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1 J. Michael Flanagan, Esq. (State Bar No. 45151) 2 FLANAGAN, UNGER & GROVER 1156 North Brand Boulevard 3 Glendale, California 91202 Telephone: 818/244-8694

LOS ANGELES SUPEHIOR COURT

FILED
FEB 222012

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JOHN~EXECUTl'iE.QEEICERICLERK BY ~ ~I.l..eputy

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SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES

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THE PEOPLE OF THE STATE CALIFORNIA,

CASE NO. SA073164 COURT OF APPEAL CASE NO. B237677 DEFENDANT'S REPLY TO PEOPLE'S OPPOSITION TO DEFENSE REQUEST FOR RELEASE PENDING APPEAL

plaintiffs,
vs.

(penal Code Section 1272 1291) February 24, 2012 8:30 a.m.
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CONRAD ROBERT MURRAY,

Defendant.

Date: Time: Dept:

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TO THE PEOPLE OF THE STATE OF CALIFORNIA THROUGH ITS

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KAMALA D. HARRIS, ATTORNEY GENERAL OF

CALIFORNIA, AND DAVID WALGREN, DEPUTY DISTRICT ATTORNEY FOR THE
COUNTY OF LOS ANGELES:

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The following Memorandum of Points and Authorities

is filed

23 on behalf of the defendant, Dr. Conrad Murray, in response to the 24 prosecution opposition to defendant's bail motion. Defendant

25 also incorporates by reference as Exhibit "A," the declaration of 26 Valerie G. Wass, defendant's appellate counsel.
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III

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THE DEFENDANT The prosecution demonstrate defendant

IS NOT A FLIGHT RISK

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contends that the defendant has failed to It points out that

that he is not likely to flee.

is in a different position than he was during the trial that the defendant has lost his medical

court proceedings,

licenses, and that he "has significant ties outside the state of California, as well as ties outside of the United States." fails to recognize that Conrad Murray is a American citizen, and that he has minor children and The

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naturalized

other family members living in the United States, including his youngest child who resides in Santa Monica, California. as a result of the highly publicized Further,

and televised trial in this

case, the defendant has become an easily recognized public figure, and it would be virtually leave the United States. successful impossible for him to secretly

Not only would there be no chance of a

flight, but by attempting to flee, Dr. Murray would be

forfeiting any hope of a return to normalcy in his personal, family, and professional life. The defendant has indicated that

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if released pending appeal, he will reside with his girlfriend and their young son (DOB 3/2/09) in Santa Monica. has demonstrated that he is not a flight risk. The defendant

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II. THE DEFENDANT DOES NOT POSE A DANGER TO THE COMMUNITY The prosecution demonstrate community. argues that the defendant has failed to

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that he does not pose a danger to the safety of the It states, "Michael Jackson died because of a ~2-

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totality of circumstances Due to the unconscionable

directly attributable

to the defendant.

actions of repeatedly practicing coupled with a failure to

dangerous and experimental medicine,

perform his legal duties, Michael Jackson died at the hands of his doctor, defendant Conrad Murray." prosecution absolutely (Opp. pp. 4-5) The

further asserts that the defendant has "exhibited no sense of remorse or personal responsibility" (Opp.p.5.) Any perceived dangerousness for

his actions. defendant

of the Dr.

is clearly related to his practicing medicine.

10 Murray has stipulated to the suspension of his medical license. 11 Since he is no longer licensed to practice medicine in any state

12 of the United States, he poses no danger to the community in this 13 14 15 16 17 regard. The defense disagrees with the prosecution's regarding the defendant's lack of remorse assessment

(see defendant's

statement to the police}, but regardless, remorse has no bearing in this particular instance on whether Conrad Murray poses a He has no prior criminal

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record, he was not armed with a weapon during the commission of any offense, and this is not the type of case that presents a situation where the defendant would commit a dangerous act, or
any type of act, out of revenge.

There is absolutely nothing in

the record before the court indicating that if the defendant is not practicing medicine, that he would pose any type of danger to

the safety of the community.

III
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III. THE APPEAL WILL RAISE A SUBSTANTIAL LEGAL QUESTION,

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WHICH IF DECIDED IN DEFENDANT'S FAVOR, WILL LIKELY
RESULT IN REVERSAL OF HIS CONVICTION In addition to the facts set forth in defendant/s Motion for Release Pending Appeal, for the reasons set forth in the

7 declaration of defendant/s counsel on appeal, Valerie G. Wass, 8 9
10 11 12 13 filed concurrently substantial herewith, the pending appeal will raise a

legal question which, if decided in defendant's

favor, would likely result in reversal of his conviction. Penal Code section 1272.1, subdivision pertinent part,
(c), states in

"in assessing whether a substantial

legal

question has been raised on appeal by the defendant, to determine

the court

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whether it committed error./I

[Emphasis added.] Nevertheless,

to support its conclusion that

the record fails to establish the existence of a substantial legal question prosecution likely to result in reversal on appeal, the

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attempts to argue the merits of the various issues motion. (Opp. pp.5-9) The defendant by clear and convincing legal question

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listed in defendant's

submits that it has established,

evidence, that there is at least one substantial

which, if decided in favor of the defendant on appeal, would likely result in reversal of his conviction. decline to consider the prosecution's merits of the potential relevant consideration SUbdivision / I/
-4(c).

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This court should

argument regarding the

issues on appeal, because it is not a under Penal Code section 1772.1,

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However, potential a)

if the court is inclined to consider the merits of

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issues on appeal, the defense answers as follows: Exclusion of evidence; (1) Financial Condition of Michael Jackson. Mr.

Jackson was in debt approximately and desperately

$440 million dollars

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needed to fulfill a contractual

commitment at the 02 arena in London. He was on the verge of losing his entire estate to foreclosure. pressure The

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to fight through his insomnia, to rehearse and

be the entertainer he was in his earlier years was overwhelming. His motivation and resulting desperation

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were relevant to show a likelihood or reason to act in a manner inconsistent with good judgment.

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(2)

Dr. Arnold Klein, Ellen Braun and Jason Phifferj in its ruling by allowing the

The court acknowledged

records of Dr. Klein, that the treatment Mr. Jackson received from Dr. Klein was relevant. The exclusion of

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Dr. Klein and his staff forced the defense to accept as true the content of said records if it was to put on any evidence of Mr. Jackson's addiction to Demerol. The defense was denied the ability to confront and cross-examine witnesses regarding the accuracy of said

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records including the reason(s) for treatment, the frequency of treatment, and the particular needs of Mr. Jackson that necessitated the large doses of Demerol. (an opiate) and

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Demerol is a highly addictive drug

that causes sleep problems with metabolism -5~

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.subsequent withdrawal

complications.

As indicated by

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Mr. Jackson's security personnel,

treatment may have

been on a daily basis and without the knowledge of Dr. Murray. This would explain the difficult situation Dr.

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Murray faced in dealing with Mr. Jackson's need to sleep, attend rehearsal, and to be able to appear in London in July of

ioo9.

The inability to call and of

examine the personnel involved in the preparation

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the Dr. Klein's medical records denied the defense the ability to present important evidence.

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b.)

Sequestration frivolous.

of the jury.

This issue is certainly not the world

The case was televised allover

and minds were made up in the media with the barrage of extremely adverse evidence in the early days of the trial. A gag order was imposed which prevented the

defense from answering media inquiries or even allowing persons affiliated with the defense to respond publicly to negative allegations discussions. admonition in biased talk show

Although the court felt that its

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to the jury would prevent the jury from

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watching or listening to coverage of the trial, one has to wonder why it would then be necessary to impose a gag order. Amendment Dr. Murray should not lose his First rights as it related to his public Even worse, he should not lose his right if a juror

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perception.

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to respond to negative media perception

chooses not to follow the court's direction while in

the privacy of their home or car. ~6-

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Dr. Murray was put in the worst possible position when the jury was not sequestered, cameras were allowed

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in the courtroom, and negative media impressions could not be answered. Also of importance with the cameras in the courtroom was the loss of ability to examine witnesses outside the presence of each other as provided for by Evidence Code Section 777. c.) Post trial testing. The prosecution's main witness,

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Dr. Steven Shafer, wrote a report analyzing the evidence in this case. He theorized that the 100 ml of

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Propofol could have been given by IV infusion over a period of two hours preceded by 5 ml of Lidocaine to desensitize the vein. The 5 ml of Lidocaine between 10

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and 12 would account for the .84 ug/ml level of Lidocaine found at autopsy. The Propafol level during

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this infusion would be 5.2 ug/ml and not the 2.6 at autopsy. In order to reconcile the 100 ml infusion with the 2.6 ug/ml found at autopsy, it was necessary to slow down the IV infusion and do it over three hours. When the time became three hours, it became necessary to increase the Lidocaine dose to 10 mI. No doctor is

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going to use a full 10 cc syringe to desensitize a vein when it can be accomplished by less than half that amount. Dr. Shafer then rendered the opinion that the

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10 ml of Lidocaine could be combined with the 100 ml of Propofol and infused over three hours which would yield -7~

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the results for propofol and Lidocaine obtained at autopsy. This scenario involved taking 10 ml of

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Propofol out of the 100 ml bottle and replacing it with 10 ml of Lidocaine. Doing so would make the contents

of the bottle 90 percent Propofol and 10 percent Lidocaine. This is the final scenario offered by Dr. toxicology

Shafer, and it would yield the approximate levels found at autopsy.

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The scenario set forth by defense expert Dr. White of a mixture of 5 ml of Propofol and 5 ml of Lidocaine given one half at 10:40 over three minutes and a bolus push of the other half at 11:50 also gives rise to the same toxicology levels at time of autopsy. The testing

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of the residue of exhibit #30 (100 ml Propofol bottle) would absolutely prosecution said exhibit correct. confirm or negate the theory which the
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now refers to as only a possibility.
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90 percent Propofol, Dr. Shafer is

If said exhibit is 100 percent Propafal, Dr. thereby leaving Dr.

Shafer's theory is not possible,

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White's opinion the more likely scenario. The prosecution's contention that it is "equally

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possible that the Lidocaine levels were caused by multiple injections via syringe
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is absolutely contrary

to all of their efforts to prove cause of death at trial. The only theory attempted to be proven was that

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Dr. Murray set up an IV and then walked away only to return sometime later to find Mr. Jackson no longer breathing and not resuscitable.
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This scenario required

Dr. Murray to be gone for a period of time because if 2 3 4 5 6 7 8
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he saw Mr. Jackson cease breathing

it would have been

easy to correct the situation by ceasing the infusion and providing an air way. The propofol would go below

the 1 ug/ml level within a minute or two and the apneic event would be over. Dr. Shafer said this is common.

The problem arises if Dr. Murray is not present when Mr. Jackson stopped breathing which could only happen if there was an IV providing the Propofol If

infusion to maintain the blood level at 2.6 ug/ml.

there was a quick bolus injection of 2.5 ml of Propofol with 2.5 ml of Lidocaine, this could shoot the Propofol

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level very high and, when mixed with the high level of Lorazepam, stop Mr. Jackson'S heart on the way up or on

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the way down at 2.6. If the cause of the heart stopping was Mr. Jackson not breathing for eight minutest it is hard to imagine

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how Dr. Murray could be present and continually inject Propofol via syringe. This scenario is not only not knows that it

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"equally possible," but the prosecution is absolutely not possible. sincerity. When the prosecution

Said argument lacks

states that whether or not

there is Lidocaine in exhibit 30 "has absolutely no bearing on anything," why is it that they so vehemently object to the testing?

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Lastly, the prosecution had an opportunity

argues that the defense observe and inspect Although the

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to personally

exhibit no. 30 prior to and during trial.

defense was aware that said bottle contained liquid, and never sought to test it, the prosecution also never attempted to test the liquid. fact that if the prosecution's This is true despite the theory was correctr the

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testing could prove its validity. The defense did not earlier seek to test said liquid because there was no reason to believe that Dr. Shafer would come up with such a theory on the last day of trial. Said bottle was inspected by the defense when it was learned that the prosecution might contend that

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it was hung for purpose of using it for an IV drip. The inspection revealed that the plastic handle attached to the bottle had never been deployed and therefore the bottle could not have been hung. Everyone on the defense team including Dr. Murray and Dr. White was aware that the handle had not been deployed, and was wondering how the prosecution would get around this hurdle. One can imagine the shock to

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the defense when Deputy D.A. Walgren picked up evidence item 30, turned his back to the jury, and deployed the previously unused handle for purposes of demonstrating The

how said bottle was hung for use in an IV drip. snap sound made by the deployment back of the courtroom.
In

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could be heard in the

reference to the actions of
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Mr. Walgren, Dr. White used the term "scumbag -10-

for

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which he was cited for contempt. d. Imposition of high term. As stated in the declaration of Valerie Wassr if

the high term is not found to be the appropriate sentence, and Dr. Murray is not released pending his appeal, he may lose the benefit of a successful appeal on this issue. Appealing the selection of terms by the as frivolous. The

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court cannot be characterized probation department

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recommended

the mid term despite

the fact that unbeknownst

to the defense, they were of

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ordered not to interview Dr. Murray for preparation their report. It is entirely possible that if they

knew more about Dr. Murray's character and background as contained in the defendant's sentencing memorandum, less than

the probation officer may have recommended mid term. It is difficult to understand

how a 58 year old

man with no prior record, who was convicted of one count of a crime that does not involve intended consequences sentence. or malice, could be given an upper term

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22 23 24 IV The defense has met the requirements respectfully of 1272.1 and

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requests that the court grant the defendant's motion or bail pending the

to be released on his own recognizance

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III
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decision of the Court of Appeal.
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Dated: February 22, 2012

Respectfully

submitted,

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EXHIBIT "A"

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DECLARATION OF VALERIE G. WASS IN SUPPORT OF DEFENDANT'S MOTION FOR RELEASE PENDING APPEAL
I, VALERIE O. WASS. declare as follows:

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1. I am an attorney at law, duly licensed to practice before all of the of the State of California, and

I am counsel

of record

for

defendant/appellant

Conrad Robert Murray in his appeal from his conviction This declaration is submitted in

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for one count of involuntary manslaughter. support of defendant's

Motion for Release Pending Appeal.

2. The subject appeal is now pending in the Second Appellate District Court of Appeal, Division 7, case number B237677. The record in the appeal

was filed on January 3 I , 2012. On February 10, 2012, I notified the court that certain parts of the normal record on appeal had been omitted, February 14,2012, pending completion and on

the Court of Appeal ordered briefing in the case stayed of the record.

3. Based upon my work in the appeal at this juncture, I have concluded that the appeal was not filed for the purpose of any delay. Although I am still in the process of reviewing the transcripts, 1 can definitively state that the

appeal will present at least one argument raising a substantial legal question, and if the Court of Appeal agrees with the defense position, it would likely result in a reversal of appellant's conviction. I have already determined that

I will be raising one or more issues regarding this court's in limine rulings which prohibited the defense from calling certain witnesses and/or presenting certain evidence. denying defendant It is the defense contention that such rulings resulted in rights to due process

his state and federal constitutional

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and to present a defense, If the Court of Appeal agrees, and finds that

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defendant was prejudiced thereby, it would result in a reversal of defendant's conviction. 4. During my work on the case, I have determined that a potentia! federal and state from the In its its

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issue in the subj ect appeal involves the denial of appellant's
constitutional presence opposition, discretion

rights to due process and a fair trial that resulted cameras in the courtroom

of television

during the trial,

the prosecution

argued that this court "properly

exercised

to permit cameras in the courtroom,"

and it points out that on

February 7, 2011, defendant's

trial counsel, "Mr. Flanagan, indicated on the

record that there was no objection to television coverage of the proceedings from the defense." The prosecution concludes that there was nothing to "affected the

suggest that the presence

of the cameras in the courtroom

outcome of the proceedings."

(Opp. p. 7.) However, on August 25,2011,

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after this court denied the defense motion to sequester the jury, defense
counsel Mr. Chernoff stated that in light of this court's denial of the motion to sequester, this court should consider amending its prior ruling that allowed cameras in the courtroom. He argued that cameras should not be allowed in

the courtroom when the witnesses testified, but this court declined to change its prior ruling. If the issue regarding the presence of the cameras in the

courtroom during trial is raised in the appeal, and the Court of Appeal agrees with the defense position that it resulted in violating defendant's right to a fair

trial; and he was prejudiced thereby, it would result in a reversal ofappelJant's conviction. 5, challenging I have also determined this court's imposition that in the subject appeal I will be Should the

of an upper term sentence.

Court of Appeal agree with the defense position, and defendant has not been

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released pending his appeal, he would likely not receive any benefit from such a ruling. I declare under penalty of perjury of the laws of the State of Cal forni a that the foregoing is true and correct. Executed this

2Jf>f

day of February,

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2012;at

n.:5litVntc

,California.

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Z::;:~J?/ ~
Valerie G. Attorney at Law State Bar No. 100445 556 S. Fair Oaks Ave., Suite 9 Pasadena, CA 91105 (626) 797-1099

Wass

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PROOF OF SERVI CE

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STATE OF CALIFORNIA COUNTY OF LOS ANGELES

88.

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I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 1156 North Brand Boulevard, Glendale, California 91202.
On February 22, 2012, I served the following as: DEFENDANT'S REPLY TO PEOPLE'S OPPOSITION FOR RELEASE PENDING APPEAL to the interested action by mailing a true and correct copy as
Valerie G. Wass, Esq. Attorney at Law 566 S. Fair Oaks Avenue, Suite Pasadena, California 91105

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documents described TO DEFENSE REQUEST parties in this follows:

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Nareg Gourjian, Esq. 101 N. Brand Boulevard, Suite 1220 Glendale, California 91203 David Walgren, D.D.A. (FAX 213-974-1484) District Attorney'S Office 210 W. Temple Street, #18000 Los Angeles, California 90012 Kamala D. Harris, Attorney General California Dept. Of Justice 455 Golden Gate Avenue San Francisco, California 94102 Superior Court Dept. 107 210 W. Temple Street Los Angeles, California (FAX 916-323-5341)

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90012

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[X] (BY FAX.) I faxed said documents to the above fax number this date. [x) (BY MAIL) As follows: I am Hreadily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Glendale, California in the ordinary course of business. I am aware that on motion of the party served service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.
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Executed on February 22, 2012, at Glendale, California. I deClartl. e.rpenalty of perjury under the laws of the State of Calif~r i that ta above is true and correct.
I.

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