SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO BEFORE THE HONORABLE VEDICA PURI, JUDGE PRESIDINENDO RSED 3 F7 DEPARTMENT No. 12 3? ?a?m?sca 00% Es? JUL 29 2019 PEOPLE OF THE STATE OF CALIFORNIA PLAINTIFF I Lem VS. CN: 19008730 PRELIMINARY HEARING JONATHAN TULAU, Pages 1 56 DEFENDANT. TRANSCRIPT OF PROCEEDINGS ,rf'w? Tuesday, July 23, 2019 E??gl?fyfa? rg? APPEARANCES: g" 1 AUG 012019 For the People: GEORGE DISTRICT ATTORNEY w, City and County of San Francisco 3? _m~mw_ 850 Bryant Street Suite 300 San Francisco, California 94103 BY: SAMUEL BECKERMAN, Assistant District Attorney AUGU I 2019 For the Defendant: BY MANOHAR RAJU, PUBLIC DEFENDER City and County of San Francisco 555 Seventh Street, Suite 205 San Francis 94103 BY: EAGNA OLOMDN, eputy Public Defender Reported By: ROSE M. MILLER, CSR #5041, RPR, CRR, CRC GOVERNMENT CODE 69954(d) RESTRICTS COPYING TRANSCRIPT PAGE Tuesday, July 23, 2019 Proceedings - A.M. Session 4 Tuesday, July 23, 2019 Proceedings - P.M. Session 19 Tuesday, July 23, 2019 Proceedings - P.M. Session 20 Argument by Ms. Solomon 46 Argument by Mr. Beckerman 48 Further Argument by Ms. Solomon 49 Court's Ruling PAGE GILSON, ROBERT 5 PAGE ROBERT GILSON Direct Examination by Mr. Beckerman 5 Direct Examination Resumed by Mr. Beckerman 20 Cross-Examination by Ms. Solomon 29 VOL. VOL. EXHIBITS 1 EXHIBITS A I I DESCRIPTION Alameda County Crime Lab Examination Report S.F.P.D. Crime Lab Prop. 115 Interview Form DESCRIPTION Thumb Drive Containing Body Worn Camera Color Photograph IDEN EVID VOL. 17 1 21 21 1 IDEN EVID VOLA.M. I Monday, July 23, 2019 (Whereupon, the following proceedings were held in open court.) THE COURT: Okay. We're calling Lines 29 and 37, Jonathan Tulau's matter. Counsel, please state your appearances. MR. BECKERMAN: Sam Beckerman, for the People. MS. SOLOMON: Ilona Solomon, Deputy Public Defender, for Mr. Tulau. He is present out of custody before the Court. THE COURT: Good morning, Mr. Tulau. THE CLERK: Judge, Line 29 and 37 have the same case number. Can we just take Line 29 off calendar? THE COURT: Oh, yes. Thank you. We will do that. So, are the People prepared to proceed for this preliminary hearing? MR. BECKERMAN: Yes, Your Honor. THE COURT: The PeOple may call their first witness. MR. BECKERMAN: The People call Officer Gilson to the stand. THE CLERK: Sir, can you raise your right hand? Do you solemnly state under the penalty of perjury the testimony you shall give in this matter will be the truth, the whole truth, and nothing but the truth? THE WITNESS: Yes. THE CLERK: Have a seat sir. Can you please state and spell your name for the record. THE WITNESS: My first name is Robert, R-O-B-E-R-T. And last name is Gilson, ROBERT GILSON, called as a witness for the People, having been duly sworn, testified as follows: DIRECT EXAMINAEION MR. BECKERMAN: Q. Good morning, Officer. A. Good morning. Q. Can you please tell us, what is your profession? A. I'm a police officer in the City and County of San Francisco. Q. And how long have you been a sworn peace officer in the State of California? A. About four years. Q. Officer, have you successfully completed the training course certified by the Commission on Peace Officer Standards and Training, which includes training in the investigation and reporting of cases and testifying at preliminary hearings pursuant to section 872(b) of the California Penal Code, also known as Prop. 115 certification? A. Yes. Q. Officer, were you on duty June 4th, 2019, at about 12:43 in the afternoon, in the area of Jones and Market Street? A. Yes. that in the City and County of San Francisco? A. It is. Q. Do you see anybody here today in court who you came into contact at that approximate date and time? A. Yes, Mr. Tulau. Q. Can you please identify the.person you saw by an article of clothing they are wearing and where they are seated? A. He is seated in front of me to my right, wearing a black jacket with a "Miller" tee shirt under it. MR. BECKERMAN: If the record could reflect the witness has identified the defendant. THE COURT: Yes. MR. BECKERMAN: Q. Officer, how is it you came into contact with the defendant that day? A. I was with my partner, Officer Daneluz, We were in an unmarked police vehicle, and I was driving our car southbound on Jones when I observed Mr. Tulau standing on the east sidewalk north of Market Street. Q. And are you familiar with that specific area? A. Yes. Q. Do you regularly work in that specific area? A. Yes. Q. Okay. And is that area known to you for any particular i types of crimes? MS. SOLOMON: Objection. Assumes facts not in evidence. And leading. THE COURT: Overruled. THE WITNESS: Yes, a plethora of crimes. The unit block of Jones and the thousand block of Market Street are notorious for the sales of marijuana. I have participated in numerous marijuana investigations in that area and I have also seized numerous firearms in that area as well. MS. SOLOMON: I'm going to move to strike the last portion as to firearms, under relevance. THE COURT: Motion denied. MR. BECKERMAN: Q. So you said when you first saw the defendant he was standing on the corner, correct? MS. SOLOMON: Objection. Leading. And assumes facts not in evidence. I believe the testimony was he was standing on the east sidewalk north of Market Street. MR. BECKERMAN: My apologies. I will strike that and ask a different question. THE COURT: Go ahead. MR. BECKERMAN: I will just skip right ahead, actually. Q. Where were you when you first saw the defendant? A. I was still in my patrol car. Q. Okay. And after you first saw him what happened next? A. What drew my attention to him was he had a very large Ziploc bag that was full of marijuana. Q. And have you received any training regarding the investigation and recognition of marijuana? MS. SOLOMON: Actually, I'm sorry. I know this question is next, but for the record, I'm objecting as foundation. Suspected. THE COURT: Overruled. Go ahead and lay the foundation. THE WITNESS: Yes, I have. MR. BECKERMAN: Q. Can you briefly describe, let's start with your training regarding the investigation and recognition of marijuana. A. Marijuana is one of the narcotics that is covered in the POST?certified 40?hour narcotics course that I received at the S.F.P.D. Academy. Q. And approximately how many cases have you been involved in with the investigation of marijuana crimes? Well over 100. Well over 100? Yes, sir. And have you yourself spoken to marijuana sellers? Yes. Have you spoken to marijuana users? Yes. And have you been able to see, smell, and touch marijuana in the course of your duties? A. Yes, probably over a thousand times. Q. And have you ever been qualified as an expert pertaining to the investigation or recognition of marijuana? You said you saw a large bag, correct? A. Large Ziploc bag, yes. Q. Okay. When you say "large," approximately how large? A. When I say "large," it's like the it is the sandwich baggies, like you fit a peanut butter and jelly sandwich in. But it was full, like, spread out. Q. Approximately how far were you from the defendant when you noticed this bag? A. Maybe five to ten yardslane and he was on the sidewalk, so Q. Okay. Did you have a clear View of him or an obstructed View? A. I had a clear View. Q. And so when you saw him with the bag, where was the bag exactly? A. In his hands. Q. In his hands. And what happened after you noticed him with this bag? A. I waited there for a few seconds, and then he appeared to look over at our patrol car and noticed us. We were in uniform. And then he tucked the bag away I believe in his backpack that was behind him. Q. And what did you do after that? A. Officer Daneluz and I exited our vehicle and made contact with Mr. Tulau. Q. Why did you make contact with him? A. Well, for one, the full sandwich bag to me looked like it was over an ounce, which is a misdemeanor crime. MS. SOLOMON: Objection. Move to strike. Speculation. THE COURT: Overruled. THE WITNESS: But it is also it is also a notorious block for the sales of marijuana, so that heightened my suspicion as well that he might have been out there selling marijuana. MS. SOLOMON: Objection. Move to strike. Lack of foundation and speculation. THE COURT: Overruled. Motion is denied. MR. BECKERMAN: Q. So you approached and made contact. What happened next? A. I think I told him that he couldn't be out here with that marijuana and he said something to the effect of: "All right." Q. And what happened after that? A. I believe I asked him for his I.D. and I think he gave it to me as well. Q. Okay. And after you asked for the I.D., what happened next? A. I conducted a search of his person for more marijuana. Q. What, if anything, did you find in the course of that search? A. I found a pill bottle in his front right pocket and there was a large amount of individually packaged cocaine base baggies. MS. SOLOMON: Objection. Move to strike. Lack of foundation. Speculation as to "cocaine base". THE COURT: You need to lay the foundation, Mr. Beckerman. MR. BECKERMAN: Q. Okay. Let's talk about that for a second. Officer, have you received training regarding the investigation of or recognition of cocaine base? A. Yes, in that same 40?hour course that I mentioned earlier. Q. Okay. And have you been involved in investigations pertaining to cocaine base in the field? A. Yes. Q. Approximately how many? A. Well, spanning from possession to possession for sale and sale, well over 100 times. Q. All right. And have you spoken to sellers of cocaine base? Yes. Have you spoken to users of cocaine base? YES. Have you been able to see, smell, and touch cocaine base in the course of your duties? Yes. And I have purchased cocaine base in an undercover capacity as well. Q. And have you ever been qualified as an expert in the investigation of cocaine base cases for the recognition of cocaine base? A. Yes. Q. Okay. Was that as to both? A. Yes. Okay. So you mentioned pill bottle where you found the suspected cocaine base. What, if anything else, did you find? A. The numerous packets, I think it was like 34 individual baggies of cocaine base, as well as five pills that had an imprint of a scorpion on them, which is very consistent with the appearance of ecstasy. MS. SOLOMON: Objection. Move to strike. Lack of foundation. THE COURT: Mr. Beckerman, you need to lay a foundation as to that answer. MR. BECKERMAN: I understand. Q. Officer, have you received training involving the investigation and recognition of -H Let me take a step back. I'm just going to move on. THE COURT: Okay. MR. BECKERMAN: Q. You mentioned that the suspected cocaine base was in approximately 34 bags, correct? MS. SOLOMON: I apologize. Is the previous answer stricken, in light of that? THE COURT: It will be. The motion to strike is granted. Go ahead. So the question that was pending, Officer, is: "You mentioned that the cocaine base was in approximately 34 bags, correct?" THE WITNESS: Yes. MR. BECKERMAN: Q. And did you weigh the suspected cocaine base? A. I did not. Q. Okay. Did anybody at the police department weigh that suspected cocaine base? A. My partner Officer Daneluz did once we were back at Tenderloin Station. Q. And what were the results of his weighing of that suspected narcotics? A. I would have to look at the report to refresh my memory. Q. If that would refresh your recollection, please look down and review your report and look up when you are ready. MS. SOLOMON: Objection. Improper testimony. That is not 115, Your Honor. He can't read the report and recite what another officer did or found. THE COURT: No, but this officer was part of that exact investigation, so I think it is appropriate. Go ahead, Officer. THE WITNESS: Thank you. The grams gross would be 7.0. MR. BECKERMAN: Q. What, if anything else, did you find over the course of your search of defendant? A. I found -- it was over like $300 in his pocket as well. And I asked Officer Daneluz to search the backpack that I observed Mr. Tulau placing that marijuana in. He found that baggie that I observed him holding. He found another Ziploc baggie that was a little bit smaller but it was still full, and a green plastic container that had even more marijuana in it. Q. And did anybody weigh the suSpected marijuana? A. Officer Daneluz did. Q. And what was the total weight of the marijuana? A. I remember it was 60?point something grams gross. I would have to look at my report to give you the exact number, though. Q. Yes, if that would refresh your recollection, please look down. Look up when you are ready. A. It was $306. Q. I'm sorry, I think we were -- the question was the total weight of the suspected marijuana. A. Oh, sorry. Can I look down at the report again? THE COURT: Yes. THE WITNESS: Sorry about that. THE COURT: And just while the officer is doing that -- (Discussion off the record.) THE WITNESS: 61.2 grams gross. MR. BECKERMAN: Q. Okay. And based on your training and experience, is that a usable amount? A. Yes. Q. Okay. And going back to the cocaine base which you stated weighed at 7.0 grams, based on your training and experience, would that be a usable amount? MS. SOLOMON: Objection. Misstates the testimony. It is gross 7.0 grams, including packaging. THE COURT: With that clarification, you can answer. THE WITNESS: Yes, that is a usable amount. MR. BECKERMAN: Q. You mentioned when you encountered the defendant he had a bag, correct? A. Which bag? Q. How many bags were there? A. Well, there was the bag of marijuana. I don't know if that is what you were referring to. And his backpack. Q. Okay. Did anybody conduct a search of the backpack? MS. SOLOMON: Objection. Asked and answered. MR. BECKERMAN: Oh. THE COURT: Sustained. MR. BECKERMAN: I will ask a different question. Q. What, if anything else, was found on the defendant? Nothing more than what I stated earlier. Q. Okay. Did you author a report in this case, Officer? A. Yes. Q. And did you author that report when the events at issue were fresh in your memory? A. Yes. Q. And is your report a fair and accurate summary of the events that occurred June 4th, 2019? A. Yes. MR. BECKERMAN: Okay. Just a moment, Your Honor, I apologize. Q. Officer, I direct you to your report. Do you have it with you? A. Yes. Q. To the narrative which is Page 4 of 4. MS. SOLOMON: I'm objecting at this time. There is no question pending. I'm not sure what is going on. THE COURT: Right. So let's ask a question. And then if there is a need to refresh -- MR. BECKERMAN: Q. So, Officer, you don't remember finding anything else in the defendant's backpack, correct? A. Oh, I thought you were asking me about his person. I did find a digital scale in his backpack as well. Q. Okay. And when you say "his backpack," how do you know it was his backpack? A. When I observed him place the marijuana into it, I just figured that was his backpack. And it was right behind him. Q. Gotcha. A. And there was also some paperwork in the backpack as well that had somebody's name I don't remember the first name, whether it was his, but I do remember seeing the last name of "Tulau" in a notebook. Q. Okay. And, Officer, what became of the suspected narcotics and pills found on defendant? A. They were transferred to the Alameda County Sheriff's Office Crime Lab for analysis. MR. BECKERMAN: Okay. I'm going to ask to have marked for purposes of identification an 8-and?a?ha1f-by-1l document with the heading "Alameda County Sheriff's Office Crime Laboratory Examination Report." Counsel does have a copy. Correct? (People's Exhibit 1 was marked for identification.) MS. SOLOMON: Yes. MR. BECKERMAN: May I approach the witness? THE COURT: Yes. MR. BECKERMAN: For the record, I'm approaching with People's 1. Q. Officer, you recognize People's l? A. Yes. Q. What do you recognize it to be? This is the crime lab examination report that is attached to the narcotics in this case. MS. SOLOMON: Objection. Move to strike. Suspected. Foundation. THE COURT: Overruled. MR. BECKERMAN: Q. And, Officer, did you speak to the -- you said Alameda Crime Lab? A. Yes. Q. Who did you speak to there? A. A criminalist by the name of Michelle Hensley. MS. SOLOMON: I apologize. Is there something I'm missing? No one gave me discovery on a Prop. 115, if there was one. MR. BECKERMAN: It was done moments before here. MS. SOLOMON: Is there a copy for me? MR. BECKERMAN: I don't have a copy. THE COURT: Here is what we're going to do: We?re going to take our break. If you can supply Ms. Solomon with a copy MR. BECKERMAN: Sure. THE COURT: -- we will reconvene at 2:30. Okay. Thank you. (Whereupon, court observed the noon recess). P.M. I Tuesday, July 23, 2019 (Whereupon, the following proceedings were held in open court.) THE COURT: We're back on the record in the matter of our preliminary hearing. There is one short matter that the Court wishes to call. Ms. Solomon, will Mr. Tulau be willing to give us a short bifurcation? MS. SOLOMON: Mr. Tulau, you have a right to have your hearing be uninterrupted. Do you give up that right just for this one quick case, and that is it, and we will get back to your hearing? THE DEFENDANT: Uh-huh, yes. THE COURT: Thank you. I appreciate that. So we are going to call Mr. Matesky's matter. He is here on time. (Whereupon, proceedings were bifurcated.) P.M. I Tuesday, July 23, 2019 (Whereupon, the following proceedings were held in open court.) THE COURT: Officer Gilson. Okay. We are back on the record in the matter of our preliminary hearing. Counsel are here. Mr. Tulau is present. Officer Gilson is on the stand. Mr. Beckerman, you were in the middle of your direct examination. DIRECT EXAMINATION (RESUMED) MR. BECKERMAN: Yes, Your Honor. Thank you. Q. Good afternoon, Officer. A. Good afternoon. Q. So, I think where we left off, just for context, you had mentioned you spoke to Criminalist Michelle Hensley about this matter, correct? A. That's correct. MR. BECKERMAN: At this time I would ask if the defense would stipulate to the Alameda Crime Lab narcotics analysis form. MS. SOLOMON: I will not stipulate to the form. What I said was I would stipulate to the Prop. 115 interview. So, rather than go through question and answer, did you ask her this and what was her answer, he can mark the form as an exhibit and I will stipulate that that form admitted. Not the lab exam. THE COURT: Understood. MR. BECKERMRN: The People will accept said stipulation. I will mark as People's 2, a one?page double sided document as just referenced by counsel entitled, "San Francisco Police Department Crime Lab Controlled Substances Proposition 115 Interview Form." And that is with Lab NO. 19?305508. (People?s Exhibit 2 was marked for identification.) THE COURT: With that stipulation, People's 2 will be admitted into evidence. (People's Exhibit 2 was received in evidence.) MR. BECKERMAN: May I approach the bench with that, Your Honor? THE COURT: Yes. MR. BECKERMAN: Counsel has seen it. THE COURT: Thank you. MR. BECKERMAN: Q. Officer Gilson, are you familiar with the lab results from this case? A. Yes. Q. Okay. Just a moment. And did you discuss with Ms. Hensley the testing of the pills that you located with defendant? A. Yes, I discussed all the narcotics this morning with Ms. Hensley. And did she test a sample from those pills? MS. SOLOMON: I'm going to object as 352. I stipulated to the 115. It is already in the Court's record. THE COURT: I agree. MR. BECKERMAN: It is linking what Was tested with the results. THE COURT: That is fine. Overruled. Go ahead. MR. BECKERMAN: Q. So, did you ask her whether she tested a sample from the pills you submitted? A. I did, yeah. MR. BECKERMAN: Okay. Your Honor, at this time, based on questions previously asked, I would ask to qualify Officer Gilson as an expert in the following: Cocaine base for sale. Marijuana for sale. As well as methamphetamine for sale. Subject to voir dire. MS. SOLOMON: I'm objecting as to methamphetamine on relevance grounds. Mr. Tulau is not charged with that. He is charged with possession for sale of MDMA, possession for sale of cocaine and possession for sale of marijuana. I'm also not going to stipulate to expertise. I would like to voir dire. The Court can tentatively -- THE COURT: The officer will be qualified, subject voir dire. MS. SOLOMON: As to all three or just cocaine and marijuana? THE COURT: Mr. Beckerman? MR. BECKERMAN: Your Honor, this will conform to proof. THE COURT: Then as to all three. MS. SOLOMON: I'm sorry, in that case, then, I definitely object, because I don't think any questions were asked about his experience with methamphetamine, so foundation. MR. BECKERMAN: I think that is fair. I can ask some foundational questions. THE COURT: Go ahead. Let's cure that. MR. BECKERMAN: Q. Officer, can you briefly explain to us your training in regards to methamphetamine, particularly methamphetamine for sales investigation? A. Methamphetamine was covered in the 40-hour narcotics POST-certified course that I mentioned earlier. I have participated in well over 100 arrests, investigations related to the possession, possession for sale, and sales of methamphetamine. I have purchased methamphetamine in an undercover capacity. And I speak with users and sellers of methamphetamine almost every day that I work. Q. And have you previously been qualified as an expert in the recognition of methamphetamine and the investigation of methamphetamine for sales cases? MS. SOLOMON: I'm objecting as to recognition. There is a lab report in evidence or rather a 115 in evidence. THE COURT: Overruled. THE WITNESS: Yes. Both. MR. BECKERMAN: Okay. Can I swing it back to voir dire? I'm sorry to THE COURT: That is fine. I think the foundation has been laid, such that Officer Gilson is provisionally qualified on the three drugs at issue. MR. BECKERMAN: Just a moment, Your Honor. I apologize. THE COURT: That is fine. MR. BECKERMAN: Q. Officer, are you familiar with the test results for those pills you found? A. Yes. Q. Okay. And what were the results? What did it test as? MS. SOLOMON: Objection. 352. THE COURT: Overruled. THE WITNESS: They came back positive for methamphetamine. MR. BECKERMAN: Q. Okay. And I believe you testified earlier it was five pills total; is that correct? A. Yes. Q. Based on your training and experience, is a single pill of methamphetamine a usable amount? A. Yes. Okay. And, Officer, based on your training and experience, do you have an opinion as to what the substance in the large sandwich bag was that you observed? A. Marijuana. Q. Okay. And do you recall the weight of the, as you described it, large sandwich bag that you initially observed the defendant with? A. Yes. My partner, Officer Daneluz, had weighed the three different packages of marijuana separately. I believe the largest bag was 27.0 grams gross. Q. And do you recall if it was the largest bag or a different bag that you initially saw him with? A. It was the largest bag. Q. Okay. And, Officer, for each of the individual narcotics, let's start with the cocaine base, do you have an opinion as to why the defendant possessed that substance? A. I believe he possessed it for sales. Q. And what do you base that opinion on? A. There are several different factors: 34 individually wrapped baggies of cocaine base is far more than what a typical user would ever possess; all packaged together in the same pill container as five pills of what I believed to be ecstasy; that, in conjunction with he didn't have a crack pipe on him to ingest cocaine base; coupled with the fact that he had over $300 in cash; and he high narcotics area, I sales. believe he possessed it for Q. And do you have an opinion as to why the defendant possessed the methamphetamine pills? A. Yeah. I mean, it is all packaged I mean, the cocaine base and the ecstasy pills were packaged together. Typically, when you see someone possession of ecstasy pills for would be like one or two pillstheir personal use, it not five pills in conjunction with 34 coin bags of cocaine base and $300. That, well and that is why I believed for sales. and the area that he is in is notorious for that as he possessed the ecstasy Q. Based on your training and experience, what is the relationship between ecstasy and methamphetamine? MS. SOLOMON: Objection. THE COURT: Foundation. I think the foundation has been laid. He has been provisionally qualified. Go ahead. THE WITNESS: Ecstasy is there is ecstasy has two for! called Molly. One is more pure a form of amphetamine. So, as: MDMA and what would be than the other. But typically when you see fraudulent pills, ecstasy would probably be the most freqt the streets. People will make 1 pills wereainscribed with a sco: particular dealer's logo on the lently fraudulent pill on :heir own pills. Like these :pion, so that could be a pill. And when they are making their own pills, oftentimes methamphetamine will give a similar feel or effect ecstasy. MR. BECKERMAN: Q. Th same question, do you have an opinion as to why the defendant possessed marijuana? A. Yeah, that was over 60 grams gross, which is over twice the legal limit allowed for one person to possess; on the unit block of Jones, which is notorious for the sales of marijuana; that, in conjunction with the digital scale that he had in his backpack, I believe he posed the marijuana for sales as well. MR. BECKERMAN: Just a brief moment, Your Honor. Your Honor, at this time I would ask to admit People's 1 into evidence pursuant to Evidence Code sections 1280, official records, and 664, official duties presumed done correctly. THE COURT: What is People's 1? MR. BECKERMAN: People's 1 as previously marked is the one-page Alameda Crime Lab report. THE COURT: Is there any objection? MS. SOLOMON: Yes, there is an objection. It is multiple hearsay and includes examination, results and conclusions that this witness cannot authenticate. This witness testified to a Prop. 115 examination. This is clearly not an official record. There is no official records exception for police reports. There is no official records exception for lab reports. They are inadmissible unless a proper foundation is laid by the testing person. And although this isn't a trial, Melendez?Diaz and Bullcoming are the two United States cases on point which establish that a defendant has a right to cross?examine under the confrontation clause a person who tested the substance. So for us to move into evidence an unauthenticated document it is not a public record. It is the same as a police report for the purposes of that alleged exception that the People to seek to move it in for. It is also 352 from the I15 form that I did stipulate to. THE COURT: Got it. Let me take a look at it. MR. BECKERMAN: Your Honor, if I may just to address those issues. THE COURT: Yes, go ahead. MR. BECKERMAN: My understanding, that the Prop. 115 form from the Alameda Crime Lab does supply enough foundation. THE COURT: Let me just ask this, Mr. Beckerman. MR. BECKERMAN: Certainly. THE COURT: Do you need this in evidence MR. BECKERMAN: I think it THE COURT: for your case? MR. BECKERMAN: Maybe not absolutely, but I think it ties things up. MS. SOLOMON: Considering that the prosecution has a theory in most prelims that an officer can look at something and tell the Court an opinion on what it is, I don't think that -- THE COURT: Yes. 80, for our purposes today, I don't think you have a sponsoring witness for this particular document. .MR. BECKERMAN: Okay. I will move on. That is fine. With that, nothing further. May I come and claim that? THE COURT: Yes, you may. Ms. Solomon. CROSS-EXAMINATION MS. SOLOMON: Q. Good afternoon, Officer Gilson. A. Good afternoon. Q. You wrote a police report in this case? A. Yes, I did. Q. And you are trained in how to write police reports? A. Yes. Q. You are trained to include all relevant and material information? A. Yes. Q. And as you testified on direct, you wrote this report soon in time after the incident? Yes, I did. You signed it under penalty of perjury? Yes. And you reviewed it before coming to court today? . Yes, I did review it. And'you didn't notice anything incorrect? The one thing that I noticed was and I actually just remembered this during the lunch break was that when I was speaking to Mr. Tulau before I searched him, he showed me I don't remember if it was a vape pen or if it was like a marijuana pipe, but it was something to that effect. Q. He showed you paraphernalia that is used for smoking of marijuana and ingesting marijuana. A. That is what I remember it as, yes. Q. Okay. Thank you. So, you were on patrol on June 4th, correct? A. I'm blanking on the date of this incident, but I was on patrol on a date that I contacted Mr. Tulau. Q. And at the time that you contacted Mr. Tulau you were not dispatched to that scene, correct? A. That is correct. Q. You had never met Mr. Tulau before? MRS BECKERMAN: Objection. Relevance. THE COURT: That is okay. You can answer. THE WITNESS: I did not know Mr. Tulau, no. MS. SOLOMON: Q. And you didn't see him smoking any marijuana when you saw him, correct? A. Correct. Q. You didn't see him exchange anything with any person, correct? A. That is correct. Q. So you saw him standing there and correct? A. He was standing there, yes. Q. And you saw him holding a Ziploc bag of marijuana, correct?- That is correct. Q. And you didn't stick around and conduct surveillance, right? You just saw him in passing and stopped the patrol car, right? A. Yes. Q. When you essentially saw him holding the bag of marijuana, you also saw him put it into the backpack, correct? A. Yes. Q. And you approached Mr. Tulau, having gotten out of your patrol car, correct? A. If you are going in like a subsequent chain of events, I think he kind of put it in as I was getting out of the car. Q. Okay. Well, so, you got out of the car and approached Mr. Tulau, correct? A. I did, yes. Q. And there were actually three of you, correct? THE COURT: You mean three officers, Ms. Solomon? MS. SOLOMON: Q. Yes, three officers. A. If-there were, Officer Gomez would have been with us. But don't recall if she was there or not. Q. Would it refresh your recollection to look at your report? A. If I made a note of it, it might refresh my recollection. Q. Okay. Well, I'm asking you to look at your report and look at the first sentence. Does that refresh your recollection? A. Yes, it does. Q. Sogyou were with Officers Gomez and Daneluz, I correct? A. Correct. . Q. And I forgot to ask you this: You mentioned on direct examination that you had a clear unobstructed View of Mr. Tufau holding a bag of marijuana, correct? A. Correct. Q. And you could clearly see that it was marijuana, correct? . A. Correct. Q. And you could clearly see it was in one Ziploc baggie? I A. Th? baggie that I saw him holding was one Ziploc baggie. Q. Solyou did not observe any individually packaged i marijuanaiin Mr. Tulau's hand when you saw it, correct? A. Right. The only thing that I -- well, the Ziploc .bag is individually packaged, so but it was just one I I Ziploc baggie, one large Ziploc baggie of marijuana. Q. Okay. So: you said on direct examination that when you observed dhe baggie, it looked like a fairly large Ziploc bag like it could have been over an ounce, correct? You said that on direct? A. Right. I You-did not put in your report that you thought it might have'been over an ounce, correct? A. I doubt that I did. Q. Well, I'm asking you to look at your report as to the first paragraph and ask you to read that to yourself and let me know whether that refreshes your recollection. A. You said the first paragraph? Q. Yes. A. Rightpolice report that I thought it was over an ounce. Q. And you then all three of you were in your uniforms, correct? A. I believe so, yes. Q. All three of you had badges and firearms? A. I don't know if we were wearing our class uniforms which has your star on it or if we were wearing B.D.U.s which has an imprinted star on it, but we were in uniform, and, yes, we had our firearms on us. Q. And do you recall that Mr. Tulau was kind of against the wall; he was standing near a wall? A. Yes. He was standing a few feet away from the wall. Q. And then when you approached him, you stood more or less facing him in front of him, correct? A. I mean, I was speaking with him face?to-face, so, yes. Q. And then, do you recall that Officer Gomez was on Mr. Tulau's left side and Officer Daneluz was on his right? I A. I don't recall the positioning of the other officers. Q. Would it refresh your recollection to look at your body-worn'camera? A. Perhaps. MS. SOLOMON: At this time I would like to have marked as Defense A, the thumb drive containing the officer's body-worn camera. If I may approach. (Defendant's Exhibit A was marked for identification.) THE COURT: Yes. Do you want to View it at the same time? MR. BECKERMAN: I have viewed it. Thank you. [Video being played; audio not reported.] THE WITNESS: That is Officer Gomez. MS. SOLOMON: Okay. I'm pausing it at 0036 seconds of the file. Q. So, Officer, fair to say, does that refresh your recollection that Officer Gomez was on Mr. Tulau's left? A. In this picture frame she is situated to his left. Q. Do you recall, does this refresh your recollection whether Officer Daneluz was on Mr. Tulau's other side or do you need to see some more? A. I honestly don't recall where Officer Daneluz was. Q. Playing a little bit more of B.W.C. [Video being played; audio was not reported.] MS.I SOLOMON: Q. Can you see the other officer behind Mr. Tulau? i Yeah, that is Officer Daneluz. I can tell. MS. SOLOMON: Okay. I'm also going to have to ask Defense A be moved in eventually. I will ask to have it moved in now while I'm thinking it. MR. BECKERMAN: No objection. THE COURT: Officer A will be admitted into evidence. (Defendant's Exhibit A was received in evidence.) MS. SOLOMON: Q. Do you remember Officer Daneluz moving Mr. Tulau's backpack from where it was away from him? A. I don't recall that. I do recall Officer Daneluz searching the backpack but I don't recall at what point he took custody of the backpack. THE COURT: Ms. Solomon, let me ask just this question: What is the relevance of this line? MS. SOLOMON: Well, I don't know what they are going to argue so it is relevant to the motion to suppress. So I don't know what their argument is going to be. That is the relevance: THE COURT: I get the scenario. I think we don't have to go step-by-step. Let's just get to the heart of the matter. MS SOLOMON: Okay. Q. So} the first thing you said to Mr. Tulau was that he could not be "You can't be out here with that marijuana!" Correct? A. Right. And he said: "All right." Correct? MR. BECKERMAN: Object. 352. It is on the video. THE COURT: Yes. Ms. Solomon, if we could just I get the gravamen of the M.T.S. but this line is not relevant. MS. SOLOMON: Okay. You asked Mr. Tulau whether he had any more marijuana on him, correct? MR. BECKERMAN: Objection. 352. It is in evidence. THE COURT: He can answer yes?or-no. He just did see the video. THE WITNESS: I don't know if I asked if he had any more on him or I asked if he had any more and he told me he did not. MS. SOLOMON: Q. And you asked -- you never asked him how much was in the baggie you had seen him holding, correct? A. I don't believe I did. Q. And you never asked to actually see that particular baggie, correct? A. Right. Q. In your police report -- I'm sorry. Let me back up. You did ask him whether he was selling or smoking, correct? you remember that? I A. Vaguely. I don't remember what his response was, though. Q. You don't recall him saying he was smoking as he pulled ou% the paraphernalia that you referenced earlier? A. Yes, that refreshes my memory. . Q. Okay. So he told you he was smoking it. A. Yes, that weed pipe or marijuana pipe that I mentioned earlier. Q. And at that point you decided to search Mr. Tulau to determine whether he was in compliance with California's marijuana laws, correct? A. Right . Q. And you decided to search him for additional marijuana, correct? A. Right. Q. And you didn't look for the baggie in question in the backpack initially, correct? A. Correct. Q. You were looking for more, above and beyond the baggie you had observed, correct? A. Right. Q. And the baggie that you observed as you testified just now at the end of your direct was actually under an ounce, correct? A. Yeah, an ounce would be 28.5 and that baggie that I initially observed Mr. Tulau holding was 27.0. Q. Gross, correct? Right. As in including the packaging, right? Right, just that Ziploc baggie. You mentioned the $300 he had in his pocket. That was actually in his wallet, correct? A. There was money in his wallet and there was money in his pockets. I Q. You believed that the pills that you saw were ecstasy, correct? A. I did, yes. Q. How many times have you been qualified as an expert on the recognition of ecstasy? MR. BECKERMAN: Objection. Relevance. 352. THE COURT: You can answer. THE WITNESS: None. MS. SOLOMON: Q. How many times have you believed the substance that you thought was ecstasy you later found out was not actually ecstasy? None to my knowledge. Well Except for this one. Okay. Which came back pure methamphetamine. You mentioned the area that Mr. Tulau, where you observed Mr. Tulau and contacted him, that area you mentioned you know very well, correct? A. Yes. Q. And you are aware that there are numerous restaurants and businesses in that area? MR. BECKERMAN: Objection. Relevance. THE COURT: He can answer yes or no. THE WITNESS: No, I'm not. MS. SOLOMON: Q. So you are not aware that there are businesses like the pizzeria on -- right around the corner from there? A. Pizzeria on the unit block of Jones? Q. In the area. You mentioned the area. MR. BECKERMAN: Objection. Vague. THE COURT: Asked and answered. MS. SOLOMON: Q. You are aware that the Warfield, which is a large concert venue, is up the block, right? MR. BECKERMAN: Objection. Relevance. 352. THE COURT: Yes. Sustained. MS. SOLOMON: If the area is part of his consideration for his opinion, then I think it is relevant. THE COURT: What kind of businesses being in the area? The officer testified as to his experience this area is a high narcotics sales area, so what does businesses have to do with that? MS. SOLOMON: Well, Your Honor, the case law on high crime area specifically says that it is not a very legitimate factor for the Court to take into account in light of the fact that people have other business and a lot of people who are of low income live in areas that are could considered, quote/unquote, high crime. And I'm merely illustrating that that area has a lot of other business. If the Court is going to take into consideration the officer?s opinion that he thinks it is a high-crime area, then I'm entitled to cross-examine on the many legitimate other things going on in that area. THE COURT: So, the case law says that the Court should not take into consideration high-crime area alone as a factor. MS. SOLOMON: Right. THE COURT: So, given that, I'm sustaining 352. Move on. MS. SOLOMON: I'm asking the Court to take judicial notice, then, that the area has BART. Within probably 15 feet there is a BART entrance. And that there is churches and there is a mosque nearby. There are numerous nonprofit organizations in the area. And there is also other businesses. THE COURT: You have made your record, Ms. Solomon. Go ahead. MS. SOLOMON: Q. Officer Gilson, you referenced that Mr. Tulau is "other male" when you called in his I.D., right? A. Yes. Q. He is a Pacific Islander? He appears Samoan or something similar? MR. BECKERMAN: Objection. Relevance. THE COURT: Sustained. MS. SOLOMON: Your Honor, am I going to not be permitted to ask questions about race, because it falls within Penal Code section which prohibits police Officers from racial profiling. THE COURT: Let me ask this question, Ms. Solomon: So, how is that going to affect the probable cause ruling at this stage? Are you asking the Court to make a determination as to whether or not that there was racial profiling here? MS. SOLOMON: I'm asking the Court to make a determination that there was no grounds for detention, arrest or search. And if in fact there is racial profiling, it goes directly to whether or not there is grounds for detention, arrest or search. THE COURE: But the grounds for the detention arrest or search, as I understand them, the argument that you have presented, is that there was no such thing. That simply Mr. Tulau was standing around, playing music, and there was no basis therefore for the stop. What I have heard testimony about is that actually the officer viewed Mr. Tulau holding a bag of that was kind of expanding out, which takes some effort with a small plastic baggie, of marijuana and that was the basis for his stop. So I don't think the racial profiling aspect of this is relevant to this hearing. MOVE . MS. SOLOMON: Okay. At this time I would like to have marked as Defense next in order, a photograph, 8?and-a-half?by-ll. May I approach? (Defendant's Exhibit was marked for identification.) THE COURT: Yes. MS. SOLOMON: Q. Officer, I'm showing you -- MR. BECKERMAN: I'm sorry. I haven't seen this. MS. SOLOMON: I'm sorry. You are right. Defense B. MR. BECKERMAN: Okay. MS. SOLOMON: Defense B, a color photograph showing what appears to be marijuana. Q. Officer, do you recognize the items depicted in Defense Exhibit A. Yes. Q. And is that a fair and accurate depiction of the items that you seized from Mr. Tulau? A. Yeah, you can see the three marijuana containers, and the cocaine base, and what I believed to be ecstasy. This is what I seized from Mr. Tulau. Q. And the baggie that you observed him holding was this one right here towards the lower right quadrant of the photograph, correct? A. Correct, the bigger of the two. Q. And that is the baggie that you described earlier, correct? A. Yes. Q. That weighed MR. BECKERMAN: Objection. Vague. THE COURT: That is okay. Overruled. MS. SOLOMON: Q. That weighed 27 grams, correct, gross? I A. borrect. MS. SOLOMON: I would like to have Defense Exhibit moved into evidence. MR. BECKERMAN: -No objection. THE COURE: Defense Exhibit will be admitted into evidence. (Defendant's Exhibit was received in evidence.) MS. SOLOMON: Q. Officer, you indicated that it is your opinion that Mr. Tulau possessed the cocaine base for sale because of the number of individually wrapped baggies and the fact that he had no crack pipe, correct? And the fact that it was an area known for narcotics, correct? A. I believe I gave other factors involved, but those are some of the factors. Q. So, you also opined that Mr. Tulau possessed the marijuana for sale, correct? A. Yes, that is my opinion. Q. However, the marijuana was not individually packaged, correct? A. Correct. Q. Into smaller amounts. And, in fact, Mr. Tulau showed you his paraphernalia, correct? A. I should actually correct myself. When you say "individually packaged," it was individually packaged into three separate containers, so Q. Officer Gilson, are you aware that there are different strains of marijuana? A. Yes. Can you name the two main strains of marijuana? A. No. Q. You are not aware of indica and sativa types of marijuana? Indica and sativa as strains of marijuana? MR. BECKERMAN: Objection. Relevance. 352. THE COURT: Sustained. And asked and answered. He said he doesn't know. MS. SOLOMON: Okay. Well, he was proffered as an expert, so Q. Are you aware that different strains of marijuana .affect users in different ways? MR. BECKERMAN: Objection. Relevance. 352. THE COURT: You can answer yes or no. THE WITNESS: Yes. MS. SOLOMON: Q. Are you aware that users of marijuana typically keep their different strains separate so they can choose what kind of high they want to have? A. I'm aware that people keep their marijuana separately. Q. And you are also aware that people typically purchase marijuana in an eighth or a gram or something similar as a quantity? A. It depends. Q. Okay. And in this-instance, you described that Mr. Tulau had one larger baggie, one smaller baggie, and some marijuana separately in a green bottle, correct? A. Correct. Q. All of that was in his backpack, correct? Other than the baggie that you initially observed that he placed into the backpack. A. Right . Q. And you didn't observe smaller packaging such as you observed with the suspected cocaine base, correct? THE COURT: With respect to the marijuana, Ms. Solomon? MS. SOLOMON: Q. Yes, that's right. A. I didn't see the marijuana in any other packaging other than the three containers they were in. Q. You would agree that five is a small number of pills of ecstasy or methamphetamine, correct? A. I mean, five is a small number, yes. Q. And your reasoning for why you believe that the pills that you thought were ecstasy were possessed for sale is based on the fact that users only typically consume one or two at a time? A. No, you are leaving out like a large portion of my opinion on why I said he possessed the ecstasy for sales. Q. Okay. If I can just have one moment. THE COURT: Yes. MS. SOLOMON: Q. Officer, in your four years as an officer, isn't it true that on two occasions you have been found to have illegally searched people in the Tenderloin and had motions to suppress granted? MR. BECKERMAN: Objection. Relevance. 352. Improper. THE COURT: Sustained. MS. SOLOMON: It is impeachment. It goes to pattern and practice. THE COURT: Sustained. MS. SOLOMON: I have no further questions at this time. THE COURT: Any redirect, Mr. Beckerman? MR. BECKERMAN: No, thank you. THE COURT: Officer, you are excused. THE WITNESS: Thank you. THE COURT: Thank you. Do the People have any more witnesses they intend to call? [Witness exits.] MR. BECKERMAN: No, Your Honor. People rest. Waive opening. THE COURT: Thank you. Ms. Solomon, does the defense have evidence it wishes to introduce? MS. SOLOMON: No, Your Honor. THE COURT: Do you wish to argue? MS. SOLOMON: Yes, Your Honor. THE COURT: Go ahead. ARGUMENT MS. SOLOMON: Okay. So, I just want to say as an initial matter that, I have said this before, the California Rules of Court require the prosecution to respond in writing with a justification when a motion to suppress is filed. That did not occur in this case. I am entirely guessing on what they were arguing or would be arguing based on the police report, something I'm not required to do. That being said, the first thing I want to direct the Court's attention to is Health and Safety Code section which clearly states in no uncertain terms that cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure. And no conduct deemed lawful by this section shall constitute the basis for detention, search or arrest. Officer Gilson saw Mr. Tulau doing nothing whatsoever illegal. He was standing holding a bag of under an ounce of marijuana. That's it. And conduct deemed legal is not a basis for detention, arrest or search. It is clear in the law, it couldn't be any clearer. And to suggest that he might have more, that he had to search him for more is rampant speculation and that is exactly what in re: D.W. specifically prohibits. And that is the case that I gave the Court a copy and that was this jurisdiction. It was Officer Ochoa. It was Judge Braden Woods. And Judge Woods was overturned on appeal because a police officer searched somebody for more marijuana. And at that time, by the way, marijuana was an infraction. Now it is not even an infraction. It is the same as me carrying around a six-pack or a bottle of wine. You don't search me for more because it is not contraband. So it can't be any clearer. The officer testified that he saw Mr. Tulau standing, doing nothing illegal. And to suggest that he can be detained, searched or arrested for any other reason is in violation of the Fourth Amendment and in re: D.W. And I don't think it can be any clearer. And I'm asking that the Court grant the motion to suppress. THE COURT: Mr. Beckerman. ARGUMENT MR. BECKERMAN: Thank you, Your Honor. I did have a chance to review the case cited by counsel, in re: D.W., and I believe it is completely distinguished from the facts at hand. That case had to do with a search initiated with the following facts: Fairly limited, Your Honor, of the smell, the aroma of burnt marijuana and the admission of use of marijuana. Again, entirely different from what we see here, which is the officer took the stand and explained to us very clearly that he observed based on his training and experience a bag that to him appeared to be a violation of the law of being greater than 28.5 grams and being a misdemeanor. On top of that, he also established probable cause based on the size of the bag and the area of felony sales charge. 80 there are two different avenues. Both quite strong, I believe, to provide probable cause to arrest and search the defendant. MS. SOLOMON: I have some responses, I'm sorry. THE COURT: Go ahead, Ms. Solomon. FURTHER ARGUMENT MS. SOLOMON: So, the first issue that I completely disagree with is that the officer did not establish that Mr. Tulau engaged in any conduct that would remotely let anyone know that there was sales going on. The fact that he was in an area where there may be some of that activity is of the most de minimis relevance possible. Because where there is sales activity there is also buying activity, so there is absolutely no grounds to suggest that someone is selling. There is not individual packaging. There is no sales type of activity where you engage and talk to someone and exchange money for something. That is sales activity. Someone standing, holding a thoroughly legal substance like a bottle of wine, because that is what this is, that is not grounds to say that that person might be selling it. And to suggest that just standing on a street corner holding a perfectly legal substance is grounds for detention, arrest, or search, directly contravenes 11362.1. Had he seen Mr. Tulau smoking it, that would be a violation of 11362.1, but he wasn't smoking it. So, in re: D.W. there is an admission smoking. There is an infraction potentially. And by the way, possession for sale of marijuana is not a felony. It is a misdemeanor I might add, not a felony. MR. BECKERMAN: [Indicating.] THE COURT: Mr. Beckerman, Mr. Beckerman is holding his hands up in agreement with you. MS. SOLOMON: But more to the point, Your Honor, this is -- and I wasn't permitted to cross on this, but this is just racial profiling in a poor neighborhood. And for the Court to abide by this type of conduct that directly contravenes the law, the absolutely clearly stated law when the People of the State of California chose to legalize marijuana, that law says that if you are not doing anything illegal, which Mr. Tulau was not, there is no grounds for detention, arrest or search. And to suggest that he may have had more than an ounce I'm sorry, the other piece of this is that he wasn't for the sake of argument, for the sake of argument, the officer didn't testify that he asked him how much he had in that baggie. He didn't ask to see that baggie. He was searching for more than the baggie. The baggie itself is still under an ounce. But if there is some supposition that it might have been more, then why didn't he ask to see that baggie and determine whether or not he was in compliance with 11362.1? Because he Was after something more. He kept searching, in direct contravention of in re: D.W. and 11362.1. The video could not be clearer. They detained him. They search him without legal basis. He shows them a pipe he is smoking that he uses to smoke. He is not smoking there, which would be against the law. THE COURT: Submitted? Count of the complaint, a claimed violation of Health and Safety Code section ll359(b), a misdemeanor, the evidence presented establishes sufficient cause to believe that the defendant committed each and every element of the offense. I, therefore, certify the misdemeanor and order the defendant held to answer. Defendant is ordered to appear in Department 22 for instruction and arraignment on August 6th, at 9:00 a.m. Bail will remain as previously set. Do the parties -- THE CLERK: The defendant is on O.R. MS. SOLOMON: I'm sorry. I'm confused. Your Honor just said you aren't holding on Count II, you would hold it as a misdemeanor. You didn't believe there was sufficient evidence so the Court should discharge Count II and hold as 1137?. That is what I understood the Court to say. THE COURT: My understanding was there was a request to amend to add methamphetamine to Count II, and essentially I'm denying that request. And I thought that the Count II related to all the drugs, not just that one. MS. SOLOMON: No, Count II is possession for sale of MDMA. So -- THE COURT: Okay. I understand. Got it. MS. SOLOMON: So, is the Court going to certify a I misdemeanor 11377 in lieu of Count II and discharge Count II as charged? THE COURT: Yes. That is the intent. MS. SOLOMON: Okay. . IITHE COURT: So, to make the holding order clear, the Court is discharging as insufficient evidence Count II but holding it as a misdemeanor. So that Count II, there is sufficient evidence to certify Count II as a misdemeanor. THE CLERK: 11377? THE COURT: Yes. Do the parties stipulate the exhibits may be returned? MR. BECKERMAN: So stipulated. MS. SOLOMON: So stipulated. THE COURT: The evidence is ordered returned. (Whereupon, proceedings were adjourned). State of California County of San Francisco I, Rose M. Miller, Official Court Reporter for the Superior Court of the State of California, City and County of San Francisco, do hereby certify: That I was present at the time of the above proceedings; That I took down in machine shorthand notes all proceedings had and testimony given; That I thereafter transcribed said shorthand notes with the aid of a computer; That the above and foregoing is a full, true, and correct transcription of said shorthand notes, and a full, true and correct transcript of all proceedings had and testimony taken; That I am not a party to the action or related to a party or counsel; That I have no financial or other interest in the outcome of the action. Dated: July 29, 2019 ROSE M. MILLER, CSR NO. 5041, RPR, CRR, CRC