CHARLES L.

LINDNER
State Bar No. 61908
2801 Ocean Park Blvd., Ste 247
Santa Monica, California 90405
(310) 826-5548; Fax: (310) 452-0337
email: charles88@roadrunner.com
Attorney for Defendant MICHAEL GARGIULO

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COl\!FORMED COPY

ORIGINAL FlLEO
Superior Court of California
County of Los Angeles

MAY 07
Sh,,.rri.
- ., R

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By_

Officer/Clerk
"1' Executive
llJll
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41.

G1v;ia b.,1re1as

-'Deputy

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

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FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT

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Plaintiff,

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V.

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) NOTICE OF MOTION
) AND MOTION TO
) DISMISS; POINTS &
) AUTHORITIES IN SUPPORT
) THEREOF;
) (Penal Code § 995)
)

MICHAEL GARGIULO,

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PEOPLE OF THE STATE OF CALIFORNIA)
) No. SA068002

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Defendant,

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TO THE HON. SAM OHTA, JUDGE PRESIDING, AND TO JACKIE

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LACEY, DISTRICT ATTORNEY OF LOS ANGELES COUNTY, AND/OR HER

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REPRESENTATIVES,

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DDA DAN AKEMON,

ESQ.

AND DDA GARRETT

DAMERON, ESQ.:

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PLEASE TAKE NOTICE that at such time as the Court may schedule a

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hearing to give Plaintiff People adequate time to respond in writing, the defendant

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will move to dismiss the Information filed in the above-entitled case.

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DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

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DISMISSAL PURSUANT TO PENAL CODE §995

The motion Will be made on the ground that (1) the defendant was committed

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without reasonable or probable cause; (2) that evidence violating the due process

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clauses of the federal Constitution and the California Constitution was admitted

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against defendant, and (3) that the "special circumstances" of burglary pursuant to

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Penal Code § 190.2(a)(l 7) cannot be sustained since the apparent sole purpose of

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the unlawful entry would have been the assault/murders of victims Murphy, Ellerin

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and Bruno.

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The motion will be based on this notice of motion, on the memorandum of

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points and authorities served and filed herewith, on the transcript of the

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preliminary examination, on such supplemental memoranda of points and

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authorities as may be filed hereafter with the court, and on such oral argument as

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may be presented at the hearing on this motion.

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DATED: April 15, 2015

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CHARLES L. LINDNER
Attorney for Defendant MICHAEL GARGIULO

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DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
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POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS

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I.

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INTRODUCTION

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Defendant GARGIULO is charged with two counts of murder, in violation of

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Penal Code section 187, one count of attempted murder, in violation of Penal Code

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664/187, three counts of burglary, in violation of Penal Code section 459, one count
of attempted escape, in violation of Penal Code §§ 664/4532(b)(l), and special

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circumstances of multiple murders(§ 190.2(a)(2)) and "lying in wait" (§190.2(a)(15)).

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There are also "great bodily injury'' (§12022.7) and "armed with a knife"

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(§12022(b)(l)) enhancement allegations.

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Burglary "special circumstances" alleged under Penal Code § 190.2(a)(l 7) as

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to each of the two named homicide victims, were struck by the magistrate pursuant

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to People v Garrison (1989) 47 Cal.3d 746, 778, 254 Cal.Rptr. 257, and People v
Morris (1988) 46 Cal.3d 1, 31, 249 Cal.Rptr. 119 as the evidence did not

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demonstrate that the entry into each victim's domicile was for a purpose other than

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to accomplish the victim's murder.

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At preliminary hearing, the People sought to admit evidence of a 17 year old
unsolved Cook County, Illinois murder under Evidence Code §llOl(b). Defendant

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was charged in that case in July, 2011 according to news accounts.

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doorstep early in the morning of August 14, 1993. She had been at a high school

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The victim, TRICIA LYNN PACACCIO, age 17, was found murdered on her

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knife more than two dozen times. There were no signs of sexual molestation.

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dance and succumbed to a violent attack from an assailant who stabbed her with a

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Defendant lived less than a block from the crime scene, and was a close friend of the

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decedent's brother. Defendant's DNA, along with that of other individuals, was

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found at the crime scene. The magistrate, the Hon. Michael Johnson, admitted the

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evidence of the PACACCIO murder at the preliminary hearing as §llOl(b)

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evidence, with the proviso that his decision was not binding for trial. Other
Evidence Code §1101(b) evidence also was admitted against defendant with the

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same proviso. RT 14-15.

Thus, this Court may be faced with trying at least two, and with the Illinois

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seeking the death penalty against Mr. Gargiulo.

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case, three "cold case" murders, as well as the non-capital counts. The People are

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DRAMATIS PERSONAE

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The writer has learned over many trials that bench officers confronted with
long and complex transcripts experience difficulties because they are viewing the
case for the first time, whereas counsel have been working on the case for many

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months. For that reason, what follows is a short list of "Who's Who" which the Court

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may wish to bookmark as a reference point to avoid confusion. The list below largely

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is limited to identifying the victims and a number of witnesses from the Ashley

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Ellerin murder in Hollywood in 2001.

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1) Ashley Ellerin: victim; murdered on February 21-22, 2001 sometime
between 8 PM and 8:30 AM in her home in Hollywood. The investigating
agency is LAPD.

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2) Maria Bruno: victim; murdered on November 30 - December 1, 2005,
sometime between 11 PM and 7 AM in her apartment in El Monte; The

investigating agencies are LASD and the El Monte Police Department.

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DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
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3) Michelle Murphy: victim, attacked by someone wielding a knife while she

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was at home in bed around 10 PM on April 28, 2008 in Santa Monica. She

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was hospitalized at UCLA after suffering numerous knife wounds. SMPD is

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the investigating agency.
4) Justin Peterson: Ashley Ellerin's friend and former roommate.

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5) Chris Duran: friend of Justin Peterson; frequent guest of Ellerin's; met

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defendant when he was changing a flat tire in front of Ellerin's house while

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she was present; defendant offered to help with the flat.

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6) Jennifer DiSisto: Ellerin's roommate at the time of her death; DiSisto slept
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at her boyfriend's house the night Ellerin was killed.

7) Ashley Tarnow: had a bizarre interaction with defendant and a pocketknife
ten years ago, when she was a senior in high school. No criminal charges

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were ever brought. Called per §llOl(b) Evidence Code.

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around Ellerin; sat next to defendant at a party thrown at Ellerin's house;
the prosecution seems to think he offers evidence that somehow inculpates
defendant.

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8) Anthony Castallane: a hanger-on in the social clique that appeared to orbit

9) Dorothy Hass: former bartender at Hollywood's Rainbow Room; worked
with Gargiulo, who worked the door; maintained a mild friendship with him
after they both no longer worked at the bar. Testified regarding admissions
allegedly made by defendant regarding the Paccacio murder in Chicago.

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Victim of an alleged Taser attack by defendant, ruled inadmissible under §

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352 and not excepted under §llOl(b) at preliminary hearing

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10) Mark Durbin: manager for owner of Ellerin's house, his apartment was up
the block; went to Ellerin's in the early evening of the night she was killed so

that he could fix a light fixture; by happenstance, ended up having sexual

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intercourse with Ellerin; became worried about being caught by his girlfriend;
may be literally the last person to see Ellerin alive.

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11) Ashton Kutcher: actor; putative late date of Ellerin for post-Grammy

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Awards party the night she died; came by between 10 to 10:30 PM when she

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DISMISSAL PURSUANT TO PENAL CODE §995

did not answer his calls; looked through window and saw what he thought was

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a red wine stain on the floor. Thought Ellerin had blown him off and gone out

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with someone else. Possibly witness who discovered first evidence regarding

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time-of-death.

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III.

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A.

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People's Case In Chief

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Charles Moore [RT 24]

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Los Angeles Police Department (henceforth "LAPD") Sgt. Charles Moore was

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called as the prosecution's first witness. [RT 23]

On February 22, 2001, Moore drove to 1911 Pinehurst Dr. in Hollywood based on

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receiving a radio call. On arrival, he found firefighters and paramedics were already
at the scene. He entered a single-family house, observed that a homicide had

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FACTS

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occurred, at which time he secured the premises. [RT 24]. He then arranged for
homicide detectives to be summoned. [RT 25]. [There was no cross-examination]

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Jennifer DiSisto [RT 27]

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Jennifer DiSisto (henceforth "DiSisto") was called as the prosecution's second

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witness. [RT 27].

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DiSisto was the roommate of the decedent, Ashley Ellerin, and was living at

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the Pinehurst address on February 21, 2001, when and where Ellerin's body was

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found. DiSisto had been living with Ellerin for about six weeks before she was
killed, and she had known Ellerin for several months before she had moved in with

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her. [RT 27].

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DiSisto had arrived home the prev10us evening at around 10 PM, but

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discovered that she had forgotten her car keys in her boyfriend's car. Although the

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lights were on, nobody responded to her knocking on the door. Tired from work, she

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left and slept at her boyfriend's house on the evening of February 20th. [RT 27-28].

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The front door had been locked. It was not uncommon for Ashley to leave the

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lights on when she was not home. Ashley's car was in the driveway of the house.

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[RT 28]. The next day, sometime between 8 and 8:30 in the morning, DiSisto
recovered her house keys from her boyfriend's car. Returning home, to get ready

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and change clothes for work, she opened the door and found Ashley Ellerin's body

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lying on the steps. [RT 29]. DiSisto surmised Ashley was dead because she saw

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her mouth. RT 30. DiSisto immediately left the house, went to her car and called

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blood and Ellerin's body had developed a bluish tint. RT 29. There was blood around

"911" from her cell phone. DiSisto also called Justin Peterson. DiSisto remembered
that the house was always cold. The house was a rental, and she knew the

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landlord's manager as a man named "Mark". [RT 30].

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kind and friendly, and you know, kind of a free spirit type." [RT 31].

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Ellerin hung out with "a lot of Hollywood celebrity type people. She was very

There was a park across the street from Ellerin's house. It appeared to be a

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dog park. During the six weeks that DiSisto lived with Ellerin, there were a number

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of parties at their home, including one large party, attended by between 80 to 100

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people. DiSisto believed that the big party was thrown roughly two weeks before

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hair. [RT 32].

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Ashley's death. She remembered attending a party where Ashley had a bow in her

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DiSisto believed the "large party" had occurred sometime earlier than the last

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party. DiSisto was shown two photographs that had been offered as Exhibit 1. She

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identified the people in the top photo as being herself and her ex-boyfriend. RT 33.

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Cross Examination

DiSisto had met Ellerin through a mutual friend, Justin (determined later to

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be Justin Peterson). Justin had moved out of the Pinehurst house, resulting in
Ellerin needing to find a roommate. Justin introduced them. In addition to the two

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roommates, Justin also had a key to the house. RT 35.

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In addition, Mark (the manager) came by the house with some regularity.

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Mark and Ellerin had slept together. DiSisto did not think that Mark and Ashley
were boyfriend and girlfriend, or that their relationship was serious or exclusive.
She did not know whether Mark had a key to the Pinehurst house. [RT 36].

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38]. She worked as a stripper and pole dancer. [RT 38]. DiSisto thought that some of

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Ellerin did not have a regular job, but she did go to Las Vegas for work. [RT

the people from Las Vegas might have been at Ellerin's parties, but she could not
recall any individual by name. [RT 39].

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DiSisto ingested cocaine together. Ellerin kept the cocaine in her bedroom. RT 40.
She did not recall whether Ellerin smoked marijuana or ingested ecstasy. There
was no overt use of drugs at the "big party", although attendees may have been

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lived with her boyfriend at his residence. RT 39. Ellerin did not have a dog. She and

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During the six weeks that she'd been Ellerin's roommate, DiSisto mostly

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man with whom Ellerin was having sex. RT 40. During her tenure at the house,

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doing drugs in other parts of the house. RT 41. DiSisto was unaware of any other

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DiSisto attended three parties there. RT 41.

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Redirect Examination

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DiSisto said that all three parties occurred during the six weeks that she

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lived with Ellerin. RT 44. DiSisto did not know whether Ashley went to school. RT

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45. DiSisto thought that she remembered seeing Gargiulo at the dog park across the
street, stating that he looked "familiar". Gargiulo was the only person in court

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wearing an orange jumpsuit. RT 45-46.

Chris Duran

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Chris Duran (henceforth "Duran") was a friend of Justin Peterson, who
introduced Chris Duran to Ashley Ellerin by sometime in 2000. Duran visited the

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considered himself a very close friend of Ellerin, and went to her parties. At one
time, Justin Peterson lived with Ashley Ellerin at the Pinehurst house. RT 48. On

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1911 Pinehurst address frequently and treated the house as if it was his own. He

one occasion when Duran was visiting Ashley, his car got a flat tire in front of her
house, and he was changing the tire himself. RT 49.

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Ashley was outside with Duran. He guessed that the flat tire incident had
occurred roughly 6 months before Ellerin's death. RT 50. A man (soon to be

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identified as the defendant at RT 52) walked up and offered to help Duran change

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the tire. Duran speculated that he might have had an interest in Ashley. RT 51.
Gargiulo indicated that he worked in the air-conditioning business and gave them a

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business card. RT 52. Duran stated that he went over to Ashley's house every day.

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After he met Gargiulo, Duran noticed him in the neighborhood frequently.

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that on two occasions Gargiulo was parked, staring at Ellerin's house. He believed

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Duran testified that Gargiulo drove a dark-colored older car. RT 53. Duran opined

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he saw the defendant sitting in the car for a substantial amount of time. RT 54.

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Gargiulo would show up at Ashley's house unannounced to "hang out",

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without calling first. RT 54. On one occasion, Gargiulo showed up at the Pinehurst
house and stated that the police were after him, asking about his ex-girlfriend in

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Chicago who had been killed, and he was there because he did not wish to see the
police. RT 55. However, Duran noticed no subsequent change in attitude by Ashley,

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who continued to befriend Gargiulo and welcome him. RT 57.

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Duran testified that Gargiulo had told him that he lived roughly a block away

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from Ashley Ellerin's house, south of Bonita Terrace. RT 58. Ashley was a beautiful,
fun, outgoing, and friendly young woman. She flirted with a lot of men. She threw

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lots of parties. Duran last saw Ellerin alive the night before the Grammy awards in

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2001. RT 58-59.

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Duran had met Ellerin's father at the Pinehurst house. RT 59. Ashley
smoked crystal methamphetamine and did cocaine. RT 62. She always kept her

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house doors locked. RT 63. In addition, there were bars on the balcony and on the

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deck. RT 63. The gate was of wrought iron, blocking the balcony. RT 64.

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Cross-Examination

There is a dog park on the same block that Ashley lived. RT 66. Duran did

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not know whether the defendant owned a dog. RT 67. When shown a six-pack

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containing the defendant's photograph, Duran stated that he could not make a firm

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identification, but circled photograph number 6, indicating the person in

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photograph six "might be the guy." RT 70.

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and restaurants when Duran was with her. RT 74-75. Duran had a romantic

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Ellerin was an attractive woman, and men "hit on her" constantly in clubs

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relationship with Justin Peterson that ended shortly after Ellerin's death. RT 74.

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Ellerin and the defendant were friends. RT 76. Duran believed that

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defendant might have visited the house five or six times over a six-month period.

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RT 77. With respect to seeing Gargiulo sitting in his car, Duran observed defendant

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parked in a dark sedan from inside Ellerin's house. RT 78. On the two occasions

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that he observed defendant allegedly sitting in the dark sedan, on neither occasion

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did the defendant come up to the house. RT 79. On the two occasions that he

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adjacent to the dog park across the street. RT 79.

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thought he saw Gargiulo staring at the house, the sedan he observed was parked

People came over to Ellerin's house on many days while Duran was visiting.

It was not the custom of people to call ahead. Instead, people just knocked on the

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door and came in. RT 82.

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Duran attended the parties thrown by Ashley Ellerin, including the party

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depicted in the two pictures of Exhibit 1. RT 88. Duran did not know whether

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Gargiulo attended the party depicted in Exhibit 1, but did recall Gargiulo attending

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at least one of the parties. At that party (or those parties), the defendant conversed
with both Ashley Ellerin and with Mr. Duran. RT 88.

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Redirect Examination

Duran told Ashley that he thought that the defendant was strange, and weird and
"stalkerish". RT 93.

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Re-Cross Examination

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Duran agreed that he was unable to make a definite identification (of

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defendant) from the photo six-pack Detective Small had provided to him. In the

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nine years that have elapsed since Ellerin's death, the first time that Duran was

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DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
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able to identify Gargiulo was in the courtroom. RT 97. The photo six-pack Detective

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Small showed Duran was marked as "Exhibit A-1". RT 98

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On one or more occasions, LAPD detectives showed Duran a single

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photograph separately in addition to the six pack identified as exhibit A-1. Duran

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asserted that Gargiulo was uninvited to the house, although he followed the same

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entry pattern as Duran and Duran's friends. Duran stated that Gargiulo did not

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belong to the same social set as Duran and his friends. RT 99.

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Ashley Tarnow (nee' Ashley Green) [RT

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building at the same time. RT 106-107. Tarnow first met defendant just before she
graduated from high school. They met while she was getting the mail and walking
around the complex. RT 107.

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In the beginning, there was a lot of neighborly talk between the two. Later,
Gargiulo went into details about his past relationships and what he did for a living
in what she considered to be weird conversations. RT 108. He told Tarnow that he

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apartment 7, Los Angeles. 1 RT 106. She identified defendant has having lived in the

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In 2001, Tarnow was a senior in high school; she lived at 1122 Clark Drive,

was in the heating and air-conditioning business, and that he was an ex-boxer. At

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that time, Gargiulo drove a white older model van. The defendant also suggested

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that she get a modeling job, but did not suggest any direct involvement by himself
in the photography-modeling recommendation. He did not ask her to model for him,

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making a general rather than specific suggestion. RT 108.

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1 Ms. Tarnow's testimony relates to an uncharged incident and had been ruled admissible at preliminary
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The frequency their first encounters was roughly every other day. Tarnow got

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a "creepy vibe" from Gargiulo. RT 110. She started avoiding Gargiulo by driving

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around the block when she observed him outside, or she would go somewhere else.

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If she saw Gargiulo's van in the area, she would go to a friend's house. RT 109. Most

of the encounters took place at the complex's mailboxes. Often, when Tarnow saw

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Gargiulo in the van, he was eating. RT 110.

One particular incident made it particularly uncomfortable. Gargiulo came to

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her door and rang the doorbell. Gargiulo asked her whether she knew how to defend
herself from a knife attack. She said, "No." Gargiulo then removed a folding

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pocketknife from his pocket. He opened the knife as he was pulling it out. RT 110111.

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around her neck, holding the blade up to her throat, which made her very uneasy.
Tarnow believed that the pocketknife had a black handle and the blade was roughly

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Gargiulo got behind Tarnow in the doorway, and wrapped his right arm

3 to 4 inches long. The prosecutor presented the witness with a drawing of a knife,
offering the drawing as "Exhibit 2". RT 115. The witness recognized Exhibit 2,
stating that she had drawn it. RT 116.

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The prosecutor offered a photograph of a white van as "Exhibit 3" and showed
it to Tarnow. She identified the depicted van as belonging to Gargiulo. RT 116.

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Cross-Examination

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Tarnow had never been to Gargiulo's apartment. She did not report the

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telephone rang, and Gargiulo released her so she could answer the phone. RT 118.

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incident to the police. RT 118. The self-defense lesson ended when Tarnow's

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She did not call the police after the incident. She did relate the incident to her

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mother, but did not know if her mother called the police. However, It is inferable

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that the mother did not call the police, as the incident occurred in 2001, and the

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police did not interview Tarnow until October 30, 2002. She was not hurt as a result

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of the touching by defendant, but found it mentally traumatic. RT 119. The entire

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Direct Examination Reopened

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event lasted less than two minutes. RT 119.

Gargiulo had asked the witness for her phone number, and she had given it

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to him. When she identified herself as "Ashley", Gargiulo told her that his exgirlfriend's name was Ashley, that her family was rich, and didn't want her dating

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him. As a result they had broken up, "but they were still trying to find a way to be

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together". RT 121.

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Further Cross-Examination

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building for around eight months, but she could not recall whether it was eight
months before the incident with the knife or eight months from the date of her
interview. Specifically, she could not remember if the knife incident occurred in
January or February of 2001.

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Tarnow indicated that the defendant had been living in the apartment

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Vicki Bynum [RT 125]

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The remainder of her testimony was struck (RT 126-132) as hearsay, an objection
having previously been made that the detective offering out-of-court statements

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Ms. Bynum was an LAPD detective in 2002 and interviewed Tarnow. RT 125.

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Green, 399 U.S. 149 (1970) and did not fall within the ambit of a prior inconsistent

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made to Tarnow violated Sixth Amendment confrontation rights under California v.

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statement under §1235 Evidence Code.

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Justin Peterson

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[RT 134]

In September, 1999, Justin Peterson lived with Ashley Ellerin at 1911

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Pinehurst Dr., Hollywood, for about six months. RT 134. When Peterson moved out,

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Ms. DiSisto moved in. Peterson said Ellerin \Vas murdered on February 21 or 22nd
of the year 2000. [RT 135, 1. 6-13].

6

io

Peterson met defendant sometime around October, while the latter was

7

walking his dog at the dog park across the street. Gargiulo introduced himself as

8

at

the guy who was going to repair the furnace. RT 136. They had spoken on the
telephone several times prior their meeting. RT 138. Peterson already knew that

10

Gargiulo had been considered to fix the heater. RT 139. On the day that Peterson

11

met Gargiulo at the dog park, he, Gargiulo and the manager, Mark, all met at

12

Peterson's house to go over the furnace repair. RT 141. The three men spoke for

ib

defendant sitting in a vehicle near his residence. RT 140.

Tr

14

about two hours, sitting in the kitchen. RT 142. Sometime later, Peterson observed

15
16
17

After the discussion, Mark left, and Peterson indicated that he needed to
attend an art gallery opening. RT 143. At Gargiulo's request, Peterson invited him.
RT 143.

18

20

Pinehurst residence. As Peterson was putting his hand on the stick shift to put the
car into reverse, Gargiulo grabbed his hand. Peterson did not think Gargiulo was
making a pass at him but "[he] got weirded out by it." RT 144. Peterson wished to

ia

21

After they attended the openmg, Peterson drove Gargiulo back to the

ls

19

&

13

ul

9

22

was parked in the neighborhood, and which Peterson identified as a green Ford

Tr

23

get Gargiulo out of his car as quickly as possible and drove him to his vehicle which

24

pickup truck with a wicker cross hanging from the rearview mirror. RT 145.

25

26
27

28

15
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

They left the art gallery around 9:30 or 10 PM. After dropping Gargiulo off,

2

Peterson drove to a friend's house. RT 146. He walked home later at around 2:30 or

3

3:00 o'clock in the morning, leaving his car at the friend's house. While walking, he

4

ns

smv the defendant's car with someone inside. The car was not where it had

5

previously been at 10 PM, but had been moved and was on Bonita Terrace, facing

6

io

the Pinehurst house. RT 147. The car was running, but Peterson saw no lights on.

7

He recognized the wicker cross that he had seen earlier, hanging from the car's'

8
9

at

rearview mirror. He was unable to make out who was inside the truck, seeing only a
silhouette. RT 149. Sometime later, Peterson observed the pickup to drive up the

12

ul

11

street and make a left turn. RT 152. Pinehurst had no streetlights. RT 151. Because
the street is a cul-de-sac, the pickup then turned around and went down the street.
The truck appeared to be moving at average speed, neither slow nor fast. RT 153.

ib

10

13

15

16

cell phone at home. The caller was the defendant, who indicated that he needed to

Tr

14

At around 10 or 10:30 AM the next morning, Peterson received a call on his

come in and check out the furnace to figure out what tools he would need to fix it,
and that he was parked outside. RT 154.

17

19
20

&

looking for him to take DNA samples from him, and he was trying to avoid them.
Peterson asked him why the authorities wanted his DNA, and he responded that
his best friend's girlfriend had been murdered in Chicago. RT 155-156.

ia

21

nearby at 3 AM, earlier that day. Gargiulo responded that he believed the FBI was

ls

18

Peterson confronted Gargiulo over why he was parked in a different spot

22

couch. Gargiulo at that point put his left foot up on the couch, raised his pant leg,

Tr

23

The pair entered Peterson's bedroom, which was furnished with a loveseat

24

and on his shin there was a case holding a knife. The knife had a partial jagged

25

26
27

16
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

edge on the topside. RT 156. Peterson likened it to a hunting knife. It was not a

2

folding knife. RT 157.

3

On seeing the knife, Peterson rushed Gargiulo out of the house, telling him

4
5

ns

that he wanted nothing to do with his business. Ashley was in Las Vegas at the
time of the occurrence. RT 158.

6

io

Peterson recalled a big party of 80 to 100 people that was thrown to honor

7

Monica Grandy's birthday. He believed the in Exhibit 1 photos taken of Ashley

8

at

Ellerin were taken at the "big party", i.e., Grandy's birthday party. RT 159.

9

[The examination was interrupted in order to call a witness who was leaving Los

11

Angeles on vacation] RT 160.

ul

10

13

Michael Pelletier [RT 162]

14

17

18
19

20

Tr

Hollywood Division Homicide. On October 29, 2002, he served a search warrant at
1122 Clark Ave., Apt. 5, Los Angeles. RT 162. Prior to serving the warrant, Pelletier
and other detective staked out the building and saw defendant arrive in a white
van. RT 163. Shown the photograph in Exhibit 3, Pelletier indicated that he seized
the same white van pursuant to the search warrant. RT 163-164. Defendant was
seized and taken to Cedars-Sinai Hospital to undergo a court ordered taking of a

ia

21

homicide units for the West Los Angeles area. In October 2002, he was working

&

16

Michael Pelletier (henceforth "Pelletier") is a detective in charge of robbery

ls

15

ib

12

22

from the Cedars-Sinai staff. RT 164. The saved samples were entered as items No.

Tr

23

DNA sample. The detective obtained reference samples of blood, hair, and saliva

24

54, 55 and 56 respectively, in the LAPD evidence report of the Ellerin homicide.

25

26
27

28

17
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

At Cedars-Sinai, defendant - apparently speaking without having been

2

Mirandized or questioned - made the statement, "What if my DNA was on a

3

keychain that was left at a crime scene?" RT 166.

4
5

ns

Pelletier asked Gargiulo what he meant. RT 166.

Gargiulo responded, "They can't find my DNA from 10 years ago at a crime

6

io

scene, can they?" RT 166. A few minutes later, apparently not in response to a

7

question according to Pelletier, Gargiulo stated, "What if my hairs were at a crime

8

9

at

scene in Chicago -- a crime scene in Chicago, can they book me for that?" RT 167.
Pelletier responded "What are you talking about?". RT 167.

10

ul

Defendant then stated, "Never mind." RT 167.

11

13

2002. The photo six-pack was marked "Exhibit 4". Durbin identified the photograph

ib

12

Detective Pelletier had shown Mark Durbin a photo six-pack on October 24,

of the individual depicted in slot number 2, i.e., the defendant. RT 169-170.

14

Tr

Cross Examination

15

18

19

evidence reports. The items apparently were booked in a timely manner, taken from

&

17

he received from Cedars-Sinai. RT 172. There were four vials according to the

Cedars-Sinai by Pelletier that evening and booked into evidence by him the
following morning. RT 173.

ls

16

Pelletier did not know whether there was preservative in any of the vials that

20

searched defendant and found him to be unarmed. RT 176. The detectives searched

ia

21

At the time Pelletier seized defendant for the trip to Cedars-Sinai, he

22

Gargiulo's vehicle but did not find any knives. RT 177.

Tr

23

24

(Renewed) Direct Examination of Justin Peterson

25

26
27

18
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Peterson did not recall whether defendant was at the "big party", i.e., the

2

Gandy birthday party.

3

He did recall Defendant stopping by just before

Thanksgiving while Peterson had six or eight friends over for a small gathering.

4

ns

Gargiulo knocked on the door, and Peterson invited him inside. RT 179-180. This

5

encounter occurred after the incident "with the green vehicle". RT 180.

6

io

Peterson had told Detective Small that he had obtained Gargiulo's license

7

plate number. He forwarded that number to his mother's private detective. Gargiulo

8
9

at

(or perhaps Ashley) had told Peterson that his girlfriend was a physician, and that
she had bought the truck for him. RT 181. Asked if he'd ever seen the girlfriend,

12

ul

11

Peterson replied that he thought he observed a girlfriend around New Year's Eve,
but after the "big party". RT 182. Peterson encountered Gargiulo and his girlfriend
at the dog park on New Year's Eve. RT 182.

ib

10

13

16

17

Tr

15

184. He confirmed that Ashley used cocaine and methamphetamine recreationally.
RT 186. Peterson visited Ellerin at one of the strip clubs in Las Vegas where she
danced and stripped on the side for money. RT 186. Peterson never told Gargiulo
that Ashley was a stripper. RT 186.

&

14

Peterson estimated that Gargiulo had called the house roughly 5 times. RT

18

20

a pickup truck marked "5-A", Peterson stated that that photo did not depict the
pickup truck used by Gargiulo. RT 187. Peterson explained that the vehicle in

ia

21

containing photos and lettered to A through D sequentially. Shown a photograph of

ls

19

The prosecutor presented Peterson with Exhibit 5, a four-page document

22

He likewise distinguished Exhibit 5B. When shown exhibit 5C, the prosecutor

Tr

23

which he observed defendant was a Ford, and that Exhibit 5A did not depict a Ford.

24

invited the witness' attention to a cross hanging from the front rear view mirror,

25

26
27

28

19
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

noting Peterson's reference to a wicker cross in his earlier description. Peterson

2

responded that the cross depicted in exhibit 5C was not the same cross that he had

3

seen on defendant's truck. RT 187-188.

4
5

ns

Cross Examination

On one occasion when Ashley returned from Las Vegas, Peterson picked her

6

io

up at the airport and found her very upset about an incident that had occurred

7

there. RT 192. Although Ashley worked for money in Las Vegas, Peterson stated
that she did not need the money, but that she nevertheless did it anyway. RT 192.

9

Peterson reiterated that when Gargiulo came by on Thanksgiving - and

11

Peterson invited him in to that party - that was the only party that Gargiulo

ul

10

at

8

attended at the Pinehurst house while Peterson was present. RT 194.

12

15

ib

14

park, Peterson never saw Gargiulo again. Gargiulo was not observed sitting in his
car across the street, nor did Peterson see him in the dog park, encounters that he

Tr

13

After encountering Gargiulo and his girlfriend on New Year's Eve at the dog

would have remembered because of his anxieties about Gargiulo. RT 196-197.

17

Dorothy Hass

&

16

In 1999, Dorothy Hass (henceforth "Hass") worked at the Rainbow Room

19

which is a bar and grill in Hollywood. She worked with defendant. 2 Gargiulo was a

20

doorman and Hass was a waitress. She left the employ of the Rainbow Room in
1999, and next encountered defendant in the year 2000. They became friendly.

ia

21

ls

18

Gargiulo always telephoned Hass before stopping by her apartment. RT 212-213.

23

Between their encounter in 2000 and December, 2001, Hass stated that she got

Tr

22

24
25

Hass' testimony relates to alleged admissions made to her by defendant. The Court earlier denied the prosecution's
request to use an incident with Hass under §1 lOl(b).

2

26
27

20
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

together with Gargiulo roughly 10 times. RT 214. They did not have a dating

2

relationship. RT 214.

3

Hass remembered Gargiulo speaking about a girl he was seemg in

4

ns

Hollywood, but that she ran around with a party crowd, and he also spoke about a

5

girl in Chicago who wanted him to go back there, but he could not do so. RT 215.

6

io

The girl in Chicago who wanted him to return was named "Allison". RT 216. He said

7

he could not return to Chicago because "they" wanted to get some DNA evidence

8
9

at

from him. RT 217. He mentioned that his best friend's sister had been murdered.
RT 217. Gargiulo also said he'd been dating a doctor who bought him an SUV, but
that he had wrecked it. RT 217.

11

14
15

16

care of it at one point. The dog discussion occurred in November or December of

ib

13

Gargiulo owned a dog. She knew this because Gargiulo had asked her to take

2001. The DNA conversation took place during the second week of December, 2001.
RT 220. Gargiulo told Hass that he did not commit the Chicago murder, but that he

Tr

12

was present at the crime scene (N.B.: Defendant did not say that he was at the
crime scene before the homicide.) RT 224.

17

19

20

&

Hollywood apartment. RT 226. At a later date, when Gargiulo stopped by Hass'
apartment, his demeanor was very different from that of previous occasions,
described by Hass as a being very dark, uneasy and nervous. RT 226. Hass said that
Gargiulo's face was different, and that he looked "scary". RT 229. She had never

ia

21

Gargiulo wanted Hass to take his dog because he was getting evicted from his

ls

18

ul

10

22

seen him like that previously. RT 229.
Cross-examination was waived. RT 231.

Tr

23

24

25

26

27

21
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Anthony Castallane

2

Anthony Castallane (henceforth "Castallane") was a "casual acquaintance" of

3

Ashley Ellerin, and had known her for about a year. They met through her

4

ns

roommate, Justin Peterson. RT 232-233. Castellane had been over to the Pinehurst

5

house more times than he could count. RT 233. He met defendant at a party there.

6
7

io

RT 234. The party occurred a month or two before her death. Castallane saw

8

Gargiulo and started talking to him. RT 236.

9

at

Gargiulo sitting down, and no one was talking to him. So he sat down next to

Castallane remembered staying at the party all night and into the next

12
13

ul

11

morning. He was nervous that the defendant was going to steal something, as
defendant had been in the basement (Castallane did not know Gargiulo had looked
at the furnace), and told Castallane that he had seen some expensive artwork down
there. RT 238.

14

Castallane's examination was lengthy [87 pages; RT 232-275 in the morning

Tr

15

session and 273-317 in the afternoon]. His testimony was frequently inconsistent.

16

19

20

variance with his statement(s) to the police. Castallane's testimony on crossexamination rendered his already small evidentiary contribution even more murky
when he was impeached repeatedly with inconsistencies from his direct testimony,
compared to his testimony on cross, and with yet a third version based on his police

ia

21

LAPD homicide investigators to refresh his memory, as he often testified at

&

18

The People repeatedly invited him to review his October, 2002 statement to

ls

17

ib

10

22

interviews.

23

Tr

Castellane was called to testify to defendant's presence and behavior at a

24

birthday party roughly two months before Ellerin's death. He offered virtually

25

26
27

22
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

nothing except attempted corroboration of other attendees at the party, regarding

2

Gargiulo's presence at said party. He offered no evidence bearing upon Ellerin's

3

murder, except to note seeing Gargiulo's truck twice months before the homicide.
Castellane's testimony for the purposes of a §995 review should be construed as

5

quintessentially worthless, deserving of little or no weight, because his observations

6

and inferences were based almost entirely on speculation from conversations that

7

io

ns

4

he had with Justin Peterson before he had ever met Gargiulo and were massively

8

at

internally inconsistent.

9

Ronald Raquel

ul

10

Ronald Raquel (henceforth "Raquel") is a retired Los Angeles Police

12

Department criminalist with 24 years of experience, who was assigned to the

13

Scientific Investigation Division (henceforth " SID "). He reported to the Ashley

14

Ellerin crime scene on February 21, 2001, and was one of four criminalists

Tr

15

ib

11

collecting evidence there. RT 321, 328.

16

18

31, 2002. He found it to be cluttered with paperwork. He recovered a 9 inch knife.

&

17

Subsequently, Raquel inventoried defendant's impounded vehicle on October

The blade on the knife was 4 inches long, and it was a folding knife. He marked the
item as number 145 of the Ellerin evidence report. RT 320-321. Raquel also

20

recovered what he labeled item number 176, another knife that was 8 inches long,

21

of which the blade was 3 3/4 inches, as well as item 172, a utility knife (box cutter)

ia

ls

19

22

license plate from the van in between the seats in the floorboard. Apparently, there

Tr

23

that was in the tool bag in the cargo area of the van. RT 322-323. He recovered a

24

25

26

27
28

23
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

were no license plates on the vehicle. RT 323-324. He also recovered item number

2

167, a pair of binoculars from the floorboard behind the passenger seat. RT 324.

3

Cross examination

4

ns

The criminalists did not search for blood. RT 327. Using a chemical

5

compound called "amido black" to enhance any contrast, Racquel searched for shoe

6

io

prints at the crime scene. He found a partial shoe print that led from the steps of

7

the wood floor 10 to 15 feet from where the body was lying, going toward the front
door. RT 327-328. He determined the shoe print to be from an Adidas shoe. No

9

Adidas shoe was ever recovered from defendant or found in his possessions.

at

8

The decedent was not wearing any shoes. Raquel did not check the closets to

11

ascertain whether Ellerin owned a pair of Adidas shoes, nor did he try to ascertain

14
15

ib

13

whether the shoes were men's shoes or women's shoes. RT 329. Raquel noted that
he did not obtain a full shoe print. RT 330. Subsequently, Raquel was given an
Adidas shoe to compare (source unknown), but he found it did not match the shoe

Tr

12

ul

10

print. RT 331.

Of the knives he recovered, one was a folding knife, the second was a knife

17

with a soiled blade that did not have a handle. RT 331-332. He did not check the

18

knives for a maker's mark. RT 332. Raquel could not recall whether the folding

19

knife had a locking blade. RT 333. He did not observe anything unusual, such as a
stain, on any of the knives he recovered. RT 333. The knife labeled item 176 (the
non-folding knife) was a double bladed knife with a 3 % inch blade. When Raquel

ia

21

ls

20

&

16

22

recovered the knife, it was in a black sheath. RT 334.

Tr

23

Redirect examination

24

25

26
27

24
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

The shoe prints were going away from the hallway where the decedent lay

2

and toward the front door. RT 338. Raquel was shown an evidence report indicating

3

that a pair of Adidas shoes were recovered from the bathroom under the vanity, and

4

ns

were labeled Item 25. The recovered shoes were a 7 112 medium-size, recovered by

5

another criminalist, Chris Vogel. RT 339. Refreshing his recollection from his

6

7

io

report, Raquel determined that it was those shoes he was asked to compare to the
latent shoe print, and which he determined the shoes not to be a match for the shoe

8

at

print. RT 339.

9

Re-cross examination

10

13

14
15
16

ul

his hypothesis by spreading the amido black reagent over the area that had bloody

ib

12

believed that the shoes that made the shoe prints stepped in blood and confirmed

shoeprints on them. The chemical result was a preliminary positive determination
for hemoglobin, i.e., blood. RT 342. There was no blood on the floor except where

Tr

11

The shoes Raquel examined did not have any blood on them. RT 341. He

Ellerin's body lay. RT 342. There were no bloody shoeprints approaching the body,
only shoeprints leading away from it. RT 343.

18

&

17

Thomas Chevolek

19

(henceforth

"Chevolek") is

a

Los

Angeles

Police

Department detective with 29 years on the job. RT 348. On February 22, 2001, he
interviewed Ashton Kutcher regarding murder of Ashley Ellerin. RT 348. This

ia

21

Chevolek

ls

20

Thomas

22

testimony was offered under Proposition 115 as admissible hearsay.

Tr

23

24

Kutcher related that he had called Ellerin's phone three times, the last call

occurring between 7 PM and 7:30 PM. They made plans to go out for drinks the evening

25

26
27

25
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

of February 21, 2001. Kutcher was going to watch the Grammy Awards with a

2

friend named Christy, and afterword he would "hook up" with Ellerin at 10:30 that

3

evening for drinks. RT 349. Kutcher received a call from Ellerin at 8:24 PM, and they

4

ns

discussed whether they should meet at Christy's house. Kutcher demurred, and stated

5

that they would get together later. Later that evening Kutcher attempted to call

6

io

Ellerin twice and received answering machine messages on both occasions. RT 350.

7

Kutcher then went to Ellerin's house, thinking that she might be waiting for

8
9

at

him. When he arrived, he saw her maroon BMW parked in the driveway. The house
lights were on. He went up to the door and knocked several times but did not

13

14

ul

12

disarray because she had been painting or "rearranging stuff." Kutcher saw what he
assumed to be a red wine stain on the carpet leading to her bedroom. He attempted

ib

11

receive an answer. RT 351. He peeked through the front window. The house was in

to open the front door, but it was locked. At that juncture, Kutcher thought Ellerin
might have "brushed him off' and gone off with someone else. He then left. RT 352.

Tr

10

15

Cross examination

16

18

February 21st, 2001. To Chevolek's knowledge, no other LAPD investigator had/has

&

17

Chevolek did nothing to confirm Kutcher's whereabouts on the evening of

ever checked to confirm Kutcher's alibi. RT 353.

20

ls

19

Mark Durbin [RT 394]

21

ia

Mark Durbin (henceforth referred to as "Durbin" or "Mark") managed the

22

If there was some problem requiring repairs at the house, the tenant would contact

Tr

23

property at 1911 Pinehurst in Hollywood. It was a single-family residence. RT 354.

24

Mark, and he would send someone to fix the problem. RT 355.

25

26
27

28

26
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

The principal tenant had been Ashley Ellerin, and she brought in a

2

roommate, Justin. RT 355. Ellerin called Durbin on February 21, 2001 and asked

3

him to come over to fix some items. Durbin went over to Ellerin's house early that

4

ns

evening and observed a problem with a light fixture. RT 355-356. Ellerin had called

5

Durbin frequently to fix things, and they became friendly during that time.

6

io

Occasionally, he would just go over to Ellerin's house to hang out. After Durbin

7

checked the lamp fixture, he and Ellerin had sexual intercourse. He used a rubber,

8
9

at

and flushed it down the toilet afterward. He thought it possible that Ellerin used
the light fixture as a pretext for him to come over, as she and Durbin had previously
engaged in sexual conduct short of intercourse. RT 359-360.

ul

10

11

15

16
17

ib

14

between leaving Ellerin and ensuring that he was home when his girlfriend arrived.
RT 362. He left Ellerin's house at around 7 PM. RT 365. In 2002, Durbin had told

Tr

13

woman, and his girlfriend was due "home" shortly that evening. He was torn

Detective Small that he left around 8:15 PM. Durbin then stated he could not
remember the hour, insofar as the event happened nine years ago. RT 365. Ellerin
was ambivalent about his leaving, saying that she had to go to a Grammy party but

&

12

At the time he had sex with Ellerin, Durbin was involved with another

that she did not want to go. While Durbin was "conducting repairs" at Ellerin's

19

house, she received two telephone calls. RT 366.

ls

18

20

Bonita and took a shower. RT 366. His girlfriend had a separate apartment in the

ia

21

After Durbin left Ellerin's house, he went back to his apartment on Villa

same building. RT 368. Durbin ate dinner with his girlfriend at her apartment. At

23

some point, he looked out the window and saw someone on the street pacing back

Tr

22

24

and forth in front of Ellerin's house. He also thought it odd that he saw Ashley's

25

26

27

27
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

BMW still in the driveway because she had said that she was going out. RT 368. He

2

estimated the time would be around 9:15 PM, using the assumption that he left

3

Ellerin's house at 8:15 PM. RT 369.

4

ns

Durbin did not learn that Ellerin had been killed until the next morning. RT

5

371. He told detectives that he tried to call Ashley's phone around 11 PM. RT 373.
Durbin could not determine whether the figure pacing outside Ellerin house was a

7

male or female, and could give no other description. RT 373-37 4. Ellerin had outside

8

motion sensor lighting installed when she had moved into the house. The lights

9

would turn on if someone approached on the walkway. RG 376. However the

at

io

6

individual he observed was on the sidewalk in front of Ellerin's house, a dark area

11

with no nearby lighting. RT 376. The prosecutor offered "Exhibit 6" comprised of

12

three photographs sequentially lettered as sub-exhibits. Exhibit 6 was shown to

13

Durbin, who identified exhibit 6A as a photograph of 1911 Pinehurst Dr., 6B as

ib

showing the stairs running up to the front door, and 6C, a photograph of the front

Tr

14

ul

10

15

door. The People next offered "Exhibit 7'', a Polaroid photograph, to the witness. RT

16

381. Using the photograph, Durbin pointed out various areas that had exterior
lights or motion sensor lights. RT 383.

&

17

Several months before, Durbin was informed that there was something wrong

19

with the heating and air-conditioning at the Pinehurst house. RT 398. Sometime

20

later, he was introduced to Gargiulo as someone who could repair the heater.

21

Durbin went with him to check out the heating system. Durbin escorted Gargiulo

ia

ls

18

into the basement, so that Gargiulo could examine the furnace. RT 400. That was

23

the only occasion prior to Ellerin's death when Durbin saw Gargiulo. RT 402.

Tr

22

24

25

26
27

28

DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Some months after Ellerin's death, Durbin saw defendant driving a green

2

midsize pickup truck. He believed also that he also had seen the defendant driving

3

a white van around the same time. RT 404. At one point, because of the trauma of

4

ns

Ellerin's death, he approached a man he believed to be the defendant standing next

5

to a white van. However, when he approached the man gave him a different name,

6

io

i.e., not "Michael". Two names came to Durbin's mind: "Mike or Michael and Tony".

7

He could not remember what the original name of the individual was who checked

8

9

at

the heating, and he could not remember the different name used at the encounter
several months after Ellerin's death. RT 405. After identifying the defendant in

13
14

15
16

ul

12

defendant. RT 410, or that the white van he observed was the same white van as
that depicted in Exhibit 3. RT 411-414. The encounter with the Gargiulo

ib

11

court, Durbin could not be certain that the man he saw next to the white van was

doppelganger may have occurred as late as six months after Ellerin's death, not two
months as he had testified earlier. RT 415. Durbin could not remember whether his

Tr

10

11 PM telephone call to Ellerin was made using his cell phone or a landline. He
could not remember his cell phone number from nine years ago. RT 415-416.

&

17
18

20

taught an evening class. RT 417. With respect to identifying defendant, Durbin
estimated his total contact time with him had been 30-40 minutes on a single
occasion. He could not remember the month in which he met Gargiulo. RT 420.

ia

21

Durbin's girlfriend at the time of Ellerin's murder was Nicole Harlan. She

ls

19

Cr_oss examination

22

knowledge that the following individuals had obtained temporary restraining orders

Tr

23

Durbin was fired as the manager after Ellerin's death. He denied any

24

against him because of his temper and threats of violence against them: Mary Chu,

25

26
27
28

29
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

the office manager for Albert Siniscal, the landlord and Durbin's employer, as well

2

as Francis Mays and Scott Dyson, tenants of the same apartment building as

3

Durbin. RT 423-424. Durbin then was confronted with various prior inconsistent

4

ns

statements to his testimony that he had made to the police. He testified that he

5

could not remember what he told the police, and further testified that what he told

6

io

the police might be accurate, and his testimony inaccurate, or vice versa. RT 429-

7

430. To the best of Durbin's knowledge the motion sensor lights regularly worked

8

9

at

and were in good condition and functioning on the night of Ellerin's death. RT 433434. Durbin believed that all the windows of the Pinehurst house had burglar-

12
13

ul

11

prevention bars covering the windows. RT 435. In addition, the perimeter was
fenced, and the entrance was through an iron gate. RT 436. In addition to the front
door, which was made of wood and had windows in the door itself, the front

ib

10

entrance also had a metal security door. RT 436.

14

17
18

19

20

Tr

439. Assuming that he left Ellerin at about 8:15 PM, Durbin agreed that he would
have been unable to see a person pacing in front of Ellerin's house prior to 9: 30 PM.
He was preparing dinner with his girlfriend around 10 PM when he observed
someone pacing as earlier described. RT 438-439. He did not see anyone enter or
leave Ellerin's house after he left at 8:15. RT 441. Asked if the individual pacing

ia

21

line-of-sight overview of the Pinehurst house - for several hours afterward. RT 438-

&

16

apartment, not his girlfriend's. He remained in his own apartment - that had no

ls

15

When he left Ellerin's house on February 21st, he initially returned to his

22

RT 442.

Tr

23

could have Ashton Kutcher, whom Durbin had met at a party, Durbin could not say.

24
25

26
27

30
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Durbin believed that things he subsequently has heard and read may have

2

colored his own memory. RT 442-443. In making an earlier description of the pacing

3

person, Durbin agreed he was guessing, not estimating based on observation, about

4

ns

the height, weight and sex of the pacer, and that he literally was speculating. RT
444. He did not see any particular vehicles parked in front or near the Pinehurst

6

house that evening. RT 445. Durbin had been at Ellerin's house for about a half

io

5

7

hour before they moved from talking to sex. RT 449. He remembered Ellerin
repeatedly telling him that she had "fallen" for him. He could not recall if she asked

9

him to go to Hawaii with her, however. RT 450-451. He recalled that she recently

10

had broken up with a boyfriend named ''Vince" or "Victor" or some similar name. RT

11

451.

12

Parking on Pinehurst was always crowded, and it was hard to find a parking

ib

13

ul

at

8

place, day or night. The dog park added to the auto parking congestion. RT 451-452.

14

Tr

Redirect Examination

15

16

Parking was more difficult at nighttime in the neighborhood, and was not
limited to the parking on Pinehurst. RT 453-454. Durbin met with police
investigators many times. He believed he remembered telling the police that he

18

thought that the pacing figure was male. RT 455. Asked whether he had agreed to

19

supply the police with DNA samples, he responded, "Sort of... "

ls

&

17

20

21

Cross examination (Reopened)

ia

Durbin did not recall whether he had a cut on his arm the day Ellerin's body

was discovered. RT 456. He did not recall if the homicide detectives asked him if

23

they could take a photograph of a cut on his arm. RT 456.

Tr

22

24
25

26
27

31
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Nick Harrison [RT 458]

2

Direct Examination

3

Nick Harrison (henceforth "Harrison") was a forensic specialist with the
Santa Monica Police Department. His job entailed reporting to crime scenes to

5

search for, document and collect physical evidence. Part of his duties involved

6

checking for latent fingerprints and doing fingerprint comparisons. RT 458. On

7

io

ns

4

June 7, 2008, Harrison took two swab samples from the mouth of defendant. RT
458-459. He then put the swab

9

s into evidence under the assigned "incident

number" RT 459.

10

ul

Cross-examination

at

8

Harrison was questioned regarding his education, background and training,

12

and the methodology he used in collecting, transporting, labeling and storing the

13

ib

11

buccal swabs taken from defendant. RT 459-463.

14

Tr

15

In addition to taking mouth swabs from Gargiulo, Harrison also collected
hair samples from him, photographed him, photographed Michelle Murphy, the
victim, and collected buccal swabs from other witnesses. Harrison also was assigned

17

as a photographer during vehicle searches involving the Santa Monica incident. RT

18

461.

&

16

20

ls

19

Daniel Larios [RT 464]

21

ia

Daniel Larios (henceforth "Larios") has been a police officer for the City of Santa

22

transported the relevant buccal swabs taken by Nick Harrison and labeled "NH3"

Tr

23

Monica for the last nine years and was assigned as a detective. On June 9, 2008, he

24

along with the incident number, to the Orange County Sheriffs Department, so that

25

26
27

32
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

the Orange County Crime Laboratory could extract and examine DNA samples that

2

had been taken in the investigation. Cross-examination consisted solely of

3

questioning the witness to confirm his part in following the chain of custody. RT

4
5

ns

463-469.

Jennifer Zychowski [RT 4 70]

6

io

Jennifer Zychowski (henceforth "Zychowski") is a forensic specialist for the

7

Santa Monica Police Department. On April 28, 2008, she reported to the address of

8

9

at

1229 12th St., apartment 10 in the early morning hours. RT 470. When she arrived,
yellow crime scene tape already had been used to seal off the premises. RT 4 70.

12

apartment 10, was briefed, and commenced taking photographs of the crime scene,
both outside and inside. RT 471.

13

17

18
19

Tr

16

and a fitted sheet, which she took into evidence, marking the comforter as item A.74 and the fitted sheet as item A.-75. She also noticed what appeared to be blood.
There was a large concentration of blood in the apartment, and it left a trail
seeming to go down the stairs and out into the alley behind Murphy's apartment.

&

15

Zychowski entered the back bedroom of apartment 10 observed a comforter

RT 4 72. The alley runs parallel between 12th St. and Euclid Avenue ("Euclid" is
Santa Monica's euphemism for "13th St.").

ls

14

20

Zychowski followed the blood trail from 1229 12th St., Apt. 10 eastward down

the private walkway and into the alley that runs parallel - north to south - between

ia

21

ul

11

Zychowski placed herself on the pathway sidewalk that ran in front of the

ib

10

22

then left the alley and ran eastward down another private walkway located between

Tr

23

12th St. and Euclid (between Wilshire Boulevard and Arizona St.). The blood trail

24

1232 Euclid and 1236 Euclid. [RT 4 73]. She subsequently collected blood samples

25

26
27

33
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

from the trail using a Q-tip swab and a small amount of distilled water. She also

2

took control samples by repeating the process of using the Q-tips and distilled water

3

in a nearby area that did not have what appeared to be a bloodstain. RT 474. Each

4
5

ns

of the blood sample items and control items were boxed separately. In collecting the
samples, Zychowski started closer to Euclid and worked back toward Murphy's

6
7

io

apartment. [474].

The People next offered a diagram for identification as "Exhibit 8". The

8
9

at

diagram purportedly showed the blood trail from the apartment, going across the
alley, and toward the two Euclid addresses. RT 4 75. The small numbers that appear

13

14
15

16
17

ul

taken a blood sample. She marked each location from which she took a sample on

ib

12

4 76. Each place graphically depicted on the diagram indicated where Zychowski had

the Exhibit 8 diagram alphabetically, in open court, following the prosecutor's
instructions to do so as she testified about each location,. RT 475-484. Each of the

Tr

11

on the diagram correspond to the locations where Zychowski collected samples. RT

samples was packaged separately from the others to avoid sample contamination.
All of the items were booked into evidence under the appropriate SMPD incident
number. [RT 484].

&

10

On April 29, 2008, Zychowski met with victim Michelle Murphy at UCLA

19

Hospital, and while supervising a trainee in the procedure, recovered two mouth

20

swabs from Murphy, which Zychowski marked "A-10". RT 485. That item also was
booked into the evidence locker. [RT 486].

ia

21

ls

18

22

identify her path of travel from 12th St. to the crime scene using the diagram. RT

Tr

23

The People next proffered "Exhibit 9'', another diagram, and had the witness

24

486.

25

26
27

34
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Zychowski next was shown another proffered item, marked "Exhibit 10",

2

consisting of nine pages of photocopied photographs. RT 488. She then identified the

3

photos reproduced on the exhibit, all of which were taken at the crime scene that

4

5

ns

day, and described the reason(s) each photo was taken, it's evidentiary significance,

6

Cross examination

7

io

and the location depicted in each photo. RT 489-496.

According to the cnme scene log, Zychowski arrived at 1:57 AM on the

8

9

at

morning of the incident. She remained until 2:15 AM and left. She agreed with the
times set forth in the log. RT 497. The reason Zychowski left the crime scene was to

11

go to UCLA hospital in Westwood where victim Murphy had been taken by
ambulance. RT 497.

12

15
16

ib

14

Arriving at UCLA, Zychowski collected swabs from Murphy's hands, her
fingernail clippings, swabs of her legs, etc. RT 498. Zychowski did not take
Murphy's clothing for forensic investigation. She packaged each of the samples that

Tr

13

ul

10

she took separately, and put the items in numerous separate evidence envelopes.
RT 498. Regarding her qualifications, Zychowski corrected defense counsel, noting
that she was not employed as a criminalist, but as a "forensic specialist". She

18

testified that she had received a bachelor of science degree in biology, an A.A.

19

degree in forensic technology, had received six months of on-the-job training from
SMPD, had been certified by the "International Association For Criminal
Identification", and at the time of her investigation had been employed by the Santa

ia

21

ls

20

&

17

22

Monica Police Department for three years in her then-current capacity. RT 498-499.

23

Tr

When Zychowski arrived at the victim's apartment, the apartment had been

24

taped off with police yellow crime scene tape. However, the "blood trail" path

25

26
27

35
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

through the alley and towards Euclid had not been isolated or roped off. Zychowski

2

believed that there may have been tape at the end of the alley on one of the streets.

3

She did not know whether any traffic traversed the alley where the purported

4
5

ns

bloodstains were located. RT 501.

Zychowski agreed that it was critically important to keep a crime scene clean

6

io

from any contamination. RT 503. None of the photographs in Exhibit 10 show any

7

crime scene tape in the alley. RT 503. After receiving the swabs, Zychowski put

8

9

at

them through a drying process, which she testified was necessary in order to avoid
contamination andlor cross-contamination of the samples. RT 505. She completed

12

maintaining the chain of custody. RT 509.

Thomas Small

ul

11

cross-examination by describing her conduct in booking the evidence and

ib

10

Thomas Small (Henceforth "Small") is a 29 year Los Angeles Police

14

Department detective and the principal homicide investigator in the Ashley Ellerin

15

murder. (RT 512-513). He went to the Pinehurst crime scene on February 22, 2001.

18

19

intersecting an east-west street, Bonita Terrace, at its south end. 1911 Pinehurst is

&

17

He noted that Pinehurst is a relatively short street with a dead end to the north and

a single-family residence containing two bedrooms, one bath. Small classified the
house as a one-story bungalow. (RT 513).

ls

16

Tr

13

20

what the number "2" signified on the aerial photo. He responded that No. 2

ia

21

An aerial photo was proffered and marked "Exhibit 11". Small was asked

22

designated the Armor Arms apartment building. (RT 515).

23

Tr

Small described the area around 1911 Pinehurst, as well as the exterior of

24

the bungalow. All the windows had bars. Both doors had steel security doors in

25

26
27

36
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

addition to the wood framed doors. (RT 516). Shown Exhibit 6, Small verified that

2

the exhibit photo was a true depiction of what he observed of the doorways. (RT

3

515). He observed nothing that suggested that the killer made a forced entry. He

4
5

ns

saw no tool marks, scratches or other debris that would suggest forced entry. (RT
516).

6

io

Entering the house through the front entrance, Small observed that it had a

7

hardwood floor, and that the floor contained a series of what he believed were blood

8
9

at

drops. The prosecutor offered and identified "Exhibit 12", consisting of five
photographs, sequentially marked as "12A" through "12E". Small identified blood
drops depicted in photograph 12A as being consistent with his observations.

ul

10
11

15
16
17
18

19

ib

the landing where the body was found. (RT 518-519). Exhibit 12C depicts the area

Tr

14

the body of a young female lying on the top of a carpet. There was a bedroom beyond

just outside of the bathroom. Exhibit 12D, Small described as having been shot from
the top of the stairs, and in the upper right-hand corner there is a door partially
visible that was Ashley Ellerin's bedroom. (RT 519). Small identified photograph

&

13

in Exhibit 12B. At the top of the steps, there was a lot of blood and other debris, and

12E as depicting the upper body and head area of Ellerin, and more specifically, a
wound to her neck. (RT 520).

ls

12

The house had interior steps. Small identified the steps as they were depicted

20

bathroom, there was a U-shaped blood smear. He also saw small blood drops, which

ia

21

Small related that where the carpet of the landing met the title of the

22

he concluded were "directional, high velocity" on the floor. (RT 521).

23

Tr

Small observed "tons" of repair work or remodeling in progress. The living

24

room, dining room and kitchen were full of paint debris, tarps, painting equipment,

25

26

27
28

37
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

tools and other miscellaneous items. The number and density of those items was so

2

substantial that Small found it difficult to move around. (RT 523). Small learned

3

that Ellerin's father had been a houseguest the night before Ellerin's homicide. (RT

4

5

ns

523-524).

Small described Ellerin as wearing a turquoise colored terry cloth robe, some

6

io

boxer type underwear and a bra. (RT 524). Small observed numerous injuries to

7

Ellerin's upper body. They appeared to him to be deep stab wounds to the chest and

8
9

at

abdomen. Ellerin also had slice marks on her hands and arms, and one on her lower
left leg, suggestive of "defensive wounds". Additionally, there were what appeared

ul

to Small to be stab wounds to the back of Ellerin's neck. (RT 525).

11

13

14

of blood some distance from her body. Small identified the relevant pools of blood in
photograph 12D. From his observations, he inferred that the body might have been
moved or posed. (RT 525-526).

Tr

12

There was a pool of blood near Ellerin's head, and other significant amounts

15

18

19

20

resources, and as a result of what he learned, Small went to a residence in Diamond
Bar. On October 7, 2002, Small spoke to Jose Chafar, the householder. He indicated
that the vehicle in question belonged to his daughter, Gia Chafar, and when shown
a picture of Michael Gargiulo, stated that Gargiulo was his daughter's boyfriend.
(RT 527-528).

ia

21

Gargiulo's green pickup truck. He "ran" the vehicle plate number through police

&

17

Small had received a license plate number from Justin Peterson regarding

ls

16

ib

10

22

Armor Arms apartments, located at 1759 N. Orchid St. Another individual there,

Tr

23

Small also spoke with a Salvador Martinez, who was the manager of the

24

Hector Herrera, was the maintenance man for the apartment building and also was

25

26

27

38
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

interviewed. Both men were shown a DMV photo of Gargiulo, and they both

2

identified Gargiulo as a former tenant at the Armor Arms. The building is the same

3

one previously identified by Mark Durbin as where his apartment was located, and

4

ns

is v:ithin easy walking distance from the Ellerin home. (RT 528-530). Small was told

5

that Gargiulo had moved out of the Armor Arms In October, 2001. They further
informed Small that street parking in the area was very difficult to find. (RT 531-

7

532).

8

io

6

9

at

Small also had a telephone conversation with Detective Lou Sala of the Cook
County, Illinois, Sheriffs Department. Sala related to Small that he was

13

14
15

ul

12

the side entrance to her home sometime during the night hours of August 13-14,
1993. Paccaccio had been stabbed multiple times in the chest, shoulder and neck

ib

11

investigating the "cold case" murder of Tricia Paccacio, who was stabbed to death at

area on the left side of her body. (RT 532-534). As a result of that conversation and
other accruing evidence, Small obtained a search warrant for 1122 S. Clark Dr.,

Tr

10

Apt. 5, Los Angeles. (RT 534).

16

19

20

&

18

an open condition, a "clear molded plastic mask" and an unloaded handgun. (RT
535). A photograph was offered and labeled "Exhibit 13". Small identified the mask
contained in the photograph as being the one he found in the apartment, and also

ls

17

On executing the search warrant, the officers found a backpack on the floor in

identified the butt of the gun he had found. (535-536).

21

ia

The prosecutor next presented a photograph to Small that was labeled

22

of another search warrant at the home of Gia Chafar. He identified the two people

Tr

23

"Exhibit 14". Small identified the photo as having been seized during the execution

24

25

26
27

28

39
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

in the picture as being Ms. Chafar and the defendant. (RT 541). He did not know

2

when the photograph was taken. (RT 541).

3

Cross examination

4

ns

Small agreed that he served the search warrant and found the mask three

5

days before Halloween in 2002, and that people having masks at Halloween was not

6
7

io

unusual. With respect to the handgun, it was unloaded, and Small had no
knowledge of the gun being used in any crime, and more specifically, any alleged

8
9

at

crime involving Gargiulo. (RT 542).

With respect to the Paccacio homicide, Small agreed that defendant had

ul

12

of his testimony on June 24, 2010, no Illinois case had been filed against Gargiulo,
nor had an Illinois arrest warrant been issued for him. (RT 546-54 7).

ib

11

never been arrested or charged in Illinois with her murder, and that, as of the date

13

15

16
17

vegetation in her yard including a largish tree. Small did not go to Mark Durbin's

Tr

14

Small agreed that at the time of Ellerin's death, there was a great deal of

girlfriend's apartment (from where Durbin testified that he had seen a pacing
figure), and he did not know whether one could see into Ellerin's cottage or the front
yard from the girlfriend's window. (RT 552).

18

20

agreed

that

Ellerin's

house

had

motion

sensors

22

approaching the house. (RT 555). He did not know how much time elapsed from the
time Gargiulo was last seen at or near the Pinehurst house before Ellerin's murder.
He had no statements or other evidence that Gargiulo had been seen in the area at
anytime from New Year's Day, 2001 up until February 21"\ 2001, the date of

Tr

23

24

Ellerin's murder. (RT 555-560).

25

26

27
28

to

automatically activate outdoor lights that would brightly illuminate any visitor

ia

21

further

ls

19

Small

&

10

40
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

The crime scene was dusted for fingerprints and DNA sources. As of his

2

testimony at the preliminary hearing, there had been no fingerprint or DNA match

3

of Gargiulo being at the Pinehurst residence, especially at the time of Ellerin's

4
5

ns

murder. (RT 561-562).

Redirect examination

6
7

io

Small had interviewed Monica Gandy, the woman in whose honor the
birthday party had been thrown. Ms. Gandy indicated that her birthday fell on

8

at

January 15th.

9

Re-cross examination

Although he determined Ms. Gandy's birthday from interviewing her,

11

apparently Gandy could not tell Small when her birthday party had taken place, so

14
15

ib

13

that at the completion of his examination, the date of the party (or at least a party)
- and the last sighting of Gargiulo in the area prior to Ellerin's death - was
unknown, as he had not been seen at her house or in the immediate vicinity for at

Tr

12

ul

10

least a month, and possibly two months, before her death. (RT 559-563).

16

By agreement of counsel, the remainder of Det. Small's testimony was
postponed.

18

Thomas Small (Direct and Cross-Examination Resumed) [RT 923]

19

&

17

ls

Small testified that he had spoken with Tricia Paccacio's younger brother,

Douglas Paccacio (aka Doug) [henceforth "Doug" or "Douglas"]. Doug Paccacio told

21

Small that on October 13-14, 1993, he was living in the family home located at 810

ia

20

22

left the house through the side door, and found his sister's body on the stoop directly

Tr

23

Huber Lane [Glenview, IL) when he heard his father shouting from outside. Doug

24

outside the doorway. (RT 925).

25

26
27

41
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Small supplied Doug with a picture of Michael Gargiulo. Doug identified the

2

person depicted as the defendant. Doug and defendant grew up together and had

3

been friends since the first grade. Doug stated that his sister was indifferent to

4
5

ns

Michael Gargiulo, and that the friendship existed between Doug and Michael (RT
925-926).

6

io

In 1993, Michael Gargiulo lived at 803 Wedel [Lane, Glenview]. The

7

addresses are less than 100 yards apart. (RT 926). Small did not know whether

8

9

at

Tricia Paccacio was older than defendant, although he recalled that she was 18 at
the time of her death. He did not know whether Tricia and defendant had attended

12
13

ul

11

the same elementary and high school. There were no physical altercations,
confrontations or any relationship that Doug could recall between Tricia and
Gargiulo. Small did not know whether there had been any romantic overtures
between the two. (RT 927).

15

Tr

14

ib

10

Carlos Molina

Carlos Molina (henceforth "Molina") is a police officer for the El Monte Police

17

Department, assigned to patrol. He answered a radio call on December 1, 2005 (the

18

RT states "February 1" - counsel believes his colleague simply misspoke) to go to

19

4626 Arden Way in El Monte for an unknown problem. He arrived at the same time
as two other uniformed patrol officers. They went to Apt. 20. There was a kitchen
window open. Molina entered through the window. He first noticed a package of

ia

21

ls

20

&

16

22

back of the apartment was the bathroom with the light on. He then entered the

Tr

23

knives on the kitchen floor, with one of the knives missing. RT 565. Toward the

24

adjacent bedroom, again finding the lights on. He observed clothes to be scattered

25

26

27
28

42
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

all over the floor, and a woman laying on the bed with her throat cut and a breast

2

"cut out". RT 566. He immediately notified a fellow officer, Agent Vautrin, who

3

ordered Molina to remain at the threshold of the bedroom door until other officers

4

5

ns

arrived and contained the scene. The Sheriff's Homicide Bureau was called. RT 567.

Cross examination

6

io

Molina arrived at the crime scene at 8:17 AM. The decedent was naked and
not under any sheets or covers. He did not observe her to have any ligatures or

8

other forms of physical restraint. A man at the crime scene identified himself as her

9

at

7

husband and was asked to remain, which he did. RT 569. Molina was not the keeper

12

13

ul

11

of the crime scene log as to who arrived and left. RT 570. Finally, the Court inquired
whether the event Molina was testifying about occurred on December 1, 2005 rather
than February 1, Molina confirmed the date, and his examination concluded. RT

ib

10

570-571.

15

Andrew MacCaskey

Tr

14

Andrew MacCaskey (henceforth "MacCaskey") lived at the apartments

17

located at 4626 Arden Way in the City Of El Monte and was preparing to move out at

19

20

in, carrying some heavy objects. Noting her difficulty, MacCaskey offered to help, and
she accepted. RT 572-573. They became friends, and he asked her out to dinner. RT
574. He knew Bruno had been murdered sometime during the evening of November

ia

21

the end of November, 2005. He met the decedent, Maria Bruno, while she was moving

ls

18

&

16

22

and took her to dinner on the evening of November 29, 2005, i.e., the day before her

Tr

23

30 or early morning of December 1, 2005. He had known Bruno for a week or two,

24

death. RT 573.

25

26
27

28

43
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

MacCaskey took her to the restaurant "Barcelona". She had a black

2

Mercedes, which was the car they used. He left his wallet in her car, and telephoned

3

her to arrange to retrieve it. Bruno said that she would leave it out, in an obvious

4
5

ns

place in the kitchen, and v10uld leave the door unlocked for him. MacCaskey went to
her apartment, retrieved the wallet, and left Bruno a thank-you note. He locked the

6
7

io

door when he left. RT 574.

On the night they went to the Barcelona, Bruno introduced MacCaskey to

8

9

at

Brian Mimura. When MacCaskey was at Bruno's apartment later that evening
Mimura came over. Because of security measures for the apartment building,

13
14
15
16

ul

12

proffered a diagram of the Arden Way apartment complex, which was marked
"Exhibit 15". Showing it to MacCaskey, he confirmed that the diagram was a

ib

11

MacCaskey came down to the front door and let Mimura in. RT 576. The People

reasonable not-to-scale drawing of the building's configuration, and pointed to
where the entrance was on the diagram. RT 577. MacCaskey resided in Apt. 46 and

Tr

10

Bruno's apartment was No. 20. MacCaskey had walked Bruno to her door from the
apartments' parking lot. Mimura showed up about five minutes afterward. RT 578.

17

&

18

The apartment building has multiple levels, with the higher numbered
apartments being on the upper level. After admitting Mimura, the two men talked
for a few minutes, and went up to Bruno's apartment, where MacCaskey gave her a

20

hug and said "goodnight". RT 580. Mimura remained with Bruno. RT 580. Asked if
he could identify any other tenant as being in the courtroom, MacCaskey could not

ia

21

ls

19

22

identify anyone. RT 581.

23

Tr

MacCaskey stated that Mimura and Bruno were boyfriend and girlfriend.

24

Asked to describe her, the witness indicated that she was petite, pretty, large

25

26
27

28

44
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

breasted and friendly. RT 581. The People produced a document that was marked

2

"Exhibit 16" and contained two pictures. MacCaskey identified the person depicted

3

in both photos as Maria Bruno. RT 582.

4
5

ns

Cross Examination

Counsel challenged MacCaskey as to the night that he and Bruno went out to

6

io

drink. MacCaskey replied that they had gone out the night before she was found

7

dead, i.e., November 30th, not the 29th as was stated in his direct testimony. RT 583.

8
9

at

When MacCaskey left Bruno and Mimura, it was after midnight (December l8t), and
Bruno was alive. RT 583. Mimura was the manager of Barcelona. Contrary to

11

counsel's assumption that it was a dinner date, Bruno and MacCaskey went out to
drink. RT 584.

12

15

16
17

ib

because she believed she was too intoxicated to drive. RT 585. He did not meet a
man identifying himself as Bruno's freshly estranged husband. RT 585. When

Tr

14

Bruno was drunk. RT 585. MacCaskey drove her back home in her Mercedes

Bruno introduced MacCaskey to Mimura at the Barcelona, she stated that Mimura
was her boyfriend. MacCaskey thought they left the bar near closing time.
MacCaskey then agreed that the time was around 2 AM. RT 589. Asked when he

&

13

ul

10

retrieved the wallet that he had left in Bruno's car, MacCaskey stated it was the

19

following afternoon, [which was/is inconsistent with his earlier statement that they

20

were out the night before she was found dead, since by the following afternoon,
Bruno's apartment was a taped-off crime scene]. MacCaskey then stated that he

ia

21

ls

18

22

day, not in the afternoon, as he had earlier testified. He then testified that he made

Tr

23

retrieved his wallet from Bruno's apartment sometime before noon the following

24

himself known to the police at the crime scene [RT 591], which contradicts his

25

26
27

45
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

recovering the wallet from on top of the microwave oven the next morning and

2

writing a "Thank you" note to Maria Bruno, unless he did so before the arrival of

3

Officer Molina at 8: 1 7 AM.

4

ns

MacCaskey observed no signs that Bruno had been physically abused or had

5

suffered any apparent physical injury. Mimura and Bruno were hugging and

6

io

kissing both at the Barcelona and in her apartment. [Problematically, MacCaskey

7

at RT 580 testified on direct that he gave Bruno a kiss goodnight and left. [So when

8

9

at

does he see Mimura and Bruno kissing and hugging in the apartment if he left
immediately and never had seen Mimura previously?]. MacCaskey, when re-asked
about his departure at the end of cross-examination, then reaffirmed that he said

11

"Goodnight," as soon as Mimura showed up. RT 593.

ul

10

13

Robert Rasmussen

14

17

18

19

20

Tr

on the first floor. RT 595. He was aware of Bruno's murder. RT 595. She had been a
tenant only for a short time. RT 596. Several days before Bruno's death, Rasmussen
encountered a man standing outside the laundry room, whom he described as 6' to
6'1", 200 pounds, wearing a dark colored parka, a dark colored baseball cap, and
who appeared to him to be Hispanic. He had dark hair. RT 597. The man did
nothing untoward or unusual. He was leaning against the wall, looking into the

ia

21

complex located at 4626 Arden Way in El Monte. RT 594. His apartment was No. 9

&

16

Robert Rasmussen (henceforth "Rasmussen") was living at the apartment

ls

15

ib

12

22

standing there". RT 599-600. A few days later, he encountered the same man

Tr

23

apartment complex from the laundry room area. As Rasmussen put it, "Just

24

standing on the walkway running between the complex and the parking lot, again

25

26
27

46
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

wearing a dark colored parka and baseball cap. RT 600-601. Both the laundry room

2

and walkway encounters occurred between 9 and 10 PM. Arriving at the parking

3

lot, Rasmussen saw Maria Bruno, who was standing at the closest space next to the

4

ns

breezeway, opening her trunk and lifting a box out. RT 602. Rasmussen greeted her,

5

and then went to the trash receptacle. Bruno went toward her apartment, followed

6

io

by the male wearing the parka. RT 602. When Bruno entered her apartment, the

7

parka man followed her into the apartment. Rasmussen next saw him immediately

8

9

at

backing out the doorway with his hands up, palms facing forward, in the air in front
of him. RT 603.

10

13

ul

12

looking through the windows of Bruno's apartment. In order to get up against the
window, he stood in a flower bed. Shortly afterward, the man stepped backward out

ib

11

On a third occas10n, he observed the same man, wearing the same outfit,

of the flowerbed and left. RT 604-605.

14

17

18

19

20

Tr

605). Rasmussen sat down with an LASD sketch artist in March, 2006. He related
to the artist those details about the man's face that he could remember, and the
artist prepared a sketch embodying his related recollections. The sketch was
produced and offered as "Exhibit 17". On observing the sketch, Rasmussen believed
that the artist's rendering accurately reflected his memories of the man's face. (RT

ia

21

in Rasmussen's direction, and in Rasmussen's opinion, they saw each other. (RT

&

16

stairs and stand in front of apartment 35. While climbing the stairs, the man looked

ls

15

In yet another observation, Rasmussen saw the same man go up the stairwell

22

to see whether anyone in the courtroom looked familiar to him. Having looked

Tr

23

606-607). The prosecutor next requested that Rasmussen look around the courtroom

24

around twice as the prosecutor requested, Rasmussen said that he did not recognize

25

26
27

47
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

anyone in the courtroom as being a familiar face. At that moment, defendant

2

Gargiulo was the only person in court wearing a bright orange jumpsuit, and

3

Rasmussen did not identify Gargiulo as being the same man in the above-cited

4
5

ns

incidents.

The defense did not cross-examine Rasmussen.

7

io

6

Barbara Schwanenberg

8

9

at

Barbara Schwanenberg (henceforth "Schwanenberg") lived in Apartment 21
in the complex located at 2624 Arden Way in El Monte. Her apartment was next to

13

14
15

16

ul

12

morning of December 1st, when she emerged to visit her husband in the hospital and
found herself surrounded by police tape. RT 611. That morning, per her custom,

ib

11

No. 20, Maria Bruno's apartment. She learned of her neighbor's murder on the

Schwanenberg got up around 6:00 AM and went outside to fetch the morning paper.
RT 611. She saw something blue in the courtyard, but because she was not wearing

Tr

10

her glasses, she could not identify the object, but speculated it might have been
something dropped by a child. RT 611.

17

19

20

&

shown to Schwanenberg, who identified the contents as depicting her apartment
building. She pointed out the location of her apartment, as well as Bruno's

ls

18

The prosecutor proffered a photograph, which was marked "Exhibit 19" and

apartment. RT 613.

Cross examination

ia

21

22

and could not make out the details of the blue object. RT 614.

Tr

23

Schwanenberg agreed that she was quite near-sighted without her glasses

24

Redirect examination

25

26

27

28

48
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

The prosecutor invited the witness' attention to a blue object on the ground in

2

Exhibit 18, and Schwanenberg confirmed that was the same object in the same

3

place as when she had seen it at 6 AM on the morning Bruno's death was

4
5

ns

discovered. RT 614-615.

Re-cross Examination

6
7

io

Schwanenberg did not see anyone outside when she went to get the paper. It
was still dark outside. She had no idea how the object ended up close to her

8

at

apartment. RT 615-616.

9

Na Hyun Kwak, Aka Grace Kwak

11

14

15

the beginning of 2005. They met on Match.com. Roughly three months after they

ib

13

Na Hyun Kwak (henceforth "Kwak" or "Grace") was defendant's girlfriend at

started dating, Kwak became pregnant and gave birth on January 11, 2006. RT 618.
Kwak and Gargiulo moved into the apartment complex located at 4626 Arden Way,

Tr

12

ul

10

El Monte and rented Apt. 34. Defendant had an air-conditioning business named
"24-Hour Heating and Air". He later changed the name of the business to " Gus The

17

Plumber". RT 619.

&

16

Gargiulo had a white van, and at some point, he put the logo "Gus the

19

Plumber" on the side of the van. They moved into the Arden Way apartment in

20

September, 2005. While they lived together, the relationship was "on and off' with
frequent arguments. There were nights when he did not come home. RT 621.

ia

21

ls

18

Gargiulo used the apartment's assigned parking space in the Arden Way parking

23

lot, and Grace generally parked on the street. RT 622. Grace knew of a former

Tr

22

24
25

26
27

49
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Gargiulo girlfriend named Gia. She did not know about any girl named "Maria",

2

except that defendant had told her that he had dated a girl named Maria. RT 623.

3

Gargiulo said Maria was the wife of some guy, and that she had a daughter,

4

ns

aged two or three. Gia also knew about another woman named Velma, who had a

5

child fathered by Gargiulo. Defendant worked out. He had tattoos, one on his right

6
7

io

arm, another on his left arm, and a dragon on his back. RT 623. They broke up in
April, 2006. RT 625-626.

8

9

at

Grace saw Gargiulo use blue soft cloth booties (such as those worn by
hospital staff) as part of his work. She went to a job site with him at one point, and

12

13

their apartment. RT 624. Sometime toward the end of November or beginning of
December,

18

19

20

of the

apartment

because

of the

couple's

Tr

The couple had gone out on a date to some unknown restaurant or bar, and
while there, Grace saw a poster bulletin in the Lady's restroom. RT 626. She
removed the bulletin but and showed it to Defendant. Because of the address on the
bulletin, Grace asked defendant whether he knew the deceased Mrs. Bruno.
Gargiulo indicated that he did know her, and had assisted her by carrying groceries
up from the parking lot for her. He also knew the kind of car she drove (the
Mercedes) and where she worked (a video rental store), and that she had separated
from her husband. RT 628. In the discussion at the restaurant, Gargiulo told Grace

ia

21

out

&

17

moved

ls

16

Grace

disagreements. Gargiulo remained in residence. RT 625-626.

14
15

ul

11

saw blue booties in the van. Neither Gargiulo nor Grace used the booties around

ib

10

22

baseball caps when he went to work. Gargiulo was left-handed according to Grace.

Tr

23

that Maria Bruno had "big boobs". RT 629. He frequently wore dark-colored

24

He also had told her that he was originally from Chicago. RT 630, but that he had

25

26
27

28

50
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

been "kicked out" of Illinois. He told Grace that he had studied "forensic science",

2

and that he was a certified forensic investigator. RT 631. Grace stated that she had

3

some towels with Korean writing on them. She admitted that she had previously

4

ns

been convicted of vehicular manslaughter. RT 631. Before she had the baby, Grace a

5

gave Gargiulo a Father's Day card. The prosecutor marked a four-page document

6

io

that was designated as "Exhibit 19", and shown to the witness. She identified page

7

one of the exhibit as being the card that she gave to Defendant. She had given

8
9

at

Gargiulo the card before they had moved into the Arden Way apartment building.
RT 632. Page 2 of the exhibit was a copy of the inside left panel of the card. Page 3

11

was a copy of the inside right panel of the card, and page 4 was a depiction of the

ul

10

back of the card. RT 633.

12

ib

Cross examination

13

17
18

19
20

Tr

16

and their not yet born baby. RT 633-634. After conferring with his client, defense
counsel asked the witness whether Gargiulo had ever been violent with her. She
stated that he had hit her on several occasions and choked her once. She did not

&

15

that when she inscribed the card using the word "we", she was referring to herself

report any of the incidents to the police. She did not save the poster she found in the
restroom. RT 635-640. Gargiulo drove a white van during the time he and Grace

ls

14

Grace believed that she had purchased the card from a Hallmark store, and

were a couple. RT 643.
Redirect examination

ia

21
22

called her brother, who apparently came over immediately, as defendant chose to

Tr

23

Defendant struck Grace on two different occasions. On one occasion, Grace

24

jump out the second story bedroom window rather than confront him. RT 645-646.

25

26
27

28

51

DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

Re-cross examination

2

Gargiulo customarily slept in the nude. RT 648. Grace did not notice any cuts

3

or bruises on his person that she observed during December, 2005. RT 649.

5

ns

4

Joseph Purcell

6

io

Joseph Purcell (henceforth "Purcell") is a thirty-four year veteran Los

7

Angeles County Sheriffs Department homicide detective. His entire testimony dealt

8

9

at

with hearsay statements offered pursuant to Proposition 115, i.e., "witnesses" not
called by the prosecution whose statements were offered through the investigator
and therefore were not subject to cross examination.

ul

10
11

15

16
17
18

ib

14

resided in his apartment complex in December, 2005. RT 649-651. Dolson recalled a
tenant by the name of Michael who "lived with the young girl who appeared half

Tr

13

interviewed telephonically on July 25, 2008. Purcell inquired about a tenant who

Asian". RT 651. Dolson recalled that Michael liked petite girls with large breasts.
Dolson and Michael observed a woman with those attributes in the apartment
complex. RT 651. Both men agreed that she was quite attractive RT 651. Dolson

&

12

The first hearsay declarant offered by Purcell was Brenton Dolson, who was

stated that Michael was in the refrigeration or air-conditioning business. RT 652.
The second hearsay declarant was Velma Carrillo. RT 652. Carrillo and

20

Gargiulo had a child together. They originally had "met" in an AOL online chat
room sometime in 2000. At that time, defendant was living in an apartment in

ia

21

ls

19

22

652-653. Michael liked women with "big boobs" and "little asses or tight butts". RT

Tr

23

Hollywood that no longer exists, having been replaced by the Kodak Theatre. RT

24

652. Carrillo said that Michael was from Chicago. RT 653-654. Carrillo stated that

25

26
27

52
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Michael had told her that there had been a murder in Chicago. The victim was his

2

best friend's sister. He believed that the Chicago police were trying to put a case on

3

him. RT 654. Purcell said that Carrillo said that Michael said that he knew who had

4

ns

committed the murder, but that he would not tell whom it was. Purcell related that

5

Carrillo related that Michael related that he believed his DNA would be at the

6

io

crime scene because the victim was "almost family to him", and he was frequently

7

at the victim's home. Purcell stated that Velma stated that Gargiulo had told Velma

8

9

at

that he had studied "forensics" and had some expertise in the area of DNA. RT 654.

Michael owned two white vans. RT 655.

11

12
13

Michael used blue booties in his work. He did not wear them at home during
the period that they lived together. Gargiulo dated other women, including one
named "Grace". RT 655.

14

17
18
19

20

Tr

Occasionally, she found the disposable blue booties among his dirty clothing.
Carrillo also stated that Gargiulo was in the habit of dating other women. After
Carrillo and defendant broke up, he started living with Grace Kwak in El Monte.
According to Velma, defendant had gotten Grace pregnant. Carrillo and defendant
had an on-and-off relationship. According to the detective, Carrillo told him that she
was "not really seeing him [Gargiulo] during December, 2005 because the two had

ia

21

would not wear them in her house or in the house they shared. (RT 655-656).

&

16

Carrillo had stated that defendant carried booties in his van, but that he

ls

15

ib

10

ul

Velma stated that Michael used a knife in his business. RT 655. She stated that

22

some "issues about child visitations." (RT 656-657).

23

Tr

When Carrillo and Defendant watched television crime shows together,

24

Defendant would tell Carrillo how the police utilized DNA to capture suspects. He

25

26
27

53
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

also told Carrillo that he had been living in Hollywood when a lady had been

2

murdered near where he lived, and that his apartment building subsequently was

3

razed to build the Kodak Theatre. (RT 658). Defendant also told Velma that he was

4

5

ns

being investigated for [the Hollywood] murder because he used to walk his dog in
the area where the woman was killed. (RT 658).

6
7

io

At one point, Gargiulo told Carrillo that he had a degree in forensic science.
(RT 660).

8

9

at

Purcell interviewed another woman, Maria Gurrola, the widow of a popular
Mexican singer. Gurrola had dated Gargiulo. They met when he came to her house

13
14

15

ul

12

Comfort". She produced Gargiulo's business card when interviewed by Purcell.
Gurrola related that Gargiulo wore blue disposable booties while working on the

ib

11

to install air conditioning in February, 2003. His company was called "Complete

air-conditioning in her house. She stated that defendant followed her around the
house that day, telling her that he would not leave until she agreed to go out on a

Tr

10

date with him. (RT 659-660).

16

19

20

that he had threatened her. (RT 660-661). She told Purcell the defendant had hit
her, and as a consequence of the battery, she had suffered a detached retina. (RT
661). Gurrola said the Gargiulo had threatened to kill her if she left him, stating
that he could "get away with it" because he would know how to commit such a crime

ia

21

&

18

has been very demanding, that he would stalk her, that he would frighten her, and

ls

17

Gurrola dated Gargiulo for 3 months; she told Detective Purcell that Gargiulo

22

and cover it up relying on his forensic science education and training.

23

Tr

Gurrola stated that when she would take her children to school, Gargiulo

24

would watch her, that she would see him sitting in his vehicle outside of her house,

25

26
27

54
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

2

and that he had stalked her. Gurrola told Detective Purcell that Gargiulo was
obsessed was obsessed with her breasts.

3

Gurrola told Detective Purcell that Gargiulo was obsessed with her breasts.

4

ns

(RT 663). In response to a question, Gurrola told the detective that she had seen

5

Gargiulo use knives in the course of his work. She told the detective that Gargiulo

6
7

io

was in good physical shape , that he worked out, and that she understood Gargiulo
was a boxer. (RT 663).

9

at

8

Cross-examination

10

13

14

15
16

ul

neglected to ask Gurrola how long she and Gargiulo lived together. (RT 666-667).

ib

12

with her, but he admitted Gurrola stated that that they had lived together. Purcell

He did not know that Gurrola lent Gargiulo $5,000. (RT 667-668), or why Gurrola
would cohabit with Gargiulo under the conditions that he described during his

Tr

11

Purcell stated that he did not know whether Gurrola invited Gargiulo to live

direct testimony, when, at the time the two lived together in her house, she also had
her 4 small children her living there with her. (RT 666-667).

17

19
20

&

Gurrola cooked for Gargiulo while they were living together. Asked whether
Gurrola had any other roommates at the time she and Gargiulo lived together
(other than her 4 children), Purcell indicated that he did not know and he had not

ia

21

whether they slept in the same bed, had regular conjugal relations, or even whether

ls

18

Although Purcell described the two him living together, he neglected to ask

22

asked Gurrola those questions. (RT 669-670). 3

23

3

Tr
24

25

Had Gurrola herself testified at the preliminary hearing, their cohabiting, their sexual relationship,
her lending Gargiulo $5,000, her cooking for him at home, and the daily presence of four children in the
home would all be inconsistent with the picture sought of, and presented by, Detective Purcell during his
direct testimony. Unfortunately, the Speedy Trial Initiative passed in 1990 at the behest of the California

26
27

28

55
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

Gurrola obtained a Temporary Restraining Order preventing defendant from

2

being anywhere near her. The TRO was based on an incident in the parking lot of a

3

supermarket where the 2 had an encounter. To Purcell's knowledge, the last time

4
5

ns

that Gurrola had any dealings with defendant was in 2003. There are no crime
reports for the complained-of incident(s). (RT 672-675).

6

io

Velma Carrillo bore defendant's child, and she had a high opinion of him.

7

She related to Detective Purcell that they were not together in the year 2005 that

8

9

at

she had moved to Palmdale while Gargiulo was living in El Monte. However she
came down from the desert to visit with him on weekends or in the evening. (RT

11

12
13

With respect to the telephonic interview of hearsay declarant Dolson, the
"witness" stated that

17

Tr

Purcell admitted that heterosexual males in our society commonly will take
an observational interest in attractive short women with large breasts and tight
rear ends. He agreed that it was not unusual for men to follow such a woman with
their eyes when seeing them walk by. (RT 677).

&

16

a guy who lived upstairs, whose name he believed to be

"Michael" had helped Dolson and his roommate move into the apartment complex.

14
15

ul

675).

ib

10

Purcell averred that he believed a pattern of victims was developing. Purcell

19

had never seen a picture of Ellerin in life, and had no knowledge of whether she had

20

District Attorneys Association, neatly avoided the prosecutorial problem of defense counsel impeaching
witnesses with their own words and actions by (a) conveniently cutting the witness out of the proceedings
completely, (b) having an officer testify selectively as to what the prosecutor wants to establish in terms
of culpability, ( c) thereby deftly avoiding cross examination on major inconsistencies - and the
consequent possible demolition of the witness' veracity. and (4) avoiding the truth finding process by
undercutting the non-witness hearsay declarant's vicariously obtained "testimony" in holding defendant
to answer.

ia

21

ls

18

22

Tr

23

24

25

26
27

56
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

large breasts or other physical similarities to Bruno.

2

Redirect Examination

3

Purcell testified that Gurrola had told him Gargiulo was very sexually

4
5

ns

demanding, and that she described having sex with him as being tantamount to

6

Re-cross Examination

7

io

rape. (RT 679).

Purcell asked Gurrola whether any of the sex acts that she and Gargiulo

8

at

performed were kinky, and Gurrola responded "No". (RT 680).

9

Mirko Hoffman

11

14
15

16

testified that he had been a friend of defendant. They were introduced by

ib

13

Mirko Hoffman (henceforth "Hoffman") identified Gargiulo in court and

defendant's brother Ken at a local gym sometime around 1996-97. At that time
defendant was living in an apartment in Hollywood with his girlfriend, Allison, near

Tr

12

the location of the Kodak Theatre. Hoffman believed Allison left sometime in 2001
or 2002. (RT 685-687). He ended his friendship with Gargiulo in 2003. (RT 686).

17

19

20

&

Hoffman stated that Gargiulo told him that he had left Chicago because the
police were looking for him. Defendant told Hoffman that there was an old murder
investigation. Hoffman testified that defendant said he had been present at the

ls

18

ul

10

victim's homicide, but that he had not participated in the murder. (RT 687-688).

21

ia

In 2003, Hoffman was working as a bouncer at a Hollywood strip club. (RT

22

689).

23

Tr

Defendant told Hoffman that he hated the Chicago Police Department

24

because they were trying to "set him up" for the cold case murder. (RT 690-691).

25

26
27

57
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Gargiulo also told Hoffman about a murder that had occurred in his neighborhood,

2

that the female victim in that case had been the roommate of a friend of his. She

3

had been killed about a month after Gargiulo had become friends with her

4

5

ns

roommate. He related that the victim's head had been cut off. (RT 691).

Gargiulo told Hoffman that he had developed an expertise in "forensics". (RT

6
7

io

693).

Cross Examination

8

9

at

Hoffman was a friend of defendant's brother, Kenny Gargiulo (henceforth
"Ken" or "Kenny"). During their long friendship, Hoffman never mentioned any of

12

ul

11

Michael's statements about either the Chicago murder (Paccacio) or the Ellerin
murder in Hollywood to Kenny. (RT 695-696). Hoffman left his position as
"security'', i.e., "bouncer" at the Body Shop strip club in 2004. (RT 697).

ib

10

13

16
17

Tr

15

Bernadina County Sheriffs Academy. (RT 698). He had not yet obtained a position
in law enforcement. (RT 698). When Michael had referred to the two homicides,
Hoffman had not made any notes of the statements. (RT 699). While Hoffman could
not recall their location when Michael told him about the Chicago homicide, but did

&

14

At the time he testified, Hoffman had recently graduated from the San

recall one instance in which the men were in Gargiulo's van. Hoffman said that

19

Michael was sleeping in his van because he thought the FBI was after him. (RT

20

704). Hoffman could not remember whether Gargiulo lived out of his van in 2001,
2002 or 2003. (RT 704-705).

ia

21

ls

18

Hoffman admitted that was biased against defendant (RT 706-707). Hoffman

23

said that Michael had told him that he was present at the Paccacio murder, and

Tr

22

24

consequently with the Ellerin homicide, Hoffman called him a serial killer.

25

26
27

58
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

However, Hoffman admitted that he did not report the statement to the police until

2

2008 because he had no evidence that Gargiulo had been involved in the Chicago

3

murder. (RT 709). The first time Gargiulo mentioned the Chicago murder was back

4

ns

in 1996 or 1997. Gargiulo claimed that he and a friend were burglarizing the girl's

5

house when she unexpectedly arrived home, surprising them. (RT 722-723).

6

7

io

According to Gargiulo's purported story, he told Hoffman that she was stabbed to
death inside her house. (RT 723).

9

at

8

Susannah Baker

10

13
14

15
16

ul

she went to an apartment complex at 4626 Arden Way in El Monte. Colleagues

ib

12

employed by the Los Angeles County Sheriffs Department. On December 1, 2005,

directed her to Apartment 20. On the concrete area around the swimming pool in
the central area of the complex, she observed a "blue medical type bootie" that is
used to cover shoes in hospitals, etc. and had been marked as "Exhibit 18" (RT 730731).

17

Baker found a shrink-wrapped plastic container like those on shelves in the

&

18

Tr

11

Susannah Baker (henceforth "Baker") is a "forensic identification specialist"

supermarket. The container she observed was packaging for three knives, one of
which was missing from the package. She believed that the missing knife was the

20

longest one of the set. (RT 732-733).

ls

19

21

ia

On July 23, 2008, Baker returned to the apartment complex accompanied by

22

Detective Lillienfield and Steve Schliebe, a senior Sheriffs Department criminalist. 4

23

The reporter misspelled the name as "Schiebe". As Mr. Schliebe worked on cases for both
Messrs. Lindner and Rubin while he was briefly in the private sector, we are reasonably certain
that the reported name is a misspelling, especially as Schliebe himself spelled it out for the
reporter when he testified.

Tr

4

24

25

26
27

59
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

On this occasion, she went to Apartment 34. She recovered two or three Target

2

plastic bags. A Father's Day card and a couple of towels were found inside the bags,

3

as well as miscellaneous paperwork. (RT 733-735). When she searched through'Apt.

4

ns

34, the apartment was vacant. The defense waived cross-examination. (RT 736).

5

6
7

io

Stephan A. Schliebe

Stephan A. Schliebe (henceforth "Schliebe") is a criminalist employed by the

8

9

at

Los Angeles County Sheriffs Department. Among his duties was searching crime
scenes to collect evidence. On December 1, 2005, he went to a crime scene located

ul

11

4626 Arden Way, Apt. 20, in El Monte. He returned to that location on July 23,
2008, only this time his investigation focused on apartment 34.

12

14

ib

13

In Apt. 34, Schliebe received a blue paper shoe cover from Detective
Lillienfeld and booked it into evidence after sealing it using the laboratory
customary method. The defense waived cross-examination.

15
16

Patricia Daughtee

17

19

20

&

Angeles County Sheriffs Department for 5 and a half years.( RT 741). She has a
Bachelor of Science degree in biology and a Master of Science degree in
criminalistics. She also had/has extensive departmentally sponsored internal
experience and training in the identification of biological fluids such as semen,

ia

21

Patricia Daughtee (henceforth "Daughtee") has been a criminalist for the Los

ls

18

Tr

10

22

"DNA typing training" through various universities and the Department of Justice

Tr

23

saliva and blood. In addition, she received training in "extraction quantitation" and

24

at numerous conferences and workshops. (RT 741-742).

25

26

27
28

60
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

The Sheriffs Laboratory is accredited for DNA testing (presumably by the US

2

Department of Justice) although the witness did not indicate the identity of the

3

accrediting agency or university.

4

ns

Daughtee's duties included screening evidence, responding to crime scenes,

5

as well as DNA extraction and typing. She conducted a screening examination on

6

io

the cloth bootie, identified as "Exhibit 1". Daughtee testified she screened it for

7

"wears DNA". She observed what she believed was blood to be on the interior top

8
9

at

rear, interior bottom rear, and interior bottom center of the bootie.

12
13

14

1. The interior top rear of the booty;
2. The bottom rear of the booty;
3. The bottom center of the booty;

4. An area encompassing the ankle elastic of the booty, inside and outside;

15

17

In addition, Daughtee obtained a blood reference sample from victim Maria
Bruno and extracted the DNA in that sample. Daughtee then forwarded the
samples to Suzannah Knetchel. (RT 7 42-7 44).

&

16

18

19

Daughtee used PCR as her methodology in quantitating the DNA that she
was able to extract. "PCR" stands for "polymerase chain reaction". In making the
quantitation, Daughtee relied upon a pre-prepared kit. However, there are no

ia

21

Cross-Examination

ls

20

ib

11

designated, as follows:

Tr

10

ul

She extracted (or attempted to extract) DNA samples from various cuttings

22

preserving them, or at least none has been purchased by the Sheriffs Department.

Tr

23

commercially available kits specifically designed for the taking of DNA samples and

24

The crime lab makes its own reagents for the purpose of preserving and

25

26
27

61
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

storing DNA. A maJor danger of using the PCR methodology is the risk of

2

contamination by an outside source. (RT 745).

3

Daughtee reviews 10 DNA samples in the daily course of her work. With

4

ns

respect to the DNA sampled from the booty, using the blood organic extraction

5

method. Daughtee clarified the DNA is taken from the nucleus of the extracted

6

io

cells. Blood is partially comprised of hemoglobin (red blood cells) that themselves

7

have no nuclei. (RT 746). DNAs in the "other cells" in the blood. (RT 747).

Extraction basically attempts to release the DNA out of cells while leaving

9

not useful detritus behind. PCR is the method used in quantitation and in

12

13

ul

11

amplification as the testing progresses. The Sheriffs Department sends out its DNA
samples to private laboratories, such as Cellmark, for analysis. Daughtee believe
there are five different companies that receive DNA for analysis from the Sheriffs

ib

10

at

8

Department, of which Cellmark is one. (RT 747).

14

Tr

15

Some of the samples in the instant case were sent to an outside lab.
Daughtee was not the forensic scientist in charge of managing the DNA samples.

16

In response to an inquiry regarding a DNA extraction method known as
SCLR, Daughtee explained that the method was no longer in scientific favor

18

because it required longer strands of DNA and was used in the era before PCR was

20

identifications. Instead, DNA laboratories now use fragments "of STR length, which
are short tandem repeats." (RT 7 48).

ia

21

invented. SCLR required longer sequences of DNA in order to make meaningful

ls

19

&

17

22

different portions of the DNA. Within the loci are different markers known as

Tr

23

In making identifications from DNA, scientific investigators look at loci in

24

alleles. The investigator looks at the alleles which are named from "5" to "15" for

25

26
27

62
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

l

identification purposes. The PCR method replicates the same short strands of DNA

2

over and over again, and therefore only a tiny part of the DNA sequence is used for

3

making identifications. (RT 749). Daughtee opined that the PCR method of analysis

4

ns

has been widely accepted in the scientific community and is used for scientific

5

purposes other than determining an individual's identity. (RT 750). After Daughtee

6
7

io

turned over her work to other investigators in-house, she did not follow the samples
further. (RT 753).

9

at

8

Susannah Knetchel

10

14
15

16
17

ul

ib

13

years. She received a Bachelor of Science degree in biology from the University of
Colorado and a Masters of Science degree from California State University, Los
Angeles. In addition to her formal education, Knetchel also received training from

Tr

12

Angeles County Sheriffs Department and has been employed there for the last 5

the Sheriffs Department in the areas of bodily fluid identification, DNA extraction,
DNA analysis and collection of evidence in the field. The Sheriffs laboratory is
accredited for DNA testing. (RT 754-755).

&

11

Susannah Knetchel (henceforth "Knetchel") is a criminalist with the Los

18

20

respect to the sample taken from the inside and outside of the ankle elastic, "very
few genetic types were obtained from that sample". (RT 759, 1. 15-19).

ia

21

and found to be consistent with originating from Maria Bruno. (RT 759). With

ls

19

All of the referenced blood stains done by Criminalist Daughtee were tested

22

However, she did detect a Y chromosome which would indicate the presence of male

Tr

23

Knetchel did not have enough information to carry out an identification.

24

DNA in the sample. She sent the sample off to a laboratory that specialized in

25

26
27

63
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

making identifications from Y chromosomes. (RT 759). After obtaining a reference

2

sample from defendant Gargiulo, she also sent that sample out to a contracting lab.

3

Criminalists employed by the Sheriffs Department are required to take two

4
5

ns

proficiency examination each year. An independent private company supplies the
proficiency tests. The company prepares the samples and knows the proper test

6

7

io

results. (RT 772).

Cross-Examination

8
9

at

Knetchel received a saliva reference sample that was taken from Michael
Gargiulo. Detective Lillienfeld collected the sample. There is no special training

13
14
15

16
17

ul

and possibly comes into contact with a different source. She did not recall the

ib

12

can be contaminated by mishandling, e.g., when the sample touches something else

container in which he received the sample taken from Gargiulo. Before Knetchel
received the samples, they had been through the serological laboratory. She could

Tr

11

required for the collection of saliva samples. (RT 766). Knetchel agreed that samples

not account for who might have handled the samples before she received them, nor
did she know how far "down the line" she was in the number of "handlers" from the
original submission of the samples to the laboratory. CRT 767).

&

10

18

receiving it. CRT 768).

ls

19

Knetchel has no ability to check for contamination of the sample prior to her

20

"negative extraction control". The objective apparently is to ascertain that there is

ia

21

She extracted each sample, along with a "positive extraction control" and a

22

(other than the subject) in the positive extraction control. (RT 768-769). The

Tr

23

no one's DNA in the negative extraction control, and that there is someone's DNA

24

"positive extraction control" contains someone's DNA that is not the accused and is

25

26
27

28

64
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

compared against a known result for that individual. If the test result provides the

2

expected elevated alleles for the known DNA sample, then the testing materials are

3

behaving as the criminalist would expect to achieve an accurate result on the new

4

5

All DNA extractions take place in a separate extraction laboratory, i.e., a

6

io

separate room within the lab facility. Knetchel indicated that she handled only one

7

sample at a time on her laboratory table, so that no other samples were near it. She

8

at

then processed the sample alongside the control samples noted above. Procedurally,

9

Knetchel wipes down her workstation before and after she uses it. In addition, the

11

criminalists handling DNA at the Los Angeles County Sheriffs lab also use other

ul

10

controls, such as laying down a sterile bench diaper on the test surface and wearing

13

a sterile mask and gloves. The lab uses sterile and DNA free pipettes and kits, and

ib

12

the pipettes are wiped down prior to each use. (RT 771).

14

17
18

19

20

are

accredited

through

process

involving

Tr

laboratories

inspections. The inspections include verifying the qualifications of the management,
lab personnel, equipment, and appropriate procedural guidelines for accurately
carrying out DNA analysis. Forensic crime-specific laboratories are required to take

&

16

Forensic

two proficiency tests every year. An outside private company provides the results,
and apparently the correct results are not known to any of the laboratory personnel

ls

15

or management. (RT 772).

21

ia

In testing defendant's DNA, Knetchel utilized a scientific method known as

22

"Mini-STR". Essentially, there are 15 separate allele locations. The particular gene
sites are chosen because they vary from individual to individual and therefore can

Tr

23

ns

test sample. (RT 769-770).

24

be compared to different people. (RT 773). The 15 "loci" are chosen because they

25

26
27

28

65
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

have the greatest differentiation between individuals. There are billions of loci in

2

any human being's DNA. If any single locus of the tested sample does not match

3

that of the defendant (i.e., the subject), he must be eliminated as being the source of

4

5

ns

the question DNA. (RT 77 4).

The test is called "PCR Amplification" in which small pieces of DNA are put

6

io

into the reaction with the sample, and the result is the creation of millions of copies

7

of the 15 locations. Once the copies are completed, they are labeled with a

8
9

at

fluorescent marker that is detected by a camera. When the DNA passes through the
genetic instrument, the camera collects pieces, and the size of the pieces is

11

13

14
15

As applied to sample 49-B, the original sample did not have very much DNA
in it, and therefore the criminalists used re-amplification by placing the sample in a

ib

12

device called a "Thermocycler" that generates millions of copies, regardless of how
much DNA is in the original sample. (RT 775-776).

Sean Yoshi

16

19

20

courses through the Department of Justice in DNA analysis as well as in-house
training. In March 2009, Yoshi then was a DNA analyst. He was provided with 2
samples of unknown DNA as well as a known sample from Michael Gargiulo. The
unknown samples were labeled as: EV 49-A and EV 49-B. (RT 780-781). Yoshi

ia

21

Angeles County Sheriffs Department Crime Laboratory. (RT 780). Yoshi completed

&

18

Sean Yoshi (henceforth ''Yoshi") is a supervising criminalist with the Los

ls

17

ul

measured. (RT 775)

Tr

10

22

persons, and that Michael Gargiulo could not be ruled out as a contributor in either

Tr

23

determined that both EV 49-A EV and EV 49-B contained the DNA of at least 2

24

sample. (RT 781-782)

25

26

27

66
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

N.B.: Victim Maria Bruno was excluded as a contributor in both unknown

2

samples. (RT 783, 1. 8-10). With respect to item 49-A, the gene sequence found in

3
4

Gargiulo sample can be found in 1 in 3.3 million people. (RT 783).

5

ns

the Gargiulo sample occurs in 1 in 318,300 people. With respect to item 49-B, the

Yoshi used a testing procedure called the mini STR system, which he stated

6

io

was accepted in the scientific community. (RT 784). A mini STR analysis is based on

7

principles of "PCR" or polymerase chain reaction. The mini STR test is utilized for

8
9

at

DNA that is "inhibited, degraded or contain small quantities of DNA." (RT 784-785).
The difference between regular STR testing and mini STR testing is the sensitivity

13

14

ul

12

test is used when the DNA chain is broken or blocked. Yoshi was part of the
validation team for the mini STR system for the Sheriffs Laboratory in 2008. (RT

ib

11

level of the test, the latter being much more sensitive. Essentially, the mini STR

785-786). A commercial kit to undertake mini STR analysis came out in late 2007,
making the methodology roughly 2 years old at the time of his testimony. (RT 786).

Tr

10

15

Cross-Examination

16

19

20

forensic science community, but that he had no knowledge as to whether the methodology was
accepted in the greater scientific community. Specifically, Yoshi relied upon the acceptance of the
methodology by the FBI as being tantamount to acceptance within the scientific community. Here he
could not cite any articles outside the area of forensics in whiCh the mini STR method was used,

ia

21

&

18

system in the scientific community. Yoshi testified that the testing method was accepted in the

ls

17

Cross-exarrrination was devoted largely to questioning about the acceptance of the mini STR

22

repeated and validated as being an acceptable scientific method. (RT 786-795).

23

Tr

The commercial kits used by the Sherifl's laboratory looks for only specific locations within the

24

DNA molecule. The FBI sets the standard for DNA laboratories. The FBI picks the

25

26

27

67
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

DNA sites that every laboratory across the nation looks at. (RT 795). 'They have done

2

extensive research with regards to individuality with regards to those specific

3

locations that each person is specific to." (RT 795, 1. 25-27).

4

ns

Yoshi did not know whether the individuals who chose the locations to be

5

examined were scientists at academic institutions or were FBI employees. Of the

6

io

articles that Yoshi had reviewed, just one of the articles related to the mini STR tests.

7

That article appeared in The Journal Of Forensic Science. Yoshi did not know

8

9

at

whether anyone in the scientific community attempted to replicate the results
obtained by the creators of the mini STR test. Other than Butler, Yoshi could not

13

14
15

16
17

ul

reviewed other than the one he noted. Yoshi did not know whether any

ib

12

articles regarding the methodology, nor could he remember any articles that he

investigators outside of the law enforcement community had reviewed the
methodology he followed. Specifically he was unaware of any academic institution

Tr

11

remember the names of any other scientific investigators who had published

or other government agency (e.g., the National Academy of Science, NIH, CDC, etc.)
that had attempted to replicate the methodology and results mandated by the FBI
for criminalistics laboratories around the country. (RT 798).

&

10

18

20

He assumed the FBI's calculations were right because the agency imposed them on
all the criminalistics laboratories in the United States. (RT 798-799). He did not

ia

21

odds of each DNA sample was obtained through a calculator designed by the FBI.

ls

19

The "l in X number" that formed Yoshi's opinion regarding the individuality

22

(RT 799).

Tr

23

know of any academic articles that validated the FBI's methodology or conclusions.

24
25

26
27
28

68
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

The mini-STR method is utilized when there has been DNA degradation, i.e.,

2

that the DNA strand has been broken into many pieces, perhaps due to UV lighting

3

heat, or poor storage conditions. (RT 801-802).

4

ns

The "odds" that are calculated for an individualized frequency. Determining

5

the frequency of a particular presence of loci on a gene site is a function of statistical

6

io

genetics. Each locus has a frequency of occurrence (e.g., 1 in 6 or 1/6). The

7

denominator of a locus frequency is then multiplied by the denominator of other loci

8
9

at

to come up with the statistical likelihood of a combination leading to the occurrence
in a sample. (RT 803). Yoshi testified that the FBI established its conclusions based

12
13

ul

11

on DNA samples from 200 individuals composed of Caucasian, Negroid and Asian
contributors, and that the data obtained from those contributors are sufficient
statistically to make individual identifications of the Earth's seven billion

ib

10

(7,000,000,000) human beings. (RT 803-804).

14

16

Tr

15

Yoshi never attempted to analyze the validity of the FBI's statistics, nor
could he name any independent (non-law enforcement) source that had tested the
FBI methodology and concluded its frequency statistics to be accurate. (RT 804).

&

17
18

The Sheriffs Laboratory is certified by the American Association of Crime
Lab Directors and is in good standing with that body. (RT 807-808).

ls

19

Re-Direct Examination

20
21

Re-Cross Examination

ia

Yoshi believed that there had not been any "medical use or research use that

22

15).

Tr

23

would use degraded or inhibited DNA. Their DNA is more pristine." (RT 808, 1. 12-

24

Ruling On Admissibility

25

26
27

69
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

The magistrate denied a defense motion to strike Yoshi's testimony on the

2

grounds of lack of general scientific acceptance of the mini STR test in the general

3

scientific community, and therefore that the mini STR test and conclusions derived

4

ns

from the test violated the Kelly-Frye rule.

5

6
7

io

Mark Lillienfeld [RT 811]

Lillienfeld is a Los Angeles County Sheriffs Detective assigned to the

8
9

at

Homicide Bureau, where he has worked the last 18 years. He has been a peace
officer for the last 30 years. On December 1, 2005, he was summoned to a homicide
scene at 4626 Arden Way, Apt. 20 in El Monte. (RT 811).

ul

10

The apartment building is a 45-unit two-story stucco apartment building. It

12

is a typical Southern California apartment with an interior courtyard with a

13

swimming pool, and there is a catwalk for the second story apartments. All the

14

apartment doors go out on the second story to the catwalk. All the ground floor

15

apartments are accessible by entering through the courtyard area. (RT 812).

Tr

ib

11

On his arrival, Lillienfeld conferred with El Monte police officers already on

17

scene and noted that the crime scene area had been taped off to prevent

18

contamination. A screen was missing from Apartment 20, the apartment of victim

19

Maria Bruno. The screen was lying in a flowerbed planter area in front of the

20

windows belonging to Apartment 19. (RT 812-815). Lillienfeld determined that the

21

missing screen fit over the kitchen window of Apartment 20. His attention also was

ia

ls

&

16

drawn to a blue bootie (shoe covering) that was lying adjacent to the swimming pool

23

in the patio area. (RT 815). The window was just to the left of the door to Bruno's

Tr

22

24

25

apartment. (RT 816).
When Lillienfeld entered the apartment, he discovered that the bathroom

26
27

70
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

light was on. (RT 817). He described the interior: "As you enter the front door, you

2

open into a living room. To the left of the front door, which is going to be the west

3

side of the apartment itself, is a small waist-level bar counter, and that divides the

4

ns

kitchen from the living room. The kitchen is on the north end of the apartment. It's

5

kind of a walk-in galley type kitchen with a sink and a countertop and a refrigerator

6
7

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and an oven. There's a small breakfast area off of the kitchen where the kitchen
and dining room meet." (RT 818, 1. 4-13).

8

9

at

''Beyond what would be the far north wall of the living room and the dining
area, there's a small entryway, and there's a hallway. As you enter that hallway,

12

the apartment, is the restroom.
bedroom." (RT 818, 1. 18-24).

13

17

18
19
20

in it that still that had the tag affixed.
headboard against the far east wall.
north wall.

There was a king size bed with the

There [were] bedroom windows along the

Those windows were covered with mini blinds that were shut. The

windows were both shut and locked. There was a nine-drawer wooden dresser with
a mirror attached to it, along the bedroom wall, when you walked in the door. It
would be along the south wall. On either side of the bed that the headboard -- of the
bed were small wooden nightstands.

There was a lamp on one of those

ia

21

Tr

16

lying on the bed. (RT 818). He described the bedroom: "It had brand new furniture

&

15

Off to the right, which is actually west, is a

On entering the bedroom, Lillienfeld observed the corpse of Maria Bruno

ls

14

ul

11

almost directly straight ahead, which would be directly in front of the front door to

ib

10

22

nightstands." (RT 818, 1. 3-18).

23

Tr

Lillienfeld elaborated: "There [were] boxes scattered throughout the bedroom

24

that contained clothing, and there was a great deal of folded, what appeared to be

25

26
27
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71
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
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1

clean clothing, belonging to a woman, scattered all over the bedroom on the floor

2

and inside of the closet. The closet was along the west wall, which is, as you walk in

3

the bedroom door, is the wall to your left." (RT 819, 1. 15-21). There were purses on

4
5

ns

the v•10od dresser in the bedroom. Nothing appeared to be missing from the purses.
There was money in a purse and other money elsewhere in the apartment. There

6
7

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also was jewelry in the apartment. (RT 819-820).

Lillienfeld observed that Maria Bruno was lying on her back on the north side of the

8

9

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bed. Her legs were bent slightly to the right. One of her arms was bent at the elbow
and laying across her abdomen. The other arm was alongside her body. Bruno's

14
15

16
17
18

19

ul

ib

13

One breast was lying on the bed above her right shoulder. The other breast was
lying on the bed above her left shoulder. (RT 820). Bruno had obvious stab wounds in
the upper chest and abdomen, as well as her forearms and legs. She appeared to

Tr

12

long by two to three-inch wide gap in her throat. Both breasts had been removed.

have breast implants, which were still in the chest cavity. Both breast implants had
defects in them from a sharp instrument. They were deflated. (RT 820). Her eyes and
mouth were open. (RT 820-821). One of her nipples or breasts was above her left

&

11

throat had been slashed. There was a great deal of tissue damage, and a six-inch

shoulder. The right breast and nipple were lying on the bed, mixed in with her hair,
and it was just above her right shoulder. (RT 821).

ls

10

20

state of shock and looking at her, he realized that one breast had been placed in her

ia

21

According to her estranged husband, when he found her body he went into a

22

and it fell onto the bed next to her left shoulder. When Lillienfeld saw her, Bruno still had

Tr

23

mouth. He unconsciously touched it, and flicked it off of the position on her mouth,

24

jewehy on her wrists. (RT 821). It did not appear that there had been a robbery or that

25

26

27
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72
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

Bruno's death was theft-related. The only items missing were the victim's house

2

keys and car keys. (RT 822).

3

Counsel stipulated that Lillienfeld could resume his testimony at a later date

4

ns

in order to accommodate out-of-area witnesses who had flown in to testify.

5
6
7

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Mark Lillienfeld [Testimony Resumed at RT 928].

Lillienfeld interviewed Jim Tomasek, a retired police detective. [It is assumed

8
9

at

that the Cook County Sheriffs Department employed Tomasek.] On August 14,
1993, he was one of the detectives who arrived at the Paccacio murder site. At that

13

14
15
16
17

ul

evidence, photograph it, preserve it, and collect it and ultimately examine it and

ib

12

"responding to crime scenes and helping to memorialize and record physical

submit it to the crime lab for examination." (RT 929, 1. 15-19). Tomasek presented
himself at the Paccacio murder scene on October 14, 2011. Lillienfeld showed

Tr

11

time, Tomasek's assignment was "evidence technician", and his job included,

Tomasek various photographs. Tomasek recalled collecting a set of keys from the
decedent's hands. He also bagged each of Paccacio's hands before she was
transported to the morgue. (RT 930-931).

&

10

18

20

evidence. (RT 931). He then explained the procedures used by the Cook County
Sheriff for itemizing, recording, preserving and transferring such evidence to the

ia

21

blood vial, a hair sample and her fingernail clippings, and booking the items into

ls

19

Tomasek attended the autopsy. His job included bagging decedent's sealed

22

state crime laboratory. (RT 932).

23

Tr

Lillienfeld interviewed Allison Mazeffi. Mazeffi stated that she and Michael

24

Gargiulo started dating in high school and that the relationship continued in an on-

25

26
27

73
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

and-off manner for roughly seven years. Mazeffi informed Lillienfeld that Gargiulo

2

was one of seven children, and he had three brothers and three sisters. (RT 933).

3

In the late morning or early afternoon of August 14, 1993, Gargiulo

4

ns

telephoned Mazeffi and asked her to come over to his house. He was somewhat

5

hysterical. Lillienfeld testified ... that Mazeffi told him ... that Gargiulo was upset,

6

io

nervous and scared. Another friend - named Erik Agazim - arrived in his car. (RT

7

934). Gargiulo placed a green canvas bag in Agazim's trunk. The three then drove to

8
9

at

a commercial building operated by Agazim's father. Mazeffi stated that Gargiulo
told her that there were knives in the canvas bag. On arriving at the building

12

ul

11

belonging to Agazim's father, defendant and Agazim went inside with the canvas
bag. They emerged about ten minutes later without the green bag, and then the
three returned to Gargiulo's home. (RT 935-936).

ib

10

13

15
16

"Ken") who moved to California, and that defendant eventually followed Ken to Los

Tr

14

Mazeffi told Lillienfeld that Michael had a brother, Ken Gargiulo (henceforth

Angeles. Mazeffi also moved to California, and she and defendant lived together in
an apartment located "on Orchid behind Groman's Chinese Theatre". (RT 936).

17

&

18

Gargiulo worked for a time at the Rainbow Bar & Grill in West Hollywood as
security. He also trained to become a semi-professional boxer.

19

time had sex with Gargiulo. Mazeffi related that Gargiulo had talked her into not
revealing their domestic relationship to Gia. (RT 937-938).

ia

21

ls

20

Gargiulo had met a "girl" named Gia Chafar, whom Mazeffi stated at some

22

had interviewed Irving Bruno (henceforth "Irving"), the estranged husband of

Tr

23

Returning to the El Monte crime scene in 2005, Lillienfeld testified that he

24

victim Maria Bruno. Irving told the detective that he and Maria had separated, that

25

26
27

28

74
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

they had four children together, and that Maria had moved out of the family home

2

on the day before Thanksgiving [2005], roughly ten days before her murder. They

3

had owned a video and check cashing business. Irving admitted that he struck his

4

5

broke the camel's back" regarding their separation. (RT 939-941).

6

ns

wife some months prior to her murder, and he believed that was the "straw that

io

Irving and Maria had a date the night before she was found dead initially

7

meeting at the family home. (RT 941). Maria left her two door Mercedes Benz in

8
9

at

their driveway, and Bruno drove them to Carmine's Restaurant in South Pasadena.
As the evening progressed, Maria drank too much, and therefore her husband

13
14

15

16

ul

12

the couple returned to the family home, sometime around 2 A.M. Irving obtained
Maria's security garage clicker from her car and then drove her to her apartment.

ib

11

would not let her drive back to her El Monte apartment. On leaving the restaurant,

Irving stated that he had not been to the apartment previously and was directed to
the location by Maria. They walked from the parking lot at the rear of the building

Tr

10

through an alcove into the courtyard of the building. Maria directed Irving to the
correct door that had the numeral "20" on it. He unlocked the door with her keys.
Maria kept her keys to the Mercedes, her apartment and their house all on the

18

same keychain. (RT 941-945).

&

17

19

ls

After entering the apartment, the couple had sex.

20

A.M. Irving locked the apartment door on his way out. On returning home, he

ia

21

Maria was naked and fell asleep, and Irving left the apartment around 2:45

22

before 8 the same morning (December 1, 2005), Irving realized that, in addition to

Tr

23

attended to one of their children, and then went to sleep. On awakening shortly

24

her car, he had Maria's cell phone. He got dressed and immediately drove to El

25

26
27

28

75
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

Monte to return Maria's phone, planning to take her to work in his car, and arrange

2

to pick her up from her new job at the end of the day to drive her to the family

3

home, so that she could drive her Mercedes back to her apartment. (RT 945-946).

4

ns

Irving told Lillienfeld that he got to Maria's apartment around 8 A.M. He

5

knocked on her door, but got no answer, and therefore he repeated the knocking

6

io

several times. He knew he could not call her because he had her telephone. Not

7

receiving an answer to his knocking, Irving started to leave when he noticed a

8

9

at

window screen lying in an adjacent flowerbed. He then looked at Maria's kitchen
window and realized that the screen was missing and the window slightly ajar. He
was able to slide open the kitchen window and climbed into the apartment. A

11

neighbor across the complex called to him, inquiring as he crawled into the kitchen.

ul

10

On gaining entrance, Irving immediately noticed a shrink-wrapped package

13

of kitchen knives that had been opened. The pack was manufactured to hold three

15

knives, but one was missing. He eventually went to his wife's bedroom, and

Tr

14

ib

12

observed her body and her left breast lying on top of her mouth. On seeing the
victim, Irving moved the breast that had been on Maria's mouth, immediately

17

pulled out a cell phone, called "911" and walked out of the apartment. (RT 947-950).

&

16

Irving did not know the address, so he went to the man who had yelled up at

19

him earlier and requested the building's address for the El Monte police dispatcher.

20

At that time, apartment maintenance men approached him. They closed the door to
Apt. 20, and Irving remained, waiting for the police. (RT 951).

ia

21

ls

18

Lillienfeld also interviewed Chris Raulli (henceforth "Raulli"). Raulli is the

23

manager of Carmine's, the restaurant where the Brunos had gone the previous

Tr

22

24

evening. Raulli stated that he had seen the Brunos at the restaurant the night

25

26
27

76

DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

before, and that he had known them for about 6 months. Initially, he did not know

2

they were married. They were frequent customers because they enjoyed Karaoke

3

Night on Wednesday evenings. On the evening of November 30th, the Brunos spent

4

ns

much of the evening at the bar. When Irving absented himself momentarily near

5

closing time, Raulli helped Maria into the ladies' room. She was too drunk to walk

6

7

because she was obviously intoxicated.CRT 951-953).

io

there without assistance. Earlier, the bartender eventually had refused to serve her

Raulli told Lillienfeld that he had been invited by the Brunos to go out with

9

them on the following Sunday. Raulli stated that the restaurant locked the doors at

10

2 AM however the staff started clearing out patrons between 1:30 and 1:40 in the

ul

11

at

8

morning. (RT 954).

Lillienfeld also spoke with individual named Brian Mimura. Mimura was the

13

manager of the Barcelona restaurant. He indicated that he had known the Brunos

14

for approximately 6 months prior to Maria Bruno's death. The Brunos would come

15

into the Barcelona several times a week.

16

period, Mimura and Maria Bruno started an affair. The affair intensified in the

17

week after Maria Bruno left her husband. He had been over to Maria Bruno's

19

20

Tr

&

apartment on Arden Way twice, the first time being roughly a week prior to her
death. (RT 954-955). On that occasion, Mimura arrived roughly between 2:00 and
3:00 AM. He departed sometime later but still in the early morning hours.
Mimura's second visit occurred two days prior to Bruno's death, i.e., November 29,

ia

21

At some point during the six-month

ls

18

ib

12

22

apartment complex by Andrew MacCaskey, who previously testified that he had

Tr

23

2005. On that evening, he was admitted through the front door of the secure

24

been on a date with Bruno. Again, Mimura left Bruno's apartment later in the early

25

26

27
28

77
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

morning hours. (RT 956).

2

Mimura related to Lillienfeld that Maria Bruno was a heavy drinker whose

3

drinking adversely affected her lifestyle. In contrast, Irving Bruno was not a heavy

4
5

ns

drinker. (RT 957).

On a later date, Lillienfeld also interviewed Grace Urias, the manager of the

6

io

apartment complex. Urias related that she earlier had rented Apartment 34 to

7

Michael Gargiulo and his girlfriend, also named "Grace" [Grace Kwak, see

8

9

at

testimony summarized ante]. (RT 959). Lillienfeld showed Urias a photograph of
defendant Gargiulo, and she identified the person in the photograph as being the

12

ul

11

Michael Gargiulo who had been her tenant. Gargiulo had moved out of the
apartment complex on May 1, 2007. Urias stated Maria Bruno had moved into the
complex around Thanksgiving, 2005. (RT 960).

ib

10

13

16
17
18

Tr

15

walked by Bruno's apartment around 7:20 a.m. on the day of her death. She was on
the way to her car, which was parked on the street. Tarkeshi returned home around
8:00 a.m., encountered El Monte police officers outside apartment 20, and noted
that at 7:20 AM the window screen had been off the victim's kitchen window and

&

14

Lillienfeld also interviewed Maria Tarkeshi. Tarkeshi stated that she had

lying in a flower bed of the apartment next door. (RT 963-964).

19

and requested Urias admit him to apartment 34 (which was then vacant).
Lillienfeld secured a ladder and climbed up it to examine the crawl space above the

ia

21

ls

20

On July 23, 2008, Lillienfeld returned to the Arden Way apartment complex

22

some greeting cards and a blue booty. He labeled the booty "evidence no. 49". (RT

Tr

23

ceiling. In the crawlspace, he discovered a Target store bag containing some towels,

24

965).

25

26
27
28

78
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

On June 16, 2008, Lillienfeld had defendant transferred from County Jail to

2

the El Monte Police Department jail. Lillienfeld testified that he had obtained a

3

court order before undertaking this action. The reason for moving Gargiulo was to

4

ns

place him in a cell v•1ith two undercover Sheriffs detectives so that he could be

5

interrogated surreptitiously in what he would believe was nothing more than a

6
7

io

conversation with other prisoners. (RT 966-969). [In mid-testimony, the Court
recessed for the day.]

8
9

at

On the following day of testimony, the prosecutor chose to clean up aspects of
Lillienfeld's previous testimony before proceeding onward. The following additional
witness statements per Proposition 115 were presented:

ul

10
11

13

unlocked when he entered and discovered his wife's body. This statement

ib

12

Irving Bruno had informed Lillienfeld that he found the kitchen window to be

corroborated Lillienfeld's opinion regarding point of entry. (RT 971-972).

14

Tr

15

Defendant Gargiulo's move-in date at the Arden Way apartment was August,
2005 according to Urias. (RT 972)

16

Jennifer Spanjer. Spanjer told him that on the night of her murder, they had been

&

17

Lillienfeld discussed the murder of Tricia Paccacio with her best friend,

out socializing with friends, and Spanjer had left Pacaccio off at another friend's

19

house around 1:00 a.m. (RT 972-973).

ls

18

20

obtained a court order to have him photographed. Lillienfeld was present when

ia

21

In addition to obtaining DNA swabs from defendant's mouth, Lillienfeld also

Bruno's Arden Way neighbor, Robert Rasmussen, sat with a police artist for the

23

purpose of identifying a man whom he saw several times acting suspiciously, as

Tr

22

24

described in his testimony. To that end, Rasmussen had described the individual as

25

26
27

79
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

wearing a baseball cap. For some of the photos Lillienfeld required Gargiulo to don

2

a cap. The photographs were taken on July 11, 2008. Lillienfeld believed that the

3

Rasmussen sketch was made in January, 2006. (RT 974-975). 5

4

ns

N.B.: the relevant portion of Rasmussen's testimony in this case regarding

5

the identity of the man he observed and described to the sketch artist is set out

6
7

io

below. (There are sketches, and then there is "real life" aka "confrontation" - which
actually serves a purpose in the criminal justice system, albeit to the inconvenience

8

at

of law enforcement and prosecutors.)

9

RT 607

ul

10

[BY MS. MILLER]

14

NOW, MR. RASMUSSEN,
I WANT TO ASK YOU,
WERE YOU FAMILIAR WITH EVERYONE WHO LIVED IN THAT
APARTMENT COMPLEX?
A
I KNEW A LOT OF PEOPLE THERE.
Q
OKAY.
WAS THERE A LOT OF SOCIAL
ACTIVITIES OR JUST SEEING PEOPLE GOING AND COMING?
A
PRETTY MUCH COMING AND GOING.
Q
AND THE INDIVIDUAL THAT YOU HAD SEEN
IN THE APARTMENT COMPLEX, YOU DON'T BELIEVE THAT

ib

13

20
21
22
23

Tr

12

24

15

25

16

26
27
28

17
18

RT 608

&

11

19

21

YOU HAD SEEN HIM THERE BEFORE OR LIVED THERE?
N).
A
Q
IS THAT CORRECT?
A
THAT'S CORRECT.
Q
I WANT TO ASK YOU TO TAKE A LOOK
AROUND THIS COURTROOM AND SEE IF THERE IS ANYONE
IN THIS COURTROOM WHO LOOKS FAMILIAR TO YOU.

1
2
3
4

5
6

23

7

Tr

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22

ls

20

24
25

5

It is not at all clear in light of Rasmussen's testimony eliminating defendant as the man he

saw why the drawing was offered as evidence, and should the case proceed to trial, the drawing
should be excluded under Ev. C. §352.

26
27

80
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

A
I CAN'T SAY THAT I DO.
Q HAVE YOU LOOKED ALL THE WAY AROUND THE
COURTROOM?
A
YES, I HAVE.
Q AND THERE IS NOBODY IN THIS COURTROOM
THAT LOOKS FAMILIAR TO YOU?
A
ID.
MR. LINDNER:
OBJECTION, ASKED AND ANSWERED.
THE COURT:
HE ANSWERED IT.
IT REMAINS.
MS. MILLER:
THANK YOU.
I HAVE NOTHING FURTHER.
THE COURT:
CROSS-EXAMINATION.
MR. LINDNER:
NO CROSS. 6

8

1

9

2

10

3

11
12
13

4

5

ns

14
15
16
17

6

io

18
19
20

7

at

8

Cross-Examination of Det. Lillienfeld

9

When Lillienfeld arrived at the Bruno homicide crime scene, yellow perimeter

11

tapes already had been set up and the crime scene preserved. Laboratory

12

technicians and crirninalists were assigned and went over the crime scene searching

13

for fingerprints, DNA, and other scientific evidence. (RT 977).

ib

ul

10

Irving Bruno's fingerprints were not taken. At no time did Lillienfeld

15

consider Irving Bruno to be a suspect in his wife's murder. (RT 977). Likewise,

16

Lillienfeld never considered Brian Mimura as a suspect. (RT 978).

Tr

14

There were no fingerprints of defendant Gargiulo found inside Bruno's

18

apartment. There was no DNA of defendant Gargiulo found inside Bruno's

19

apartment. CRT 978).

ls

&

17

20

November 29-30, 2005. He and Bruno had sexual intercourse. Because she was

ia

21

Brian Mimura visited Bruno's apartment in the early mormng hours of

menstruating, Maria laid a towel down on the bed, and the couple had sex while she

23

was laying on top of the towel. The following night/morning, November 30 -

Tr

22

24
25

6

Mr. Gargiulo wore an orange jail jumpsuit throughout the entire preliminary hearing.

26
27

81
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

December 1, 2005, Maria Bruno had sex with her husband Irving in the same bed,

2

and she laid upon the same towel. (RT 978-979). Irving Bruno told Lillienfeld that

3

there already was a towel on the bed when he entered the bedroom, and that he was

4
5

ns

surprised. (RT 979).

Criminalists took fingerprint lifts from inside the apartment. Lifts of

6

io

fingerprints other than those of Maria Bruno were found, but could not be identified

7

by law enforcement, either by direct comparison, or through the use of the "AFIS"

8
9

at

Automatic Fingerprint Identification System. (RT 983-984). No fingerprints were
found on the kitchen screen that had been removed from the window. (RT 984).

11

Irving Bruno did not seem distressed that his wife had moved out of the family
home. (RT 984).

12

ib

14

Irving Bruno previously had been violent towards his wife, including shoving
her to the ground and punching her in the face, giving her a black eye. (RT 985).
Lillienfeld believed that the violence, among other factors, contributed to Maria

Tr

13

ul

10

15

Bruno choosing to move out. At the time she left her husband, Mrs. Bruno was 33

16

years old. Mr. Bruno was 31 years old. They had 4 children. On the evening before

19

20

principal reasons Maria chose a high-security apartment complex was to keep away
her estranged husband. A few weeks before she moved out, Maria went to stay with
Brian Mimura. To the best of Lillienfeld's knowledge, Irving Bruno did not know and at the time of the preliminary hearing still did not know - that his wife was

ia

21

&

18

the homicide, Irving drank tequila and beer, perhaps 3 drinks total. One of the

ls

17

22

having an affair with Brian Mimura. (RT 986-988).

23

Tr

The police did not recover any weapon that Lillienfeld believed to have been

24

associated with Maria Bruno's murder. (RT 988). Sheriffs criminalists examined

25

26
27

82
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

5

6

packaging presumably with the odor of defendant's person. However, the scent pad
was never presented to a canine handler for examination and comparison. The scent
pad remains in the Sheriffs evidence locker, unused. (RT 888-889).

7

9
10

11

Lillienfeld showed the photograph depicting defendant wearing a baseball
cap to Rasmussen in a photographic "six-pack", in which all of the men depicted also

at

8

were wearing baseball caps. Rasmussen was unable to identify anyone in the sixpack as being the individual who appeared to pay special attention to Ms. Bruno, as
set out in his testimony. (RT 991-992).

12

15

16
17
18

ib

14

Carmine's Restaurant had security cameras, and Lillienfeld obtained the
security camera recording for the evening/morning of November 30 - December 1,

2005. The recording was time-stamped and had images of the Brunos leaving

Tr

13

Carmine's at around 1:30 a.m. Irving Bruno lived in the city of Arcadia, where the
couple drove before going to Maria's apartment, and Lillienfeld testified that it was
roughly a 10 minute drive from the family home to the Arden Way apartment. (RT
994-995).

19

22

something metallic looking in his hand when he went through the kitchen window.
(RT 996).

When the Brunos arrived at Maria's apartment, she immediately went to the

restroom. She did not leave the room directly after relieving herself because Irving

Tr

23

ls

21

Another resident, Steven Jones, had observed Irving Bruno to have

ia

20

ns

4

in the hope that a specially trained canine could compare an odor lifted from the

io

3

No fingerprints were found. In addition, a "scent pad" was applied to the packaging

ul

2

the plastic container containing the 3 knife set - from which one knife was missing.

&

1

24

entered the bathroom, and they had sex there prior to having sex a second time in

25

26
27

28

83
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
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1

the bedroom. (RT 997). Irving had video security cameras installed at the Arcadia

2

house. Lillienfeld obtained the recordings for the early morning of December 1,

3

2005. He testified that the video generated time stamps, and the time stamped

4
5

ns

image depicted Irving returning home at approximately 2:45 a.m. (RT 998).

6

(RT 998-999).

7

Redirect Examination

io

Maria had previously told Mimura that she was very afraid of her husband.

Video from the Bruno residence shows Irving wearing a different shirt upon

9

his return from his wife's apartment than he had been wearing earlier. (No

12

ul

11

explanation was offered - nor has counsel received any discovery on point - as to
how Mr. Bruno was able to change his shirt after leaving home to drive Maria back
to her place in the middle of the night.) (RT 1000).

13

Karen Abbinanti [RT 827]

Tr

14

ib

10

at

8

Abbinanti has been employed as a forensic scientist at the Illinois State Police

16

Crime Laboratory in Chicago for the last 14 years. Her lab is accredited for DNA

17

testing. It conducts forensic tests for the Cook County Sheriffs Department. Her

18

duties include examining evidence for the presence of bodily fluids in criminal

19

investigations, performing DNA testing, writing reports and testifying in court. (RT

20

827-828).

ls

&

15

She obtained a head hair from the body of Tricia Paccacio from the Cook

ia

21

22

County Sheriffs Department. She tested the hair for DNA using the Short Tandem

23

Repeat (STR) PCR analysis and obtained a DNA profile. She also received nail
clippings of Paccacio from the Sheriffs Department, which she also tested for DNA,

25

also using STR analysis. Abbinanti opined that the DNA of two people was

Tr
24

26
27

84
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

underneath Paccacio's fingernails. One profile was consistent with the decedent.
The other DNA profile she opined, came from a male contributor, and that the male

3

contributor matched the DNA sample taken from Michael Gargiulo. (RT 829-831).

4

According to Abbinanti, statistically the DNA profile detected from the Gargiulo

5

sample has a frequency of occurring in 1 in 97 million white people. (RT 830-831). It

6

is noted that the actual testing of Gargiulo's DNA was performed by Doug Radolfi,

7

another criminalist at Abbinanti's laboratory. (RT 830).
Cross-Examination

at

8

io

ns

2

During the course of the Paccacio investigation, the State Crime Lab

9

generated approximately 20 DNA reports. Gargiulo's "standard" was tested twice,

11

once in 2003 and again in 2008. Gargiulo was "identified" in both DNA

12

examinations. Abbinanti received a "blood card", i.e., a sample of Mr. Gargiulo's

13

dried blood that had been shipped to her laboratory from The Suburban Laboratory,

16
17

ib

not testify as to "chain of custody" except for the transfer of the blood card from

Tr

15

an independent lab located in Westchester, Illinois, just outside Chicago. She could

Suburban Lab to the Illinois Crime Lab. (RT 839-842). Suburban Laboratory is part
of the Illinois State Police Department. (RT 866, 22-25).
The date written on the sample envelope was "11-13-2002". The comparison

&

14

ul

10

18

20

22

not been furnished with Gargiulo's DNA sample until nine (9) years after Tricia
Paccacio's murder. (RT 842-843). Criminalist Douglas Radolfi originally examined
the blood card. (RT 846).
The remainder of cross-examination was devoted to the frequency of various

Tr

23

the middle months of 2003. In other words, the Illinois State Crime Laboratory had

ia

21

between the "11-13-2002" sample was not reviewed and tested by Abbinanti until

ls

19

24
25

points for individual alleles of the DNA samples, the methodology used to
determine the population frequency, and the chain of custody.

26
27

85
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

2

Angela Butler [RT 869]
Butler is employed by the Serological Research Institute, also known as

4

SERI, where she works as a forensic serologist. A forensic serologist is basically

5

another name for a forensic DNA analyst. She examines items of evidence to locate

6

and identify body fluids and if necessary perform DNA analysis from those body

7

fluids. (RT 870). She provided her background and training, beginning with her

8

obtaining a Bachelor of Science degree from the University of San Francisco, and

9

going forward with subsequent specific training in DNA extraction and analysis.

10

The SERI laboratory is accredited by the American Society Of Crime Laboratory

11

Directors DNA Advisory Board. (RT 871).

ul

at

io

ns

3

On May 22nd, 2006, she received some extracted DNA samples in a sealed

13

envelope under a "J number", specifically J662646 which would reference item
EV 1-4. (RT 871)

The laboratory that submitted the items requested that she perform

Tr

14

15

18
19

20

Therefore, only males would have the markers in which law enforcement had
an interest. Much like the STR testing, the criminalist looked at 15 regions on
the Y chromosome and performed a PCR process. That sample then was
compared to known reference standards in order to make a comparison of
whether or not the subject(s) either matched or did not match the profile. (RT

ia

21

specific DNA test limited to looking at DNA found on the Y chromosome.

&

17

what is known as ''YSTR testing" on those items. YSTR testing is a male

ls

16

ib

12

22

872).

Tr

23

24

There is a specialized kit that does the YSTR testing. Applied

Biosystems manufactures a kit that is called the "Y Filer" kit. YSTR testing

25

26
27

86
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

has been recognized as an accepted method in the scientific community. It has

2

been externally validated as being accurate when used correctly, and SERI

3

performed its own internal validation for use in casework. Butler performed

4

YSTR testing on EVl-4. (872-873).

ns

1

Butler later received an oral swab reference sample taken from Michael

6

Gargiulo under lab receipt No. J 614511 on July 24, 2008. Both that sample -

7

and the previous sample that had been received in May, 2006 - arrived in a

8

sealed condition. The 2008 sample from Gargiulo was subjected to the DNA

9

extraction process, was purified, and then the YSTR analysis as set forth above

10

was performed on the purified extraction. Butler then compared the 2008

11

sample to the profile that was obtained in 2006. She concluded that, in

12

comparing the oral sample from Michael Gargiulo to that as EVl-4, the profile

13

obtained from EVl- 4 presented with the same profile as the YSTR from

15
16

ul

ib

Michael Gargiulo for all 17 markers tested. Because YSTR's are passed down
through paternal lineage, the markers would also be identical for Gargiulo's

Tr

14

at

io

5

father or grandfather, who would have the same YSTR profile. (RT 874-875).
In YSTR analysis, identification statistics are not calculated in the same

17

19

20

&

Butler used a database that was supplied by the manufacturer of the kit,
Applied Biosystems. Butler indicated that the database contained 11,393
unrelated male profiles, none of which matched the Gargiulo sample. (The
scientific significance of the lack of a match in the Applied Biosystems

ia

21

manner as is done for STRs. Instead, the profile is entered into a database.

ls

18

22
23

known.) (RT 875-876). YSTR profiles are not unique, in contrast to the STR

Tr

24

database was not testified to, and therefore its evidentiary significance is not

profiles, which are utilized to identify individuals. (RT 877).

25

26
27

87
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

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DISMISSAL PURSUANT TO PENAL CODE §995

1

The entirety of item EVl- 4 was consumed in Butler's testing, and none
of the sample remains for defense examination. Whatever might have

3

remained of the sample Butler examined was sent back to the Sheriff's

4

Department. (RT 879). Butler did not know whether YSTR testing had any

5

utility outside the area of forensics. (RT 881). When she stated that the

6

methodology had been accepted in the "scientific community", she clarified

7

that she meant the "forensic science community", as she had never read any

8

papers or seen any academic work on YSTR from outside the forensic sciences.

9

(RT 884). Biotech companies created the kits that are utilized in performing

10

YSTR testing, and those companies presumably have their own validation

11

methods. Law enforcement has nothing to do with setting the scientific

12

standards for YSTR testing. (RT 884-885). Butler testified that there are "tons"

13

of papers from biotech companies validating their YSTD tests, but she was not

16
17

ul

ib

conducted an internal validation study, but that she did not participate in it,
and the lab did not publish its results confirming the methodology and results.
(RT 886-887).

Butler stated that she received the sample that she reviewed from

18

20

Department Crime Lab. (RT 888).

Lisa Scheinin M.D. [RT 889]

ia

21

Susannah Knetchel nee' Susannah Jarvis of the Los Angeles Sheriff's

ls

19

Tr

15

aware of any papers personally. In addition, she testified that her lab had

&

14

at

io

ns

2

22

Dr. Scheinin is a Deputy Medical Examiner for the Los Angeles County

23

Tr

Coroner's Office. She is board certified in anatomical, clinical and forensic pathology

24

and has worked as a deputy medical examiner for the last 19 years. (RT 890).

25

26
27

88
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Scheinin conducted a review of the autopsy protocol and related photos regarding

2

the 1993 homicide of Tricia Paccacio. From the photos, Scheinin could detect twelve

3

(12) separate stab wounds. Of the twelve, six of the stab wounds were around the

4

5

ns

victim's left arm. (RT 892).

Of the 12 stab wounds, Scheinin opined that three wounds were fatal. She

6
7

io

arbitrarily had numbered the stab wounds, and the fatal wounds were numbers 2, 3
and 7 on her drawing and report. Wound number 2 entered the decedent's left

9

breast area, then passed through the chest and heart causing a large amount of

at

8'

bleeding into the left chest area and the pericardium.

10

13

ul

12

injured the left lung. This wound would be fatal because it could compromise
breathing, collapse the lung, and/or cause the victim to bleed out into her chest
cavity. (RT 893-894).

14

17
18

Tr

16

Wound number 4 entered the left side of the abdomen, injured the stomach,
pierced the fat pads that hold the stomach and intestines in place, and then passed
through to the aorta, the major artery that leaves the heart and runs down the
spinal column. The original autopsy report that Scheinin reviewed stated that the

&

15

aorta was nearly cut in half. (RT 894).

19

which she designated as "number l" was potentially fatal. That wound entered near
the collar bone and passed through the soft tissue of the upper chest and neck,

ia

21

In addition to the three wounds Scheinin considered fatal, a fourth wound -

ls

20

ib

11

Wound number 3 entered at the left armpit, penetrated the left chest and

22

breathing. (RT 894). The wound appeared to be from front to back and from the

Tr

23

injuring the esophagus and blocking the airway, which would interfere with

24

victim's left to right. (RT 895-896).

25

26
27
28

89
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

In addition to reviewing the Illinois autopsy protocol and photos, Scheinin

2

also reviewed a post mortem X-ray of Paccacio's left arm and observed what she

3

called a "spiral fracture", also known as a "torsion fracture". The cause of such

4

ns

injuries is a twisting motion (torque) rather than blunt force trauma to the arm. (RT

5

897). She believed that all the stab wounds to the decedent's left arm appeared to be

6
7

io

left to right (again the victim's left to her right), although she could not be certain

8

Cross-Examination

9

at

for wound number 7. There were two stab wounds to Paccacio's back. (RT 898-899).

From the materials furnished to her, Dr. Scheinin was unable to determine

13

14

ul

12

could Scheinin ascertain whether or not Paccacio was standing at the time she was
assaulted. (RT 901-902). The pathologist did not know whether a tool cast had been

ib

11

whether Paccacio's assailant was left handed, right handed or ambidextrous. Nor

made of any of Paccacio's wounds, nor could she find any record of fingernail
cuttings being taken from the corpse. At her death, Paccacio was 4 feet, 9 inches tall

Tr

10

15

and weighed 106 pounds. With the exception of the stab wounds grouped on the

16

upper left arm, there is no way to determine whether the wounds were inflicted

18

quickly or slowly, i.e., whether or not the wounds were inflicted in rapid succession.
(RT 903-907).

19

County Medical Examiner's autopsy report or the coroner's investigator reports. A
field report for the Illinois coroner indicated that samples of liquid blood, head hair,

ia

21

Scheinin testified that there were no "defensive wounds" noted on the Cook

ls

20

&

17

22

bags on hands, and pubic combing were checked off as having had samples taken.

Tr

23

pubic hair, fingernail clippings, oral swab, rectal swab, vaginal swab, hair on hands,

24

(RT 912).Sheinin did not have any record as to who might have cut off Paccacio's

25

26
27

28

90
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
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1

fingernails, or had them cataloged and preserved as evidence. (RT 907-908).

2

During her 19 years with the Medical Examiner's Office, Scheinin has

3

performed several hundred autopsies involving homicidal stabbings. (RT 908). In

4

ns

the Los Angeles County Coroner's Office, each item retrieved is placed in some sort

5

of safe handling container, labeled, preserved with appropriate preservatives when

6
7

io

necessary, and assigned an evidence item number. (RT 910). Scheinin had no idea
as to what evidence gathering and chain-of-custody procedures were followed by the

8

at

Illinois agencies. (RT 916).

9

ul

Harry Klann [RT 917]

11

13

14
15

Department Scientific Investigation Division, and holds the title of "Supervising

ib

12

Klann is/was a supervisor of the serology unit of the Los Angeles Police

Criminalist" as the DNA technical leader for the L.A.P.D. Serology DNA Unit. He is
a designated custodian of records for items that are sent out of the lab. (RT 917-

Tr

10

918).

On November 18, 2002, Klann sent a "swatch" blood sample to Detective Lou

17

Sala from the Cook County Sheriffs Department via Airborne Express. The sample

18

&

16

that was sent had been prepared from a liquid whole blood sample that was placed on
a card, dried, and then shipped. On the LAPD evidence reports, the blood sample was

20

numbered as ''Item No. 54''. (RT 918).

ls

19

ia

21
22

Louis Sala [RT 919]

23

Tr

Sala is a detective employed by the Cook County [Illinois] Sheriffs

24

Department. He has been a law enforcement officer for 37 years. On November 20,

25

26
27

91
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

2002, Sala received a package from the LAPD. He did not open the package, which

2

arrived sealed. Instead, he repackaged the contents, placed the new package in one

3

of his department's evidence envelopes, inventoried it, and submitted the package

4
5

ns

through police channels to the Illinois State Crime Laboratory after labeling the
item "Evidence No. 123". (RT 919-920).

6

7

io

The package Sala received contained a "blood card" that was in a plastic box,

8

identified Gargiulo in open court. (RT 921-923).

9

Michelle Murphy [RT 1003]

11

14

St. Apt. 10 in Santa Monica. She had resided at that address for roughly 2 years.

ib

13

In April, 2008, Michelle Murphy (henceforth "Murphy") resided at 1229 12th

She had a roommate who was out of town on the evening of April 28, 2008 which
she recalled was a Monday. Murphy had gone to work that day. [RT 1004].

Tr

12

15

18

19

20

She walked north up the alley toward Wilshire Boulevard. She jumped rope and did
similar calisthenics in the alley next to her apartment. She wore black workout
pants and a tank top. Her laundry load included washing a flower-like print fitted
sheet and a duvet cover, i.e., the blanket for her bed. [RT 1005]. She completed her
exercise and laundry around 8 or 9 PM. Murphy then returned to her apartment,

ia

21

her laundry. During the evening, Murphy had gone to get a manicure and pedicure.

&

17

After she got home from work at around 6:45 PM, Murphy exercised and did

ls

16

ul

10

at

along with a note from LAPD stating the sample came from Michael Gargiulo. Sala

22

a bolt lock and chain lock. [RT 1006].

Tr

23

watched television and took a shower. She locked her front door. The door had both

24

25

26
27

28

92
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

Murphy went to bed around 10:30 PM. She slept naked. April 28th was a warm

2

evening. She left a window cracked open that was facing the stairs that led up to

3

her apartment. [RT 1007, 1. 2-20]. She awakened at some point because someone

4

ns

was on top of her. [RT 1007, 1. 21-28]. Someone was stabbing her. She could not

5

determine whether the person attacking her was male or female. She estimated the

6
7

io

person would be approximately 5'10". She is 5'1" and in April, 2008, she weighed
roughly 130 pounds. [RT 1008].

8
9

at

Murphy's attacker was wearing a zip up sweatshirt with a hood and a hat or
a baseball cap. [RT 1008]. The assailant's sweatshirt, known as a "hoody", was a

13
14

ul

12

bed face up. She grabbed for the knife, which she described (without certainty) as a
serrated kitchen knife. [RT 1009]. Murphy did not know how long the blade was.

ib

11

dark color and had long sleeves. Murphy's attacker straddled her. She lay on the

She grabbed the blade with both hands. She could not see the knife handle. She got
her attacker off her by raising both her legs and pushing "him". [RT 1010].

Tr

10

15

16

Murphy's attacker fell off the bed against the door and ran out of the bedroom
towards the front door. She saw "him" leave by the front door. He did not have to
stop to unlock the door. As soon as the attacker left, she ran to the door and locked

18

it behind him/her. She then saw that the living room window was open and ran over

20

did not recognize the knife in her assailant's hand. [RT 1011]. Murphy stated her
attacker held the knife in his/her left hand. [RT 1012, l. 3-8].

ia

21

to close it. It was the same window that she had left open for the breeze. Murphy

ls

19

&

17

22

a white van with the words "Gus's Plumbing" on the side. She had seen the van

Tr

23

On previous occasions, she had seen an individual in the alleyway that drove

24

parked across the alley and south of her apartment. [RT 1012]. Murphy waved in

25

26
27

93
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

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DISMISSAL PURSUANT TO PENAL CODE §995

1

passing to the truck driver. She did not know his name and described him as "a

2

man with dark hair, maybe a little darker skin, light tan, average height." [RT

3

1013, 1. 9-12].

4

ns

As soon as she was able, Murphy called "911". The police arrived. Police

5

officers guided her out of her apartment. [RT 1013]. Murphy sat on the steps of an

6

io

adjacent apartment. On the stand, she viewed photographs, marked as People's

7

Exhibit 10. She identified some carpeted stairs as those leading to her apartment.

8
9

at

She also identified concrete stairs that led out to the alley. [RT 1015, 1. 3-14]. In
Exhibit 10 photograph number 8, Murphy identified the white van that she had
referred to earlier. [RT 1016, 1. 18-27].

ul

10
11

15
16
17

ib

14

the driver of the van. She responded, "I am not sure." [RT 1017, 1. 5-12]. Repeatedly
questioned by the prosecutor, Murphy could not identify defendant as the van

Tr

13

apartment. Looking around the courtroom, she was asked if she was able to identify

driver. [RT 1017-1018]. Returning to the series of pictures of People's Exhibit 10,
Murphy identified the sheet and comforter that she had laundered on April 28. She
also identified a photograph of her bed. [RT 1018].

&

12

The person who drove the "Gus's Plumbing" van had never been in her

18

20

tendon in her pinky finger. Murphy stated she had one stab wound at the center of
her chest. The remaining stab wounds numbering 6 or 7 were to her right arm. She

ia

21

wounds on her arm and chest, and her hands were all cut up. She had surgery on a

ls

19

An ambulance took Murphy to the emergency room. She had several stab

22

1020].

Tr

23

also cut up both hands by holding onto the knife blade during the attack. [RT 1019-

24

The prosecutor showed Murphy People's Exhibit 31, 5 pages of photographs.

25

26
27

28

94
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

Murphy looked at each of the 5 photographs and identified them as depicting the

2

wounds that she had received. [RT 1021-1022].

3

There was no cross-examination. [RT 1022, 1, 14].

5

ns

4

Robert Almada [RT 1023]

6

io

Robert Almada (henceforth "Almada") is a sergeant with the Santa

7

Monica Police Department. Almada followed defendant Gargiulo on June 6, 2008,

8
9

at

while his colleagues sought arrest and search warrants for him. [RT 1023 - 1024].
He began his surveillance at 1232 Euclid Avenue, unit number 10 (Santa Monica).

12

Euclid. Almada identified defendant as the person he saw drive away in a silver
Infiniti from that apartment. [RT 1024].

13

17

18
19

20

drugstore. Almada identified the driver as Mr. Gargiulo. [RT 1025]. He approached
Gargiulo after Gargiulo left the Rite Aid and reentered his car. Almada asked
defendant if his name was "Michael". He then took Gargiulo into custody. Almada
had the Infiniti impounded. He was present when the vehicle was searched. Under
the driver's side he could see a latex glove visible underneath the front seat. In the
rear of the vehicle, there was a maroon bag. The bag contained a medium sized pair
of channel locks, pliers and Ziploc baggies. The baggies contained cloth or paper

ia

21

Tr

16

Wilshire Boulevard. He observed a man to park, leave the vehicle and enter the

&

15

He followed the Infiniti to a Rite Aid pharmacy located at 14th St. and

ls

14

ul

11

The back of that address opens on the same alleyway that bisects 12th Street and

ib

10

22

shoe coverings, i.e., booties. [RT 1026].

Tr

23

24

Chad Goodwin [RT 1028]

25

26
27

28

95
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

Chad Goodwin (henceforth "Goodwin") was employed as a detective for the

2

Santa Monica Police Department. On June 6, 2008, Goodwin assisted in the arrest

3

of defendant. He identified Gargiulo in court. While transporting defendant to jail,

4

5

ns

Gargiulo asked what Police Department Goodwin was from and to what jail he was
being taken.

7

io

6

Jeffrey Gutstadt M.D. [RT 1031]

8

9

at

N.B.: For the purpose of this Penal Code § 995 motion, the defense concedes
that Ms. Ellerin's and Ms. Bruno's deaths were homicides. The brief review below

ul

simply is intended to provide the court with the nature of their injuries.

11
12

Jeffrey Gutstadt (henceforth "Gutstadt") is

16

Ellerin Autopsy

Gutstadt performed the autopsy on Ashley Ellerin. [RT 1031-1033]. He determined

Tr

15

that Ellerin suffered 47 stab wounds, i.e., wounds of sharp force trauma on her
body, 12 of which would have been fatal wounds. [RT 1033].

17

19

20

&

went through the neck, skin of the neck and the underlying tissues, including the
carotid arteries bilaterally, the internal jugular veins bilaterally, the airway
including larynx and trachea bilaterally and terminated at the part of the spine in
the neck. [RT 1033, 1. 24 - RT 1034, 1. 4] The neck wounds constituted roughly half

ia

21

Regarding Ellerin's neck area, "there was a large gaping incised wound the

ls

18

board-certified forensic

pathologist employed as a deputy medical examiner by the County of Los Angeles.

13

14

a

ib

10

22

neck." [RT 1034, 1.4-6].

Tr

23

of a decapitation, going through all of the soft tissues and major blood vessels in the

24
25

26
27

28

96
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

There were many incised wounds to the hands. Such wounds are consistent

2

with the type of wounds that would be considered defensive wounds, acts of the

3

victim to ward off the attack of the person stabbing her. [RT 1035]. The deepest

4

5

ns

wounds were roughly 6 inches long. Gutstadt saw no evidence of a hilt mark
abrasion around the stab wounds, and he inferred from that absence that the knife

6

io

blade must have been at least 6 inches long. [RT 1036-1037].

7

The pathologist was unable to ascertain the order of the wounds. The wounds

8
9

at

all looked similar and were all ante-mortem, i.e., before death. Ante-mortem
wounds are distinguishable because they have hemorrhagic wound tracks and there
was evidence of blood pressure at the wound sites. [RT 1042, 1. 2-9].

11

Bruno Autopsy

12

15

16
17
18

ib

Ms. Bruno weighed 89 pounds and was 5'2". She was 32 years old. [RT 1042, L. 1228]. The doctor found 17 wounds of sharp force trauma, including an incised wound

Tr

14

The doctor also performed the autopsy of Maria Bruno on December 5, 2005.

of the neck, as well as 3 stab wounds that the doctor considered to be fatal. There
was evidence that both breasts had been removed by sharp force trauma. The
breasts were present on the body but not in their anatomical locations. [RT 1043, L.

&

13

ul

10

1-14.] While conducting the autopsy, the doctor made a diagram chart depicting the
wounds to Ms. Bruno's body. In the drawing marked People's Exhibit 34, the doctor

20

described wounds 11 and 14 which were lacerations of the decedent's right breast.
One of the wounds was incised resulting in the removal of the breast. The left

ia

21

ls

19

22

1044, L. 14-28].

Tr

23

breast had to similar wounds. The incisions exposed Bruno's breast implants. [RT

24

25

26
27

97
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Some of the stab wounds around the left breast were consistent with being

2

inflicted postmortem. The doctor did not find any injuries to the back of Bruno's

3

body. At her time of death, Maria Bruno's blood-alcohol was 0.22%. The lacerations

4

ns

on the anterior neck compromised both carotid arteries and both jugular veins, as

5

well as the decedent's airway. [RT 1045 L. 12 - 27]. the doctor considered Bruno's

6

io

neck wound to be comparable in size and depth to that which he observed in

7

Ellerin's neck. The deepest wound to Ms. Bruno was roughly 6 inches in depth. [RT

8

9

at

1046]. Dr. opined that the knife blade exceeded 6 inches because there was no hilt
abrasion. Bruno had no wounds to her hands or other defensive type wounds. [RT
1049].

11

14
15

inflicted postmortem. The doctor did not find any injuries to the back of Bruno's

ib

13

Some of the stab wounds around the left breast were consistent with being

body. At her time of death, Maria Bruno's blood-alcohol was 0.22%. The lacerations
on the anterior neck compromised both carotid arteries and both jugular veins, as

Tr

12

well as the decedent's airway. [RT 1045 L. 12 - 27].

16

19

20

depth to that which he observed in Ellerin's neck. The deepest wound to Ms. Bruno

&

18

The doctor considered Bruno's neck wound to be comparable in size and

was roughly 6 inches in depth. [RT 1046]. Dr. opined that the knife blade exceeded 6
inches because there was no hilt abrasion. Bruno had no wounds to her hands or

ls

11

ul

10

other defensive type wounds. [RT 1049].

21

ia

The Los Angeles County Coroner keeps statistical records regarding different

22

[RT 1050 L. 7-11]. The doctor indicated that during his 11 years working for the

Tr

23

forms of homicide, e.g., gunshot wound, strangulation, suffocation, poisoning etc.

24
25

26
27

98
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Coroner, he had performed roughly 40 autopsies himself were stab wounds had

2

been the cause of death. [RT 1050-1051].

3

4
5

ns

Stephen Smetzer [RT 1052]

On April 28, 2008 Stephen Smetzer (henceforth "Smetzer") was a police

6

io

detective working for the Santa Monica Police Department. On that evening

7

Smetzer was assigned to uniformed patrol. He was the first officer to respond as a

8

9

at

result of radio call stating an armed assault was taking place at 1229 12th Street,
Santa Monica. Smetzer parked his police car on 12th St. and walked toward the

12
13

ul

11

apartment along the walkway. While going toward the apartment, Smetzer and a
second who arrived shortly after him, look for a blood trail or any other evidence
between 12th Street and apartment 10. Neither officer approaching from 12th Street

ib

10

saw a suspect or anything of evidentiary value.

14

16

Tr

15

Looking up at apartment 10, Smetzer saw what appeared to him to be
bloodstains on the inside apartment 10's window. In addition, the screen appeared
to be cut and was flapping in the wind. Smetzer went up the stairs and could hear
the victim, Ms. Murphy, talking to the police dispatcher on the telephone. She

18

sounded hysterical. The officers identified themselves and knocked on the front

19

door. The dispatcher confirmed to Murphy that the men outside her door were
police officers. She then open the door and the officers escorted her out of the
apartment quickly. [RT 1052-1057].

ia

21

ls

20

&

17

22

discovered that no one was in the apartment. [RT 1057]. Smetzer saw a shoe print

Tr

23

The officers then entered the apartment looking for any suspects. They

24

next were wrought iron fence near the landing to Murphy's apartment. The officers

25

26
27

28

99
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

cordoned off the area. Other officers were arriving. Officer Khamann followed what

2

appeared to be a blood trail leading out to the alley to a point two buildings south on

3

the east side of the alley. [RT 1058-1060].

ns

4
5

up the trail of the assailant. [RT 1061]. Ms. Murphy was taken by ambulance

6

io

immediately to UCLA Medical Center's Emergency Room. [RT 1063]. There was a

7

large amount of blood in the living room that led down the hallway into the
bathroom and bedroom as well as blood in front of the apartment's doorway. [RT

9

1061-1064].

10

to the Robbery Homicide Unit. He had 19 years of experience as a police officer. On

ib

14

Heesok Ahn (henceforth "Ahn"} was a Santa Monica police detective assigned

June 6, 2008, Ahn took items of evidence from the Santa Monica police evidence
locker and transported them to the Orange County Crime Lab. Among the items he

Tr

13

ul

Heesok Ahn [RT1087]

11

12

at

8

transported were blood swabs, a comforter and a fitted sheet. The latter items also

16

were sealed. [RT 1067-1069]. Santa Monica Police Department contracts with both

17

the Los Angeles County and Orange County crime labs, and the detective had been

18

directed to take the exhibits to the Orange County lab. [RT 1072].

&

15

ls

19

20

Aaron Miranda [RT 1075]

21

ia

Aaron Miranda (henceforth "Miranda") worked for "Gus The Plumber" in

April 2008. He worked directly with Michael Gargiulo for about 2 years and

23

identified him in court. Sometimes, Miranda would meet Gargiulo at the white van

Tr

22

24

parked by the alley in Santa Monica. Miranda had been inside defendant's Santa

25

26
27

28

100
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

2

Monica apartment, and looking at People's Exhibit 10, a photograph, pointed to the
alley where the van was usually parked and the windows on the second floor located

3

directly above the parked van. He identified the windows as belonging to Gargiulo's

4
5

6

ns

apartment. [RT 1076-1078]. Gargiulo frequently pointed out when he "liked" a girl.
On one occasion, Gargiulo briefly approached a girl who lived across the alley

io

(identified as Murphy). [RT 1080].

In addition to meeting Gargiulo at the company van or in his apartment in

8

Santa Monica, Miranda also met Gargiulo for work when the latter was living in El

9

Monte. [RT 1078]. One day when Miranda was with Gargiulo, they went to his
apartment. Gargiulo went into a closet, grabbed a backpack and put it on the bed.

ul

10

at

7

Inside the backpack was a holstered handgun. [RT1081]. Miranda knew defendant's

12

wife, Analuz, who resided with Gargiulo in the Santa Monica apartment. Miranda

13

also knew that Gargiulo had a girlfriend named Velma. Sometimes Gargiulo and
Velma delivered Miranda his paycheck at his house. [RT 1081].

Tr

14

ib

11

15

17

Sgt. Lewis sometime in April 2008. [RT 1084-1085]. Gargiulo (possibly referring to
Murphy. See infra.) said, "I like the girl. She' hot", and Miranda responded, "Well,

&

16

Miranda's first interview occurred at the Santa Monica police station with

Yeah, She's Hot." [RT 1087, L. 2]. Miranda stated that he had been shown pictures

19

by the police and had been unable to identify the woman with whom Gargiulo had the

20

conversation held in the alley. He said he did not see her well and could not hear the
conversation, which was brief. [RT 1088, L. 5-28].

ia

21

ls

18

22

fire him. Gargiulo never threatened Miranda in any way other than suggesting that

Tr

23

Miranda stated that Gargiulo occasionally got mad at him and threatened to

24

he should be fired. [RT 1091].

25

26
27
28

101
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

Gustavo A. Bone [RT1093]

2

Gustavo A. Bone (henceforth "Bone") owns a plumbing company. In April, 2008, he

3

owned a plumbing company with the dba "Gus the Plumber". He worked with

4

ns

JVIichael Gargiulo. At that time, Bone owned a white van \Vith the words, "Gus The

5

Plumber" advertised on the vehicle's side panel. [RT 1095, L. 15-21]. In his normal

6

io

course of business, he would use "protective devices" to avoid scratching client's

7

floors. They wore what Bone called "Woodys", which he clarified as meaning elastic

8

9

at

disposable blue cloth booties, such are as used in hospitals. They also used latex
gloves. [RT 1095-1096].

10

15

16
17

18
19

ul

ib

14

equipment back in 2006. [RT 1096-1097]. Gargiulo told Bone that he had studied
forensic science and was an expert in that area. He also claimed to be an expert in

Tr

13

Gargiulo's then-girlfriend, Grace. Bone and Gargiulo used the same protective

martial arts. [RT 1097 L. 7-19]. Shown the photo of the truck depicted in People's
Exhibit 10, Bone identified the truck as his company's white van. Bone also
identified a photo depicting an apartment area on Arden Way in El Monte that had

&

12

the latter's apartments in both Santa Monica and El Monte. In 2006, Bone met

been labeled "People's Exhibit 24-D", which he believed to depict defendant's
apartment building. [RT 1097-1098.]

ls

11

Bone started working with defendant in 2006. He visited with defendant at

20

Michael Staley [RT 1098]

21

ia

Michael Staley (henceforth "Staley") is a Los Angeles County sheriffs

22

hearing, he had been a sheriffs deputy for 25 years. Staley was involved in a "false-

Tr

23

detective assigned to the Major Crimes Unit. At the time of the preliminary

24

friend" operation in which he and another detective played the role of being fellow

25

prisoners. Gargiulo was then placed in the same cell with them for about 4 7 hours.

26
27

102
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

Their objective was to induce defendant Gargiulo into confessing to them

2

while he would be off-guard, because they would appear to him to be fellow

3

prisoners rather than police officers. The People justified this conduct that excused

4

giving an in-custody defendant his Miranda rights, under the holding of Illinois v.

5

Perkins, (1990) 496 U.S. 292; 110 S. Ct. 2394; 110 L. Ed. 2d 243.

ns

1

After reviewing the Perkins decision during the evening recess, defense

7

counsel announced that he would reserve his Fifth Amendment challenge - on both

8

Miranda and voluntariness grounds - until proceedings in the trial court. [RT 1120,

9

L. 1-18]. For that reason, much of Staley's testimony is irrelevant to this §995

10

motion.

ul

The remaining salient offering from Staley deals with the charge of

11

14
15
16
17

ib

13

attempted escape. Staley testified that Gargiulo tried to enlist him and Detective
Dana Duncan in a plan to escape. They demurred. [RT 1104-1105]. Gargiulo next
spoke about the possibility of running away while he was escorted across a parking
lot for police interviews. He said that he would be locked in the other building and

Tr

12

at

io

6

left sitting alone in a chair, and that he could climb up into the ceiling and escape
using the air ducts, then crawl to another part of the building where he would

20

assumption that both detective/inmates were the only people on Earth to not have
seen "Mission Impossible I". The only thing missing from Gargiulo's narration was
avoiding the invisible/red lasers - which the Pentagon probably has given LASD by

ia

21

15]. (If all of the above was supposed to be taken seriously depends on the

ls

19

&

descend to the floor, pop out a window, exit and jump over a fence. [RT 1105, L. 318

22

now.)

23

Tr

Gargiulo also produced a plastic handcuff shim, a device that could be used to

24

unlock handcuffs. It took Gargiulo roughly 15 minutes to produce the shim out of

25

his waistband, and he started thinning it down using his teeth. Staley described the

26

27

103
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

shim as a piece of white plastic roughly 1/8th inch wide and l/64th inch thick. [RT

2

1107, L. 11-15. Defendant asked his cellmates if the police could shoot him ifhe ran,

3

and they assured them that the police would shoot him even though he was

4

unarmed. [RT 1108, L. 8-11]. Then Gargiulo and the undercover officers discussed

5

disabling the jailer through a knockout punch. Gargiulo then suggested a throat

6

punch, which he said, would be fatal. [RT 1107-1108]. When the jailer came by

7

later, he told Gargiulo to get on his bunk. [ET 1109, 1. 15-22].

Cross-Examination

at

8

io

ns

1

During the entire time that he was in the cell, Gargiulo was un-handcuffed,

9

rendering questionable the immediate utility of the "handcuff shim" for escape. [RT

11

1121, L 12-19]. He did not climb up and attempt to remove any ceiling tile. [RT

12

1121,1. 20-22]. He did not attempt to break the cell door, nor did he try to unlock

13

the cell door. [RT 1121, 1. 21-26]. Gargiulo suggested at one point that one of his

14

cellmates stand on his shoulders to look out the cell's window, which was 7 feet

15

high. Staley did not testify that suggestion was carried out. [RT 1122, 1. 2-8].

Tr

ib

ul

10

16

Danielle Wieland [RT 1136-11 77]

&

17

Danielle Wieland [henceforth "Wieland"] is a forensic scientist with the

19

Orange County Crime Lab. The lab is accredited for DNA testing. Wieland has been

20

employed there for nine years. Her duties include being the DNA technical leader

21

for the crime lab. [RT 1136, 1. 12-21]. She described her ample education and

ia

ls

18

training in the area of analyzing DNA. [RT 1136-1137]. Samples containing Michele

23

Murphy's and Michael Gargiulo's DNA were furnished to her lab. [Michelle

Tr

22

24

Murphy's known DNA sample from oral swab: RT 1138-1139, 1142, 1145]; [Michael

25

Gargiulo's known DNA sample from oral swab: [RT 1140, 1149-1160}.

26
27
28

104
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

Wieland conducted DNA analysis of a sample identified as having been taken

2

from Murphy's bed, i.e., the comforter that was on the bed. She discovered two DNA

3

sources, one male and one female. She compared the comforter sample to the known

4

ns

DNA samples of Murphy and Gargiulo. With respect to Gargiulo, Wieland

5

concluded that, "The frequency of choosing an individual at random who could not

6

7

io

be excluded as the minor contributor for comforter stain 8 is rarer than 1 in 1
trillion unrelated individuals, assuming only a single minor contributor." [RT 1160,

8
9

at

1. 24 - RT 1161, 1. l]

For the purpose of this §995 motion only, the defense does not contest
Wieland's expert opinion and DNA conclusions offered to the magistrate below.

11

Jeffrey Gutstadt, M.D. [RT 1178-1180]

ib

12

13

Dr. Jeffrey Gutstadt was recalled. He testified (redundantly) regarding
specific wounds that he had marked on the autopsy diagram of Ashley Ellerin.

Tr

14
15

16

ul

10

Richard Lewis [RT 1180-1186]

Richard Lewis [henceforth "Lewis"] is/was a sergeant with the Santa Monica

18

Police Department. At the time of testifying, Lewis had been a peace officer for 19 Vz

19

years. On April 28-29, 2008, Lewis was assigned as a robbery-homicide detective.

20

Early on April 29th, Lewis arrived at Murphy's apartment. [RT 1181]

ls

&

17

The prosecutor showed him People's Exhibit 10, page 8 (a group of

ia

21

reproduced photographs), and Lewis stated that the photos were accurate

23

renditions of Murphy's apartment and surrounding crime scene. He followed a

Tr

22

24

"blood trail" leading away from Murphy's 12th Street apartment and toward 1232

25

Euclid Avenue, i.e., in a southeastern direction. Lewis stated that Michael Gargiulo

26
27

105

DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
28

DISMISSAL PURSUANT TO PENAL CODE §995

1

lived in Apartment 10 at the Euclid address. He transported the DNA swabs taken

2

from Murphy and from the comforter to the Orange County Crime Lab.

3
4

ns

Dana Duncan [RT 1186]

Dana Duncan [henceforth "Duncan"] is/was a Los Angeles County Sheriffs

6

Department assigned to the Major Crimes Bureau at the time he testified. He had

7

been a peace officer for 27 112 years. [RT 1186]

io

5

On June 17, 2008, he was the second deputy sheriff pretending to be a

9

prisoner during defendant's El Monte "Interrogation? No thank you!" followed by

10

Gargiulo's return to his "false flag fellow prisoners" in the cells, i.e., the "We're your

11

buddies ... You can talk to us" seam, ff.t:tttt:l, hustle, tflek, flimflam, con, lie , uh ....

12

"clandestine interrogation" during his two days of involuntary custodial confinement

ul

Detective Lillienfeld informed Duncan that Gargiulo would be removed

14
15

16

ib

with them.

Tr

13

at

8

periodically from their cell and taken to an interview room. The Sheriffs
investigators would conduct the first interview, followed by the LAPD, then the
Downey PD.

17

20

He also told Duncan that he would tell Gargiulo that the police had found a surgical
shoe-cover (the blue bootie) with his DNA on it. Lillienfeld also told Duncan that he
would tell Gargiulo that a witness, an older man who lived downstairs, had seen

ia

21

(Lillienfeld) would talk to defendant about Bruno being attractive and big-chested.

ls

19

&

With respect to the Bruno murder, Lillienfeld told Duncan that he
18

22

hat. [RT 1188-1189].

Tr

23

him entering Bruno's apartment at some time and that the sheriffs had recovered a

24

Gargiulo told his "cellmates" that he had known Bruno, as she had lived in the

25

same apartment complex as he did at one point. Gargiulo also told the undercovers

26

27
28

106
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

that he had known Maria Bruno for about a week and had assisted her two or three

2

times in carrying in her groceries and laundry and in doing so, had been in her

3

apartment. She also told him that she had separated from her husband and that he

4

had "taken" her four children from her. [RT 1190, l. 2-8].

ns

1

Gargiulo stated that when he was working as an air-conditioning-heating

6

repairman he always put on blue booties over his shoes because he did not wish to

7

make the customer's home dirty and to keep his shoes from muddying up their

8

floors. [RT 1190, L. 15-19]. Gargiulo had "lots of booties" around, including having

9

them outside the front door of his apartment. [RT 1191-1192].

at

io

5

Gargiulo also stated that he had been in the victim's house two or three times

11

and had left some booties with her at her request. [RT 1191-1193]. He also stated

12

that he knew the "old man" that saw him enter Bruno's apartment, and who

window. [RT 1193, l. 16-25].

Gargiulo was interviewed for roughly 40 to 42 consecutive hours between the

15

16

ib

14

probably also had seen him knocking on her door and looking in through her

Tr

13

ul

10

"police interviews" and the "false friends" interviews.
NOTE: A review of the entire preliminary hearing transcript reveals that at

18

no time during the "Perkins operation" was defendant apprised of his rights under

19

Miranda v. Arizona, (1966) 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694, including

20

but not limited to, the times he was removed from his cell and formally interrogated

21

by LASD, LAPD, Downey Police Department, and (as shall be seen infra) the Santa

ia

ls

&

17

22

Monica Police Department, whose attempt to interview Gargiulo post-arraignment

23

regarding the "Murphy incident" clearly violated the Sixth Amendment.

Massiah v. United States (1964) 377 U.S. 201, 205 [84 S. Ct. 1199, 1202-1203, 12 L.

Tr
24
25

Ed. 2d 246].

26

27
28

107
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

Gargiulo was prompted to discuss a hat, which turned out to be a Boston Red
Sox baseball cap. Gargiulo said that he used to have such a cap but that he had

3

thrown his away. [RT 1193-1194]. According to Duncan, Gargiulo then leaned in

4

toward him, "and then out of the blue he says do detectives search dumps?" [RT

5

1194, 1. 19-20].

ns

2

As noted supra, between the official non-Mirandized interrogations by the four

7

then-interested police agencies and the unofficial non-Mirandized interrogations by

8

the undercover deputies, the questioning was protracted and worth including

9

verbatim:

14
15
16
17

18
19

20

10
11
12

ul

Summarizing the Perkins direct examinations: Defendant was removed from his cell in Twin Towers Jail,
transported to El Monte - where he had no court appearance and never entered a courtroom - and instead
was placed in a wired for sound jail cell with two undercover deputies whose express mission was to play
"good prisoner, bad cop" with defendant in a scenario scripted by Detective Lillienfeld, which if followed to
its logical Perkins law enforcement interpretation would permit never giving a defendant his Miranda rights,
as "the detectives" could ask futile questions outside Miranda after defendant has asked for a lawyer or
otherwise expressed a desire not to speak, yet knowing their colleagues in the cell with defendant will exploit
the arrestees isolation and fear, and under this interpretation, nobody ever has to tell defendant that he has a
right to remain silent, a right to know that anything he says will be used against him, and the right to an
attorney - whether public or private - should defendant wish it. 42 hours of continuous interrogation?
Perhaps the police can add "water-boarding" and create the Perkins-Guantanamo rule that will, inter alia,
shorten the period needed to overcome the resistance of the ¥i€ttm suspect. A question for the Court to
consider is whether this passes the "judge at your elbow" test of "due process". As the Court and counsel
know, one of the tests we use in determining M'Naughton insanity is "the policeman at your elbow test". If
the trier of fact believes that defendant would commit his criminal act even if a policeman were standing
next to him, then they can correctly infer that he was unable to distinguish right from wrong. 42 hours of
continuous interrogation means we are not in California, we are in pre-democratic Argentina.

7

ia

21

ib

13

Q
NOW,
DURING THIS CONVERSATION THAT YOU
WERE HAVING WITH THE DEFENDANT,
I
MEAN HOW LONG
DID THIS GO ON FOR,
THE WHOLE OPERATION?
A
OVER 40 HOURS, 42 HOURS.
Q
AND WERE YOU IN THE CELL THE ENTIRE
TIME?
NO.
A
WOULD YOU AND DETECTIVE STALEY TAKE
Q
TURNS LEAVING THE CELL AND THEN COMING BACK IN?
A
YES.
WERE THERE PERIODS WHEN YOU GUYS
Q

2
3
4
5
6
7
8
9

Tr

12

RT 1195

&

11

7

ls

10

at

io

6

22

Tr

23

24
25

26
27

108
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

13
14
15
16
17

1
2

3

YOU AND DETECTIVE STALEY WERE IN THE CELL ALONE
WITH THE DEFENDANT?
A
YES.
Q
AND NOT WITH EACH OTHER?
A
YES.

ns

Cross-Examination of Deputy Duncan [RT 1206]

4

Gargiulo did not attempt to break or unlock the door of the cell. He did not

6

attempt to go out the window. He did not threaten, either by words or actions, the

7

jailer.

io

5

11

12
13

ul

10

1206
Q SO BASICALLY HE TALKED A LOT?
YES, HE DID THAT.
Q AND COMMITTED NO ACTION TOWARDS
ESCAPING?
A WELL, YEAH, I SUPPOSE SO. STANDING
NEXT TO THE DOOR IS AS CLOSE PROBABLY TO ACTUALLY
ESCAPING AS I SAW.

Redirect Examination [RT 1207]

ib

RT
19
20
21
22
23
24
25

9

at

8

Defendant had a "shim", i.e., a piece of plastic formerly part of a plastic spoon.

15

Gargiulo did not know how to use the shim and asked Duncan if he knew how to

16

mold the plastic to assist in getting out of handcuffs.

Tr

14

Re-cross Examination [RT 1208]

&

17

Defendant did not attempt to use the "shim" to get out of any handcuffs, nor did

19

he follow Duncan's advice in molding the plastic to make it a "shim". Gargiulo was

20

not wearing handcuffs while he was in the jail cell.

ls

18

People's Exhibits 1 - 37 inclusive were admitted into evidence without

ia

21
22

defense objection. [RT 1209-1210]

Tr

23

24

Findings and Holding Order

25

26
27

109
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Defendant was held to answer on all counts of the last amended complaint.

2

The Court concluded that the entire purpose of the three burglaries alleged as

3

special circumstances per Penal Code § 192(a)(l 7) was to carry out the

4

ns

assaults/murders of the victims, and therefore that the special circumstance of

5

burglary could not be supported, as there was no evidence of larceny or other

6
7

io

criminal purpose for the burglaries. The Court did find probable cause for the

8

(§190.2(a)(15)).

8

9
10
11

I.

12

ib

GARGIULO'S JUNE 16, 2008 STATEMENTS AT THE EL MONTE POLICE

13

DEPARTMENT CANNOT BE USED AS EVIDENCE TO SUPPORT THE

14

Tr

CHARGES

15
16

&

MUST BE SUPPRESSED AS BEING INVOLUNTARY AND CANNOT BE

18

The Police Interrogated Defendant For 40-42 Hours Under Coercive Conditions.
1) Detective Mark Lillienfeld obtained a court order authorizing him to take
Defendant from the Twin Towers Jail to the El Monte Police Department. A holding

ia

21

USED AS EVIDENCE AS TO ANY OF THE CHARGES

ls

20

A.

THE STATEMENTS ELICITED DURING THE "PERKINS OPERATION"

17

19

ul

ARGUMENT

at

special circumstances of "multiple murders" (§190.2(a)(3)) and "laying in wait"

22

cell there had been wired to pick up any statements that defendant made.

Tr

23

24
25

8

Congratulations! You now have finished the Statement of Facts .....

26
27

110
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

2) Lillienfeld had already placed two fellow deputies inside the jail cell where

2

defendant was placed. The two deputy sheriffs pretended to be prisoners.

3

3) The purpose of the exercise was to elicit incriminating statements from defendant

4
5

ns

if he asserted his Miranda rights in multiple police interrogations conducted by
multiple police agencies. LASD at RT 1187, LAPD and Downey Police Department

6
7

io

at RT 1188

4) It was Lillienfeld's admitted purpose to trick defendant into making inculpatory

8
9

at

statements "outside Miranda" Gargiulo refused to be interrogated by the police
when removed from the cell interrogations

5) Lillienfeld's admitted purpose was to circumvent defendant's express exercise of

11

his Miranda rights, but nevertheless obtain incriminating statements by using

13

"false friends" who would question defendant more empathetically because he would
think they also were prisoners.

14

ib

12

ul

10

Tr

Between the tag team multiple interrogations by the Sheriff, LAPD, Santa
Monica PD, El Monte PD and Downey PD and the undercover deputies continuous

16

questioning during supposed "official" interrogation breaks, Defendant was

17

interrogated more or less continuously for between 40 to 42 hours at the El Monte

18

Police Department jail.

&

15

19

magistrate's attention to the holding in Illinois u. Perkins, (1990) 496 U.S. 292; 110
S. Ct. 2394; 110 L. Ed. 2d 243 as a justification for circumventing their obligation to

ia

21

ls

20

The witness and district attorney justified this interrogation by inviting the

22

inform defendant of his constitutional rights under the Fifth Amendment.

Tr

23

24

Defendant submits that Detective Lillienfeld and the People either have

misunderstood or misapplied the holding in Perkins, and that the interrogation as

25

26
27

111
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

applied violated the "due process" clause of the Fourteenth Amendment and Article

2

1, Secs. 7 and 15 of the California Constitution.

3

1) The requirement that when police interrogate a suspect, they must apprise the

4

5

ns

suspect of his Miranda rights did not rise up spontaneously and without
reason in Constitutional Law.

6

io

The reason that the Miranda warnings were created was to stop questionable

7

back room police interrogation methods intended to wring confessions from

8

9

at

arrestees in violation of the Fifth Amendment. Miranda was the Supreme Court's
attempt to force dubious interrogation methods into the daylight. The original

11

articulation of the problem and its proposed solution came from another source,

ul

10

however:

12

ib

14

most honest reviews by courts -- but unless the law enforcement
profession is steeped in the democratic tradition, maintains the highest

Tr

13

"We can have the Constitution, the best laws in the land, and the

15

in ethics, and makes its work a career of honor, civil liberties will

16

continually -- and without end -- be violated .... The best protection of

19
20

agency. There can be no alternative.
"... Special Agents are taught that any suspect or arrested person, at

the outset of an interview, must be advised that he is not required to
make a statement and that any statement given can be used against

ia

21

&

18

civil liberties is an alert, intelligent and honest law enforcement

ls

17

him in court. Moreover, the individual must be informed that, if he

23

desires, he may obtain the services of an attorney of his own choice."

Tr

22

24
25

26
27

112
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Hoover, Civil Liberties and Law Enforcement: The Role of the FBI, 37

2

Iowa L. Rev. 175, 177-182 (1952).

3

(cited with approval in Miranda v. Arizona (1966) 384 U.S. 436 at 483,

4
5

ns

fn. 54 [86 S.Ct. 1602, 1632, 16 L.Ed.2d 694, 729].)

It appears that having found a means to avoid the inconvenience and

6
7

having

8

a

mechanistic

means

of

circumventing

io

frustration of giving defendant the Miranda warnings that he might exercise, i.e.,
the

Fifth

Amendment

9

at

enthusiastically applied, Detective Lillienfeld and his cronies simply avoided the
constitutional prohibition by escorting defendant to a faraway police station and

13

14
15

16

ul

12

who were law enforcement officers pretending to be prisoners. As the "prisoner
cops" testified, they actively questioned Gargiulo. In fact, Lillienfeld briefed them on

ib

11

interrogating him for two full days without rest, while installing other interrogators

what he would do during his "official interview" to prime the pump as to what
questions they should ask to stimulate Gargiulo's tongue. 9 There was no reason for

Tr

10

the undercover officers to have that knowledge except for the purpose of posing
leading questions to defendant.

&

17

18

2) The Perkins Decision Is Of Little Value in Determining Whether Defendant's

19

ls

Statements In This Case Were Obtained By Methods That Violate Due

20

Process.

21

ia

As Justice Brennan noted in his concurrence in Perkins: "I do agree that

when a suspect does not know that his questioner is a police agent, such

23

questioning does not amount to "interrogation" in an 'inherently coercive'

Tr

22

24

25

See summary of Lillienfeld briefing in this Points and Authorities at pp. 106-197 from RT
1108-1109.
9

26
27

28

113
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

environment so as to require application of Miranda. "Since the only issue raised at

2

this stage of the litigation is the applicability of Miranda, I concur in the judgment

3

of the Court." Brennan, J., concurring in Perkins at pg. 300.

4

ns

In Perkins, the police placed an undercover agent in the jail with the suspect.

5

Eventually, the agent, without giving the suspect Miranda warnings, engaged in

6

io

conversations with the suspect, who made incriminating statements about the

7

murders. As summarized by the Reporter of Decisions, Perkins holds that:

8

9

at

(1) Under the Federal Constitution's Fifth Amendment privilege
against self-incrimination, Miranda warnings are not required when a

14
15
16
17

18
19

20

ul

Miranda warnings to an incarcerated suspect before the officer asks
questions that may elicit an incriminating response, because the
interests

protected

by

Miranda

are

not

implicated

in

such

circumstances, in which there is no interaction between custody and
official interrogation; and (3) thus, there was no federal obstacle to the
admissibility of the statements in the instant case, in which (a) the
suspect had been motivated solely by his desire to impress his fellow

inmates, (b) the suspect had had no reason to feel that the undercover
agent had any legal authority to force the suspect to answer questions

ia

21

ib

13

enforcement officer posing as a fellow inmate is not required to give

Tr

12

officer and gives a voluntary statement; (2) an undercover law

&

11

suspect is unaware that the suspect is speaking to a law enforcement

ls

10

22

Tr

23

24

or that the agent could affect the suspect's future treatment, (c) the

suspect had viewed the cellmate-agent as an equal and had showed no

hint of being intimidated by the atmosphere of the jail, and (d)

25

26
27

114
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

precedents

2

as

to

restrictions,

under

the

Constitution's

Sixth

Amendment right to counsel, on the use of undercover agents were not

3

4

charges had been filed on the subject of the interrogation.

ns

applicable, since, at the time the statements had been made, no

B.

6

THE TOTALITY OF THE CIRCUMSTANCES UNDER WHICH THE POLICE

7

INTERROGATED DEFENDANT RENDERED HIS STATEMENTS

io

5

8

at

INVOLUNTARY AND INADMISSIBLE UNDER ART.l, §§ 7 AND 15

9

CALIFORNIA CONSTITUTION, AND THE FOURTEENTH AMENDMENT

10

ul

U.S. CONSTITUTION UNDER THEIR RESPECTIVE "DUE PROCESS"

11

CLAUSES.

By intentionally avoiding the consequences that their Miranda obligations

13

would elicit, i.e., defendant asking to see his lawyer - causing questioning to cease -

16
17
18

Tr

15

Detective Lillienfeld and his colleagues from other law enforcement agencies have
returned us to the not-much-missed days where every admission or confession that
the People sought to admit as evidence required an in limine determination as to
whether the statement was extracted voluntarily or by means repugnant to due
process oflaw.

19

conclusion, the police would never be required to give suspects their Miranda rights
but could still garner admissible confessions by using Perkins. Under Perkins as

ia

21

Extrapolating Detective Lillienfeld's interpretation of Perkins to its logical

ls

20

&

14

ib

12

implemented by Lillienfeld, an arrestee can be interrogated, cajoled, threatened,

23

taken to a remote jail etc. by teams of police officers who serially undertake non -

Tr

22

24

Mirandized or "Miranda avoiding" interviews in which the arrestee is not informed

25

26

27

115
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

of his Fifth Amendment rights, or futilely attempts to exercise his right to remain

2

silent and to obtain a lawyer, only to find himself tossed into a cell with undercover

3

officers in a remote jail where the police hope that the effectively isolated defendant

4
5

ns

over the next 40 hours of ceaseless interrogation - might be more prone to
incriminate himself to the "false friends" in his isolated cell.

6

io

In other words, the detective has found a form of chicanery that completely

7

circumvents two fundamental constitutional freedoms: the right to remain silent

8

9

at

(and not be a witness against oneselD and the right to have an attorney present,
because no competent attorney would allow his client to be interrogated under these

11

14
15
16

17

under Miranda, "[t]he Fourteenth Amendment to the federal Constitution and

ib

13

Regardless of whether there had been a violation of a defendant's rights

article I, sections 7 and 15, of the state Constitution bar the prosecution from using
a defendant's involuntary confession. [Citation.]" (People v. Massie (1998) 19 Cal.4th

Tr

12

550, 576.) A confession is involuntary if it is "obtained by force, fear, promise of
immunity or reward . . . . " (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1483

(Esqueda).)

18

In determining whether a confession was voluntary, "courts apply a 'totality
of the circumstances' test .... " (People v. Massie, supra, 19 Cal.4th at p. 576, citing

ls

19

ul

conditions.

&

10

Withrow v. Williams (1993) 507 U.S. 680, 693-694.) "Among the factors to be

21

considered are " 'the crucial element of police coercion [citation]; the length of the

ia

20

interrogation [citation]; its location [citation]; [and] its continuity,' as well as 'the

23

defendant's maturity [citation]; education [citation]; physical condition [citation];

Tr

22

24

and mental health.' " [Citation.] . . . In determining whether a confession was

25

26

27
28

116
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

voluntary, "[t]he question is whether defendant's choice to confess was not

2

'essentially free' because his will was overborne. [Citation.]" [Citation.]' " (People v.

3

Boyette (2002) 29 Cal.4th 381, 411.) The absence of overt physical brutality directed

4

ns

against the defendant is not dispositive, "for 'coercion can be mental as well as

5

physical, and . . . the blood of the accused is not the only hallmark of an

6

io

unconstitutional inquisition.' .. ."(People v. Montano (1991) 226 Cal.App.3d 914,

7

934, quoting Blackburn v. Alabama (1960) 361 U.S. 199, 206.)

8

9

at

The defendant in Ashcraft was exposed to 36 hours of continuous questioning
by relays of law enforcement officers. Writing for the Court, Justice Black explained

ul

11

the constitutional repugnance of such conduct (Ashcraft v. Tennessee (1944) 322
U.S. 143, 153-154 [64 S.Ct. 921, 926, 88 L.Ed. 1192, 1199].):

12

15
16
17
18

19

20

ib

hours.

We think a situation such as that here shown by uncontradicted
evidence is

22

Tr

23

24

so

inherently coercive that its very existence is

irreconcilable with the possession of mental freedom by a lone suspect
against whom its full coercive force is brought to bear. It is

inconceivable that any court of justice in the land, conducted as our
courts are, open to the public, would permit prosecutors serving in

ia

21

officers had sought to make him confess during the previous thirty-six

&

14

morning Ashcraft pleaded not guilty to the charge of murder which the

ls

13

"And at a hearing [*154] before a magistrate about 8:30 Monday

Tr

10

relays

to

keep

a

defendant

witness

under

continuous

cross-

examination for thirty-six hours without rest or sleep in an effort to

extract a "voluntary" confession. Nor can we, consistently with

25

26
27

117

DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Constitutional due process of law, hold voluntary a confession where

2

prosecutors do the same thing away from the restraining influences of

3

a public trial in an open court room."

5

ns

4

It is critical to note that involuntary statements must be excluded,

6

io

regardless of their veracity or corroboration of other evidence.

7

In Blackburn v. Alabama (1960) 361 U.S. 199 [80 S.Ct. 274, 4 L.Ed.2d 242],

8

9

at

the defendant was isolated and interrogated for 8 to 9 hours in a small isolated
room. Writing for a unanimous Court, Chief Justice Warren explained at pp. 206207:

ul

10

11

15

16
17

18

19

20

ib

immaterial where other evidence establishes guilt or corroborates the
confession. E. g., Spano v. New York, 360 U.S. 315, 324; Payne v.

Arkansas, 356 U.S. 560, 567-568; Watts v. Indiana, 338 U.S. 49, 50, n.
2; Haley v. Ohio, 332 U.S. 596, 599. As important as it is that persons
who have committed crimes be convicted, there are considerations
which transcend the question of guilt or innocence. Thus, in cases

involving involuntary confessions, this Court enforces the strongly felt

ia

21

rejected the argument that introduction of an involuntary confession is

Tr

14

Lisenba v. California, 314 U.S. 219, 236. Consequently, we have

&

13

"fundamental unfairness in the use of evidence, whether true or false."

ls

12

"It is also established that the Fourteenth Amendment forbids

22

Tr

23

24

attitude of our society that important human values are sacrificed

where an agency of the government, in the course of securing a
conviction, wrings a confession out of an accused against his [*207]

25

26
27

118
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

will. This insistence upon putting the government to the task of

2

proving guilt by means other than inquisition was engendered by

3

historical abuses which are quite familiar."

ns

4
5

It is respectfully submitted that admitting Gargiulo's statements under the

6
7

io

circumstances described, demeans the Constitution and therefore demeans the
credibility of any Court that seeks to justify interrogations under such conditions.

c.

9

GARGIULO'S EL MONTE INTERROGATION VIOLATED THE SIXTH

10

ul

AMENDMENT

11

14

ib

13

l) Once A Defendant's Right To Counsel Has Attached, Statements Made By Him

Or Her Are Not Admissible If Deliberately Elicited By Authorities In The Absence Of
Counsel And Without A Waiver Of Counsel Or After Counsel Has Been Requested.

Tr

12

15

18

19

20

unequivocally followed this constitutional [*205] rule. 'Any secret interrogation of
the defendant, from and after the finding of the indictment, without the protection

&

17

"Ever since this Court's decision in the Spano case, the New York courts have

afforded by the presence of counsel, contravenes the basic dictates of fairness in the
conduct of criminal causes and the fundamental rights of persons charged with

ls

16

at

8

crime.' People v. Waterman, 9 N. Y. 2d 561, 565, 175 N. E. 2d 445, 448.5

21

ia

This view no more than reflects a constitutional principle established as long

ago as Powell v. Alabama, 287 U.S. 45, where the Court noted that "... during

23

perhaps the most critical period of the proceedings ... that is to say, from the time

Tr

22

24

of their arraignment until the beginning of their trial, when consultation,

25

26
27

119
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

thoroughgoing investigation and preparation [are] vitally important, the defendants

2

... [are] as much entitled to such aid [of counsel] during that period as at the trial

3

itself." Id., at 57. And since the Spano decision the same basic constitutional

4

5

(1964) 377 U.S. 201, 205 [84 S.Ct. 1199, 1202, 12 L.Ed.2d 246, 250].)

6

ns

principle has been broadly reaffirmed by this Court." (Massiah v. United States

7

io

With respect to the charges involving Michelle Murphy, i.e., the Santa

8

been arraigned on Murphy-related charges.

9

10

at

Monica case, it is uncontroverted that the police interrogated Gargiulo after he had

The Court is asked to take judicial notice of its own Minute Orders in this

13

14

ul

12

10, 2008, on that date retained counsel Carrie Machalek represented Mr. Gargiulo,
who was arraigned on a two count complaint alleging burglary and attempted

ib

11

case. Evidence Code § 452 subds. (c) and (d). According to the minute order of June

murder [of Michelle Murphy] in Case No. SA 068002, i.e., the instant case. Deputy
District Attorney Joseph A. Markus represented the People. The Hon. Keith

Tr

10

15

Schwartz presided over the entry of "not guilty" pleas in Department 144 of this

16

Court.

On June 17, 2008, Detective Lillienfeld commenced the El Monte "false

18

friend" interviews, which went on for two days. [Testimony of Staley at RT pg. 1099,

19

1. 11; testimony of Duncan at RT pp. 1186-1197].

ls

&

17

20

ia

21

22

Tr

23

The Court is asked to take judicial notice of its own Minute Orders in this case. Evidence Code § 452
subds. (c) and (d). According to the minute order of June 10, 2008, on that date retained counsel Carrie
Machalek represented Mr. Gargiulo, who was arraigned on a two count complaint alleging burglary and
attempted murder [of Michelle Murphy] in Case No. SA068002, i.e., the instant case. Deputy District
Attorney Joseph A. Markus represented the People. The Hon. Keith Schwartz presided over the entry of
"not guilty" pleas in Department 144 of this Court.
10

24
25

26

27

120
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL

28

DISMISSAL PURSUANT TO PENAL CODE §995

1

Mr. Gargiulo had been arraigned and was represented by counsel at the time

2

of the El Monte interview. The undercover officers questioned him about the

3

Murphy Santa Monica case. RT 1129-1130. When this came to the prosecutor's

4

ns

attention, she informed the Court that the People would not be offering any

5

evidence about the Santa Monica statements. RT 1130. The magistrate, in light of

6
7

io

the People's representation, ruled that the question was "discovery" and precluded
further inquiry. RT 1130.

8

9

at

What the prosecutor sought to accomplish was to escape the proscription
against any police interrogation of a represented defendant as required under the

12

14

15
16
17

There is no question that any Murphy-related questions and answers require

ib

13

ul

evidence.

suppression, e.g., the testimony of Staley and Duncan on the Murphy-related
statements.

Tr

11

Sixth Amendment by simply not offering those illegally obtained statements in

2) A Defendant Has No Sixth Amendment Challenge To A Statement Made
Regarding An Offense For Which The Right To Counsel Has Not Yet Attached, Even
If The Right To Counsel Has Attached For A Separate Offense.

&

10

18

20

"The police have an interest ... in investigating new or additional

crimes [after an individual is formally charged [*176] with one crime.]

ia

21

The Massiah holding (supra)was modified in Maine v. Moulton:

ls

19

22

Tr

23

24

. . . To exclude evidence pertaining to charges as to which the Sixth

Amendment right to counsel had not attached at the time the evidence
was obtained, simply because other charges were pending at that time,

25

26
27

28

121
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

would unnecessarily frustrate the public's interest in the investigation

2

of criminal activities ... ."Maine v. Moulton, 474 U.S. 159, 179-180, 88

3

L. Ed. 2d 481, 106 S. Ct. 477 (1985).

5

ns

4

D.

6

io

THE FIFTH AMENDMENT MIRANDA VIOLATIONS COUPLED WITH THE

7

SIXTH AMENDMENT MASSIAH VIOLATION FURTHER COMPELS THE

8

at

CONCLUSION THAT THE INTERROGATIONS DENIED DEFENDANT A

9

MEANINGFUL OPPORTUNITY TO EXERCISE HIS RIGHT TO REMAIN

10

ul

SILENT AND HIS RIGHT TO AN ATTORNEY

11

14
15

ib

13

indicating that defendant was read and waived his rights under Miranda.
Regardless of the People's reliance on the "fellow prisoner" statements, Mr.
Gargiulo was removed from the cell to be interrogated by detectives who were not

Tr

12

There is nothing in the reporter's transcript of the preliminary hearing

masquerading as prisoners.

16

19

&

18

defendant, if he has expressly invoked his right to counsel during custodial
interrogation on a different charge, and does not initiate the subsequent
interrogation.

ls

17

Even if Massiah would not apply, the Fifth Amendment might still protect a

20

prosecution. People v Dykes (2009) 46 Cal.4th 731, 751 (Miranda); People v Duren

ia

21

The burden of proof in both voluntariness and Miranda questions is on the

22

(1973) 9 Cal.3d 218, 237 (voluntariness).

23

Tr

Once a defendant has invoked the right to counsel during interrogation, all

24

questioning must cease, regardless of the subject of that or any subsequent

25

26
27
28

122
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

interrogation, until counsel is present, except if the defendant has initiated the

2

subsequent interrogation. However, to invoke the Fifth Amendment right to

3

counsel, the defendant must express a desire for the assistance of counsel in dealing

4

ns

with custodial interrogation by the police. If the request is not made during

5

custodial interrogation and does not indicate an express desire for counsel for

6
7

io

purposes of custodial interrogation, it will not serve as an invocation of the Fifth
Amendment right to counsel. 2-30 California Criminal Defense Practice§ 30.31

8

9

at

F.

For the reasons set forth above, it is respectfully submitted that the

11

statements elicited from defendant on June 16, 2008 at the El Monte Police

ul

10

Department jail should be ruled to have been inadmissible, and that the magistrate

13

should not have relied upon the statements as supporting the charges against

ib

12

Gargiulo.

Tr

14
15

II.

THE EVIDENCE WAS INSUFFICIENT TO HOLD DEFENDANT TO

16

ANSWER FOR THE ASHLEY ELLERIN-RELATED CHARGES

A.

18

THERE IS NO PHYSICAL EVIDENCE LINKING DEFENDANT GARGIULO

19

TO THE MURDER OF ASHLEY ELLERIN ON FEBRUARY 21 sT OR 22ND,

ls

&

17

20
21

Gargiulo knew Ellerin because he had met her while walking his dog from the

ia

22

dog park at the top of her block sometime in October, 2000. He assisted in fixing

Christopher Duran's tire. Duran and Ellerin were working on the tire, but Gargiulo

Tr

23

2001.

24

finished the job. He handed out business cards. Subsequently, Ashley befriended

25

26
27

28

123
DEFENDANT'S MOTION & POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL
DISMISSAL PURSUANT TO PENAL CODE §995

1

him. Duran stated Gargiulo dropped by Ellerin's house without calling first,

2

although there is no foundation for that conclusion. He later stated that people

3

generally just dropped by to see Ellerin and did not call before coming. Duran said

4

ns

he saw Gargiulo twice parked and sitting in a dark car at the top of the street in a

5

dark colored sedan. However, despite Duran's claim to be at Ellerin's house every

6
7

io

day and to be very conscious of Gargiulo's presence, he was unable to pick out
Gargiulo in a photo lineup.

8
9

at

Duran stated Gargiulo told him that he lived about a block away south of
Bonita Terrace. Street parking was always difficult in the neighborhood, both day

ul

12

place or in the neighborhood. Ellerin always kept her doors locked. There were bars
on both the balcony and deck as well as the windows.

13

14

The police concede that they could find no point of entry for a burglar.

1) Time Of Death "Bookmarks"

15

18
19

20

\

Mark Durbin - the man who managed Ellerin's rented

house - left her house either around 7 p.m. as Durbin initially testified, or 8:15 p.m.
which was the statement that he gave to Detective Small nine years earlier. Ellerin
had asked him to come over from his apartment a half-block away to fix a light
fixture. He also had sexual intercourse with Ellerin, and he testified that they had a
previous sexual history short of intercourse. At the time he had sex with Ellerin, he
was in a relationship with another woman, and he was torn between having more

ia

21

8

&

17

On February 21

ls

16

ib

11

and night. He estimated that he saw Gargiulo around five or six times at Ellerin's

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sex with Ellerin and being in his apartment when his girlfriend came home.

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Durbin's girlfriend was never called as a witness (and the defense is not sure

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that she was interviewed) to "alibi" that Durbin was in her apartment for dinner

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around 9 p.m.

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Thus, Durbin is the last person known to have seen Ellerin alive and possibly

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the first to see her dead. There does not appear to be any reason that Durbin has

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been eliminated as a suspect. He is believed to have a history of violence. His

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"Ellerin alive" bookmark is 8:15 assuming arguendo, that he did not kill her. Durbin

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met Gargiulo once when there was a problem with the heating, and he escorted
Gargiulo to look at the furnace. Other than that time, Durbin never encountered
Gargiulo again.

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The other "time-of-death bookmark" comes from the actor, Ashton Kutcher,
who did not testify at the preliminary hearing. Instead, LAPD Detective Chevolek

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testified to Kutcher's hearsay statements pursuant to Proposition 115.

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Kutcher received a phone call from Ellerin at 8:24 p.m. on February 21st. He

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related that he was going to watch the Grammy Awards with a friend named

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"Christy" and that he and Ellerin would get together later. Ellerin offered to come
over to Christy's house, but Kutcher declined. He made two calls to Ellerin later

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each of which went to voice mail. 11 Not having connected with her, Kutcher drove

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over to Ellerin's house. He went to the door, which he determined was locked.
Through the window, he could see a trail of red liquid stain that he assumed to be
wine leading to/from Ellerin's bedroom. (Detective Chevolek apparently did not

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The defense cannot find Mr. Kutcher' s cell phone records for February, 2001 and would
be grateful if the prosecution could furnish a copy, assuming one is in police custody. It seems
somewhat obvious that narrowing "time of death" would be helpful. In addition, it is unclear to
the writer whether Mr. Kutcher left voice mails for Ellerin, and if yes, it would like a copy of the
messages (date/time stamped?) if they are under the People's control.
11

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mqmre of Kutcher regarding his familiarity with Ellerin's house, and more

2

especially, her bedroom.)

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Chevolek did nothing to confirm Kutcher's whereabouts before 10:30 p.m. and

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as of this writing, there is no one to "alibi" Kutcher. The actor, like Duran, has been
eliminated as a suspect. Each however would have had the means and opportunity

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to kill Ellerin based on the time frame.

Conversely, there is nothing to connect Gargiulo with the murder of Ashley

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Ellerin. There is no evidence providing the murder weapon. There are no
fingerprints, no DNA, no blood trail, no booties, no property missing, no footprints,

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house for at least two or three months prior to her murder, that estimate being
based from witnesses on when Gargiulo attended a party Ellerin was throwing; she

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and no witness who can place Michael Gargiulo anywhere near Ashley Ellerin's

threw many parties. Crime scene investigator Robert Raquel recovered a partial
shoeprint from an Adidas brand shoe after the body was discovered. Given an

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Adidas shoe of unknown origin to compare, Raquel found it was not a match. The
police did not find any Adidas shoes in defendant's property.

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simpler terms, a large number of men passed through Ellerin's house for months
after Gargiulo was last seen with her. It can be inferred based on her personal
history, including pole dancing and stripping for money in Las Vegas, that Ellerin

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attended was just before Thanksgiving, which fell on November 23rd in 2000. In

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Justin Peterson testified that the only party that he knew of that Gargiulo

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ruled out "jealousy" as a motive.

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had a very active sex life and numerous sex partners. The police appear to have

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Additionally, the investigating officer, Detective Small had not - as of the

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date of the preliminary hearing almost two years later - uncovered any evidence

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that put Michael Gargiulo in the neighborhood past New Year's Day, 2001. (See

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testimony of Peterson at RT 182.

Michael Gargiulo is the suspect because the prosecution believes that he

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exhibits/exhibited a "homicidal sexual psychopath" pathology that involves stabbing

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his victims to death by inflicting repeated deep fatal knife wounds. The People

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extrapolate backwards from the Murphy attempted murder eight years later which in turn linked Gargiulo to the Paccacio murder in Illinois through an FBI

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other physical evidence linking defendant to the Ellerin murder, except that Ellerin
and Gargiulo were acquainted and he had been a guest at one of her parties months

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CODIS DNA comparison - to the Ellerin murder which has neither the DNA or any

before. Moreover, because the Ellerin murder occurred more than eight years before
his arrest on the Murphy case, it is effectively impossible for Gargiulo to establish

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where he was on an otherwise uneventful evening in February in 2001.

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2) The Magistrate Erred In Relying Upon The Uncharged Paccacio Murder

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that as to Ellerin, evidence derived from the 1993 uncharged Illinois case should not
have been considered by the magistrate, because it lacks sufficient distinctive

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relying on the Paccacio murder to prove up the Ellerin murder, defendant contends,

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On the issue of proving identity under Evidence Code §llOl(b) by heavily

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marks to meet the test set out in People v. Ewoldt, (1994) 7 Cal. 4th 380, 403.

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The defense contends that the Illinois murder is intended to supplement and

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support the weak evidence of the Ellerin case, by using inadmissible character

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evidence under Evidence Code §llOl(a), which prohibits the admission of "evidence

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of a person's character ... to prove his or her conduct on a specified occasion." The

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People intend to use the very belated 2002 DNA identification in Paccacio to hook in

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and provide a foundational pillar for the Ellerin murder, essentially supplying DNA

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that identifies defendant in 1993 to make up for the absence of DNA at the Ellerin

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crime scene in 2001. Put simply, the People's offer of proof is: "If he did it there, he
must be the one who did it here."

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The same argument can be made using the Murphy DNA results, once again
that DNA from another crime scene is intended to identify defendant as Ellerin's

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murderer, and is offered as a second weak pillar to support Gargiulo's culpability.

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Defendant notes his timely objection to the admissibility of the Illinois evidence.

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supporting pillars from Paccacio and Murphy - pillars that should be removed in
evaluating the evidence presented at the preliminary hearing - the Ellerin case

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In weighing the evidence, it is respectfully submitted that without the DNA

lacks sufficient evidence that a reasonable person, knowing what the magistrate

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knew, would entertain a strong suspicion that defendant is guilty of the crime

17

charged.

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For the reasons set forth above, it is respectfully submitted that the Court
should dismiss the Ellerin counts, because once stripped of the above-noted pillars,

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there is insufficient evidence to hold Gargiulo to answer.

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III.

THE EVIDENCE WAS INSUFFICIENT TO HOLD DEFENDANT TO
ANSWER ON THE MARIA BRUNO COUNTS

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In the early mornmg hours of November 29, 2005, Brian Mimura, the

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restaurant manager from "Barcelona" went to Maria's apartment, and the couple

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had sexual intercourse. Maria had introduced Mimura to McCaskey, the neighbor

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who took her out drinking at the Barcelona earlier in the evening. At 2 a.m.,

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Mimura arrived at Bruno's apartment and remained for an unknown period of time

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while he and Maria had sexual intercourse. Maria had laid down a towel before the
couple had sex because she was menstruating and did not want blood or discharge

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to dirty the bed.

The next night, Irving Bruno, Maria's estranged husband, takes her out for

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drinks, also at the Barcelona restaurant. Maria, as she did the previous evening,

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consumed an excessive amount of alcohol, so much that the bartender "cut her off'.

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ib

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Irving. The "menstrual towel" remains on top of the bed where it had been the
previous night for Brian Mimura. According to Detective Lillienfeld's testimony,
Bruno was surprised that the towel was on the bed. It is readily inferable that,
during the course of their marriage and production of four children, that Maria

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security complex because she was afraid of her husband - and she has sex with

likely had a habit of laying out a towel on the bed for sanitary purposes when
required by her menstrual cycle.

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Irving brings Maria to her apartment - an apartment that she rented in a

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witness accounts, had left her husband on November 25t\ leaving him to raise their

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What follows belabors the obvious. Maria, a beautiful woman according to

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Again, according to Detective Lillienfeld, Irving Bruno did not, as of the time of

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four children alone. Bruno had assaulted her in the weeks prior to her moving out.

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Lillienfeld's testimony, know that his wife was having regular sexual encounters

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with the manager of the restaurant they favored. So .... .Irving had been drinking.

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Maria was so drunk that Irving drove her apartment in her car. He sees Maria to

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her apartment, and they have sex. To label Maria's emotional state of mind, did she

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consider the intercourse, "make-up sex", "pity sex", "thank you sex", "goodbye sex"

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or some other variant regarding why recently separated couples end up having sex.

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And what is the first thing Irving sees on Maria's bed .... a towel, which he knows

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from experience is Maria's custom and habit during "that time of month". Making a

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short "pedagogical leap", Bruno figures out that Maria has been cheating on him.

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Suddenly, Detective Lillienfeld and the District Attorney have all the usual

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Bruno has the motive, means and opportunity to revenge himself for her leaving
him and unfaithfulness - as she obviously had another lover - the previous night.

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elements gathered in one location and at one instance in time. Unlike Gargiulo,

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It is respectfully submitted that in the many years the Court, the People and

this writer have seen this scenario, the inference overwhelmingly is that "the
husband did it".

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The murder weapon most likely is the missing large knife from the shrink-fit
package on Maria's kitchen table.

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would bring a knife with him to carry out the gory murder and not impulsively take
a knife fortuitously obtained from decedent's kitchen table. The People posit that
Gargiulo's motive is that he is a "sexually homicidal psychopath" or possessing some

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It is far more likely that if Gargiulo had been Maria Bruno's killer - that he

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mental state that psychologically compels him to murder women -

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supersedes the far more obvious candidate, Irving Bruno.

which

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Viewed in perspective, the Court should sustain the Penal Code § 995 motion

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on the Bruno counts because a reasonably alternative explanation is available that

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covers all the elements, and all the investigative indices (motive, means,

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opportunity) that Irving Bruno killed his '.vife - probably "upon sudden heat", in

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effect presenting the universal criminal law textbook example, a homicide based on

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heat of passion, i.e., not unlike husband coming home and discovering wife in bed
with someone else.

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IV.

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It is respectfully submitted that the Court should dismiss the Bruno counts.

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CONCLUSIONS

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as the pillars holding up the charges in Ellerin (no DNA or physical evidence; no
witnesses) and Bruno (Defendant's DNA of edge of blue bootie; Bruno and unknown

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The People's case relies on the DNA results from Murphy and Paccacio to act

male contributor on the blood stain of same).

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and Bruno counts, and their attendant special circumstances, should be dismissed.

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It is respectfully submitted for the reasons set forth above that the Ellerin

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Dated: May 2, 2015

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CHARLES L. LINDNER
Attorney for Defendant MICHAEL GARGIULO

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Respectfully submitted,

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