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JEFFREY ROSEN

2 District Attorney, #163589


ALISON FILO
3 Deputy District Attorney, #183894
70 W. Hedding Street, 6th Floor

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4 San Jose, California 95110

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Telephone: (408) 792-2891

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6 Attorneys for the People

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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SANTA CLARA COUNTY
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11 THE PEOPLE OF THE STATE OF ) Case No.: Cl 777801

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CALIFORNIA, )
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12 OPPOSITION TO MOTION TO COMPEL
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Plaintiff, ) DISCOVERY IN SUPPORT OF MURGIA
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) MOTION
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) Date: August 17, 2018


15 SUSAN HAZLETI BASSI, ) Dept.: 48
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) Time: 1 :30 p.m.


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20 STATEMENT OF FACTS

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On August 31, 2017, Santa Clara County Sheriffs Deputy Sgt. Jacobs observed the
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defendant taking photographs inside the courthouse at the Family Justice Center. Another Santa
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Clara County Sheriffs Deputy had personally admonished the defendant on December 8, 2016, and
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January 20, 2017, that taking photographs inside the courthouse was a violation of a Santa Clara
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26 County Superior Court order. There is also a large sign posted at the front entry of the courthouse
OPPOS!TIONTOMUROIA MOTION
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announcing the Court order. The initial complaint for violating a court order (Penal Code s ection

2 166) was filed on or about November 15, 2017.

3 Apparently, as the initial charges were being considered, the dl:lfendant was back at the

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Family Justice Courthouse. On November 14, 2017, S an ta Clara County Sheriff deputies were

contacting an unrelated third party who was violating the court order prohibiting photographs and

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asked him to delete the photographs he had taken. As he was complying with their request, the
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defendant confronted the officers and took out her cell phone with the lens facing the officer. When
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the defendant refused to stop recording the offi cers (in violation of Court order and in vi olatio n of

10 Penal Code section 632), the officer told her that he would confiscate h er phone. When she
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11 continued to record, the officer physi cal ly took the phone from the defendant. A struggle ensued,
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and the de fendant was 1.1ltimately charged with violating Penal Code section 148(a)(l),
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On March 19, 2018, while criminal charges were pending for a violation of Penal Code
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section 166(a)(4), defendant was observed on court surveillance at the Family Justice Center taking
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a picture and recording with an iPad on the eighth floor of the courthouse. The defendant recorded
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an interaction with an Administrative Receptionist and the Public Information Officer for the court.
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18 That incid ent led to additional charges being filed.


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19 The defendant files the instant motion alleging that she is being selectively prosecuted
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because of her "coverage oflocal news as a journalist and her participation in local county politics."
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In fact the defendant is being prose cuted because .she continues to violate a valid Cowt order even
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after being admonished not to do so.
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OPPOSITION TO MURGIA MOTION
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II.
LAW & ARGUMENT
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The defendant's motion hails from the United States Supreme C ourt ' s decision in Murgia v.
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Municipal Court (1975) 15 CaL3d 286. In the Murgia case, the defendants alleged that they were

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being selectively p ros ecuted because of their parti cipation in the union gt'Oltp, United Farm Workers
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(UFW.) The defendants sought discovery to establish that defense and supported the motion by

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7 filing d eclarations with affidavits which demonstrated, "among other things, that individuals who

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8 had violently assaulted UFW memhers in the presence of law enforcement offi c ers had no t been

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arrested o r prosecuted, but the victim s of those assaults had been arrested and abused by Jaw
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enforcement officers." (ld. at 291-292.) The trial court found that the defendants had established a

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prima facte claim of di scrimina tory prosecution but refused to order discovery because it
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erron eousl y concluded that even if such a claim was true, it did not amount to an a ffirmat ive
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defense.
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15 The Supreme Court reversed and found that dismissal is appropriate when it is established
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that the governm en t has levied charge s in an arbitrary or discriminatory manner. In other words, it
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constitutes a violation of Equal Protection when the government intentio nally singles out
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individuals for di sparate treatment be cause of i nvi dio us discrimination.


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Neither the federal nor S tate Constitution countenances the singlin g out of
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an invidiously selected class for special prosecutor ial treatment, whether

that class consists of black or white, Jew or Catholic, Irishman or Japanese,


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United Farm Worker or Teamster. If an individual can s how that he would
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22 not have been prosecuted exc ept for such invidious discrimination against
him, a basic constitutional principle has been violated, and such a
23 prosecution must collap se upon the sands of prejudi ce .
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Here, the defendant alleges that she has been selected for discri minato ry prosecution
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because of her "coverage oflocal news as a journalist, and her participation in local county
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OPPOSITION TO MURGIA MOTION
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politics." 1 In support ofher argi.unent, she has attached the declaration of attorney Daniel Mayfield

2 in support of her motion.2 That declaration however, does not satisfy the requirements necessary to

3 justify the discovery sought.

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4 The case best describing the showing required to compel J.</urgia discovery is US. v.

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Armstrong (1996) 517 U.S. 456. In the Armstrong case, two defendants filed a motion seeking

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discovery to support of their claim that they had been "selected for federal prosecution because they
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are black." (Id. at 459.) Initially, the defendants submitted a single affidavit from a paralegal
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employed by the Federal Public Defender's Office declaring that since 1991, every single one of the
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10 24 crack cocaine distribution cases the office had handled involved a black defendant. When the
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11 trial court found that lacking, the defendants filed three additional documents: (1) a declaration
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fro m a defense attorney who had been told by a. drug treatment center employee that there were
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equal numbers of White and non-White 'users and dealers'; (2) a declaration from another defense
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attorney who claimed "without elaboration" that "in his experience many non·blacks are prosecuted
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in state court for crack offenses"; and, (3) a newspaper article which reported that federal crack
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offenses were punished more severely than powder cocaine offenses and 'almost every single one
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18 of them is black.'" (Id_ at 460-461.)


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19 "The justifications for a rigorous standard for the elements of a selective-prosecution claim
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thus require a correspondingly rigorous standard for discovery in aid of such a claim." (Armstrong
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at p. 468, 116 S.Ct. 1480.) The Supreme Court noted that there should be a "background
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1 Ms. Bossi claims tl1at she is being discriminated against bocau.•e •he covers "local news as a journalist" and is active ·

24 "local county politics." Although neither of those classifications are protect�d classes recognized by the State or
Federal Constitutions, to tho extent they constitute 11n identifiable group, her inclusion in oithor of them would be
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26 2 The declaration itself is hearsay and inadmissible.


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presumption" that the "showing necessary to obtain discovery should itself be a significant barrier

2 to the litigation of insubstantial claims." (Armstrong at 465.) In rejecting the "evidence" provided,

3 our High Court noted that the affidavits submitted by the defense attorneys "merely recounted

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4 hearsay and reported personal conclusions based on anecdotal evidence" and that the "study" did

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not show that any non-blacks could have been prosecuted for the crimes with which defendants

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were c harged (Armstrong at 470.) In sum, the defendant must make a credible threshold showing
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that the gov ernment has treated

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similarly situated persons differently.
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Here, there has been no such showing. TI1e declaration supplied by attorney Dan Mayfield

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10 suffers from the exact same deficits as were present in Armstrong. He notes that he has "personally
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11 witnessed people taking photographs or video inside Courtrooms and Courthouses in this County."

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He simply says that it is "hard to say" how many times he has seen this within his 36 year career.
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Significantly, Mr. Mayfield never declares that he has reported these violations to anyone or that
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they were observed by a court staff member or (more importantly) a member oflaw enforcement.
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Mr. Mayfield goes on to state that to the best of his knowledge, none of the people he has observed
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have been subject to prosecution. There is no discussion at all as to whether he has ever seen these
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IS people again or had any discussions with them as to whether they were admonished to stop their
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19 behavior or actually prosecuted. Presumably, he also has no knowledge of whether the people he's
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observed are also members of the "press" or are involved in local politics. Regardless, the
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declaration is precisely the type of "hearsay and reported personal conclusions based on anecdotal
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evidence" that the Supreme Court rejected in Armstrong.


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III.
CONCLUSION
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The defendant was given multiple warnings to stop violating the standing order of the Santa
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Clara County Superior Court. The defense has utterly failed to identify a single other person who
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has been warned several times to discontinue their behavior and was charged criminally after
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repeatedly ignoring the warnings of law enforcement. In support of that proposition, the People

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7 would refer both the Court and the defendant to the facts surrounding the November 14, 2017,

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incident , .. another person was warned to stop photographing material in the Courthouse, He was

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attempting to delete those pictures from his phone when the defendant interjected herself into the
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situation and again began videotaping within the Courthouse. The photographer who heeded the

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warning was not charged. The photographer who ignored those warnings and proceeded to
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videotape the officers who had told her to stop her behavior was prosecuted.
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The charges currently facing the defendant are not the result of invidious discrimination.
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IS Instead, they are the result of a defiant litigant who refuses to acknowledge the authority of this
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Court to issue standing orders and oflaw enforcement to implement them. The motion must be
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denied.
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Dated: August 8, 2018 Respectfully submitted,
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21 JEFFREY ROSEN
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DISTRICT ATTORNEY

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23 By:
ALr§ONFILO
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Deputy District Attomey
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OPPOSITION TO MURGIA MOTION
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