm sorry, I misunderstood your question. Q. Do you know what would their plan have been then? Well -- A. What Well, let me back up a bit. The -- and correct me if I'm wrong. The purpose of arresting him was because of the 422; isn't that right? A. That's correct. Q. So why would he be turned over to did you say to A. Right, our Border Division Investigators from the highway patrol. Q. But they don't they wouldn't prosecute him on the 422, would they? A. Yes. Q. Oh, they would? Oh, okay. How many officers were on the task force? CARLA s. WALKER, CSR, RMR 27 just responding as Because we also had an ISU team there, also. Q. On the night of the 23rd. A. Four. Q. There were only four people on the task force? A. Yes. We were kind of short that night. Q. How many at the residence? A. How many people were in the residence? Q. No, no. How many officers were at the residence? A. I can't remember how many ISU members were at the residence. Q. It was more than four, though, wasn't it? A. Yes. Q. Now, when -- when Robert came out -- I'm go to call him Robert because he also has two other brothers, Alberto and Joseph, as well as his father, and they're all Mr. Garcia. A. Okay. Q. So when Robert came out, and when he did you notice any bulges in his clothing? A. Just where his Q. I'm sorry. When he came out of the house that night, on the night of the 23rd, I'm referring to. A. Yeah. You mean his waistband or anywhere? Q. Anywhere. A. So with his hand in his pocket, it looks like bulges. Q. He took his hand out, though, didn't he? A. Just his left hand. Q. How long from when he stepped out of the house to CARLA s. WALKER, CSR, RMR 28 when he ended up on his stomach on the ground, how much time lapsed? A. I can only estimate because, when you're in those type of situations and adrenaline is flowing, time kind of slows down. Q. Well, it was, would it be safe to say, less than five minutes? A. Yes. Did you find any guns on the night of the 23rd? Not that I recall. You didn't find any in the house; is that correct? Correct. There weren't any on Robert? F) @l 0 So I didn't stay to search the residence. I went with Robert to the hospital in the back of the ambulance. He didn't have any weapons on him that night, did he? No. Once we got him into custody and we searched him, he did not. Q. So you testified you heard Deputy Allert yelling at Robert, "Get on the ground. Get on the ground." And he was about Deputy Allert was about 15 feet away from Robert? A. Correct. Yes. Q. When you A. Yes. That's a best estimate. Q. Now, you said Robert caught the dog in midair -- A. Yes. Q. is that correct? A. Yes. CARLA S. WALKER, CSR, RIVER 29 the dog didn't hit him? A. Not on the initial leap. It didn't look like it. Q. Was there a second leap? A. NO. Q. So you did not see the dog bite him at that moment A. NO. Q. when there when Robert's still standing up. A. NO. Q. So and this is based on what you saw? A. Yes. Q. So is it your testimony he grabbed the dog and then they both fell over? A. To me, it looked like he grabbed the dog and jumped on top of the dog and began to choke it out. Q. So at this point they're both on the ground. A. Yes. And the dog is underneath him. He's on top of the dog. Q. Is he on his knees standing over the dog? What did you see? A. He's on his stomach, like flat out on his weight on the dog. Q. Oh. You mean he's flat out, laying on top of the dog? A. Flat, laying on top of the dog. Q. So Robert was face down. A. Yes. Q. And what did the dog do at that point? CARLA S. WALKER, CSR, 3O could just remember seeing the dog, like, flailing around, trying to get out of the hold. Q. Deputy, how long and then Deputy Allert came over; is that correct? A. Yes. What did you see, if anything, Deputy Allert do? Use his personal weapons. Now what does what does that mean? Your hands. Oh, it's a hand? Yes. And what did he do with his personal weapon? Well, he punched him in the back of the head. Do you know how many times? NO. Did that have any effectlooked like a little bit, if any, because then the dog came out soon after that. So I think that that's why he let go of the dog, but I was not a hundred percent sure. Q. And where did the dog go? A. I don't remember because, at that point, I was coming in and going to try and take him into custody. Q. So so they're both laying down. Robert's on top of the dog and correct me if I'm wrong -- Deputy Allert comes over; hits Robert a couple of times on the back of the head; the dog gets out from underneath? A. YES. CARLA S. WALKER, CSR, RMR 31 custody. Q. A. And what happened next? That's when we started to try to take him into I took a position on his lower back. And -- Let me stop you there. Do you mean you were literally sitting on his back? No, uh?uh. I took a position, like, kneeling by his lower back, one knee towards in his lower back, one knee on the groundhis head? No, I'm notthe side of him? On the side, yes. Oh, okay. And where is the dog and Deputy Allert at that point? A. I lost visual of them. I don't know where they went from there. A. A. remember, Were there other officers around Robert? Yes. And where were they located? There was one straight across from me which, if I I believe was Sergeant Tapp, and there was one at the head of Robert, which I believe was Deputy Chacon. Q. Okay. Let me stop you there. So Robert is flat on his stomach at this point, correct? A. A. Yes. 80 are you on Robert's right or left side? I believe it's his left side closest to the house. And then the other side, I believe, was -- I'm sorry, CARLA S. WALKER, CSR, RMR 32 who did you say? A. Sergeant Tapp. Q. And then Deputy Chacon was at his head? A. Yes. Q. And then all of you were struggling with Robert at this point? A. Yes. Q. And that was because his hands were underneath him? A. Correct. Q. And what happened next? How what were what were you all doing? A. We were just trying to get his hands to get him in custody. And I remember he let out a pretty loud scream. That's when both his hands came out. We got him into custody, and I looked in a westerly direction, and I saw the dog had bitten his calf. And Deputy Allert was trying to get the dog off the calf. Q. So is it your testimony that the defendant was struggling with his hands underneath him while the dog was biting him? A. Yes. Q. And it's your testimony that he was not handcuffed while the dog bit him? A. No. He was flailing around? Who was? No, he had his Robert. 0 hands underneath him. CARLA S. WALKER, CSR, RMR 33 His hands were underneath him at the time the dog bit him; is that correct? A. So I didn't actually see the dog bite him, but that's what I'm thinking because, when I heard him scream, that's when his hands came out, we get him into custody, and I noticed the dog biting him. Q. And where was the dog biting him? A. On his calf. Q. And was the dog under the direction or control of Deputy Allert? A. Yes. Q. So the dog wasn't biting him on his own, of its own volition? A. You know, I can't testify to that, because I didn't see what happened with Deputy Allert and the dog. I was focused on trying to get his hands out from underneath him. Q. Okay. So A. I didn't see the dog bite until I heard him scream. Q. So you didn't hear or see Deputy Allert giving him the commands A. No, I didn't. Q. is that correct? At what so Robert was eventually handcuffed at some point, right? A. Yes. Q. What at what point so I think we I left it at he's struggling; his hands are underneath him CARLA S. WALKER, CSR, RMR 34 Uh?huh. according to your testimony. The dog bit him. What happened next? A. So Q. Oh, I think you said, when the dog bit him, then, and only then, did he bring his hands out; is that correct? A. Right. Because I heard him scream and then his hands came out. Q. And then what happened? A. Then we were able to get cuffs on him and take him into custody. Q. And do you recall who put the cuffs on him? A. I believe it was Sergeant Tapp. Q. Would it have been either -- A. It would have been either Sergeant Tapp or Deputy Chacon. MR. TANSEY: Thank you. No further questions. THE COURT: Any further questions? MR. BEHRENS: Just briefly, Your Honor. REDIRECT EXAMINATION BY MR. BEHRENS: Q. We talked a bit about you were focused directly on the situation. I know that you stated there were at least three officers trying to get Mr. Garcia's hands free, is that right? A. Yes. Q. In your opinion as a law enforcement officer, do you CARLA s. WALKER, CSR, RMR 35 believe that the use of the dog was necessary to gain compliance of Mr. Garcia? A. Yes, I do. MR. BEHRENS: All right. I have no further questions. THE COURT: Mr. Tansey? RECROSS-EXAMINATION MR. TANSEY: Q. If someone is on their stomach and their hands are handcuffed behind them, do you believe that it is appropriate to let the dog loose on them? MR. BEHRENS: Objection, Your Honor. Relevance. MR. TANSEY: I believe I'm following up on your question. MR. BEHRENS: Well, I don't believe we've heard any training from this officer with regard to the use of a canine. THE COURT: Yeahwas appropriate to use the dog. MR. BEHRENS: I asked if it was appropriate to use the dog to gain compliance, not whether or not the use is appropriate. I think there is a bit of a line there, but I'll defer. THE COURT: I'm going to overrule the objection, if he knows. THE WITNESS: Could you ask the question again one more time? I'm sorry. Q. BY MR. TANSEY: If you know, would it be appropriate to let a dog loose or direct an order or allow a dog, a CARLA S. WALKER, CSR, RMR 36 canine, to bite someone while they're lying prone on their stomach with their arms handcuffed behind their back? A. With their arms handcuffed? No, absolutely not. But if their arms are underneath them and you don't know if they have a weapon, yes, then I do believe that that was Q. Right. But if they are handcuffed and their arms are behind their back, then that would be inappropriate, correct? A. Yes, sir. MR. TANSEY: Thank you. I have no further questions. THE COURT: Thank you, Officer. You are excused. THE WITNESS: Thank you, sir. MR. BEHRENS: Thank you, Your Honor. At this point, I am not sure, I don't believe that I'll need Officer Gette again. I make a motion to excuse him if it's okay with the defense. MR. TANSEY: Your Honor, subject to recall. But hopefully we won't need you. THE COURT: Okay. THE WITNESS: Want me to stand by, then, subject to recall? THE COURT: You are subject to recall. MR. BEHRENS: Yes. THE WITNESS: All right. I'll stand by. MR. BEHRENS: All right, Your Honor. May I step outside and retrieve my next witness? CARLA S. WALKER, CSR, RMR 3'7 THE COURT: Yes, sir. MR. TANSEY: Your Honor, because of the other deputies who are going to be testifying -- I just found out I'm fine if Officer Gette would like to leave. MR. BEHRENS: I'm sorry, I didn't hear that. THE COURT: Mr. Tansey was saying that Deputy Gette could be excused without subject to recall. MR. BEHRENS: Oh, okay. I'll let him know. Thank you, Your Honor. If it pleases the Court, at this time the People would call their next witness, Deputy Chacon. THE CLERK: Do you solemnly state the testimony you are about to give in the matter now pending before this Court, shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: Yes, ma'am. THE CLERK: Thank you, sir. Please take the witness stand. Sir, would you please state and spell your first and last name for the record. THE WITNESS: Edward James Chacon, Junior. E?d?w?a-r-d C-h-a-C?o?n. THE CLERK: Thank you. THE COURT: Go ahead, Counsel. MR. BEHRENS: Thank you, Your Honor. EDWARD JAMES CHACON, JR., called as a witness by the plaintiff, was sworn and testified as follows: CARLA S. WALKER, CSR, RMR 38 DIRECT EXAMINATION BY MR. BEHRENS: Q. Good morning, sir. What is your current occupation? A. Deputy sheriff. Q. With? A. Riverside County. Q. Thank you. And how long have you been a law enforcement officer? A. About ten years. Q. Were you working as a Riverside sheriff deputy on the date of June 20th of 2017? A. I was. Q. And at that time, what was your assignment? A. As the Palm Desert Sheriff's Station, Gang Task Force Liaison Officer. Q. I can tell from your current outfit here, are you still part of that same assignment? A. Yes, sir. Q. On the date of June 20th, 2017, did you, along with other law enforcement personnel, conduct a probation compliance check at the location of Fred Waring, 81600, specifically Unit Number 216, city of Indio, county of Riverside? A. Yes. Q. All right. What was the target or subject of that compliance search? A. Mr. Garcia, who is, at that time, on PRCS for weapons violations, I believe. CARLA S. WALKER, CSR, RMR 39 understanding, there's probably a couple of Mr. Garcias living at that address. What was the full name of that subject? A. Robert Anthony Garcia. Q. And when you were responded to responded, I'm sorry. When you arrived at that location, that Fred Waring address in Indio, did you encounter any individuals inside the residence? A. Yes. Q. Who? A. His father, Jose Garcia; another one of his brothers, I believe Joseph Garcia; Mr. Robert inside the location. Q. Was there an incident in contacting these individuals on the date of the 20th? A. Yes. They took their time or somebody took their time answering the door. We were out there knocking for an extended amount of time. While we were waiting for a response there was a large window next to the door. We were knocking on the south side of the location. And you can hear movement on the inside. And when you look into the location, you could see a silhouette walking back and forth. Q. But were you able to identify what that silhouette or who that was? A. No. Q. At any point did the occupants of the trailer come out? A. Yes. CARLA S. WALKER, CSR, RIVER 4O How many people came out? A. At that moment, at that time, the father answered the door. We asked him if Robert Garcia was there for a compliance check. He said he believed he was there, and he welcomed Robert's bedroom. While we were following him, there was another male subject in what appeared to be the master bedroom on the far east end of the location. And I asked Mr. Jose who that was. And he said it was his another son of his, Joseph. Q. How many individuals did you make contact with inside that unit? A. Three. Q. All right. And at that point did you and any other law enforcement personnel conduct that compliance check and search that you were there to do? A. Yes. Q. As a result of that check, did you acquire anything that you found to be significant? A. Inside of inside of Robert's bedroom, I did locate a -- like an advertisement you get in the mail from from a store. On that advertisement it was firearms for sale, firearm accessories for sale, ammunition for sales. And then, also, in the conclusion of the search, also, there were three firearms located in an unlocked bedroom inside that residence. CARLA S. WALKER, CSR, RMR 41 But that the firearms that bedroom was found in, that belonged to the brother; is that correct? A. Yes. When you say "unlocked," what do you mean? A. I'll backtrack. On our initial entry into the residence, while I was following the father, Jose, initially I asked him who that other person was. He told me it was Joseph. As we were walking into the residence, we don't know the layout of it. So as we walked by a door and whatnot, I would ask him, what did that door belong to. One of them as a restroom. The door was open, and you could clearly see it was a restroom. And then there was another door on our way to Robert's bedroom, and it was closed. I asked him whose bedroom that belonged to. He said his son Alberto who he said was currently at work or something like that. And I checked the door. It was unlocked. So I opened it to make sure there was nobody hiding inside of there as a safety precaution. And nobody was in there, but, however, the door was unlocked. Q. Did you conduct a search of that room personally or was another officer -- A. Other officers did. Q. Did they alert you to items they found inside? A. They did. CARLA s. WALKER, CSR, RMR 42 another handgun. Q. What were those items? One of the items was, I believe, a .22 caliber rifle, .22 caliber revolver, and I want to say a .25 caliber Now, I would like to direct your attention to that .25 caliber handgun. A. Q. suppose, A. Q. firearm, Do you recall its general appearance? I do. It appeared to be a chrome or silver in color. Okay. Did you seize all of these items and, I hold on to them and put them into evidence? I did. Now, if you were to see another picture of that would you be able to recognize it as the one that you located or that was located in that bedroom? A. People's one? Q. I would say so, yes. MR. BEHRENS: Your Honor, may I approach with Exhibit 1? THE COURT: Yes, sir. THE CLERK: I believe that's 2. Oh, is it the same MR. BEHRENS: Yes, same one. THE CLERK: I apologize. BY MR. BEHRENS: All right. Have you ever seen what I'm showing you before, this general picture? A. A. Yes. You've seen this printout, not No, no. I'm sorry. Had not specifically CARLA s. WALKER, CSR, RMR 43 have not seen this printout. All right. I'm sorry. So, for now, what I would like to do is direct your attention to the second row, items that are numbered 205, 206, 207, and 208. And do you see the thumbnails associated with those numbers? A. Yes. Q. What, if anything, do you see inside those thumbnails? A. A silver/chrome handgun with a black-colored pistol grip. Q. Now, does this item match in appearance those items that you seized on the date of June 20th, 2017? A. Yes, it does. Q. And after the seizure of those firearms, did you conclude your business on the date of the 20th? .A. YES. Q. Later, a couple days later, on the 23rd, did you have any reason or did anything significant relating to Mr. Robert Garcia come to your attention? A. Yes. Q. What was that? A. We were contacted by an investigative unit from California Highway Patrol, I believe the Border Division, regarding Mr. Robert Garcia and recent postings on social media, and that he had been an applicant for the CHP. Q. And did you have an opportunity to review the CARLA S. WALKER, CSR, RMR 44 contents of those posts? A. Certain ones, yes, from what was shown to us from the investigating agency. Q. Were you shown a screen shot, or were you simply told what the contents was? A. I believe we were shown a screen shot. Q. All right. And and when you reviewed the screen shot, did you see anything that was significant to you? A. I can't recall the exact contents of the screen shot Q. Well, not so much the screen shot. Let me ask you this: Did you see anything, as a result of the investigation relating to Mr. Garcia, that caused you concern otherwise significant to you? A. I want to say I do recall seeing a post, some anti?law?enforcement texts or screen shot of a video or something like that. Q. All right. Well, let me ask you this: As a result of whatever was posted or whatever was brought to your attention, were you called in to be an additional member of a task force that would make contact with Mr. Garcia? A. Yes. Q. All right. And you, in fact, accepted? You became part of the task force? A. I'm sorry? One more time? Q. And you were able to be part of that task force and, in fact, did become part of that task force. A. Correct. Q. As a result on your task force, did it did you, I CARLA S. WALKER, CSR, RMR 45 guess, brief as to the underlying circumstances of why the task force was being assembled? A. Yesfairly urgent nature, or is it similar to the rest of your scope of work? A. It was fairly urgent in nature. Q. All right. And why, to the best of your recollection, was it urgent? A. From what I recall, he, Mr. Garcia, Robert Garcia, being a current applicant in the hearing process for CHP, I believe the 23rd was a Friday, and the following day, Saturday, he was scheduled to participate in a physical agility test for CHP as part of their hiring process. And from what I recall, there was a mention of possibly Mr. Garcia possibly harming law enforcement in whatever manner he decided. Q. Okay. And on the night of the 23rd, did you and the task force respond to that same location where you had previously conducted the search on the 20th? A. Correct. Q. Approximately how many of the law enforcement officers were with the task force? A. Including myself, on the gang task force, there was about five to six from the gang task force, and then another handful from CHP's investigations unit. Q. What was your specific assignment during the contact on the 23rd? A. During the contact on the 23rd, I was to have all the CARLA S. WALKER, CSR, RMR 46 subjects inside the residence exit the residence using the the door on the south side, as part of executing the the search, in a safe manner. Okay. Did any occupants come out of the house? Yes. How many? I believe two. 9 9 Okay. Do you recognize any of those occupants that came out of that house here today in court? A. Yes, I do. Q. Did you, regarding -- is that Mr. Garcia seated down at the end? A. Yes. Q. Will now, when Mr. Garcia came out of the house, were you giving him any commands along with other law enforcement? A. Yes. Q. All right. What were those commands? A. To come to us with his hands out of his pockets, and so he could be detained. Q. All right. Did that did that occur? A. NO. Q. Could you explain? A. The manner in which he came out of his residence was of someone who was not in a rush or in a hurry to come out, uncooperative, basically. He came to the doorway, stood there, took his time to walk down the steps I believe it was probably like five steps, it was not that long of a CARLA S. WALKER, CSR, RMR 47 drop to the carport area. He had one of his hands in his pockets. I was using my public announcement speaker on my patrol vehicle to give him instructions. But, like I said, he he came out, but on his own program, I should say. Q. All right. At any -- did at any point did Mr. Garcia comply with commands to, I guess, get down on the ground and prepare to be detained? A. NO. Q. After the verbal commands appeared not to be working, what were the next steps that were taken? A. Once he walked to the end of the carport area, he began to pace back and forth. And at that point Canine Deputy Allert began to give instructions with his canine service dog out on leash. Q. Let me let me interrupt you for a moment. Before the canine was deployed, was did any law enforcement personnel utilize any other allocated use of force to try to gain compliance? A. I believe pepper ball was used. Was it? A. I can't say for certain. I don't remember. All right. We'll skip that for now. Well, let's focus your attention. You said that you heard Allert give commands that a canine might be used. A. Correct. Q. Now, did you see the defendant hear Deputy Allert's CARLA s. WALKER, CSR, RMR 43 commands? A. Yes. Q. All right. Did he say anything in response to those commands and those warnings? A. Basically, yes, he did. Q. What'd he say? A. He wasn't going with the program. Just Allert would give his commands to, basically, get on his knees, prone out, so he could be detained. But Mr. Robert Garcia was not going with the program. He would talk back, basically being uncooperative, not follow the instructions. Q. All right. Did you see the dog get sent in? A. I'm sorry, you asked if I saw the dog? Q. Yes. Did you see the dog get sent in? A. I did. Q. All right. Did you see how Mr. Garcia responded, if at all, to the dog being sent on him? A. I did. Q. All right. Did you find it unusual? A. Yes, I did. Q. And why is that? A. Mr. Robert Garcia braced himself for the for the dog. He basically squared up like in a boxer stance, with his feet about shoulder width apart. He kind of hunched down and put his arms out, something similar to, like, a defensive player in football. As the dog lunged towards him, Mr. Garcia what I saw, was Mr. Garcia kind of like spinned [sic], was able to CARLA S. WALKER, CSR, RMR 49 headlock, and then drop down to the ground. Q. All right. Did you have a clear vantage point as it was going on? A. I did. Q. Were you able to see whether or not the dog appeared to be in distress? A. Once he landed on the dog, I couldn't see the dog anymore. Q. All right. What did you do when this happened? A. I ran up to try and detain Mr. Garcia along with other law enforcement personnel. Q. All right. And when you ran up to Mr. Garcia, did he cooperate with you at that point or did he continue to resist? A. He continued to resist. Q. Could you describe that, please? A. He -- once we ran up on him, the dog was released from him. Canine handler Allert was able to release him from the canine. Myself and another task force officer from the gang force task force tried to have him put his hands behind his back so we could put the handcuffs on him. He continued to lay on top of his chest, abdominal area. And during that, never did he give us his hands so they could be handcuffed behind his back. Q. Were you reaching for his arms? A. I was. Q. And was he kind of pulling away, or what was he doing? CARLA S. WALKER, CSR, RMR 50 was pulling away. Q. At any point did Mr. Garcia, was he detained and taken into custody? A. I'm sorry, one more time. Q. Was Mr. Garcia, at any point, detained, gained control, and taken into custody? A. Moments after, yes. Q. Okay. And during -- while you were struggling with Mr. Garcia, did you see Deputy Allert utilize the canine, give any sort of bite command? A. Deputy canine [sic] was next to me, on -- towards my left, and I remember him giving instructions to give give up your hands so they can be handcuffed or the dog will be utilized. And still, then, there was no cooperation from Mr. Robert Garcia. Q. Did you feel the use of the canine was helpful in getting Mr. Garcia detained? A. Yes, it was. Q. Now, I'd like to direct MR. BEHRENS: Well, all right. Thank you. I have no further questions. THE COURT: Cross? MR. TANSEY: Thank you, Your Honor. CROSS-EXAMINATION MR. TANSEY: Q. Deputy Chacon, thank you for your service. A. Thank you, sir. CARLA S. WALKER, CSR, RMR 51 Did you write a report pertaining to this case? A. The incident that happened on the 23rd or the 20th? Q. I believe the one I saw was the 20th. A. Yes, I did, sir. Q. Is there one on the 23rd? A. I'm not sure. Q. I mean, did you write a report? A. Honestly, I don't recall. Q. Well, the report that you wrote for the 20th, did you put all of the material facts in that report? A. From what I knew, yes. Q. Have you had a chance to review it before testifying today? A. Yes. Q. Is there anything you would like to change? A. No, not that I remember. Q. Now, this on the 20th, when you went to do the probation check, you had done an earlier probation check, hadn't you? A. Attempted. Q. June the 9th, I believe? A. Yes, I believe so. Q. What did you find on the 9th if anything? A. On the 9th me and other gang task force officers went to the location to conduct a PRCS check compliance check on Mr. Robert Garcia. We knocked on the door. There was no answer. Q. So you did not were not able to access the house CARLA s. WALKER, CSR, RMR 52 that date? A. Correct. Q. How many officers were with you? A. I I don't recall the number of officers that were with me that day. Q. Other than on the 9th and the 20th and the 23rd, are you aware of any other checks or visits to the residence by officers? A. No, not that I can remember. Q. Okay. And you were part of the team that went on the 23rd, correct? A. Correct. Q. How many officers, in total, were there, do you recall A. I don't remember. Q. from all different agencies? A. Right. I don't remember the exact number. Q. Would it be fair to say somewhere between 10 and 12? A. It would be fair. Q. And did you have a meeting in advance A. Yes. Q. before going there? What were you told was the reason that the task force had been formed? A. The the threats that had been posted on Mr. Garcia's social media Facebook profile. Q. The alleged 422 threats, I guess we could call them? A. All I know, there was threats made, and that's the CARLA s. WALKER, CSR, RMR 53 reason we were there. And we were going to go to his location. Q. Okay. Did you not did you never read the actual post itself? A. The actual posts? Q. Correct. A. We did see them. However, I don't recall the context of the posts. Q. Okay. It didn't -- it didn't mention you, though, did it? A. Me specifically? Yes. A. As Officer Deputy Chacon, no. Q. Yes. A. Not that I remember. Q. So far as you recall, it didn't actually reference any particular individual, did it? A. Any specific individual, no. Q. Correct. Was there a meeting in advance to plan strategy for the 23rd? A. For the operation, yes. Q. Yes. And what what took place at that meeting? A. The meeting addressed the subject, the reason we were going to go to the subject's residence, and how we were going to safely get everybody detained that was inside the location. And I believe the plan turned out to be a surround and callout type of operation. CARLA s. WALKER, CSR, RMR 54 And were you told the reason he needed to be taken into custody was because he had an appointment the next day at the A. That was not the specific reason, no. Q. Oh, I thought that's what you said. What were you told was the reason? A. Because of the threats that had been posted on his social media, and him being an applicant with the California Highway Patrol and having a scheduled physical agility test the following day on Saturday. Q. Right. That was my question. I mean, the reason you went was to arrest him, take him in custody, so that he could not make the test the next day; isn't that right? A. No, that's not the that's a part of the reason, but that's not the only reason. Q. What was the what A. Again, the reason we were there is he had posted some some type of threats on his Facebook social media account shortly after we had gone and done the probation compliance check on the 20th. And as him being an applicant with the CHP agency, and him having a scheduled physical agility test the following day, Saturday the 24th, I believe, that that could have been his potential target date if he was going to fulfill any type of threats he made. Q. Right. I mean, I think we're saying the same thing. A. But to say that the reason we went there to take him into custody was solely because the following day he had a scheduled physical agility test, no, that's not the only CARLA S. WALKER, CSR, RMR 55 reason, Q. A. Q. A. Q. dictated guns. Robert? A. Q. A. Q. officers A. Alberto. like I previously mentioned. I meant because of the threat. Correct. The post was the reason. Correct. The fact that he had a test the next day maybe the timing of going in and taking him into custody Correct. -- but it was the alleged threat. Right. Now, on the 20th, you testified that you found some Is it correct to say none of those guns belonged to They were not registered to anybody at that location. Right. They weren't stolen, though, were they? None were reported stolen. And his brother Alberto confirmed to you, or to with you, that the guns belonged to him? No. As far as I know, nobody made any contact with I was able to get Alberto's telephone number from his father Jose, and I've made numerous attempts to speak with Mr. Alberto, and left numerous voice messages at the number that was given to me for Mr. Alberto, but there was no as far as I know, I didn't make any contact with Mr. Alberto. Q. A. Didn't Jose tell you they were Alberto's guns? Jose stated that one of the firearms was Alberto's. They were found in Alberto's bedroom, weren't they? CARLA S. WALKER, CSR, RMR 56 Correct, the unlocked bedroom. Q. And did you search Robert's bedroom? A. Yes. Q. Did you find any guns? Ammunition? A. No. Q. Nothing illegal at all, isn't that correct, was found? A. Correct. Q. Now, where where were you when the dog was released? A. Right next to the canine's patrol vehicle. Q. How how far away were you? A. As a matter of distance, pretty bad at judging distance, but I would say about from from the corner of this room to the back corner of the room, about that far away give or take. Q. Would that be about 40, 50 feet? MR. BEHRENS: I would say 50 feet would be accurate-ish. MR. TANSEY: We can agree to that. Q. BY MR. TANSEY: So you are roughly about 50 feet away. And how what when the dog was released, what did you see next? I mean, he's running at Robert, correct? A. Correct. And are you facing in the direction of Robert? A. Yes. Okay. So what did you see then? CARLA S. WALKER, CSR, ENE 57 Again, I saw once the dog was released, I saw Robert get into the stance that I had described earlier and braced for the lunge of the dog. Once the dog lunged at him, at Robert, he got the dog into a headlock and fell on top of the dog. Q. Let me stop you thereand this time I'm referring to when Robert is still standing upright. Did you see the dog bite him? A. No. Q. So from your vantage point, is it he grabbed the dog and did you say put it into a headlock? A. Correct. Q. And A. That's what it looked like from my point. Q. And then they both fell over? A. Correct. Q. And then did you see the dog get up? A. I just once they fell over, got on top of or Robert fell on top of the dog. We we rushed in, myself Q. Okay. Let me stop you there. How long, from your vantage point, was the dog actually in a headlock? A. A few seconds. Q. And so they fall down, and then you just said you rushed in. A. Correct. Q. Who else rushed in? CARLA s. WALKER, CSR, RMR 58 The canine handler, Allert, Deputy Allert. I believe TFO Gette, and then Sergeant Tapp. Q. And so what happened when you got up to where Robert was? A. He the dog was under was able to be freed and be under control of the canine handler. I -- Q. Let me stop you there. The dog was uninjured, wasn't he? A. I'm not sure. Q. Did he appear injured? A. I I again, I ran up there to help get Mr. Robert Garcia detained in handcuffs. I didn't go up there to I didn't check on the welfare or wellbeing of the dog while I was up there. Q. Well, did you ever see him again? A. I did. Q. Did he appear injured? MR. BEHRENS: Objection. Calls for speculation. THE COURT: Overruled. THE WITNESS: Again, the question, sir? Q. BY MR. TANSEY: Well, you saw the dog again after he jumped up. A. Yes. Q. Was he limping? A. I don't recall. Q. Whining? A. I don't recall. Q. Crying? CARLA s. WALKER, CSR, RMR 59 would say no. Q. So my question was, based on what you observed, did the dog appear to be injured at all? A. Not that I know of. Q. Okay. So so you rushed up. The dog has gotten out. What happened next? A. We I was trying to get Mr. Robert Garcia into handcuffs. Again, he kept his hands underneath him, underneath his body. Q. Let me stop you there. So Robert is well, is Robert on his stomach at this point? A. Yes. And his hands are underneath him? A. Yes. And where, in relation to Robert, where Robert's body, where are you? I'm towards his right shoulder, right arm. So you're at his head, I guess, on the right side? The right side of his right shoulder. Okay. And Not necessarily the head. Okay. But to the more to the right than the left? On the right side of his torso, I would sayAnd then who else was there with you, and where were they located? A. TFO Gette and Sergeant Tapp. Q. And where were they located in relation to Robert? CARLA s. WALKER, CSR, RMR 50 Nearby. I want to say Gette was on my right side and Sergeant Tapp was right in front of me. So that would put him on the left side of Mr. Garcia. Q. And Deputy Allert was there as well, wasn't he? A. He was. Q. And where was he? A. He was on the left side of me. Q. Okay. So you were saying you were trying to get Robert's arms A. Correct. -- hands Correct. out from underneath him? Correct. K) IO 5 What happened next? A. He just kept moving, so we couldn't get any control to handcuff him. After trying to get him Q. Let me stop you there. A. Okay. Q. Did you notice blood around his elbow? A. NO. Q. Okay. So you're trying to get his arms out from underneath him. A. Correct. Q. What happened next? A. We're again, we're basically wrestling with him right there, trying to get him into handcuffs. He wasn't CARLA S. WALKER, CSR, RMR 61 going with the program. Next thing I remember hearing is Allert giving him a command, telling him that if he didn't release his arms from underneath him, he would be hit. Q. Okay. So let me stop you right there. When you heard Deputy Allert say that, where were Robert's hands? A. They were still underneath him. Q. So they were not behind his back. A. Correct. Q. He was not handcuffed A. Correct. Q. at the time the dog was ordered to bite him. A. Correct. Q. Okay. So you hear Deputy Allert give the command. What what were the words used, do you recall? A. I don't recall the specific word, but it was something to -- similar to that. Q. Sorry. Similar to what? "Bite him"? "Get him"? I don't A. "Release your arms or you will be bit," something similar to that. Q. And then Deputy Allert said something that appeared to you to be a command to the dog? A. I don't remember hearing the actual command to to bite. I I don't recall that. Q. And so what happened next? A. We?re still trying to get control of his arms. And then, next thing I hear, it was him yelling, and he flung his CARLA s. WALKER, CSR, RMR 52 arms. Q. When you say "him," are you referring to Robert? A. Yes, Robert Garcia. He began to yell, and, shortly after, he he flung his arms out. We were able to put them behind his back, and I was able to put the handcuffs on him. Q. Let me stop you there. Let me ask, are you referring to shortly after the dog biting him? A. Yes. Q. So he's flailing, the dog then bites him, and it's only after the dog bites him that he did he bring his hands out, or you were able to bring his hands out from underneath him? A. After he was bit, he began to yell, and we were able to put the handcuffs on him. Q. So while he's being bit, he is not handcuffed; is that correct? A. Correct. Q. While he's being bit, is it your testimony he's actively struggling with his arms resisting you, with his arms underneath him? A. After he was bit, no. Q. While, I said while he's being bit. A. While he was being bit, he put his arms out to his side so we can put him into handcuffs. So he wasn't tugging away from us from what I remember. He wasn't tugging away from us. He put his arms out. We were able to put them behind his back, put the handcuffs on him, and then the dog CARLA S. WALKER, CSR, RMR 63 was released. Q. And he was not handcuffed before the dog bit him. A. That is correct. MR. TANSEY: No further questions. THE COURT: Mr. Behrens? MR. BEHRENS: Nothing further. Thank you. THE COURT: And can this witness be excused? MR. BEHRENS: Yes. MR. TANSEY: Yes. THE COURT: All right. Thank you, sir. All right, Gentleman, let's go ahead and take our 15-minute recess at this time, please. MR. TANSEY: Thank you, Your Honor. (Recess.) THE COURT: All right. We're continuing on the record in the matter of People of the State of California versus Robert Garcia. All parties are present. Mr. Behrens, you can call your next witness, sir. MR. BEHRENS: Thank you, Your Honor. At this time the People call Sergeant Michael Tapp. THE CLERK: Do you solemnly state the testimony you are about to give in the matter now pending before this Court, shall be the truth, the whole truth, and nothing but the truth. so help you God? THE WITNESS: I do. THE CLERK: Thank you. If you'll please take the witness stand. Sir, if you would please state and spell your first CARLA S. WALKER, CSR, RMR 64 and last name for the record. THE WITNESS: Michael Tapp, M?i?c?h-a?e?l, Tapp, T-a?p?p. THE CLERK: Thank you. THE COURT: Go ahead, Counsel. MR. BEHRENS: Thank you. MICHAEL TAPP, called as a witness by the plaintiff, was sworn and testified as follows: DIRECT EXAMINATION BY MR. BEHRENS: Q. Sir, please, just to refresh my recollection, did you testify at the prelim in this case A. No. Q. the first time? A. No. Q. Could you please state your current occupation? A. I'm currently a lieutenant for the Riverside County Sheriff's Department, assigned to the Thermal Station. Q. How long have you been a law enforcement officer? A. Approximately 20 years. Q. Were you working as a law enforcement officer on June 23, 2017? A. Yes. Q. On that date were you called to be a part of a task force to surround and respond to a residence located at 81600 Fred Waring, Number 216, in the City of Indio, county of Riverside? CARLA s. WALKER, CSR, RMR 65 Yes. Q. And for what purpose were you involved in the task force? A. Well, my position there was I'm the sergeant, running the running the task force. That day Officer Gette had approached me and said ISU, and investigator from ISU, was conducting an investigation on Mr. Robert Garcia for criminal threats. And they were requesting our assistance in conducting a surround and callout and taking Mr. Garcia into custody. Q. And did you have an opportunity to review any of those threats or online material? A. Briefly, briefly. We had actually went to the CHP office in Indio off of Jefferson and actually briefed the case with the ISU units. They gave us the background and the history on it and why we were actually going to the residence to help take Mr. Garcia into custody. Apparently he had -- he had posted some stuff on Facebook with a gun claiming that he was going to go to the academy and shoot an officer. Q. And is there a kind of sense of urgency to the task force? A. That day there was an urgency because now we had to think about, well, there's this post, now we have a community relation -- or community possibly in danger with the community. So that time we decided to assist. Q. And based on your current I introduced you as sergeant. You are currently a lieutenant. CARLA s. WALKER, CSR, RMR 55 Did you assume a leadership role in the task force? A. I actually we actually ended up serving the surround and callout for ISU. So I approved the plan and I oversaw the surround and oallout. Q. So in less words? A. Yes. Q. Did you and other law enforcement personnel, then, as part of the task force, respond to the address that I spoke to earlier? A. Yes. Q. So where were you situated in relation to this unit that led the task force? A. The southwest corner. Q. And did you have a view of what is probably the main entrance to the residence? A. Yes. Q. And did you arrive in a marked or unmarked unit? A. Unmarked unit. Q. And I have to ask a question: So how were you all dressed? A. Full tack uniform: Green vests that clearly states, "Gang Task Force," being used with our gun belts and our uniform, clearly marked. Q. Black and white police cars? A. No. We have stealth units. Q. All right. Did they have lights and sirens and all that stuff? A. Red and blue lights to the front, amber lights to the CARLA S. WALKER, CSR, RMR 67 rear, with spotlights on the side. Q. Did your task force surround the unit or unit the residence? A. Yes. Q. All right. As a part of that were patrol cars utilized? A. Yes. Q. And as a part of the utilization of those cars, did you utilize the lights, the spotlights the overheads? A. Yes. Q. Did you make announcements to the occupants of the residence? A. Yes. Q. Did you, in so doing, was that you the one doing it? A. No, Deputy Chacon. Q. And did you hear other officers when Deputy Chacon first made an announcement to the occupants of the residence, did he announce himself as law enforcement? A. Yes. Q. Did any occupants of the residence come out? A. Yes. Q. Did was there anyone that came out of that residence that you recognize here today in court? A. Yes. Q. And would that be Mr. Garcia seated at the end of the table? A. Yes. CARLA S. WALKER, CSR, RMR 68 Now, at a certain did you or any other law enforcement officers issue verbal commands for Mr. Garcia to, in essence, get down on the ground, prepare to be detained? A. Yes. Q. Were those commands effective, or did they work? A. No. Q. Why not? A. Um, Mr. Garcia was extremely aggressive. His hands were in and out of his pockets. He refused to get down on the ground. And so they weren't -- they weren't effective, no. Q. All right. When you realized that the verbal commands were not effective, did you personally take any other steps to escalate the use of force? A. Yes. Q. All right. What step was that? A. I utilized the Core, the less lethal Core. Q. And at that time well, describe to us, what is Core? A. Core is is an air?like an almost like an Airsoft weapon, but it was a tank that actually propels pepper pepper balls, balls that are -- that are used to -- used to to just decapacitate somebody. Not to the point where they're being extremely injured, but to to use less lethal force to take somebody into custody, I guess. It's a Q. And I suppose, is the Core one of the tools that law enforcement officers can utilize when the verbal commands and the presence doesn't appear to work? CARLA s. WALKER, CSR, RMR 69 Yes. Q. Okay. Did that Core pepper pellet gun gain the compliance that you were looking forresult of that, did you or any law enforcement personnel elevate the use of force to the next available step? A. Deputy Allert instructed Mr. Garcia to get to the ground or he would utilize the dog, he'd released the dog. Q. Let me break it down for a moment. Did Deputy Allert issue a command or warning or anything letting Mr. Garcia know that the dog would be utilized? A. Yes. Q. All right. Did you hear Mr. Garcia respond to that in any way? A. Yes. Q. What did he say? A. He said, "Release the dog. I'll kill the fucking dog," or words to that -- And what did he say? A. He said, "Let the dog go. I'll kill the fucking dog." Q. Okay. Now, after Mr. Garcia stated that, what happened next? A. The dog was released. Q. Okay. How far away were you from the canine when Deputy Allert was handling him? CARLA S. WALKER, CSR, RMR 70 Approximately 25 yards. Q. Were you able to see the dog being released? A. Yes. Q. Okay. Did you see it make a run at Mr. Garcia? A. Yes. Q. Okay. Did the dog make contact with Mr. Garcia? A. It did. But Mr. Garcia had placed the dog into a headlock. Q. All right. And from your vantage point, did Mr. Garcia kind of gain control of the dog? A. Yes. Q. From your vantage point, did it appear that the canine was in distress due to the headlock? A. Yes. Q. And in response to seeing this, did you and other law enforcement personnel approach the two? A. Yes. Q. And were you one of the deputies that was, for lack of better words, hands on? A. NO. Q. Where were you in relation A. I was right next to Deputy Allert. Q. Did you see other deputies trying to detain Mr. Garcia? A. Yes. From your were they successful at the first go? A. No. At any point during the struggle on the ground, did CARLA S. WALKER, CSR, RMR 71 you see the canine being used to bite Mr. Garcia? A. When the dog -- when the dog released from Mr. Garcia's arms, it came back, it came back around and bit him on the leg. Q. All right. And when the dog bit Mr. Garcia, did his did his hands become free such that he could be detained? A. NO. Q. What happened? A. He was still struggling with the deputies at that time. Q. All right. At at some point, however, however many seconds into the bite, was Mr. Garcia or were Mr. Garcia's hands, did they come out from underneath him? A. Eventually, yes. Q. All right. And was he taken into custody? A. Yes. MR. BEHRENS: All right. I have no further questions. THE COURT: Cross? MR. TANSEY: Thank you, Your Honor. BY MR. TANSEY: Q. Lieutenant Tapp, thank you for your service. What did you actually read the the criminal threat? A. I no. The report, no. Q. Well, if -- I believe it's a Facebook post. CARLA S. WALKER, CSR, RMR 72 you never actually saw the post? A. It was in the operations plan. During the planning stages I did read the operations plan. I did read the post. So I had read it was in our operations plan, yes. Q. And is it your testimony that the threat was he was going to go to the academy and shoot officers? A. I I believe that's what the post said. Q. How many different jurisdictions were present the night of the 23rd? A. It was just us, the gang task force. Q. Well -- A. The gang task force. So part of that the gang task force is a multiagency team, so we would have and CHP, Indio, and the rest were RSO. Q. And forgetting where they came from, how many officers in total were present that night? A. I'm going to say approximately six from GTF. Q. But altogether would it be fair to say there were 10 to 12 altogether, I mean officers? A. Altogether. And did you approach the house with the guns drawn? We never approached the house. Well, I should say when you surrounded the house Yes. and then called for Robert to come out. 0 0 Where were you instructed to have your guns in a certain position? A. No. They're they're pointed towards the CARLA S. WALKER, CSR, RMR '73 residence. Q. Okay. So they were drawn and pointed towards the house? A. Drawn and pointed, yes. Q. Do you recall, when Robert came out, what clothes he was wearing? A. He was wearing shorts and a shirt. Did you notice any bulges? A. Not from my vantage point, no. Did you do you know, did you eventually and "you," I mean all the officers present. Did any of you find weapons in the house? A. That day, no. So nothing in his bedroom or anywhere in the house? Not that day. And did you find any weapons on his person? None. So I believe you said you were approximately 25 yards away from Robert when the dog was released? A. Yes. Q. So he's in front of you and you testified, I believe, you were next to Deputy Allert? A. Yes, at the conclusion, yes, when Q. Yeah, I'm skipping ahead to when the dog was released. So the dog is released and the dog is running towards Robert. What happened next? A. Mr. Garcia had placed the dog into a headlock. CARLA s. WALKER, CSR, RMR 74 And did the dog was that before or after did the dog hit him at all? A. The dog came up and attempted to bite Mr. Garcia. However, he was -- some reason, he was -- Mr. Garcia was taking the advantage and placed the dog into a headlock. Q. So it's your belief the dog did not bite him A. I don't believe so. Q. -- initially? A. I don't believe initially, no. Q. So Robert put the dog in a headlock. Is Robert still standing at this point? A. Yes. Q. And what happened next? A. At that time the dog was struggling. Deputies went over to assist the dog, take Mr. Garcia into custody. Q. Well, at some point, he fell, or they both fell? A. At some point, he did, yes. Q. So Robert's standing up, the dog is coming at him, he grabs the dog; is that correct? A. Yes. Q. And then the dog fell over. What happened? A. At some point Robert went to the ground. Q. And A. I don't know if it was during the struggle with the dog or with the officers, but at some point that that struggle went to -- went to the ground. Q. So when Robert fell to the ground, do you recall where the dog was? CARLA S. WALKER, CSR, RMR 75 don't recall where the dog was at that time. I believe the dog had when he went to the ground, the dog was released and the dog came back around and bit him on the leg. Q. So both of them fell, and then the dog got away; is that correct? A. I believe I believe the dog had been released when deputies were fighting with him. Q. Let me stop you there. So how long was the dog in -- I think did you call it a hand hold or a choke hold? What did you call it? A. I called it a headlock. Q. Headlock. How long was the dog actually in a headlock? A. Maybe approximately 20 seconds. Q. Twenty seconds? A. Twenty seconds to 30. I don't know exactly. Q. Were they just standing there for 20, 30 seconds? A. No. They were struggling. The dog when he put the dog into a headlock, the dog is going to automatically struggle and trying to get away. During that time the deputies went to try to rescue the dog. Q. Well, are they standing at this point or falling? A. Well, I Q. At some point -- let me ask you this: So the dog is running at him. He gets the what did you call it? A. Headlock. Q. Headlock. CARLA S. WALKER, CSR, '76 Did they fall over right away or was Robert still standing there with the dog? A. I can't recall when he was on the ground, but I know eventually they went to the ground. Q. So they're on the ground. Where was Robert re- -- in relation to the dog specifically? What was their positions? A. They were in front. They were on the carport, in front of the carport. Robert was, I believe, on his stomach with his hands underneath him. Deputies were Chacon, I believe, was to his Q. And I'll get to that. But where was the dog? So he's A. The dog at this time, I believe he I don't know if he was running around or he came he was coming back around. He came back around. Q. So they both fell? A. Uh-huh. Q. And I don?t want to put words in your mouth. But they were Robert and the dog, you believe were struggling for about 20 seconds? A. I would say 20 to 30 seconds. On the -- on the ground? I believe it was standing up at this time. Okay. And then the dog and then they fell over. Eventually they went to the ground. And the dog got away. And the dog got away, yes. And then what happened next? CARLA S. WALKER, CSR, RMR '77 Deputy the deputies were struggling with Mr. Garcia and the dog came back around and -- Q. And where were the deputies? Because you were there as well, right? A. I was behind. You initially ran up behind -- so let's start with you. Is Robert on his stomach at this time? A. I believe he was on his stomach, yes. Q. And where are you in relation to his -- A. I'm at the front of the carport over Q. -- in relation to Robert? A. To his legs. Q. You are at his legs? A. Legs, yes, the legs. Q. And then what other officers are present? A. I believe Allert was there, Chacon, and I can?t recall who else was there, who the deputy was. Q. And where was Allert? A. He was towards his legs or midsectionyou were Robert, is Deputy Allert on Robert's right or on Robert's left? A. He'd be on the left. Q. And the other officer, I believe you said Chacon? A. Chacon. Q. And where was A. He would be on his right, right side. Q. And he was by Robert's head or his legs? CARLA S. WALKER, CSR, RMR 78 Head and shoulder, yes. Q. On his right side? A. His right arm, yes. Q. Okay. So then what happened? A. They were -- they were continuing to struggle. The dog took a bite. Q. Let's stop there. So they're struggling. Which officers are you referring to when you say, "They were struggling"? You mean Robert's struggling with officers? A. Deputy Chacon, I can't recall who the officer was on his left side, left arm. I know Deputy Allert was to the rear where his legs were. Q. And when you say, "They're struggling," what are they trying to do? A. They're trying to get his arms from underneath him. He had wrapped his arms underneath him and he was refusing to bring them out. So they were struggling to get his arms out from underneath him to get him into handcuffs. Q. Are they saying anything to him? A. Yeah. They're telling him to stop resisting. Q. And is Robert saying anything that you recall? A. I can't recall if he said anything. Q. So what -- what happens next? A. The dog takes a bite. Dog bit him on his leg. I can't recall which leg, but bit him on the leg. Q. And Robert was not handcuffed at this point? A. No. No. He wasn't. CARLA s. WALKER, CSR, RMR 79 that. Q. He was on his stomach? Yes, he was. And it's your testimony that his hands were under Under under his body or chest or stomach? Yes. That's correct. And the dog bit him? Uh?huh. Was the dog biting at the direction of Deputy Allert? Yes. Do you recall what words? No. Were they to the effect of, "Bite him"? I don't know. You would have to ask Deputy Allert But he was saying something that was telling the dog to bite Robert. A. Q. A. I can't recall. You'd have to ask I thought you said he was -- he was saying something? The dog bit, but I don't know if Deputy Allert said a special command, said a word. But you have to ask him. Q. I understand. I thought you said you heard Deputy Allert give a command of some sort. K) K) So what happened nextbites Robert? Uh-huh. They CARLA S. WALKER, CSR, RMR 80 They're still struggling with his hands underneath him. They become free. They get him in the cuffs. And the dog is free. Q. So they become free? A. Once they gain control of Mr. Robert, they get him in cuffs, the dog lets go of the bite. Q. So before the dog hit him, before the dog bit him, is it your testimony his hands were under his stomach, not behind his back? A. They were they weren't behind his back. They were underneath him. I don't know if they were on his stomach or his chest, but they were underneath him. Q. They were underneath him? They were not behind his back? A. No, not at the time he bit him. Q. And it's your testimony, when the dog was biting him, he was not handcuffed? A. NO. Q. You said the dog appeared to be in distress? A. When he was in the Q. Going back sorry. A. Yes. Q. Correct. When the dog got out from underneath Robert, did you observe where the dog went after that? A. No. Q. Not until well, you saw the dog biting Robert, right? CARLA s. WALKER, CSR, RMR 81 Yes. Did the dog appear to be in distress then? NO. MR. TANSEY: No further questions. THE COURT: Mr. Behrens? MR. BEHRENS: Sorry, that question again, Mr. Tansey? What was that? MR. TANSEY: Did a dog appear to be in distress when he saw the dog hit him? MR. BEHRENS: I see. I thought I heard something differently, okay. Actually, Your Honor, I have no further questions for this witness. Thank you. THE COURT: Okay. Thank you, sir. Can this witness be excused? MR. BEHRENS: Yes. MR. TANSEY: Yes. THE COURT: Okay. You may be excused. MR. BEHRENS: All right. Your Honor, may I step out in the hallway to get my next witness? THE COURT: Yes, sir. MR. BEHRENS: Thank you. Your Honor, I apologize. I don't see him. May I just have a moment to search? THE COURT: Yes. MR. BEHRENS: There's a little bit of a miscommunication. Our other witness headed back to San Diego. So in the interim, if I could call Officer Arthur Berain. CARLA S. WALKER, CSR, RMR 82 THE COURT: Yes, sir. THE CLERK: Do you solemnly state the testimony you are about to give in the matter now pending before this Court, shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Thank you. Please take the witness stand. Sir, if you would please state and spell your first and last name for the record. THE WITNESS: Arthur Berain, A?r?t-h-u?r, Berain, B-e-r?a?i?n. THE CLERK: Thank you. ARTHUR BERAIN, called as a witness by the plaintiff, was sworn and testified as follows: DIRECT EXAMINATION BY MR. BEHRENS: Q. Good morning, sir. How are you? A. I'm doing good, sir. Q. What is your current occupation? A. I'm a peace officer with the California Highway Patrol, and currently assigned to the CHP Border Division, Investigative Services Division, as an investigator. Q. And how long have you been working as a law enforcement officer? A. Over 16 years now, sir. Q. Were you working in your current capacity as a law CARLA s. WALKER, CSR, RMR 83 enforcement officer with the Highway Patrol on the date of June 23rd, 2017? A. Yes. Q. Rather I'm sorry, I'd like to take a moment and take a step back. Before the date of the 23rd of June, was your attention drawn to an individual named Robert Garcia? A. Before the 23rd of June, sir, no. Q. All right. I'm sorry, then on the date of the 23rd, was your attention for any reason drawn to an individual named Robert Garcia? A. Yes, sir, it was. Q. And why was that? A. It's my assignment as an investigator for the Border Division, CHP. We received a call for assistance regarding Mr. Robert Garcia, who was an applicant for CHP, from the Southern Division Background Investigative Services Unitsomeone involved in the background investigations that contacted you? A. Yes, sir. Well, actually, let me backtrack a little bit. It was actually an investigator with the Southern Division ISU who had been informed of Mr. Robert Garcia as being an applicant with the Southern Division Background Unit. So the backgrounds unit contacted Southern Division ISU who, in turn, contacted me. Q. Okay. And what information were you given regarding Mr. Garcia? A. The information I received from Southern Division was CARLA S. WALKER, CSR, RMR 84 that Robert Garcia was in the process of becoming or interested in being a CHP officer applicant. He had posted some anti?law?enforcement comments on -- via Facebook, his Facebook account, which he shared with the CHP Investigation Services Unit voluntarily. So as part of being an applicant with CHP Southern Division, the applicants are voluntarily asked to communicate back and forth with the recruiters and the background investigators to share information of upcoming events, practice tests, physical agility tests, things of that nature, to answer their questions. Q. All right. And to your knowledge, as part of the background investigation process, does Cal- -- do CHP background investigations, so to speak, review the Facebook contents, including photos and posts and conversations? A. Yes, sir. Again, it's voluntary. And what they do is they friend each other. And once they friend each other, that's how they communicate back and forth with each other. So all that information on both sides is visible by the recruiting and background investigators along with the applicants. Q. And the when you were originally given, I guess, an alert to this activity, how how did you begin your investigation, meaning, I guess, the preliminary question would be are you you part of that same Facebook group? A. No, sir. I received the information from Southern Division ISU. They sent over an e?mail with the actual posts and pictures related to that Facebook account belonging to CARLA S. WALKER, CSR, RMR 85 Robert Garcia with the anti?law?enforcement comments, threats, and also photographs of Robert Garcia on his Facebook account, brandishing assault rifle, a shotgun, handgun, brass knuckles with spikes, things of that nature, sir. Q. All right. Well, let me ask you this: When you first e?mailed that general information, it was a screen shot of the profile page? A. Yes, sir. Q. All right. As are you familiar with Facebook? A. Somewhat, yes, sir. Q. What is Facebook? A. Facebook is a social media which allows people to go ahead and post pictures of themselves or activities and things that they are interested in, communicating with people that are friends or have common interests, so it's just another way of a person being able to share their story and communicate with other people. Q. All right. And approximately how many times have you used Facebook yourself? A. Me personally, sir, I've used it, maybe, on and off, 30, 40 times, maybe. Q. All right. And are you are you familiar with, let's say, if I was to pull up a general person's page, are you familiar with what you would expect to see on that individual's page? A. Yes, sir. Q. Okay. Based on your experience with Facebook, would it include what's commonly called a present file picture? CARLA S. WALKER, CSR, RMR 86 Yes, sir. Q. And would a Facebook page include a name or a moniker of the individual? A. It could, yes, sir. MR. TANSEY: Your Honor, I'm going to object on foundation. THE COURT: Overruled. Q. BY MR. BEHRENS: And also based on your training and experience with Facebook, does it incorporate any other identifying information such that you could attribute a certain page with a certain individual? A. Yes, sir, it does. Q. What kind of information would you expect to see? A. When you open up the Facebook account from somebody that you're friends with, their profile pops up, and what you would expect to see on a profile page would be, one, their name, obviously, maybe an e?mail name that they go by, photograph of that person, pictures of things that they're interested in or they're into, and also all their friends that they're associated with. Q. And as part of, I guess, this screen shot, this information that was sent to you, did it include, I guess, the top of the very base portion of the profile page? A. Yes, sir. Q. And did that include that profile picture we just talked about? A. Yes, sir. Q. And in that picture, was there anyone depicted that CARLA S. WALKER, CSR, RIVER 87 you recognize here today in this courtroom? A. Yes, sir. Q. Who was that individual? A. That would be Robert Anthony Garcia, sir, seated in the orange shirt next to the defense attorney. Q. And, also, in the profile page, did you see any name of which matches the individual seated here today? A. Yes, sir. Robert Garcia, sir. Q. And a review of additional parts of that Facebook page, were you able to see any other, for instance, photographs that would allow you to attribute that Facebook page with this individual here in court? A. Yes, sir. Q. What was that? A. Photographs of Mr. Garcia, Robert Garcia, posing in, like, self shots of himself, sitting down at home in his residence, photographs of himself, posing shirtless, also with the weapons that I mentioned earlier, sir, the shotgun, the pistol, the and brass knuckles. Q. All right. And specifically, of course, that your attention was directed to that page because of a very specific post made on the page; is that right? A. Yes, sir. Q. Can you describe it for me -- the Court probably knows, but for the purposes of the record, what is a post on Facebook? A. A post is similar to texting on a cell phone. What you're doing is you're posting, it could be to anybody. It CARLA S. WALKER, CSR, RMR 88 could be video, it could be a photograph, or just a text itself. And the one that drew attention to me and the Southern Division was a threat that he made towards law enforcement, a text message that he posted on there. Q. And based on your utilization of Facebook, does a post that's on someone's page, does it come with it a time stamp indicating a date and time that the post was made? A. Yes, sir, it does. Q. Now, specifically the information that was sent to you when you review that particular post, did it, in fact, have that date and time that we talked about? A. Yes, it did, sir. It had June 21st, 2017. Q. Now, based on the date of the 21st, is there any significance on that date based on what happened the day prior? A. Absolutely, sir. Q. Can you give the Court that background, please? A. Yes. The reason this post brought so much attention to it, not only because it was an applicant, but was also because he was scheduled to attend physical agility testing the next morning. But prior to that, on June 20th, there was some posts on the let referring to June 20th. On the 21st Robert Garcia posted that some dirty cops came to his house and took his brother's guns from him. And then followed up by some other conversation that he was exchanging with other people. He followed up with a comment of, "On my life I swear I'm going to take a cop's life. If I die fuck it. I'm doing it for CARLA S. WALKER, CSR, RMR 89 freedom, your right to own firearms and your right to protect your family." Q. Okay. And, of course, I my question I posed to you was, in relation to the 20th, and you also alluded to another incident occurring on the following day, meaning the 24th, now, what was scheduled to happen on the 24th? A. The 24th, it was anticipated for Mr. Robert Garcia to attend the physical agility test in Southern Division. And a physical agility test is an event where the CHP recruiters and background investigators have applicants come up to a specified location and run, they run, they do pull?ups, they do sit-ups, and they answer questions for them as well. The reason that was such an issue is because of the threats that were made and photographs of Mr. Garcia actually having those weapons. There was a fear that he may show up and actually carry out the threat that he had made on Facebook jeopardizing the safety of officers, Mr. Garcia himself, and also future applicants. Q. And you were so investigators in that group and associated with it sent you that material and then it was your investigation to conduct; is that a fair assessment? A. Yes, sir. Q. So as far as your continued investigation, then, did you run a records check on Mr. Garcia? A. Yes, sir. Myself, and with the assistance of other investigators, we were able to find out that, on the 20th of June, which led to all the comments again on Facebook, Mr. Garcia was actually on for a felony violation of CARLA s. WALKER, CSR, RMR 90 parole a weapons charge, I believe and on the 20th his house had been visited by the Riverside County Gang Task Force. And that's where he's referring to the officers taking the weapons from his residence. Q. And at that point, when you had accumulated this material and begun your initial investigation you sat here for the majority of the testimony so far this morning how was it that that task force to respond to Mr. Garcia's residence came to be? A. The reason the task force came to be was, again, June 20th was the initial contact made by them where they took the weapons from the residence. After speaking with a probation officer here in Riverside County, they confirmed that he was still on probation. And I was able to get ahold of Investigator Gette. Investigator Gette explained what happened on June 20th, that they had confiscated three weapons, one of the weapons matching the photograph of the silver weapon depicted on the Facebook account. But the other issue was a shotgun and the and the brass knuckles were not taken that day. So I believed that he still had possession of those weapons. So we made arrangements in the Indio office, the CHP office, to go ahead and come up with an operations plan to locate Mr. Robert Garcia. Q. All right. And as were you part of the task force that responded to Robert Garcia's address at 81600 Fred Waring? A. Yes, sir. CARLA s. WALKER, CSR, RMR 91 All right. We heard a number of different officers today testify to their recollection of the account. Now, as far as and I believe my understanding was that CHP's assignment or responsibility during this was to establish the perimeter; is that right? A. Yes, sir. Q. Now, in this when you guys responded to the location, where were you personally situated? A. I was approximately 30 yards away from the southwest corner of the residence, sir, on the outer perimeter. Q. Now, did you have a direct view of the front door where all of the events had occurred or unfolded? A. Not the front door itself, sir, but more of the driveway area, the fence line, and the rear of the house. Q. So while the did you hear, from your vantage point, officers make verbal commands to the occupants inside the house? A. Yes, sir. Q. Now, approximately how many times did you hear those commands? A. Approximately five times, sir, I believe. Q. Now, were you able to see we heard that Sergeant Tapp, now Lieutenant Tapp, testified that he was responsible for utilizing that Core pepper ball gun. Were you able to see that unfold? A. Yes, sir. So now I'm trying to figure it out. So if -- based on where you're seated in front of CARLA S. WALKER, CSR, RMR 92 you, were you able to see the front of the defendant's body or were you from the side? Can you explain to the Court how you were A. Yes, sir. From my position, again, 30 yards away, rear, southwest corner of the trailer, I could see the officers from the patrol vehicles giving commands over the PA system. I could hear the dog. I could see Deputy Allert's black and white patrol vehicle as well. And then I could eventually see Mr. Garcia walking into into my View within the driveway area, wearing shorts and a T-shirt and barefoot. They were giving him commands to put his hands up, get on the ground. "Get your hands out of your pockets." Mr. Garcia was yelling expletives at the officers; was angry, agitated. He kept pacing back and forth. And he would actually come in my direction, walking behind the trailer, back into the driveway, and reaching in and out of his right pocket even after being told not to do that. Q. Were at the time, did you have your firearm drawn? A. I did, sir, yes. Q. And then so I guess, if you're on this -- were you looking at Mr. Garcia's left side as he faced the officers? A. Right side, sir. Q. Right side. Okay, right side. And you stated earlier you were able to see the pepper ball gun being utilized? A. Yes, sir. Q. Did it appear to you to have any effect to gain CARLA s. WALKER, CSR, RMR 93 compliance? A. Saw the pepper ball actually being deployed, strike Mr. Garcia, I believe in the chest area, I believe four or five audible sounds with the pellets striking him with no effect. It just seemed to agitate Mr. Garcia. Q. All right. Did you hear, at any point, Deputy Allert issue commands that a canine was about to be utilized? A. Yes, sir. The entire time you could hear the canine barking, all the officers giving commands to show hands; get on the ground; keep your hands out of the pockets. You could hear Mr. Garcia yelling back at the officers. Deputy Allert, after the deployment of pepper balls being ineffective, did say, "If you don't comply, I am going to release my canine." Q. And what did the defendant say in response? A. Mr. Garcia, still angry, yelled back, "Go ahead and release your dog. I'll kill your fucking dog." Q. And, at that point, was the dog released? A. Yes, sir. Shortly thereafter, the dog was released. Q. And and then we already heard multiple officers testify to the events, but at a certain point was the defendant taken into custody? A. Yes, sir, he was. Q. And after he was taken into custody, did you and other law enforcement personnel conduct a search of the residence? A. We did. Yes, sir. CARLA S. WALKER, CSR, RMR 94 And did you specifically search the room that was belonging to Mr. Garcia? A. Yes, sir. The entire -- we searched the entire residence again. And his room was the last room we got to. Q. And what was there anything inside of his room of significance that was inside of his room that you seized or took into evidence? A. Yes, sir. There was a laptop on his bed which was still plugged in, and we took that for evidence, sir. Q. And what was the description of that laptop? A. I believe it was a black HP laptop, I believe, with a black power cord. Q. And did you book that into evidence with the case number of this specific incident? A. Yes, sir. Q. Was the serial number, of that laptop SC as in Charlie as if Golf 3392T Hotel? A. Yes, sir. Q. And once that item was seized into evidence, did you also, as part of your investigation, conduct further research into the Facebook records of Mr. Garcia? A. I did, sirabout doing that? A. After taking the computer into evidence, I did two things: I sent a search warrant had a search warrant signed for Mr. Garcia's Facebook account. I contacted Facebook and informed them that I would be sending them a CARLA S. WALKER, CSR, RMR 95 warrant. From that point, once a warrant was sent to Facebook, Facebook complied with the warrant and sent me the findings that I requested recording Mr. Robert Garcia's Facebook account. The second thing I did was I took the HP laptop with a warrant that was signed off by a judge and submitted it to the Regional Forensics Lab for analysis as well. Q. All right. Now, as part of both your investigation into the Facebook records as well as this search into the computer itself, did you uncover any materials that would be relevant to your investigation into Mr. Robert Garcia? A. Yes, sir, I did. Q. All right. Now, we have a bit to go through, so I'll I'd like to divide it up at this point. So the first of which being that when you first received materials in response to your subpoena from Facebook, how do you receive them? On a digital format, meaning a CD or Otherwise? A. The way it works is Facebook has a back page for law enforcement use. First you contact Facebook to let them know and go ahead and anticipate the warrant being sent to them. Facebook will acknowledge and say, once you get the warrant, we'll go ahead and send you a token. That token is opened by law enforcement, and it has the information that I requested from one time, a certain date, to the end of another date. And that's what they'll send me. They'll send me everything that I requested from Mr. Garcia's Facebook account from an initial date to an end date, and they'll send it over CARLA S. WALKER, CSR, RMR 95 e-mail. Q. And then did you receive those documents? A. I did, sir. Q. All right. And how did you reduce them to a medium that you could include in your reports? A. Once I received all the information that I requested from Facebook, I went ahead and downloaded those images and all the transcripts onto a CD. Q. Did you have an opportunity yourself to review the content of that of what Facebook had sent you? A. Yes, sir. Q. Now, did it based on your review, did it correspond with that a profile name, picture, and page, as it were, of that original contact that you received from your department? A. It did, sir. Q. Meaning did that contact base or did your review confirm that the materials Facebook sent you corresponded to Mr. Garcia's Facebook page? A. Yes, sir, it did. Q. As a part of that, the materials that Facebook give you -- or gave, did it include photographs that he posted? A. Yes, sir. Q. Did it include conversations he had with other Facebook users? A. Yes, sir. Q. Did it include wall posts? A. Yes, sir. CARLA S. WALKER, CSR, RMR 97 include images that he liked or commented on? A. Yes, sir. Q. Did I I guess, in other words, is it everything that someone's activity was on Facebook? A. Yes, sir. Everything that he sent or received. Q. And you received -- items you received were very voluminous; is that correct? A. Yes, sir. Q. But at least to some significant degree you've had an opportunity to review those records to see if there's any information that's relevant to this incident case; is that right? A. Yes, sir. Q. Now, you had also, with the help of Investigator Gerou, researched the contents of the black laptop that was found in the defendant's bedroom; is that correct? A. Yes, sir, I did. And his last name is spelled G?e-r-o-u, and works for RCFL as well. Q. And when that laptop was opened, how was it that you were able to determine that it was the proper Mr. Garcia? A. The first time that I observed the computer, it was laying on his bed in his room. When we got to the residence and Mr. -- I believe his brother's name is Joseph -- his other brother that was at the residence, we asked who's computer that was, and he said it belong to Robert Garcia, his brother. We asked him whose room that was. And he said that was Robert Garcia's room. CARLA S. WALKER, CSR, RMR 98 Now, when you opened that laptop, was it password protected? A. Yes, it was, sir. Q. How were you -- to your knowledge, how were you able to get around that? A. The computer was still powered on and still plugged in. When we left the residence, we were able to find, also, a piece of paper with his password on the -- written down on the paper. Q. And where did you find that? A. I didn't find that piece of paper. One of the other sheriffs did find that piece of paper inside the room. I just can't remember where they found that. Q. Within that room, meaning Mr. Garcia's room? A. Mr. Garcia's room, yes, sir. Q. And were you able did you, I guess, try and gain access right there on scene to get in? A. No, sir. All that information came to me. Once we took that information, we went ahead and wrote a 336 form, evidence, bagged it, and gave a copy of that to Robert Garcia's father, I believe his name was Nico I referred to him as in the report. Q. And now certainly, I guess, in your investigation, were you able to uncover any evidence inside that black HP laptop that correSponded with the content you found on his Facebook page? A. After we submitted it to RCFL for analysis, we did receive the findings from RCFL Investigator Gerou that's in my CARLA s. WALKER, CSR, RMR 99 report, his findings. MR. TANSEY: Your Honor, objection. Hearsay. Lack of foundation. Q. BY MR. BEHRENS: And as part of your investigation, did you receive after they completed their investigation, did they give you a disc or other source of digital medium to which you could review the content of the computer? A. Yes, sir, they did. Q. Had the computer been scanned already by another investigator to kind of filter out the content that might be helpful to you? A. Yes, sir. Q. To your recollection, was the content delivered to you set up in its own kind of menu and table of contents and so on? A. Yes. The disc that was provided to me from RCFL Gerou was specific to that laptop with those dates and that information specific to Mr. Garcia's Facebook, e-mails, conversations, photographs, all on a CD. And they were formatted within a CD for everything for us to go through. MR. BEHRENS: And, Your Honor, may I approach for identification purposes? THE COURT: Yes. Q. BY MR. BEHRENS: Now I would like to show MR. TANSEY: Your Honor, can I just have a continuing objection, hearsay, foundation, as to the contents of the computer? THE COURT: Yes, sir. CARLA S. WALKER, CSR, RMR 100 MR. TANSEY: Because my understanding is this officer did not do any of the analysis of the computer. THE COURT: My -- the way I'm hearing it is that he seized the computer, he booked it into evidence, he sent it over to his forensic services unit, they retrieved information off of the computer, and then provided that information to him, and that's what's being shown to him now. MR. BEHRENS: Yes. MR. TANSEY: I believe that's the case. MR. BEHRENS: It would be important for the record to say. Q. BY MR. BEHRENS: The information that was given to you, did anyone inform you that that, though, or that media was obtained from that same black laptop that you had booked into evidence? A. Yes, sir. Q. I'll kind of connect the dots. So what I would like to show you is what's already been shown as People's Exhibit 1. Do you recognize, I guess, what you're looking at here? A. Yes, sir. These are photographs taken from Mr. Robert Garcia's Facebook account. Q. And refer and also I would like to direct your attention to People's Exhibit 2. Is that a similar photo or A. Yes, sir. Q. And then People's Exhibit 3, is that also a similar CARLA S. WALKER, CSR, RMR 101 portion? A. Yes, sir, it is. Q. Now, referring specifically to the item you have in your hand, which is People's Exhibit Number 1, I would like to refer your attention to the left portion side. Does it appear to you to have kind of a table of contents? A. Yes, sir, it does. Q. And at the top left is there a picture of a thumbnail of some kind? A. Yes, sir. Q. Do you recognize that to be significant to the California Highway Patrol? A. That would be a thumbnail of the RCFL laboratories where we send the computers to be analyzed. THE COURT: I thought they said Number 1 was taken off his Facebook account; is that right? THE WITNESS: This information, sir, is Facebook information that was on that laptop. So everything that was taken off of that laptop was provided from Facebook would be part of it. So some of these photos are from the Facebook account. THE COURT: And that was on the laptop. THE WITNESS: Yes, sir. Q. BY MR. BEHRENS: And so just by that image on the top left alone, would you at least believe that this whole thing is a product of your own internal agency? A. Yes, sir. CARLA S. WALKER, CSR, RMR 102 And then looking to the left MR. BEHRENS: Perhaps I can give one to the Court so the Court can follow along. Q. BY MR. BEHRENS: Now to the left it appears to have a table of contents. Is that fair and accurate? A. Yes, sir. Q. All right. And was that compiled by the investigators in making this item of discovery for you? A. Yes, sir, it was. Q. All right. And I'd like to -- we see a couple of names, categories, and please correct me if I'm wrong, but I see bookmarks of Cash, Drugs, Images of Suspect, Images of Suspect with Weapons, and so on? A. Yes, sir. Q. You see that? A. Yes, sir, I do. Q. Underneath that, do you see a separate identified section labeled Graphics with what appears to be links to Page 1 through 5? A. Yes, sir. Q. Now, referring your attention specifically to these photographs that are contained in rows, three rows, going, I believe, six across, see those? A. Yes, sir, I do. Q. Now, are those images contained in that portion that says, Graphics? A. They are. Q. Because all right. CARLA S. WALKER, CSR, RPIR 103 okay. Let me I'll take that back. I am taking back People's l. I have People's 2. I'll start with People's 2. Sir, stepping away from this, based on your training and experience, have you would you be able to identify what's called or referred to as a high capacity magazine? A. Yes, sir. How? A. With the -- I have 12 years of military experience with the Marine Corp. and 16 years with law enforcement. I recognize the sixth picture on top where Mr. Garcia is holding what appears to be approximately three high capacity magazines. MR. TANSEY: Can I ask him to refer to which photo? The number? THE WITNESS: That's going to be 192. It's 192. He's holding three .30 round mags, I believe, black in color. Q. BY MR. BEHRENS: All right. Based on this picture alone, are you able to determine, or, at least, based on this picture, would you be able to hypothesize which firearms these magazines would be associated with? A. They appear to be high capacity .30 round magazines for the Q. Now, looking at pictures Number 193 to 196, contained on the second row, do those THE COURT: Still on Exhibit 2? MR. BEHRENS: Yes. Yes. In fact, let me have that CARLA S. WALKER, CSR, RMR 104 just to make sure. MR. TANSEY: And, I'm sorry, the magazine was 192? MR. BEHRENS: Yes. Q. BY MR. BEHRENS: So, I guess we'll go through each one of these for just a moment. So, again, drawing your attention to that second row, do you see an individual depicted in photographs Number 193 to 196? A. I do. Q. Do you recognize that individual in those photographs? A. Yes, sir. Q. Who is that individual? A. That individual on the photographs is Robert Anthony Garcia, sir. Q. All right. And then referring your attention to photograph labeled 197? A. Yes, sir. Q. What do those items appear to be? A. Those would be the brass knuckles with the spikes on them, sir, that originally we saw the first time. Q. All right. And then this exhibit, your Exhibit 2, or my Exhibit 2, continues into People's Exhibit 1 my apologies for being out of order -- specifically relating to Objects 198 through 202. Once again, do you does that depict Mr. Garcia in those photographs? A. Yes, sir, it does. CARLA S. WALKER, CSR, RMR 105 All right. I'll take this other one back. Now, directing your attention to specifically pictures Number 204 to 208, do you see what's depicted in the thumbnails of those pictures? A. Yes, sir, I do. Q. What is that item? A. That's going to be a handgun, silver in color, appears to be the .25 auto that we were speaking about earlier, sir. Q. And how many different viewpoints are you able to see of that firearm? A. Four. Q. Now, does one of those pictures depict the mag well, or what's commonly referred to as the mag well of that gun? A. It does, sir. Q. Now, based on these photographs, are you able to form an opinion whether or not this is some sort of a toy or replica? A. Based on these photographs, when I saw them initially, sir, this is not a toy. Q. Now, I would like to direct your attention to Item Number 209. Are you able to see that, sir? A. This one is really hard to see, here, sir. Q. To the best over the break, too, it's possible to utilize the computer to blow these pictures up -- I'm wondering if you are able to recognize what's depicted in the thumbnails on this exhibit for convenience purposes. CARLA S. WALKER, CSR, RMR 106 It's a picture of Mr. Garcia holding a black object. I just can't see what it is on this right here. Q. All right. THE COURT: This is 209? THE WITNESS: Yes. MR. BEHRENS: It is. Perhaps, Your Honor, this is a good time to break. THE COURT: Yeah, let's go ahead and take our noon recess and have all parties back at 1:30, please. MR. BEHRENS: Thank you, Your Honor. MR. TANSEY: Thank you, Your Honor. MR. BEHRENS: I'll go ahead and retain these exhibits. (Noon Recess.) THE COURT: All right. We?re on the record in the matter of People of the State of California versus Robert Garcia. All people are back, present in the courtroom, and Investigator Berain remains on the witness stand. THE WITNESS: Yes, sir. MR. BEHRENS: All right. Thank you, Your Honor. Q. BY MR. BEHRENS: Where we last touched off, we were looking, thumbnail by thumbnail, on screen shots of the interface created by, essentially, the computer forensic department of the California Highway Patrol; is that correct, sir? A. Yes, sir. Q. All right. We're going to continue numerically at 209. CARLA S. WALKER, CSR, RMR 107 Before we exited, you stated that you weren't able to tell from the picture what these items are? A. No, sir. Q. All right. So let's transition, then, to Item Number 210. A. Yes, sir. Q. Are you able, based on this thumbnail as well as your view of the evidence as a whole. Are you able to tell what that is? A. Yes, sir, I can. What is that? A. That's going to be a drum for ammunition, sir. THE COURT: A what? THE WITNESS: A drum, a magazine, but it's a drum?style magazine, sir. It's round, circular. Q. BY MR. BEHRENS: And in your review of the evidence, approximately how many -- or have you seen pictures of this specific magazine before? A. Yes, I have, sir. Q. And is what's called a drum magazine synonymous, meaning the same word, as a high capacity magazine? A. Yes, sir. Q. Okay. MR. TANSEY: Objection. Calls for a legal conclusion. THE COURT: Overruled. Q. BY MR. BEHRENS: All right. Then I think the pictures slide off, so we'll transition to the next. CARLA s. WALKER, CSR, mm 108 All right, sir. Moving on to People's Exhibit 3, I'd like to direct your attention to the second row of thumbnails. Sir, once again, directing your attention to all of these in this row, starting from Number 217 to 222, you still, sir, see images depicting Mr. Robert Garcia? A. I do, yes, sir. Q. Okay. And in these same pictures now MR. TANSEY: I'm sorry, could I see 217 to 222? Q. BY MR. BEHRENS: So I would like to specifically refer your attention to 219 and 220. What is it you see in those pictures? I see Mr. Garcia brandishing weapons. Are you do you know what that weapon is? C) It looks like a black handgun, semiautomatic. Q. All right. And are you able to identify the make and model of that item based on conversations contained in Mr. Garcia's Facebook history? A. I believe that's a Glock, sir. Q. All right. Moving on, then, to Items Number 222 and 223, sir, are you able to identify what's depicted in those thumbnails? A. Yes, sir. Q. And what are those items? A. Those are pictures of Mr. Garcia holding up an AR-15. Q. And, if I may, please, during the course of your investigation, did you uncover additional photographs of Mr. Garcia holding this same weapon? A. Yes, sir, I did. CARIA S. WALKER, CSR, RMR 109 And I'd like, now, to finally direct or I'd like to direct your attention to Exhibit -- or thumbnails numbered 225, 226, and 227. Do you see those, sir? A. Yes, sir. Q. And what do those images appear to be pictures of? A. That's going to be Mr. Garcia sitting in his room without a shirt, brandishing the black handgun. Q. Based on those photos, does that appear to be the same black Glock handgun? A. Yes, sir. Q. And then, finally item Item Number 228, are you able to make out what that picture is, sir? A. 228 is it's dark right now, sir. I can't I can?t see it on this thumbnail. Q. All right. We'll come back to it. Thank you. And based on your review of all of the images that were found in Mr. Garcia's computer, there were many, many more photos; is that right? A. Yes, sir, several. Q. The ones we're talking about today, however, are they unique in that they have file names that appear to end in YouCam snapshots? A. Yes, sir. MR. TANSEY: Objection. Hearsay. Lack of foundation. THE WITNESS: Yes, sir. Q. BY MR. BEHRENS: And have you communicated with CARLA S. WALKER, CSR, RMR 110 Robert Gerou concerning YouCam file names? A. Yes, sir, I have. Q. We'll get back to that in a moment. We spoke already earlier in the day. For right now I would like to step away from YouCam and the evidence that we found in the computer and return our attention back towards Facebook. As a result of your search warrant on Mr. Garcia's Facebook account, you stated that you received a number of documents and things like that from Facebook; is that right? A. Yes. Q. And part of those are the -- part of those exhibits contain conversations between the user name Garcia Anthony and other users of Facebook? A. Yes, that's correct. Q. And based on your review of those documents, are those conversations also stamped with dates and times? A. They are. Q. And I think, perhaps, even you spoken with me that there are you received over 2000 pages of evidence on his Facebook account? A. Yes, sir. Q. So we're just going to go over a snippet of them here. MR. BEHRENS: And, Your Honor, could I, perhaps, use the ELMO at this time to kind of -- THE COURT: Sure. MR. BEHRENS: And, Your Honor, for the Court, I don't CARLA S. WALKER, CSR, RMR know if it's for the Court's convenience, but ultimately Mr. Tansey and I are looking at more or less the same materials, but our page numbers are different because we elected to cross-reference different items, so simply for the record what I would like to do is put my items forward and then cross?reference that with Mr. Tansey's number if that's okay. THE COURT: Yes. MR. BEHRENS: And not to try to confuse the Court or anything. Q. BY MR. BEHRENS: All right. Now, Investigator Berain, I know that there are many, many, many, many documents, but if I can zoom in here. MR. TANSEY: I'm sorry. Can you state what page you're starting on? MR. BEHRENS: Sure. THE COURT: Is this marked as an exhibit already? MR. BEHRENS: This Your Honor, I'm sorry, this is not a marked exhibit. This would be People's Exhibit 4, and I'll designate that as such if I can have just a brief moment. (Counsel conferring.) MR. BEHRENS: You know, I'm sorry. May I have a moment? THE COURT: Yes. Q. BY MR. BEHRENS: All right. So, if I may, I'm on Mr. Tansey's Exhibit Bates marked page 392. This would be People's Exhibit 4. All right. So you have the computer up there, sir? CARLA S. WALKER, CSR, RMR 112 do, sir, yes. Q. Now, immediately do you are you able to recognize what is it we're looking at? A. Yes, sir, I do. I recognize this to be Mr. Robert Garcia's Facebook account. Q. Now, is this one page of many that you were given in response to the warrant that you authored in this case? A. Yes, sir. Q. And here immediately I know that it appears to be a number of texts, but can you go through it with us and tell us, and explain to the Court, what it is we're looking at? A. Yes, sir. What we have here is Mr. Garcia as the author, and you'll see right underneath the subject says "Sent." That will be the date, time, and sent. That says exactly who it was authored by, the date it was sent, and then the body of the text as well. Here he's speaking to an un an unidentified person, I believe regards to an about shooting an Q. All right. And would it -- up here, I would like to direct your attention to these digits that are after these names here. Do you recognize these? A. Yes, sir. Q. Now, when you authored a warrant in Facebook, did you author that warrant as to Mr. -- this user name, Garcia Anthony, with these sets of digits? A. I recall authoring it to Mr. Robert Garcia. I can't CARLA S. WALKER, CSR, RMR 113 remember if those are the exact digits that I used. Q. Based on this, though, are you able to form an Opinion as to whether or not this is an identification, a numerical identification, towards this user name? A. Yes, sir. And the one above it, for the person by the name of Lupe Alvarez, as well. MR. TANSEY: Objection. Lack of foundation. Move to strike. THE COURT: Overruled. Q. BY MR. BEHRENS: And would these digits be contained in the warrant that you authored? A. I believe so, sir. Q. And here, are you able, when you did your investigation as a whole, did you go through these specific conversations to determine if there's anything relevant to these pictures of firearms that we found on the computer? A. I did, sir. Q. All right. All right. Now, I would like specifically -- I'm going to write a star here address your attention to this moment right here. Are you able to identify what is happening in this conversation? A. Yes, sir. That's Mr. Robert Garcia's the author. The body of the text simply states, "Aaa, you want to shoot an Question, got one. Lets go shooting." Q. Now showing what will be marked as People's Exhibit Number 5, continuing in the course of materials, on the defense Bates ending or starting on page 400, Investigator CARLA S. WALKER, CSR, RMR 114 Berain, are you able to determine who the participants of the conversation are? A. Yes. Mr. Garcia and a subject by the name of Ivan Rodriguez. Q. And what is going on in the conversation? A. Mr. Garcia is conversing, "Are you still want an for $700? Happens I just cleaned it and oiled it." Q. And then scrolling down to the bottom here, which is a photograph obtained in Defense Bates 402, do you recognize this photograph? A. I do, sir. Q. Is this similar, if not matching, to one that you found located onto Mr. Garcia's hard drive? A. Yes, sir. Q. And I would like specifically to take a moment, based on this, following here the word "Sent," what do these indicate to you? A. That would be the year followed by the month followed by the date, and then followed by the time it was sent. Q. Following that line of reasoning, such that this conversation, according to the Facebook algorithm, took place on May of 2017? A. Yes, sir. MR. TANSEY: And I apologize, if I may interrupt. The photograph to which counsel just referred is the Bates Page 402; is that right? MR. BEHRENS: Yes, Sir. MR. TANSEY: All right. CARLA S. WALKER, CSR, RMR 115 MR. BEHRENS: And continuing on to People's 5, which is continuing along the line which is the same, would would be Defense Bates page 403, sir, do you recognize this photograph? A. Yes, sir. Q. And then continuing along in Defense Page 404 Bates, do you also recognize this? A. Yes, sir. Q. And I would like to take a moment. In your training and experience as or in your initial training and subsequent experience as a law enforcement officer, are you familiar with the workings of an AR platform? A. I am, sir. Q. All right. And in your time as a law enforcement officer, or in the general public, have you also seen what's commonly known as Airsoft guns, BB guns, or replicas? A. Yes, sir. Q. All right. And is there a way, by looking at an AR in pictures, to determine whether or not it is real versus a replica? A. Yes, sir. Q. All right. Now, is one of those located here in this dust cover? A. Yes, sir. That would be just as you said, it's going to be the dust cover for the bolt. Q. And this including back here, is this a charging handle? CARLA S. WALKER, CSR, RMR 116 Yes. Q. As well as the visible bolt inside, common on replica or BB guns? A. No, sir. Q. And is their architecture, would you expect them to be different regarding the inner workings? A. Yes, sir. MR. TANSEY: And for the record, these were references to Bates Page 404? MR. BEHRENS: Yes, 403 and 404. And I believe, Madam Clerk, did I have that marked as People's 5 or 6? THE CLERK: The third one that you put up would be 6. MR. BEHRENS: All right. I'm going to be sure to keep at the right pace here. Q. BY MR. BEHRENS: And then showing, in a continuing thread, what will be marked as People's 7, and Defense Bates 405, Investigator Berain, do you see that picture as well? A. I do, sir. Q. When you were conducting a search of Mr. Garcia's bedroom, did you recognize or see what's located here in the background, specifically this map? A. Yes, sir. Q. When you conducted your search, did you see that map in his bedroom? A. I did, sir. Q. Now, specifically, once again, in an attempt to identify a working AR platform different than a BB gun, would a BB gun have this charging handle here in the back? CARLA S. WALKER, CSR, RMR 117 No, sir. Q. Would a BB replica gun have this bumper tube located on the back of the platform? A. That would be, actually, the bolt assembly group, sir. Q. My apologies. You're correct. As the charging handle's back. Additionally, we see here that this gun appears to have been split between this upper piece and this lower piece down here; is that correct? A. Yes, sir. Q. And for the record, I'm using the pronoun "this," but I'm continually referring to the image at the top of PeOple's 7 which is Bates as Defense 405. Sir, in your training or experience, would a BB or replica gun be able to break down into these upper and lower sections? A. No, sir. Q. And are you able to explain to the Court why a working AR platform, in essence, slices in half like this? A. Can you repeat that question again? Q. Are you able to explain to the Court why a real working is able to split in two like this? A. Yes, sir. The way that you break this down, you have an upper receiver and a lower receiver. You would take down here, in the rear, to break it down the way that he has it right here. And if you wanted to take the lower completely off and use the upper receiver, you utilize the forward CARLA S. WALKER, CSR, RMR 118 take-down pin to completely separate the upper from the lower receiver. Q. And here, as well, we as here, you would expect a magazine to be inserted? A. Yes, sir, in the magazine well. Q. And this, the two take?down pins, would then expect it to be on here, above the rear of the pistol grip? A. Yes, sir. That would be the rear, and the forward one would be above the magazine well. Q. IS that where my pen is located, beneath the front of that, the sight at the top? A. That's correct, sir. Q. And does this lower portion pivot on that pin as we see here? A. Yes. It will swing up toward the background, toward the forward take?down pin. Q. And then moving on to the pin on the same Exhibit 7, Defense Bates 406, is this simply another image of the same where we're able to see the exposed action beneath the hinge dust cover? A. Yes. It will extend forward with the ejection port cover down. And that happens when the bolt is extended forward causing the extension when the receiver is forward. Q. Now, are these features common or would you expect to see them in a BB or replica gun? A. No, sir. Q. Moving on to People's 8, Defense marked 407, and occurring, I believe, in the same conversation with those two CARLA S. WALKER, CSR, RMR 119 individuals, do you see this what do you see in this picture? A. I see Mr. Garcia in his room with the map in the background holding up the platform. Except the only thing that's different about this one is he's removed the charging handle from the top. Q. All right. So we see this railing system here at the top? A. Yes, sir. Q. All right. And at the bottom, further in this conversation referencing this firearm, are you able to glean what's happening based on the context of this thread? A. Before I go into that, I meant that it's the carrying handle, not the charging handle. So back to this here, the question is what I see, look again, Mr. Garcia in the body says that he sold it. Mr. Garcia again, "Just got my Glock .40 but not trying to shoot," I'm assuming my gun, "until next week when I get more ammo," then ordered it," or he ordered it. Q. Now, when you said Glock .40, based on the pictures of those firearms that we've already seen in those thumbnails, does that appear to you to be that Glock .40? A. Yes, sir. MR. TANSEY: And for our reference sake, this conversation is on Bates 407 to 408. Q. BY MR. BEHRENS: All right. And then moving along to People's 9. All right, sir. And, once again, this is a CARLA S. WALKER, CSR, RMR 120 continuing portion of the documents that you received from Facebook? A. Yes, sir. Q. And do you recognize the photograph contained in the conversation as one that you also saw on the hard drive of Mr. Garcia's computer? A. Yes, sir. Q. And, for the record, that would be Defense Bates page 423. Are you able to determine what kind of firearm this is? A. Yes, sir. It looks like the Glock .40, sir. Now, here as well, sir, are you familiar with what a seer is in a Glock handgun? A. Yes, sir. Q. Now looking at this, which would be the Defense Bates 425, People's Exhibit 10, sir, is this still Mr. Robert Garcia's conversations? A. It is, yes, sir. Q. And based on this highlighted portion of text as well as this picture, are you able to determine what this item is? A. Yes, sir. I believe that item is used to configure the Glock into a full auto. Q. I am MR. TANSEY: I'm sorry, could we say what the conversation is and the Bates number? MR. BEHRENS: That Bates would be 425, and the conversation continues CARLA S. WALKER, CSR, RMR 121 MR. TANSEY: Well 425 is the picture. MR. BEHRENS: I'm sorry, it would be 426, then continues -- MR. TANSEY: Well, but you just asked a question and, based on that conversation, is it that conversation? MR. BEHRENS: Yes. MR. TANSEY: And it appears the conversation the People were referring to is at the bottom of Bates Page 423. Q. BY MR. BEHRENS: And then here this will be defense -- or excuse me, People's 11. People's 11, are you able to determine who that conversation involves? A. That would be Mr. Kamal conversing with a gentleman by the name of Bluitt. THE CLERK: Mr. Behrens, I'm sorry, did we mark that 10? MR. BEHRENS: That one was 11. THE CLERK: Did we do 10 yet? MR. BEHRENS: Yes. THE CLERK: We did, Okay. MR. BEHRENS: I have 10 as Defense Bates 425. THE CLERK: Thank you. MR. TANSEY: The paragraph, I believe, you were just referring to was Bates 427. MR. BEHRENS: Let's take a look. I don't know. MR. TANSEY: But then the conversation, I don't know. THE COURT: Hold on, Gentlemen. This is going to be CARLA S. WALKER, CSR, RMR 122 difficult for us to transcribe if you guys are talking amongst each other. So huddle up so the reporter doesn't have to guess. MR. TANSEY: I'm sorry, Your Honor. I have the Bates printed out with the numbers. The People are using a different version that is much smaller font with no page numbers. So I'm trying to make it clear on the record to what he's referring to. THE COURT: Well, for the purposes of this record the only thing the People need to do is mark their exhibit and have the witness identify it if he can. As to how that shakes out in terms of the discovery that was provided, I don't need to hear those numbers. It gets really confusing. MR. TANSEY: Well, it seems like the People are saying things like, "And does this conversation indicate, blah, blah, blah," without saying what the conversation is, so I'm starting to put on the page number to the conversation he was referring to. I guess I could object on vagueness grounds. THE COURT: Well, it appears that the conversation that's being referred to is on the exhibit that's being presented to the witness. That's what I've seen so far. Every time he's referred to, you know, People's, for instance, 4, which I know is a part of the Facebook account that the officer received contained in that discovery, is the conversation that's alleged to have been between Mr. Garcia and him saying what's in the body of that exhibit "Let's CARLA S. WALKER, CSR, RMR 123 shoot this I got one"? MR. TANSEY: Yes, except I don't have his I don't have his exhibit. And they're on -- the conversations that go with the photos are on different pages in the Bates version. So when they say when he says, "This conversation," I only have one page that's filled with the picture, and I don't know what the conversation is. If, I guess, he could show me the exhibit first, I don't want to draw this out more, I'm just trying to figure out how to make a record as to why. THE COURT: Well, like I said, when he says, "This conversation," he's referring to the conversation that's actually on the page that he's handing the officer, at least that's what I've seen. So I'm not I'm not following why this is confusing. MR. TANSEY: Well, it's not confusing to hear. But it's confusing in terms of trying to make a record, because THE COURT: A record of what? MR. TANSEY: Of which conversation well, I'm assuming we would later use the Bates version just because it's easier. THE COURT: I guess for purposes what I'm saying, for purposes of this preliminary hearing, this I guess this is what I'm saying: For purposes of this preliminary hearing, I don't really need to know Bates numbers and all that stuff. If he hands the witness a document and the witness is able to identify it and within the document itself is some alleged conversation, that's all I need to know. CARLA S. WALKER, CSR, RMR 124 (Counsel conferring.) MR. TANSEY: That's fine, Your Honor. THE COURT: You agree with that? Do you understand what I'm saying, Mr. Tansey? MR. TANSEY: The People have agreed to make me a copy of their exhibits which will be fine. THE COURT: Okay. MR. TANSEY: Then I'll know it, yeah. THE COURT: I would assume that you have all this already. MR. TANSEY: Well, I don't. I have the Bates version. MR. BEHRENS: It's there are two versions of the THE COURT: Counsel, what are you saying, Mr. Tansey? MR. TANSEY: I have the Bates version of Facebook which is paginated. He has a different version. THE COURT: But it's still the same information. MR. TANSEY: It's the same information but different pages. The formatting is completely different. They're not directly comparable. But it's fine. Mr. Behrens has agreed to just give me copies of his exhibits which, for purposes of prelim, will be fine. THE COURT: Okay. Great. THE CLERK: Mr. Behrens, would it be possible for me to see the exhibits that you've already used MR. BEHRENS: Yes. THE CLERK: please. CARLA S. WALKER, CSR, RMR 125 MR. BEHRENS: I've I have most of them marked, most of them, as most as I could, and I've written the numbers in the bottom corner of them. THE CLERK: Okay. MR. BEHRENS: The problem is they are incredibly voluminous, otherwise we would be here for three weeks otherwise. THE DEPUTY: She wants to see the ones you've used so far. Q. BY MR. BEHRENS: Okay. So all right. So moving on, then, to what will be marked as People's 12, continuing a select portion of the Facebook records, Investigator Berain, in your overall research and investigation of these conversations, did you uncover evidence that Mr. Garcia was selling firearms or narcotics? A. Yes, sir. Q. All right. And is it possible, specifically drawing your attention to this specific exhibit, that he was also utilizing different Facebook accounts in order to do so? A. From this exhibit here, I can't tell if he's using Facebook accounts, but I do recognize him as being the author with Anthony Garcia and conversing with someone by the name of Jonathan Lino. Is that what you're asking? Q. Uh?huh. Yes, sir. And, of course, the date stamp on this, do you recognize if there's a date stamp on this conversation? A. Yes, sir, I do. CARLA S. WALKER, CSR, RMR 126 And that's going to be 20170609, the date of this entire conversation? A. Yes. Q. And I guess, as an overall question, of course, all of the conversations that you received from Facebook, were those pertaining to before the date of June 23rd of 2017? A. Yes, sir. Q. And into your further research into these files, were you able to uncover any images of weapons or items that you were able to rule out were in the possession of Mr. Garcia? A. Yes, sir, I was. Q. So how was it, when you come across a picture of weapon A versus a picture of weapon B, what were you relying on in order to come to a conclusion that Robert was in possession of certain items on certain dates mentioned? A. The first way I would determine whether it was a photograph that Mr. Garcia was in possession of that he had taken versus one he had downloaded off of the internet was whether he was in the picture as well as whether it was in his room at the time the photograph was taken; the dates; then, of course, researching the other photographs that didn't have Mr. Garcia or were in the room that I recognized, I was able to either recognize them from other sources or find them on the internet when I was looking them up. Q. Showing now what's been marked as People's Exhibit 13, sir, looking at the top of this exhibit here, are you able to determine the two individuals that this conversation is CARLA S. WALKER, CSR, RMR 127 between? A. Yes, sir. Mr. Anthony Garcia and a Jose Martin Carbajal Hernandez. Q. And later rather, later on in this conversation, towards here at the bottom, are you able to recognize what this photograph is? A. I can, sir. Yes, sir. Q. What is that? A. That's going to be the Glock that we were Speaking of. Q. And further down at the bottom, where I've taken the liberty of highlighting that, are you able to read for the Court what this portion of the conversation is? A. Yes, sir. That says 50 round drum for Glock .40 and .22 mag for a Glock .40 for $140 for both. Q. And now looking back specifically on those on those thumbnails that we've obtained from Mr. Garcia's computer, and in the context of that conversation, does that further aid you in your ability to identify the items contained in those photos with the context of these conversations? A. Yes, sir. Q. Showing what's been marked as People's 14, does this appear to be a continuation of that same conversation with Mr. Carbajal Hernandez? A. Yes, sir. Q. And do you recognize what's depicted in this photograph here? CARLA S. WALKER, CSR, RMR 128 Yes, sir. Mr. Garcia, in his room, brandishing the weapon, sir. Q. I would like to -- it's -- are you able to recognize, simply from the barrel and front of this firearm, what that is? A. Yes, sir. It's going to be the Glock. Q. And then, specifically looking up at that date, what is that date? A. 2017-06-20. Q. And now looking at People's 15. Are you able does this is this a portion of Mr. Garcia's conversations that you received in your Facebook records request? A. Yes, sir, it is. Q. And are you able to make a determination from when this specific portion of the conversation was sent? A. Yes, sir. 2017?04-15. Q. Do you recognize what is depicted in this image? A. Yes, sir. That's going to be the chrome-plated .25 auto that we were speaking about earlier. MR. TANSEY: I'm sorry? THE WITNESS: The chrome .25 auto we were speaking about earlier. Q. BY MR. BEHRENS: And based on your presence here today, do you recall that was the same that was contained in People's Exhibit 1 on the thumbnails; is that right? A. Yes, sir. Q. Moving down to this next portion, not very different. CARLA S. WALKER, CSR, RMR 129 Then moving to People's 16, and a continuation of that thread, are you able to recognize this photograph from this Facebook conversation? A. Yes, sir. Q. Now, do you recognize this photograph as being one of the thumbnails that was extracted from Mr. Garcia's computer? A. Yes, sir. Q. I would like to propose the same question to you in regards, again, to People's Exhibit 16. In this photograph, on the lower portion of this exhibit, do you recognize this picture as being the same as the one taken from Mr. Garcia's computer? A. Yes, sir. Q. And further down, does this portion of the conversation give you any context for the purposes of these pictures? A. It does, sir. Q. What is that? A. Actually, it states that it's a .380 auto, has Robert Garcia as the author, sent 2017, of April 15th. Q. Sorry. A. And, in the photo, you can see him rotating the weapon so you can actually see the empty chamber of the weapon. Q. Now, for instance, giving credence to your earlier testimony, if I may, for People's 16, now in this Facebook conversation, directing your attention here where it appears CARLA S. WALKER, CSR, RMR 130 Garcia Anthony and the date, are you able to determine whether this photograph was a firearm that was possessed by Mr. Garcia? A. Yes, sir. That photograph does not appear to be a weapon that Mr. Garcia that's not a photo of Mr. Garcia holding this weapon. Q. And is that because it's inconsistent with the nature of all of the other photographs and identifying characteristics? A. Yes, sir. And the hand as well. The characteristics of a female seems to be of a white female's handfair to say, throughout the portion of these many documents, there were many pictures like this that you were excluded? A. Yes, sir. MR. BEHRENS: Your Honor, I actually only have two exhibits left, however, when I was speaking to Madam Clerk earlier, this next exhibit is a somewhat chain of conversation, including photographs. May I refer it's paper clipped now. May I submit that to the Court as a single exhibit rather than go page by page for convenience? THE COURT: And this exhibit would go to what count? MR. BEHRENS: It goes to many. Specifically the the Raven handgun, the .25 caliber handgun, the AR. THE COURT: I've only heard testimony concerning a silver handgun that was found, and there's also photographs of it. That's Count 4. I heard testimony regarding possession of a Glock CARLA S. WALKER, CSR, RMR 131 .40. I've heard testimony that's Count 5. I've heard testimony concerning possession of an assault weapon. I guess that's the I've heard testimony concerning Count 8, which was possession for sale of a large capacity magazine. I've heard testimony and photographs with regard to metal knuckles, which is Count 9. I believe, although I'm not a hundred percent sure with regard to Count 7, possession, control, custody of ammunition or reload ammunition, that's the only one I'm not sure. MR. BEHRENS: All right. Q. BY MR. BEHRENS: So then, simply, if I may, then, on People's 17, Investigator Berain, are you able to identify what's marked in this exhibit here? THE COURT: This is People's 17? MR. BEHRENS: It is, Your Honor. Thank you. THE WITNESS: Yes, sir, I do. Q. BY MR. BEHRENS: Do you recognize this silver handgun? A. Yes. It's the one we've been speaking of. And that seems to be the same couch Mr. Garcia was sitting on, and a box of ammunition he's holding in his left hand. Q. How are you able to determine whether or not those are live ammunition? A. The way that it's packaged, sir, and by the way of the actual projectile on top. Q. And based are you further able to give that CARLA S. WALKER, CSR, RMR 132 credibility based on the context of the many conversations contained in these Facebook documents? A. Yes, sir. MR. BEHRENS: May I have a moment, Your Honor? THE COURT: Yes. MR. BEHRENS: Now, I suppose here's the complicated portions. Contained within People's 16, I just like to make a reference, would the Court prefer to do it that way or mark them separately? THE COURT: Is that People's 16 or 17? MR. BEHRENS: People's 17. My apologies. Yes, I'm sorry, that will be People's 17. Would the Court prefer it that way? THE COURT: I'm not I'm not understanding what you're asking me. I know you just marked People's l7 and showed me a photograph which the officer identified as being the defendant sitting on his couch holding that same silver handgun with a box of ammunition. Is there a second page connected with People's 17? MR. BEHRENS: I would anticipate that there -- the evidence will show that this is one continuous conversation, People's 17, which would include the exhibition of multiple photographs to the same person. THE COURT: You can do it however you want to. But just by way of example, you know, let's say a conversation starts on, let's just say, June lst, and that conversation appears to go on for, let's say, 30 pages, and the only real CARLA S. WALKER, CSR, RMR 133 significant part of that conversation, for purposes of proving up the case, occurs, first of all, with the photo on page 1 and then some portion of the conversation on page 25 of this continuous conversation, there's nothing prohibiting you from presenting page 1 and page 25 in the same and say, "Is this contained in the conversation on a particular day?" "Yes." "Are there pages and portions of that conversation missing?" "Yes." And then it's only two pages, and everyone knows it's not complete. And then, obviously, Mr. Tansey can produce the complete portion of it if he thinks somehow it's going to put it in a different context or whatever the case may be. So I'm not telling you how to do it. But those are ways you can present the whole thing or just the part that you think is important. And this is a preliminary hearing, after all. And to the extent more information is needed to place it in context, Mr. Tansey can certainly do that if he thinks it's going to take away from what you're trying to get me to draw from it, but it's up to you. MR. BEHRENS: Very well. What I'll do now, for the convenience of the Court, is simply go page by page and try to limit it to the portions that's necessary for the needed counts. THE COURT: What I'm saying is it's possible to just clip page 1 and page 25 together, "This is People's Number CARLA S. WALKER, CSR, RMR 134 whatever," and that's the only thing that gets submitted to me from the People. Now, obviously, Mr. Tansey would have all this discovery. If he thinks, yeah, there's some portions of this conversation that the Court needs to hear which would take away from the inference that the People want, which is this is a photograph of the defendant with a handgun and ammunition and here's a part of the conversation that says he's selling it, for instance, okay, and that's what the People present to me. It may be that there's some portion of this conversation where I'm just making a hypothetical that says, "Hey, let's have a hypothetical conversation about selling guns, and, you know, let's see how it goes," and it's left out, obviously Mr. Tansey can put that in. That's all I'm saying. MR. BEHRENS: Okay. THE COURT: It's a preliminary hearing, after all. I don't know that I need the entirety of everything. You decide that. But that's, at least, one way in which to shorten the length of the exhibits and how much information you are giving me right now. MR. BEHRENS: Okay. All right. I understand. Q. BY MR. BEHRENS: So having just marked People's 17, I'll just move forward. Showing at this time People's 18, which I anticipate to be a continuation of the conversation contained in People's l7, Investigator, are you able to determine the nature of the CARLA S. WALKER, CSR, RMR 135 conversation based on this highlighted portion of text? A. Yes, sir. It's a conversation between Robert Garcia and Javi RZ, I believe, it says on the screen. Q. Okay. And based on your training and experience, is $880 a reasonable price for an AR platform? A. Yes, sir. Q. Showing People's 19, which I also believe to be a continuation of the same conversation, Investigator, are you able to determine, based on the consistency of the characteristics, whether or not this black item, again, depicted in both these upper and lower photographs, is consistent with the AR-15 you've seen already? A. Yes, sir. Q. And what is that opinion? A. That they are one and the same. Q. Showing People's 20, which I similarly would expect to be a continuation of the same conversation, sir, referring you to this highlighted portion, are you able to utilize this information to determine, again, the identification of the items contained in the thumbnail, the thumbnails from Mr. Garcia's computer, to wit: The magazines? A. Yes, can I. Q. And what is that? A. Authored by Mr. Garcia on the date of 2017?05?30. He's speaking about firing the and full platform, that's as seen from the thumbnails, and he talks about firing off the entire 30-round magazine. Q. And is, in the State of California, according to law, CARLA S. WALKER, CSR, RMR 136 30?round magazine considered to be high capacity? A. Yes, sir, it is. MR. BEHRENS: Madam Clerk, we were on Exhibit 20? THE CLERK: 21. Q. BY MR. BEHRENS: Showing People's 21, which I also believe, sir, do you have we already seen this picture here today? A. I believe so, sir. Q. All right. And I'd like to direct your attention specifically to the features that you see here on this rifle. Back here can you describe what this item is? A. Yes, sir. That's going to be the butt stop which is able to expand and shorten the telescopic stock. Q. And what is this item my pen is pointed to here? A. The pistol grip of the AR. Q. And based on the nature of this lower receiver, as well as the bolt action exposed here, are you able to form an opinion as to whether or not this platform can accept a center fire cartridge? A. Yes, sir. Q. What is that opinion? A. That it can. Q. And we've seen already there are some pictures with the magazine loaded and some without. Based on that alone, are you able to determine if this platform is capable of accepting a detachable magazine? A. Yes, sir. Q. And then your direction or focusing your direction CARLA S. WALKER, CSR, RMR 137 right here as well, based on this image and I know it's grain -- are you able to determine whether or not that is a quick release magazine button? A. Yes, sir. It seems to be a full functioning magazine release. Q. And does that appear to you to have the characteristics of what, at the time, was a legal California bullet button? A. That does not appear to be a bullet gun, sir. Q. And with those characteristics, together, would that make an assembled in that way an assault weapon pursuant to California law? A. Yes, sir. Q. All right. And, finally, People's 22, sir, once again, does this appear to be a continuation of a conversation from Mr. Anthony Garcia? A. Yes, sir. Q. All right. And then directing your attention to the bottom of this photograph, are you able to determine what's depicted in this photograph? A. Yes, sir. That's Mr. Garcia holding up the Glock, sir. Q. Now, take a break from the Facebook for a while. Sir, based on your independent review of what we found in the hard drive as well as what was cross?referenced and contained on the Facebook conversations, were you able to form an opinion as to whether Mr. Garcia was in possession of these depicted items on the dates in question? CARLA S. WALKER, CSR, RMR 138 Yes, sir. Q. And what was that opinion? A. The opinion is that Mr. Robert Garcia did have those weapons based on the photographs, the timestamps, the information generated by Facebook coming off of the hard drive of the actual computer belonging to Mr. Garcia. Q. And what we've seen here today, is it fair to say that's but a small snippet of the documentary evidence you received from Facebook? A. Absolutely. Q. Based on your review of the conversations on Facebook, between Mr. Garcia and other individuals, were you able to form an opinion as to whether or not Mr. Garcia was attempting or had participated in the sale of these weapons? A. It's my opinion that he did, in fact, complete sales, sir. Q. And we haven't seen any photographs here today, but has your review of these documents also seen images such as PayPal accounts, packages, tracking receipts, all of these things? Have you seen those? A. Yes, sir, to include actual payment receipts as well. Q. And does that support the opinion that you just testified to? A. Yes, sir, along with the dialogue in the conversations. MR. BEHRENS: All right. Thank you, Your Honor. At this time, I don't have any further questions, but I may recall in case I need to. CARLA S. WALKER, CSR, RMR 139 THE COURT: Cross? MR. TANSEY: Thank you, Your Honor. BY MR. TANSEY: Q. Investigator is it Investigator? A. Yes. Q. --Berain, thanks for your service. A. Yes, sir. Q. How did how did you become aware of the posted alleged threat? A. I was contacted by the Southern Division Investigatory Services Unit, CHP. Q. And did you see the actual post itself? A. Yes, I did. Q. And can you repeat it? Or what did it say, do you remember? A. It said something to the effect, I'm -- I'm sorry. Go back. "Ima live, I swear I'm going to take a cop's life. If I die trying fuck it. I'm doing it for freedom, your right to own firearms, to protect your family," something to that effect, sir. Q. So it didn't say anything about A. No, sir. Q. It didn't actually reference any particular jurisdiction, like deputy sheriffs, local police; is that correct? A. No. That's what made it a little more, in my CARLA S. WALKER, CSR, RMR 140 opinion, threatening. MR. TANSEY: Well, I move to strike that last as nonresponsive. THE COURT: That will be stricken, the last question, as answered. Q. BY MR. TANSEY: It didn't reference any particular officer, did it? A. No, sir. Q. Now, you said earlier that posts were like texting. But they're not in one way. Text, a text message, is sent to an individual, is it not? A. Yes, sir. Q. A post on Facebook is -- and correct me if you believe I'm wrong, but it's not really sent to anyone in particular, is it? A. I believe it is, sir. Q. Who do you believe it's sent to? A. Whoever the recipient is that he's conversing with at the time, based on the IP addresses and the names of subjects as well as who authored the message. Q. So you believe a Facebook post is conversing with a regular person? A. Yes, sir. Q. Do you know what Facebook Messenger is? A. Yes, sir. Q. And what is the difference between a post and Messenger? A. Messenger, I believe I don't use Messenger myself, CARLA S. WALKER, CSR, RMR 141 believe that's more like actually using a cell phone. You can converse with people or groups of people. Facebook works the same way, but, in my review of what was sent to me by Facebook, that was specific in the discussion between Mr. Garcia and certain individuals regarding the weapons themselves. Q. No, no, no. I'm sorry. I'm not talking about that at all. Do you know whether these conversations with posts of the weapons, all of the exhibits that the People had just submitted, were those through Messenger or through Facebook? A. I believe those were all through Facebook. Q. Do you know what Messenger is? A. I have a a real I have an understanding of what it is. Like I said, I never used it. Q. What is your understanding? A. Like I said, it would be another application in Facebook that converses with people as well. Q. So is it your belief that a Facebook post is directed to an individual personbelieve so, sir. Yes, sir. Q. So the alleged threat that he made, to whom was he conversing? To whom did he communicate? A. At that time he was -- I believe he was conversing with I would have to actually look at it to tell you exactly. Q. Would that refresh your memory? A. Yes, sir. If I could look at it, please. CARLA S. WALKER, CSR, RMR 142 THE COURT: Are you talking about the Facebook post with regard to the MR. TANSEY: Yes, sir. THE COURT: alleged threat to the police? MR. TANSEY: Yes. I believe the officer testified that Q. BY MR. TANSEY: And correct correct me if I'm wrong that they are sent to individuals; is that correct? A. My understanding is that they can go to individuals or to groups as well. Q. Well, and you are aware or are not aware of Messenger? A. That's my understanding, yes, sir. Q. And what is Facebook Messenger? A. I believe it works along the same lines, sir. Q. And what do you mean by that? A. That you can speak to a person individually or in groups. Q. Directly? A. Yes, sir. Q. Well -- MR. TANSEY: May I have a moment to look. Q. BY MR. TANSEY: The person you believe the alleged threat went to, do you recall you don't recall who that was? A. I don't know who he was speaking to without looking at the actual conversation. Q. Do you believe it was to a to an officer? CARLA S. WALKER, CSR, RMR 143 sir. K) I don't believe it was an officer at the time, no, So you believe it was a friend of of Mr. Garcia's? I don't know who that person was, sir. Did they reSpond? Without looking at the conversation, I couldn't tell you right now. memory. Q. MR. TANSEY: Your Honor, may I approach the witness? THE COURT: Yes, sir. MR. BEHRENS: Put it on the ELMO. MR. TANSEY: Never mind, sir. THE COURT: Can you read that? BY MR. TANSEY: Can you read that? THE COURT: This would be Defense MR. TANSEY: It's not an exhibit, just to refresh his THE WITNESS: Yes, can I. BY MR. TANSEY: Is this the Facebook post you were referring to? A. Q. threat? A. Q. A. That's one of them, yes, sir. Well, is this the post that you believe contains the Yes, sir. To whom is he directing that to? There -- it appears as though he's posted it for anyone to look at, sir. Q. And that is the kind of the definition of a Facebook post, isn't it? CARLA s. WALKER, CSR, RMR 144 Yes. Q. Anyone that happens to go onto his Facebook page? A. Yes, sir. Q. So he did not send it directly to anyone? A. No, sir. Q. I'm going to show you another photograph. And you've already seen it, I believe. Do you recognize this photograph? A. Yes. That's Mr. Garcia, sir. Q. When you went to the house on June 23rd and for the record, this is a photograph of the defendant holding a silver handgun. When you went to the house on June 23rd, you were aware of this photograph as well; is that correct? A. That's one of the photographs that was sent, sir. Q. And did you see that photograph posted on Facebook? A. I think that was one that was sent to me from Southern ISU, yes, sir. Q. Well, the other officer said it came from Facebook. A. I don't recall whether he told me it came from Facebook or not, sir. Q. Are you aware on or before June 23rd, were you aware of when any of the photographs were taken? A. No, sir. Q. You knew when when they were posted on Facebook, correct? A. All I knew was that, again, what was sent to me from ISU, it was the comments and the photographs. CARLA s. WALKER, CSR, RMR 145 Were you aware I believe you already testified to this -- that Facebook tells you the date that someone posts a picture, correct? A. Correct. Q. It doesn't tell you the date they took the photograph, which could be different from the posting date? A. That's correct, sir. Q. And so on June 23rd, you had no idea when the photo was taken? A. No, sir. Q. Now, the People have shown you a bunch of photographs that were indexed, catalogued, put into different categories. Those have been manipulated, have they not, in the sense that they were not organized that way on Mr. Garcia's computer? A. I don't know exactly how those were put together, sir. That's Q. And that's because you didn't actually have anything to do with the computer, correct? A. That's correct, sir. Q. So you don't know how the photographs were organized originally? A. No, sir. Q. So these bookmarks that you referenced, they were labeled things like Guns, Cash, Drugs, et cetera, that was the creation of A. No, sir. I believe that comes from RCFL. That would be the Regional Computer Forensic Lab in San Diego, and that's CARLA S. WALKER, CSR, RMR 146 from the FBI. Q. And law enforcement did the categorizing, correct? Mr. Garcia did not. A. I'm -- I believe that they put that there, yes, sir. Q. And to be clear, none of the photographs of the guns, magazines that you've seen today, none of none of those were found at the house on June 23rd; is that correct? A. None of the guns were found on June 23rd, but I believe the silver handgun was actually MR. TANSEY: Move to strike the last bit as nonresponsive. Q. BY MR. TANSEY: None of them were found on June 23rd? A. On June 23rd, no, sir. Q. Thank you. Do you have any personal experience with YouCam, which I believe is spelled cap Y-o-u cap C?a?m? A. I don't have any personal experience, sir. Q. Does that mean you don't know how it works? A. I have an understanding of it, sir. Q. And what's your understanding? A. My understanding of YouCam is it's an application within a laptop, let's say Mr. Garcia's laptop, that I took. It's an application within the actual hard drive of that computer, specifically that computer. So when Mr. Garcia, say, uses his computer, generates a photograph utilizing that application, YouCam will then generate a date and timestamp specific to that photograph on that hard drive. Q. And you personally have not done that or tested that? CARLA S. WALKER, CSR, RMR 147 have not. Q. And the dog in question was property of A. I'm sorry, sir? Q. The dog in question was property of A. The dog in question? Oh, the dog in question. Q. Yes. A. Yes, sorry. Yes, it is. MR. TANSEY: No further questions. REDIRECT EXAMINATION BY MR. BEHRENS: Q. Sir, do you remember at any point investigating these conversations, uncovering any conversations where Mr. Garcia indicates that his guns are stored in his uncle's house? A. Yes, sir. Q. Do you think that might help explain why none of these firearms were found in his residence? A. Yes, sir. At the time of the search we went through the interior of the house, did not locate any weapons. We didn't get to go underneath the house there's an attic space in there because he had a large dog. I believe they were there at the time, or they may have been moved to his uncle's house. MR. BEHRENS: All right. Thanks. Nothing further. THE COURT: Mr. Tansey? MR. TANSEY: Just one question. BY MR. TANSEY: Q. I'm sorry, what was the conversation about the uncle? CARLA S. WALKER, CSR, RMR 148 There was some conversation about getting his weapons back. Q. Was this conversation with you? A. No, sir. It would be in the body of the Facebook pages. Q. So it was in the Facebook pages? A. Yes, sir. MR. BEHRENS: Almost done. Last witness, Your Honor. May I step out in the hallway? THE COURT: Do you need this last witness? MR. BEHRENS: What I anticipate this witness will show is the timestamps on the photographs will be taken on the date they were taken. I don't know if they are taken THE COURT: Wait, the timestamps on the photographs on the defendant's computer -- MR. BEHRENS: Correct. THE COURT: would be the dates that that actual photograph was taken? MR. BEHRENS: Yes. Because ultimately I would I would have I mean, we'd have to get mental gymnastics to get there, but ultimately it's my burden to show he processed these while being a prohibited person, meaning after the date of February, 2017, but in reality, much further to his prior case to which he was already a prohibited person. THE COURT: The only one I'm taking judicial notice of is February let, 2017. MR. BEHRENS: That's correct. That's why this witness would show that. Ultimately, it's my burden to show CARLA S. WALKER, CSR, RMR 149 that, that there's an argument that those photographs weren?t taken years ago. And I think that the Court's image, also, would reflect that his incarceration up to 2017 would further push that back. But, in any event THE COURT: Sure. I mean, yeah, that's certainly important to do. If he can identify the photographs depicting Mr. Garcia in possession of these alleged weapons on the dates alleged, yeah, that's significant. MR. BEHRENS: Thank you, Your Honor. May I step out in the hallway or do we need to take a break? THE COURT: Yes. MR. BEHRENS: Thank you. At this time the People would request to call Forensic Investigator Robert Gerou. THE DEPUTY: Please stand on the white line, face the clerk, and raise your right hand, please. THE CLERK: You do solemnly state the evidence you shall give in the matter now pending before this Court, shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Thank you. If you'll please take the witness stand. Sir, if you would please state and spell your first and last name for the record. THE WITNESS: Robert T. Gerou. Last name is spelled CARLA s. WALKER, CSR, RMR 150 G?e?r?o?u. THE COURT: Robert was the first name? THE WITNESS: Yes. THE CLERK: Thank you. THE COURT: Go ahead, Counsel. MR. BEHRENS: Thank you, Your Honor. ROBERT T. GEROU, called as a witness by the plaintiff, was sworn and testified as follows: DIRECT EXAMINATION BY MR. BEHRENS: Q. Good afternoon, sir. Thank you for -- thank you for your patience. I appreciate it very much. A. Yeah. Q. What is your current occupation? A. I'm an investigator with the California Highway Patrol. Q. What is your specialty within the highway patrol? A. I am tasked out to the Regional Computer Forensic Laboratory as a Computer Forensic Examiner. Q. And how long have you worked with the CHP as a Computer Forensic Examiner? A. Ten years now. Q. Going back to last year, and I believe into the beginning of this year, were you given, as one of your assignments, the hard drive imaging of Mr. Robert Garcia's computer that was seized on the date of June 23rd of 2017? A. Yes. CARLA S. WALKER, CSR, RMR 151 All right. And were you working along with this gentleman seated next to me, Mr. Arthur Berain? A. Yes. Q. As part of your investigation, did you take receipt of a black HP laptop? A. HP 2000 Notebook. Fair. My apologies. And to the best of your recollection, did that computer have the serial code of 5 Charlie Golf 3392 Tom Tom Hotel? A. Yes. MR. BEHRENS: Madam Clerk? THE CLERK: Yes. MR. BEHRENS: May I approach for Exhibits 1, 2, and 3. THE CLERK: Yes. Q. BY MR. BEHRENS: Just going to have you hold these for a moment. Sir, can you explain to this Court what a hard drive image dump is? A. Image of a hard drive is basically a bit for bit copy of the hard drive in the machine. Q. All right. And did you perform such a copy in this specific assignment as it relates to Mr. Garcia and the computer we just spoke about? A. Yes. Q. Was that imaging done? Were there any problems with the imaging? CARLA S. WALKER, CSR, RMR 152 complete image. Q. So there were no malfunctions or errors or anything? A Nope. Q. Were you able to access the contents of that computer's hard drive? A. Yes. Q. And in so doing, did you review the contents of that hard drive to determine anything relevant to Mr. Berain's investigation? A. Yes. Q. And did you task yourself with a categorization of those items into, you know, different folders and files? A. Yes. Q. And if I could, I've given you screen shots which are People's Exhibits 1, 2, and 3. Sir, do you recognize the screen shots as your own internal interface? A. Yes. Q. Is that, in fact, the your work product as it pertains to this case? A. They're screen shots from my my digital output, yes. Q. And along that left-hand border there appears to be a table of contents or categories of items; is that right? A. Yes. Q. And was it you that assigned specific photographs, files, et cetera, to the corresponding links that we see there on the left side? CARLA S. WALKER, CSR, RMR 153 extract the image. The links are automatic once it's extracted into the digital report. So the program itself makes the link, but, yes, I extracted the image from the original evidence drive. Q. All rightonce that -- once that data was compiled, did you give that to Investigator Berain? A. Yes. Q. Later in the course of the life of this case, did I make contact with you and ask you certain questions? A. Yes. Q. Specifically, I -- did I ask you about the term metadata? A. I don't recall that. Q. Could you explain because it's a common thing with images -- can you explain to this Court what metadata is? A. Metadata is basically data within data. In this particular case, it was data or metadata would be we're dealing with metadata of an image. And metadata with an image, what device might have took the photograph, the dates and times the photographs were taken, modified, or accessed. Q. And, specifically, is it true that earlier in the life of this investigation, I asked you to help shed light on how we're able to determine if pictures are taken on a certain date, true? A. Correct. Q. Right. And is it true that, ultimately, you told me, as for many, many of these pictures that was not possible to CARLA S. WALKER, CSR, RMR 154 believe I said that the I don't recall. I really don't recall. I think we were talking about the dates and times, but I think some of the photos did not have a date and a time on it. Q. Sure. And then is it true I also asked you for about a certain select number of photographs that had a file name which incorporated the word YouCam? A. Correct. I believe there was 47, close to 50 pictures, I believe, that were we were discussing the YouCam. Q. If you could, if you could please take a look at People's Exhibits 1, 2, and 3 that are in front of you. Are you able, looking at your own products, to determine which of those photos appear to have file names associated with the app YouCam? A. Yes. Q. All right. As part of this investigation, did you conduct your own initial -- as part of this investigation sorry, if I may withdraw. As part of this investigation, did you conduct additional investigation into the app call YouCam? A. Yes. When we spoke on the phone, I said I didn't know much about the use of the YouCam program, and I would have to research it further. So, yes, I did do some research on YouCam. Q. What did that research entail? CARLA S. WALKER, CSR, RMR 155 Basically, YouCam is a suite of -- photographing suite that HP or Hewlett Packard computers have on their systems by default. So, basically, I downloaded the -- the newest at that time the newest version of YouCam onto my HP computer and basically took some photographs and recorded on how they were labeled, dated, and such. Q. And based on your usage, or specific usage of the YouCam app, were you able to learn how YouCam basically ascribed a file name to a specific image? A. Yes. Q. How was that? A. When -- when the program was first installed, it puts a subdirectory of YouCam under the user's directory. In my example, I think my user's directory is RCFL. And as soon as I installed the program, I noticed that YouCam's subdirectory appeared in my user folder. I then took a series, I believe, of three photographs and noticed that the -- as soon as a picture was taken, it created a file in the YouCam/Snapshot or snapchat Snapshot folder, and then it dated it or named the date of the photo. And subsequent photographs taken that day were then also the date and then chronologicalwas just up to 3. Q. And based on your usage of the app, did you form an opinion as to whether the YouCam app incorporates the date and time the photograph was taken into the file name that it generates for a new image? A. Yes, it does. CARLA S. WALKER, CSR, RMR 156 were you able to apply it to the images that you found in this case to be able to form an opinion as to when those individual Okay. And using that, that new found experience, pictures were taken? Q. Yes, I was. All right. And taking a look at Exhibits 1, 2, and MR. BEHRENS: If I may approach? BY MR. BEHRENS: -- sir, looking at the compilation of photos contained in those three exhibits, are you able to form an opinion as to whether those YouCam Snapshot photographs were taken after February of 2017? A. Yes. Q. Were any of those pictures or scratch that. I'm sorry. Were you able to form the opinion as to whether any of those snapchat Snapshot YouCam photos were taken prior to the date of February of 2017? A. Yes. Q. What was that opinion? A. There were none. Q. And based on the file names associated with those photographs and rather than go through each of them individually, could you take a look at those file names and give an opinion for this Court, based on your research, when those photos were taken? A. Q. These photos were taken in May of 2017. And that they have a number of them run the gamut CARLA S. WALKER, CSR, RMR being taken sometime in 2017? A. Correct. Q. Just to be sure, none were taken, on Exhibits 1, 2, and 3, before the date of February, 2017? A. NO. MR. BEHRENS: Does the Court have any questions? No? I have no further questions, then. THE COURT: Mr. Tansey, cross?examination, sir? MR. TANSEY: Thank you, Your Honor. BY MR. TANSEY: Q. Would it be, Analyst Gerou what's your title? A. I'm an investigator. Q. Investigator. Is it -- a Facebook post, is that, generally speaking, directed at a particular person? A. A Facebook post? Q. Uh?huh. A. I'm not sure I understand what you're asking. Q. Are you familiar with Facebook? A. Yes. Q. So if I make a post on my page, is that like a private text message to one individual or is it open to the world? A. Well, it's open it's social media. So on Facebook, there's a number of ways that let's say you because I'm going to have to use an example, but if you made a post on your Facebook page, all your friends would see that post. And depending on how you have your security set, it CARLA S. WALKER, CSR, RMR 158 could be go down to your friends' friends also see that post. Q. Right. Let me ask you this: What's Facebook Messenger? THE COURT: I'm pretty familiar with these concepts. MR. TANSEY: All right. THE COURT: My understanding is that it has a Facebook post is I post something on my Facebook, any of my friends that I have in Facebook, they can see it. It's not directed at any particular person. It's just a post that any of them can see. And like what was just testified, maybe some friends' friends could also view it. It's certainly possible for me to post something on my Facebook page, and in the post itself, say, "Hey, what's up, so?and-so? Haven't seen you in a while," and then it's clear, by virtue of the post itself, that I'm specifying it for a particular individual. So that's how Facebook posts work from my perspective. Messenger, as I understand it, is a part of Facebook. And if you want to private message an individual, you do it through Messenger. MR. TANSEY: That's what I was going to ask the investigator to explain, but Your Honor already has. Q. BY MR. TANSEY: When it comes to the dates that you can create, that assumes the date entered that is already set in the computer is correct, is it not? A. It's based on the computer date. In this particular time, according to my notes, the computer date was correct. CARLA S. WALKER, CSR, RMR 159 you know if a photograph is downloaded from Facebook, do you know if that downloading process takes away any of the photograph's metadata? A. I'm not an expert on Facebook, but there are times where, if the photograph on Facebook is posted, yes, meta Facebook does wash the metadata in some cases. Sometimes it doesn't. Q. And the date that a photograph is posted has nothing to do with the date that the photograph my have actually been taken; is that correct? A. I would assume that that would be correct, yes. MR. THE MR. THE MR. MR. THE THE THE MR. Honor. THE MR. TANSEY: No further questions. COURT: Anything further, Mr. Behrens? BEHRENS: Nothing further. Thank you. COURT: Then this witness can be excused? BEHRENS: Yes, Your Honor. TANSEY: Yes. COURT: Thank you, sir. You are excused. WITNESS: Thank you, Your Honor. COURT: Any further witnesses from the People? BEHRENS: No further witnesses. Thank you, Your COURT: And you move your exhibits into evidence? BEHRENS: Yes. There is a kind of a thick smattering of exhibits. I've marked the individual exhibits unofficially, each one by one with a number on the back. I simply request those immediate exhibits into evidence. THE COURT: These would be Exhibits People's 1 CARLA S. WALKER, CSR, RMR 160 through 22? MR. BEHRENS: Yes. Thank you. THE COURT: They'll be received. Mr. Tansey, any witnesses, affirmative defenses? MR. TANSEY: Affirmative defenses, yes, Your Honor. No witnesses, though. I do have a preliminary brief and a request for judicial notice that I would ask the Court to read it. THE COURT: Yes. MR. TANSEY: And then we can proceed however the Court wishes. THE COURT: Okay. MR. TANSEY: Here's a copy for the Court. I have two copies, one is for the court clerk for filing and one for the Court. THE COURT: Okay. I have reviewed, Mr. Tansey, your request for judicial notice with regard to the Court's minutes, December 23rd, 2017, in case INF1701148. And, Mr. Behrens, I assume you have no objection to that? MR. BEHRENS: That's correct. THE COURT: All right. So the Court will take judicial notice of those minutes. I've have also reviewed, Mr. Tansey, your Memorandum Of Points And Authorities regarding the preliminary hearing. Okay. So let's, I guess, go through this one count at a time will probably be the easiest way to do it, okay. Can I see all the exhibits, please. CARLA S. WALKER, CSR, RMR 161 Okay. Mr. Tansey, I know you have several attacks on this Count 1, 422. Why don't you just go ahead and, I guess, bullet point them for me, please. MR. TANSEY: Well, I think the simplest one is it does not rise to the level of a criminal threat. It's not specific. It's not directed at any person, individual. As I cited in the brief, there is case law pointing out that angry rants, no matter how violent, are not criminal threats. There's no intent in this post. This was a Facebook post, by the way, that I'm referring to. And it's not it's just not directed at any particular person. It just doesn't rise to the level of a criminal threat. THE COURT: Well, let me, I guess, let me just kind of ask some questions. MR. TANSEY: Sure. THE COURT: That the post was, "On my life Ima try and take a cop's life. If I die fuck it. I did it for freedom and for you guys to own firearms and to protect you's guy's family." So that's the post that was made. MR. TANSEY: Correct. I do want to point out that it was not contrary to what Investigator Berain said. It was not directed at anybody. It was not part of the conversation with anyone at all. THE COURT: No, I understand that. So what I understand surrounding this particular post is that the officers had been to Mr. Garcia's home the day before, on June 20th, and had apparently taken some unregistered firearms out of the home that were in his CARLA S. WALKER, CSR, RMIR 162 brother's room. MR. TANSEY: Correct. THE COURT: Then, on June 21st, he makes the post that I just referred to. MR. TANSEY: Correct. THE COURT: And officers understood that on the date of June 24th he would be in contact with police officers as part of his CHP agility testing procedure that he was engaged in. Right so far? MR. BEHRENS: Yes. MR. TANSEY: Correct. THE COURT: Okay. All right. Now the post itself, I would say it is specific as to what it is he is going to do. The post specifically says, "I'm going to try to take a cop's life." So it is specific as it relates to what it is he's intending to do, is take a cop's life. The issue that you're raising right now is it wasn't directed at a specific person but more that it was directed at a class of people which would be cops. MR. TANSEY: Well, I think -- yes, I think it was an angry rant about the officers that had come the day before. It was not directed at CHP. THE COURT: I guess that's what I'm asking. In order to violate this statute, does it have to be directed at a particular person or can it be directed at, say, a group of individuals? Let me give you a scenario. Let me give you a scenario. Let's just assume, okay, let's just assume. CARLA S. WALKER, CSR, RMR 163 Let's assume someone is outside the police station on a microphone, okay. And there's no cops outside at the time, but he's outside, on a microphone, and he's got a gun, what seems like a live gun in his hand, and he shouts into the bullhorn microphone, "The next uniformed police officer that steps out of that building, I'm shooting them, and I'm killing them," okay. That seems like it would be a criminal threat, even though it's not directed -- I and, I mean, I know this is not the situation, but the point that I'm trying to raise is does it have to be directed at a specific person? Because then I just analyze it along with different factors and not necessarily, well, it doesn't have to be a specific person. It doesn't have to identify a specific person. But can it say, "Look, I'm outside the police department. I've got a gun in my hand. I'm going to kill the next police officer I see that steps out of that building." It's not directed at a particular person. It's directed at a group of people. It seems to me that if that were the case, that would be a criminal threat that you could prosecute even though it's not directed at a specific person. MR. TANSEY: I don't know. Because that isn't our case. In that case there is, for example, the requirement that the threat be communicated to the person being threatened. THE COURT: To what? In this scenario that I'm giving it's directed to a group of individuals which is uniformed police officers. CARLA S. WALKER, CSR, RMR 164 MR. TANSEY: Well, if the policemen are standing in front of him when he says that, yes. But if they're all inside the building, it's, like, if a tree falls in the forest, is anyone there to hear it. There's no one. THE COURT: Okay. Let's change that, then. The point that I'm making is does it have to be as clear. Let's say the police officers are standing outside in uniform and he says, "The next police officer that moves, I'm going to shoot and kill." MR. TANSEY: I think that would be a criminal threat. THE COURT: Even though it's not directed at a specific MR. TANSEY: But it is. It's directed at the specific group of officers who were standing in front of the building. THE COURT: Right, right. It's not a specific person, it's directed at a group of people of which all of them are a part of MR. TANSEY: I don't think you have to know the person's name to have a specific person in mind. THE COURT: So let's say MR. TANSEY: You have he I hate to say "him," but the the person making the threat in that scenario, in your scenario, has a very specific group of people in mind: The three or four officers standing in front of the building. He doesn't have to know their names. But clearly saying to the officers, "The next one of you four who make a move, I'm going to shoot you," that's specific, direct, it's CARLA S. WALKER, CSR, RMR 165 communicated -- THE COURT: Okay. MR. TANSEY: to the victims, assuming the victims hear it. Even if they don't hear it, it would be an attempted threat if the person's intent was that they hear it. And that's not present in this case. THE COURT: Right. I guess, then, you're agreeing, then, that it's not that it has to be directed at a specific individual but it does have to communicate an intent to carry it out such that it is so clear, unequivocal, and specific that the person or persons that are part of that group would be in sustained fear. MR. TANSEY: I yes, although I would disagree I think it does have to be specific as to an individual. Now that individual can be a member of the group of officers standing in front of the building. But you wouldn't say, for example, under that scenario he's also made a threat to an officer 50 miles away. THE COURT: True. MR. TANSEY: So the group here isn't officers, in your scenario the people standing in front of that building. THE COURT: I agree. I agree. I guess the point that I'm trying to discuss is it doesn't have to be a threat against a specific person. It can be a threat against a group of individuals. MR. TANSEY: If it's, as you were saying, if it is so specific, unconditional, you know, and, in your scenario, I think it is, because you're talking the person making the CARLA s. WALKER, CSR, RMR 166 threat is saying directly to the potential victims, "If you make one move, I'll shoot you." THE COURT: Okay. MR. TANSEY: Well, I don't have to know their names for me to be guilty of that. They don't even have to be officers. It could be any group of people standing there in front of the building because, under your scenario, he said, "Make a move, and I'll shoot you." That's kind of akin to a conditional threat. But, as you know, conditional, because we had a trial on this. THE COURT: Yes. MR. TANSEY: Conditional threats can also be criminal threats, even if the statute says unconditional. But I think the differences between your scenario and this generic Facebook post are clear. THE COURT: Yeah, there are some, you know, significant differences, obviously. You know, but I don't think that the criminal threat has to be directed at a specific person, meaning you don't have to say, you know, "Mr. Behrens, I'm going to kill you." It could be to a group of individuals of which Mr. Behrens is a part of. And it's made at a time under conditions, under circumstances, that are so clear and specific that Mr. Behrens, who is a part of the group that that threat has been made to, would be in sustained fear, for instance, as relates to a threat that's being made. So I'm trying to move the focus away from the fact that, in his Facebook post, he doesn't identify a specific individual, but he identifies a class of individuals which is CARLA s. WALKER, CSR, RMR 167 cops. MR. TANSEY: And don't forget, as well, the threat there has to be the intention to communicate it to the person, or in your scenario, to the group. So there also has to be that intention that it be communicated. THE COURT: Well, I do see that. I mean, I do see the intent that it be communicated. Because, as we just talked about, putting it out on Facebook, on a social media, opens up that communication to a large, vast group of individuals. So, to me, that, putting out on Facebook, a social media site, you're doing that because you want to communicate your thoughts and your expressions, basically, to the world at large. But, you know, obviously that's your Facebook friends that you're friends with, people that have befriended you, friends that you have befriended, friends that you befriended. So it goes out. And we all know this. When you put something out on Facebook, you have no real control over containing the integrity of that information. It goes out, basically, for the world. So there would be the intent that I would say, for purposes of prelim, that it be communicated to oops. I do see that. So I guess what I'm saying is I do see that this threat is specific. I do see that there was an attempt to communicate it because the platform which he chose to announce it demonstrates that. MR. TANSEY: But if you intend I would argue the opposite. If you make a post to the world, you're not making CARLA S. WALKER, CSR, RMR 168 post to any specific group. You have to have it's very specific intent that it be communicated to the group. And a generic post to everybody is almost to nobody. MR. BEHRENS: Well, I think -- MR. TANSEY: It would be very different, very different. THE COURT: I'm already arguing your position already. Yeah, that certainly is a position to take. But what I'm looking at is is there probable cause at a hearing to support a holding order. And one of the, I guess, two or however many interpretations you might have, one of them would be, "I'm putting this out there because I want everyone to read it. I want everyone to know what it is I'm about and what it is I'll do." And so I think that that is there. The question for me, I guess, is was it so clear, unequivocal, and specific as to convey a fear or gravity on the part of which is the only officer who really testified to it, which was Gette, which was the way I understood this was, like I said, he had his firearms or had firearms taken from his house on June 20th, he had the post on the 21st, and then he was supposed to go down to the CHP office and do his agility. And the way they were kind of circling around this, how do we know he's not going to go down and do this when he was going to do his agility test on June 24th, which Gette wouldn't have even been there? He wouldn't have been there. So I guess that's why I'm having more of an issue. I CARLA S. WALKER, CSR, RMR 169 know Mr. Tansey has his issues, but let me hear, Mr. Behrens, on that issue. I mean, why would he what's your thoughts on that? MR. BEHRENSunderstand the Court's concern, it's, in essence, it's the latter part, one of the latter elements of 422, which was the unequivocal, you know, unconditional, I guess, the specifics of it all as it relates to a specific officer. Did I hear that correctly? THE COURT: Yes. MR. BEHRENS: Okay. And I think, as a whole, what's helpful is to take, like the Court, I think, has already done, take all of these things in context. So, so far, the Court's heard that there was also a post about, you know, the dirty cops that he feels aggrieved by. And of those, you know, we have a threat to cops. "Ima going to take a cop's life," as a whole, but we can really glean his intent and understanding based on the other posts and contact which is his ire towards those so-called dirty cops that had aggrieved him personally which would be Gette and Chacon and the other individuals that were there. So while he paints with a broad brush as it relates to cops, we know that his ire is really directed immediately toward the cops that have just done him wrong in his eyes. So when he says that, and one of those being CHP Officer Gette, I can't tell whether or not he knew that at the time when they were searching his house, but ultimately this wrong that he feels was immediately transposed into this broadcast of which CARLA S. WALKER, CSR, RMR 170 recipient was the CHP, that they're specifically friends for the purpose of communication with one another, and says, you know, "on my life," incessantly swearing that he's going to take a cop's life, and this on almost the literal eve on being invited to kind of a headquarters where both future highway patrol officers are as well as highway patrol staff, likely other officers. I think the immediacy of it, because we take a step back and look at what the legislative intent was, ultimately the legislature said, "Hey, we need to prevent people from invoking fear in people by saying these things, by victimizing people," and that's really the situation we're dealing with here is, that he's broadcasting this threat that's made. Look at where it's even come. All of these people took it so seriously, and were so afraid of it, that they responded immediately the day of. It's not something that could have waited. They felt so endangered by the defendant's conduct that it was -- I think that we can evince that unconditionality and that immediacy and the gravity of the threat. THE COURT: Okay. So I'm just going down the elements. The defendant willfully threatened to unlawfully kill and threatened to cause bodily injury to, I'm going to plug in here, "cops." That seems to be satisfied, because, as I said, I don't think it has to be a specific person. It can be a group of people. Number 2, the defendant made the threat in writing, CARLA S. WALKER, CSR, RMR 1'71 which he did through social media, posting it on Facebook. Number 3, the defendant intended that his or her statement be understood as a threat and intended that it be communicated to cops. Now, here is where I think the evidence is not the strongest, and we've already had some discussion with regard to this, Mr. Tansey. And I don't think that your position on this is unreasonable. And the question for me here today is not whether or not this is going to rise to the level of proof beyond a reasonable doubt, but is there a plausible argument based on the evidence that would support a holding order. And like I said, when you put something out on media, social media, you're basically telling the world, "This is what I am about. This is what I'm going to do," and cops would be a part of that group to receive that message. MR. TANSEY: Well, let me point out, it's the CHP who reacted with a SWAT team of 10 to 12 people because he was going to the agility test the next day. His post, as even the People can see, was directed at the police who took his brother's guns the day before. The CHP had nothing to do with that. THE COURT: I don't know that that's the case. I'm just reading it as cops in general. I'm not reading it as, "I'm directing this post to the cops that took my guns." "I'm directing this to the cops that I'm going to go meet with on the 24th." The way I'm looking at it is he's upset at police for whatever reason, for whatever reason. Whether it's because CARLA S. WALKER, CSR, RIVIR 172 they took his guns, whether it's something none of us know anything about, but, "I'm upset about cops, and this is what I'm going to do to a cop. And on my life, it's going to happen." So I'm not looking at it the way the People are suggesting that I'm looking at it, and he's making this post and directing at, I'm looking at it as cops, period. That's how I'm looking at it. And as what as I'm discussing right now, did he intend that his statement be understood as a threat? The words themselves convey that. The conviction with which those words communicated, "On my life," meaning, "If I die, I don't care. My intent is to kill a cop." The words and the conviction that they have convey that it be understood as a threat. And then where I think the evidence is not necessarily the strongest, but for purposes of a preliminary hearing, as I indicated, that he's putting this out to the world for anyone to View and read, so I think there is, you know, evidence there for Element Number 3. The threat was so clear, immediate, unconditional, and specific that it communicated to cops a serious intention and the immediate prospect that the threat would be carried out. I think there's some circumstantial evidence to support that because they -- they did not sit on this. They immediately responded to the threat. They put together a task force and an operations plan in which to deal with what they CARLA S. WALKER, CSR, RMR 173 perceived as a coming threat. And then, Number 5, the threat actually caused cops to be in sustained fear. And Officer Gette did testify that this put him in fear. He was in fear with regards to this from the time the post was made, when he became aware of it, to when he was taken into custody. And, lastly, the cops' fear was reasonable under the circumstances. But I can't say for purposes of preliminary hearing that that's not met. So I'm not saying this is the strongest case of 422, and there's certainly arguments to be made that certain of these elements are satisfied, but for purposes of preliminary hearing, I think they are all here, so I'm going to hold him on Count 1, the 422, okay. Were there other -- your first attack on the 422 was that the elements weren't satisfied based on the evidence. Are you attacking that charge on any other basis? MR. TANSEY: Not really. I cited case law that angry rants are not criminal threats, but I think that's a part of the decision you've already made. THE COURT: Yeah, okay. All right. The 69, Count 2, let me hear from you with regard to that, Mr. Tansey. MR. TANSEY: Thank you, Your Honor. As I cited in here, an affirmative defense to resisting arrest is no probable cause for the arrest. And when you look at whether CARLA S. WALKER, CSR, RMR 1'74 not there was probable cause, you look at what the officers knew at that time. Not what they know today, but what they knew on or about June 23rd. My argument for no probable cause was actually based Well, I guess there is one more argument as regards the 422. Judge Villalobos found there was no probable cause to hold the defendant over on the 422 or the -- the 29800 charge concerning the silver handgun. And he did my alternate argument, I guess, was that has already been judicially determined that it was Judge Villalobos did not believe it was a criminal threat. And the 29800 charge, which in this case it's the same charge, but there's new evidence against it. But at the time, it's the same gun. It's the same charge. But what was in the officer's head at the time was very different. They had no idea when it was taken. They simply knew it had been posted onto Facebook. I would argue that the DA, and I guess the Court, is collaterally estopped from holding otherwise because it has already been determined that there was no probable cause on those two counts which were the only counts at the time in question. THE COURT: If that were the case, how could the People ever, like, not get a holding order, for instance, and then refile and have additional evidence to present? How would they ever really do that if that were the state of the law? CARLA S. WALKER, CSR, RMR 1'75 MR. TANSEY: Well, what I think they should have done, which they did do, is get the search warrant which gave them the probable cause, if you will, that gave them the photographs off the computer. But at the time they had I mean, the Court's already decided this issue. But at the time I didn't think it was a criminal threat. Judge Villalobos didn't think it was a criminal threat. And so both of those charges would fall by the wayside and they wouldn't have had probable cause. But the Court feels differently, THE COURT: Yeah. Yeah. I mean, I don't know what evidence, obviously, was presented at the preliminary hearing before the case was dismissed and refiled. MR. TANSEY: Actually, I had Investigator Berain testify to that. It was the criminal threat and it was -- the Court remembers when I put up the photograph with the silver gun. THE COURT: Yes. MR. TANSEY: It was that photograph that's in evidence already today, but what's different this time is -- or I should say what's different previously was, as Investigator Berain said, they had no idea when it was taken. They only knew it had been posted, and that was the reason Judge Villalobos held him not to answer on the silver gun charge. THE COURT: I understand. So I don't know that Judge Villalobos's determination there was insufficient probable cause at the preliminary hearing that was held before him CARLA S. WALKER, CSR, RMR 176 biases this Court with the hearing I'm hearing today, so I have to overrule the objection on collateral estoppel. I think that's part of what allows the People to dismiss and refile. So any further position on our Count 2 is what I'm looking at right now? Because I do believe that the officers have to be lawfully doing what they're doing. And they were going out there, apparently, to arrest him on this perceived criminal threat and believed they had sufficient reason to believe that that threat constituted a criminal offense, and they were trying to arrest him on that. MR. TANSEY: I understand, sir. THE COURT: And I think there's sufficient evidence to support Count 2 based on the testimony I heard: His furtive movements; the guns that were located previously; his refusing to comply; the fighting of the officers when they were trying to arrest him, which included Deputy Allert. So I think there's sufficient evidence to hold him on Count 2. MR. TANSEY: Your Honor, I would ask for a 17(b) on that. It really seems almost like a 148. THE COURT: Can we wait until there's a motion on 17(b)? MR. TANSEY: Sure. THE COURT: Okay. Right now, I just believe there's sufficient evidence to hold him to answer. But I'll hear you on that motion at the conclusion. Count 3. I'm having a hard time with this one, CARLA s. WALKER, CSR, RMR 177 Mr. Behrens. MR. BEHRENS: Sure. And what I would like to do is also reference Mr. Tansey's motion at the end. We've been through this before by purpose of a 995. And the language under 597 is split. There's a crucial conjunction in the middle. Mr. Tansey likes to argument that there needs to be custody or control over the animal. But that's not required for this statute. What 597 is looking to do, and specifically is charged, it's whether or not there was any unlawful or unnecessary torture or tormenting of an animal. So I guess we take a step back here and then kind of see what we have. A police dog is an animal, so we get by that. So then what was the response? So at the time, right, so everything in this entire case is brought upon Mr. Garcia by Mr. Garcia himself. And what evinces that the additional step of cruelty is when we see that, okay. He's being hit with the pepper balls now. This has escalated to this point where that additional tool is being utilized, and that's not effective. The next step is that what should be a powerful warning of is this dog is going to come for you, and then we hear that reaction of, you know, "Send your dog. I'm going to fucking kill your dog," which right at the outset says, "If you release it, I'm going to hurt that animal." And they do, because, you know, we're bantering before that the police dog is considered a tool of law enforcement. THE COURT: I guess -- let me ask you this, okay. CARLA S. WALKER, CSR, RMR 178 Let's just assume that this whole situation was playing out the way it was, and Deputy Allert says, "Hey, you know what, either get on the ground or I'm going to come over there and unleash myself on you," and he says the same thing: "Hey, if you come over here and unleash yourself on me, I'm going to fucking kill you," all right. And then Deputy Allert starts to go over to get him and then he says, "Okay, I give up," right? MR. BEHRENS: Sure. THE COURT: Nothing happens presumably. He gives up. Nothing happens. MR. BEHRENS: Okay. THE COURT: Okay. That can't play out this way with regard to a dog because nobody told me otherwise. Meaning, what I'm saying is, at the point the dog is unleashed on him, was what's he supposed to do, just stand there and let the dog chew him up even if he's not resisting? Do you understand what I'm saying? MR. BEHRENS: Yeah. THE COURT: Once the dog's released, I'm assuming the dog is going to bite him whether he gets on the ground, whether he stands there, whether he puts his hands in the air, the dog's going to latch onto him and bite him somewhere. So what's a person supposed to do, I guess, is what I'm thinking in this scenario. MR. BEHRENS: Well, I guess what it really boils down to, and what the Court is saying, is almost like a pseudo?self?defense for which the law in this charge doesn't CARLA S. WALKER, CSR, RMR 179 allow. What it's looking for is, because a creature, what's commonly a dumb animal, as the legislature has it, is following very specific orders. So its ability -- and that's what I'm saying. So once introduced into the mix, it's somewhat vulnerable in that regard, right, because it's operating by someone else's command. So when this animal is placed in a situation where someone has evinced their intent to hurt it and then, in fact, we heard the testimony that it wasn't -- you know, when he was standing and, "Okay, the dog's coming. I'm going to get down and give up." It's, "Here we go, it's time to battle," and gets in, I think, the football stance of anticipating the dog, capturing and then falling on top of it and strangling the dog is, I think, just that different reaction than someone and I'm sure the Court's seen many dog bite cases come through where that's the battling the animal to physically hurt it is different than trying to avoid the pain of the bite to come. And that?s the threshold difference in this case. When I like to file that charge, it's that intent, that announced intent to injure or harm the animal ahead of time and then following up with the opportunity when it presents itself. THE COURT: Do you need a break, Carla? THE REPORTER: I would love one. THE COURT: Let's take a 15?minute break, please. MR. BEHRENS: Thank you. THE COURT: All right. MR. TANSEY: Thank you, Your Honor. CARLA S. WALKER, CSR, RMR 180 (Recess.) THE COURT: All right. We're back on the record in the matter of People of the State of California versus Robert Garcia, INF1800497. All parties are present, as is Mr. Garcia. All right. We're discussing, which is Count 3, I've got the charge as 597, subdivision I couldn't find a CALCRIM. MR. TANSEY: There isn't one. MR. BEHRENS: There is none. THE COURT: Okay. So I'm just reading the Penal Code section, every person who overdrives, no; overloads, no; drives when overloaded, overworks, tortures. Is that what you're going with? MR. BEHRENS: Tortures and torments. THE COURT: Tortures and torments. So let me skip everything else. Having the charge of, custody of any animal, either as owner or otherwise. That doesn't apply here? MR. BEHRENS: Well, it doesn't, because I believe we've litigated this before, and there's a case on point and it's in it should be in my 995 motion on the prior case, where it says, "and whoever" is the same operative as the word 997(b) contemplates people that, for instance, neglect their own pets or, for instance, abuse an animal that they come across in the wild. There's a case directly on point, and it's quoted in my material, and that "and whoever" is the operative conjunction there. CARLA S. WALKER, CSR, RMR 181 THE COURT: So why charge this as as opposed to I'm just curious. MR. TANSEY: Because requires as I recall, requires injury and the dog wasn't injured. MR. BEHRENS: And I'm not ultimately though is the jury instruction, for leans more towards I don't want to call it aggravated torture, mayhem, and death, but to me, even though the exposure is the same, is more in line with what we have here rather than THE COURT: So you're saying that he tortured this animal? THE WITNESS: Tortured and tormented. THE COURT: So maybe go with torture. The CALCRIM for torture for 5987(a), which I don't know why it would be different for says torture means act, failure to act, or neglect that causes or prevents unnecessary or unjustifiable physical pain or suffering. So I guess what I'm asking, what was he supposed to do once they unleashed the dog? MR. BEHRENS: Well, I guess I think what the Court's hinting at is is not what the law allows. Because there's no the only thing there, a legally would be some sort of necessity defense as an affirmative defense to the 597(b), for instance, because looking at the other counts, unlawful police conduct or, for instance, a response to unnecessary or unlawful force, use of force, that's ingrained in 148, for instance. Whereas here, it's simply different. Legally speaking, that's not an operative vehicle to CARLA S. WALKER, CSR, RMR 182 inflict that tormenting. If he is about to be injured by the animal or otherwise, it's just legally not there. THE COURT: But I guess that still doesn't answer my question. Once the dog was unleashed and coming at him to bite him, what was he supposed to do? MR. BEHRENS: Well, in those instances, let's say, and if we have our canine expert here, there's a command to have the dog return. It's in a different language, and it's not like, "Come back, boy," it's there's an actual command where they're trained to break off an attack for that exact purpose. If they see compliance and someone says, "Oh, my God, no," there's a command for a return of the animal. But in the case there was no such indication that there's going to be compliance, so the dog did its thing. THE COURT: You know, I'm just having a hard time with this. If this was, say, for instance this was MR. BEHRENS: Let me give the Court, perhaps, an example, a differentiation. So, perhaps, the Court would ask, well, what if in the wild you're attacked by a mountain lion and you have to kill it to protect yourself. Under my theory, you know, there would be an instance of animal abuse, right? You inflict pain upon the animal. THE COURT: Right. MR. BEHRENS: But there is that built-in necessity offense of why you did it. Whereas here, because of all of these chain of events were not only started but invited by Mr. Garcia, that's kind CARLA S. WALKER, CSR, RMR 183 the difference herein where where I think this charge is supported. THE COURT: Well, it just seems like, to me, then, every time someone fights off a dog, then, they could be charged. If this happens, they're going to be charged with animal cruelty because they fought a dog off that was trying to subdue them. MR. BEHRENS: Well, let's say the dog is biting your arm and you swat at it a couple of times, or, I mean, that situation is different than, you know, catching it in midair and strangling it by its neck. I mean, that's different than holding it away. That's trying to and especially after saying, "I'll kill your dog," then performing a strangulation act which could, if left unattended, kill the dog. MR. TANSEY: And even if the actions here could, in theory, constitute animal abuse, if you look at a review of the cases, there is no case on point like where the statute has ever been used this way. The testimony, with one exception, was that the choke hold was there for two to three seconds. One officer said 20 to 30 seconds, but the others said two to three, and then they fell over. The dog wasn't even injured. So I you know, to the extent that it's a defensive choke hold, it lasted for two to three seconds, and this dog was fine. To say that that's felony animal abuse is stretching the statute in a way it has never been used before. THE COURT: Yeah. In a factual finding herein which CARLA S. WALKER, CSR, RMR 184 I'm going to do, because I think Officer Chacon, he was a lot more specific, it seemed, to recall the circumstances of this in a lot more detail than Sergeant Michael Tapp and Sergeant or Edward Chacon. He did say that the dog was in a headlock for a few seconds. And that was as much as anyone had said regarding the headlock situation up until the point that Sergeant Michael Tapp took the stand and then his estimation went from about, he said, about 20 seconds, then he said 30 seconds. I don't know exactly. So from a factual finding standpoint, I think Edward Chacon was a lot more specific and detailed, and factually it looks like he probably had the dog in a headlock for a few seconds. The dog jumps at him, he grabs him in a headlock, they go to the ground, it's a few seconds, I would say 20 to 30 seconds, so is that animal cruelty? MR. BEHRENS: My final point on the matter would be such that, if the Court's you know, having that concern, I think that I prefer it would be best posed to the jury, give me an opportunity to pose it to the jury and then let them discard it as they see fit. But for purposes of prelim, with that I would submit, Your Honor. THE COURT: Okay. Let's move on to the other counts and then we'll circle back to this. Count 4 is he's in possession of the silver handgun. I think there's sufficient evidence to support that. MR. TANSEY: Your Honor, Count 4 to 7 I'm just submitting. THE COURT: Okay. All right. There is sufficient CARLA S. WALKER, CSR, RMR 185 evidence to hold him to hold him to answer on Counts 4, 5, 6, and 7. What about Count 8? MR. TANSEY: Count 8, there were several photographs showing that. I, frankly, couldn't even see what they were Investigator Berain said they were large capacity magazines. In one instance he said it was a drum magazine, possession of large capacity magazines were was not unlawful until a week later. THE COURT: Yeah, I did see that. Selling those things has always been. MR. TANSEY: Well, selling was ten years earlier, and a weird quirk of the statute. It didn't criminalize possessing them. So to the extent that they they did introduce evidence of mere possession, as I said, I think the photos, they were very dark. I had no idea what they were. But Officer Berain testified, I think, it was 209 and 210. MR. BEHRENS: Actually, Mr. Tansey is correct. Then and currently, the state of the law is that the outright criminalization of high capacity magazines is subject to an injunction right now pursuant to a federal case. And he's right. At the time the statute indicated that it was only illegal to import them, manufacture them. But as seen later in the language in Count 8, it's keep for sale, offer, and expose for sale, which I think the conversations and pictures, the presentation alluded to. THE COURT: Yeah. I do believe there's sufficient evidence to show that he possessed the 30 these three CARLA S. WALKER, CSR, RMR 186 30?round magazines for an that's what it was, yes? MR. BEHRENS: Yes, it was a 30?round magazine for the and a SO?round drum magazine for a Glock handgun. THE COURT: That was Photograph 192 and Photograph Number 210. And the evidence does show he was possessing all these things for sale. He was selling guns. That's what it looks like. MR. TANSEY: I was really just getting it to the extent they were showing only for possession only. That wasn't unlawful at the time. I didn't know which of the 2262 pages they with pulling. THE COURT: Okay. And then Count 9, Mr. Tansey, are you submitting on that as well? MR. TANSEY: I'll submit subject to I don't recall there being proof of that other than -- was a photograph MR. BEHRENS: Thumbnails. MR. TANSEY: One of the thumbnails, okay. I'll submit, Your Honor. THE COURT: Okay. So there is sufficient evidence. Mr. Tansey, you had mentioned 17(b}, I think, with regard to Count 3. My intent is to hold him to answer but to a misdemeanor violation of that as it appears as this happened really quickly, really fast. MR. TANSEY: And I would also like to ask for a 17(b) as well as on Counts 1 and 2. I think my arguments as to 422, I still don't think it's a 422, although the Court raises a very interesting issue about whether a group can be I'll have to research that, I CARLA S. WALKER, CSR, RIVER 187 guess, but we've argued that bit to death. I would like to ask that, a 17(b) on Count 1. Count 2, the resisting, is really, to my mind, seems more akin to a 148 in he's not attacking the officers. He made no threats to the officers. He didn't actually exhibit any violence or make any threats towards them. It was more that he refused to raise his hands, which normally is is treated like a misdemeanor. THE COURT: Yeah. Wasn't he really more putting himself in danger than he was the officers with regard to the way he was acting? Because we all know he didn't have a firearm. He didn't have a gun. And, really, he's I mean, as I'm listening to it, he's putting himself in danger. The officers were really never in danger because he never had a weapon or anything. And he struggled with them by basically rolling around on the ground. He never put hands on the officers or anything of that nature. He was acting in a way that, when I'm hearing the evidence, certainly makes me understand their belief and their fear that he may be possessing a firearm based on all the things that they knew. But did he knowingly resist by use of force and violence? He had his hands underneath him and he was squirming around. I think that's more misdemeanor resisting. MR. BEHRENS: It's a fine argument. What what I'd like to pose for the 69 is ultimately why my opinion on why this is felonious conduct is because it was it was so CARLA S. WALKER, CSR, RMR 188 everything here was avoidable. I mean, just the use of force, but it was all brought on Mr. Garcia by Mr. Garcia's actions. I think here that -- and especially so being on parole, I believe, indicates that his best behavior should be out there. But these officers had to use so many different levels of use of force to get to where we are here, and putting Mr. Garcia himself in jeopardy, I think the dog bite's no small, small injury. And I don't think that that weighs easily on officers to see what can unfold in situations like this. And to rush in, and it just creates a situation that's not it's not light as much as it's dangerous for everyone involved. And I think that's why it was probably charged as a felony. THE COURT: You know, to the extent that all the elements are there for the 422 on Count 1, that's pretty serious when threatening to kill a police officer, so that's a felony threat to me, threatening to kill a police officer. And I'm going to decline to reduce Count 2 to a misdemeanor. And I'm basing that on the fact that Mr. Garcia was on felony probation, apparently, at the time. This situation he did create was completely unnecessary and it did -- you know, if police officers start shooting, who knows where those bullets could end up. And that was the situation that he created by just not complying with them and making the threats. So Count 2 will remain a felony. Count 3, I will reduce that to a misdemeanor because, CARLA S. WALKER, CSR, RMR 189 said, it looked like he just wrestled with the dog for a few seconds at most. Anything further, gentlemen? MR. BEHRENS: None from the People. Thank you. MR. TANSEY: Well, I was going to say, does the Court really feel it rises to the level of animal abuse? Count 3, I was referring to. THE COURT: Count 3, I do think that rises to, as defined by the Penal Code, yes. As defined by the elements of what constitutes torture, yes. Do I personally think this is animal cruelty? No, I don't. But, again, Mr. Garcia could have just laid on the ground and could have avoided all this and the dog wouldn't have jumped and and he wouldn't have been bit. So I think the evidence is there for a holding order. MR. TANSEY: All right. Thank you, Your Honor. THE COURT: I don't think he was being cruel to the animal. I think he was dealing with the situation. Okay. MR. BEHRENS: Thank you, Your Honor. THE COURT: Set this for an arraignment on an Information on the date of July 23rd at 8:30 in Department 3R. MR. TANSEY: Yes, sir. THE COURT: Bail will remain as previously set. MR. BEHRENS: Thank you, Your Honor. Thank you to the court staff for their patience. MR. TANSEY: I'm sorry, Your Honor, did you say -- oh, I'm sorry, July 23rd. That's a Monday. That's good. Thank you. CARLA S. WALKER, CSR, RMR 190 THE the exhibits MR. MR. THE COURT: And both parties stipulate to returning to the People for safekeeping? BEHRENS: So stipulated. TANSEY: Yes. COURT: Okay. Thank you, Mr. Tansey. (Proceedings concluded.) CARLA S. WALKER, CSR, RMR 191 CERTIFICATE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs. Case No. INF1800497 ROBERT ANTHONY GARCIA, Defendant. I, Carla S. Walker, Certified Shorthand Reporter No. 6001, hereby certify: On July 9, 2018, in the County of Riverside, State of California, I took in stenotype a true and correct report of the testimony given and proceedings had in the above-entitled case, pages 1?191 and that the foregoing is a true and accurate transcription of my stenotype notes, and is the whole thereof. DATED: Indio, California; July 18, 2018. CARLA S. WALKER, CSR NO. 6001 CARLA S. WALKER, CSR, RMR