1 DMITRY STADLIN

Attorney at Law, SBN 302361

INDORSiD~

FJUL~5 D
2 93 Devine Street
San Jose, CA 95110
3 Tel: (408) 645-7801
Fax: (408) 645-7802 2018
4 [email protected] Clerk of the Court
Superior Court of CA County of Santa Clara
5 Attorney for Defendant

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BY DEPUTY
SUSAN BASSI

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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA

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8 IN AND FOR THE COUNTY OF SANTA CLARA

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PEOPLE OF THE STATE OF ; Case No.: Cl 777801
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10 CALIFORNIA,

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i NOTICE OF HEARING ON MOTION
11 ; TO COMPEL DISCOVERY AND
Plaintiff, : MOTION TO COMPEL DISCOVERY
12 Ju ch : PURSUANT TO MURGIA v.
i MUNICIPAL COURT

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13 vs.
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- \'""'"--
: Date: _ i.._-_,_\t_,______, ~_ _
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SUSAN HAZLETT BASSI,

15 i Dept: -----'4 -+-j-""---
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16 Defendant.
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18 TO THE CLERK OF THE ABOVE-ENTITLED COURT, AND TO THE DISTRICT

ATTORNEY FOR SANTA CLARA COUNTY:
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NOTICE IS HEREBY GIVEN that on the date and time specified above, or as
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soon thereafter a s the matter may be heard, in the above named department of the
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above entitled court, the defendant, by and through counsel, will move this Court to
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order the prosecution to provide the defense with discovery, as required under Murgia v.
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Municipal Court (1975) 15 Cal. 3d 286.

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This motion will be based on the grounds set forth in the attached memorandum
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of points and authorities, the papers and records on file with the court - including the
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complaint, and any further evidence or argument which will be presented at the hearing
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on this matter.
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NOTICE OF HEARING ON MOTION TO COMPEL DISCOVERY (MURGIA) 1

 1 Dated : July 5, 2018.
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3 Respectfully Submitted,

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6 DMITRY STADLIN
7 Attorney for Defendant

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NOTICE OF HEARING ON MOTION TO COMPEL DISCOVERY (MURGIA) 2

 1 MEMORANDUM OF POINTS AND AUTHORITIES
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INTRODUCTION
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4 Susan Bassi is a journalist and has lived in California for many years. She has no
5 criminal history. The defense asserts that this prosecution is being pursued for selective

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6 and discriminatory reasons, while other similarly situated persons are not being
7 prosecuted. The defense asserts that the only reason for this selective and discriminatory

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8 prosecution is Ms. Bassi's coverage of local news as a journalist, and her participation in
9 local county politics.

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STATEMENT OF THE CASE
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12 Susan Bassi is charged in docket Cl 777801 with:
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13 Count 1: A misdemeanor violation of California Penal Code§ 166(a)(4)-willful
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14 violation of a court order- disobeying the terms of a Santa Clara County Local Court
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15 Rule prohibiting the use of recording devices in a courthouse, on August 31, 2017.
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16 Count 2: A misdemeanor violation of California Penal Code § 166(a)(4) - willful

17 violation of a court order - disobeying the terms of a Santa Clara County Local Court
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18 Rule prohibiting the use of recording devices in a courthouse, on November 14, 2017.
19 Count 3: A misdemeanor violation of California Penal Code § 148(a)(l) - resisting,
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20 delaying or obstructing an officer, on November 14, 2017.

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21 Count 4: A misdemeanor violation of California Penal Code§ 166(a)(4) -willful

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22 violation of a court order - disobeying the terms of a Santa Clara County Local Court
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23 Rule prohibiting the use of recording devices in a courthouse, on March 19, 2018.
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24 Three separate motions to compel discovery have been brought and litigated
25 during the pendency of this case.
26 In January, 2018, defense counsel for Ms. Bassi sent a discovery request to the
27 prosecutor assigned to this case, requesting Murgia discovery. (Attached as Exhibit A)
28 The prosecutor replied that the requested materials fell outside the scope of her

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

COMPEL DISCOVERY PURSUANT TO MURGIA v. MUNICIPAL COURT 3
 1 discovery obligations. The defense is now requesting that the Court order that such
2 discovery be provided.
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DEFENSE REQUESTS
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5 1. Any data kept by law enforcement agencies, including the District

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6 Attorney's Office, regarding the frequency of charging a Pen. Code§

7 166(a)(4) charge for violating a Santa Clara County Local Court Rule, going

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8 back 3 years.

9 2. Any data kept by law enforcement agencies, including the District

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10 Attorney's Office, regarding the frequency of charging a Pen. Code §

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11 166(a)(4) charge for violating a Santa Clara County Local Court Rule, since

12 August 1, 2017.
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13 3. All correspondence, including but not limited to emails, texts or other
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14 communications to/from the Santa Clara County Sheriffs Office and the
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15 Santa Clara County District Attorney's Office, regarding Ms. Susan Bassi,
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16 for the past three years.

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LEGAL ARGUMENT
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19 I. THE DEFENDANT IS ENTITLED TO DISCOVERY NECESSARY TO

SUBSTANTIATE A CLAIM OF SELECTIVE PROSECUTION
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A. Legal Standard
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Yick Wo v. Hopkins makes clear that it is the province of the courts to prohibit the
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unequal administration of law. (Yick Wo v. Hopkins (1886) 118 U.S. 356 at 373-374.) A
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criminal defendant may obtain a dismissal of the criminal charges brought by the
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government on the ground that such prosecution is being conducted in an arbitrary or
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discriminatory manner. (Murgia v. Municipal Court (1975) 15 Cal. 3d 286.) The equal
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protection guarantee simply prohibits prosecuting officials from purposefully and
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

COMPEL DISCOVERY PURSUANT TO MURGIA v. MUNICIPAL COURT 4
 1 intentionally singling out individuals for disparate treatment on an invidiously
2 discriminatory basis. (Id. at 297.)
3 Any criminal defendant in any criminal action may bring a Murgia motion. (Id at
4 303.) The defendant must show that he or she was arbitrarily discriminated against on
5 the basis of an unjustifiable standard. To succeed in a Murgia discovery motion, the

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6 defendant must usually be a member of the group which discrimination is claimed. The
7 information requested in this motion is sought to demonstrate that the government may

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8 be acting in an arbitrary or discriminatory manner in prosecuting Ms. Bassi.
9 A Murgia dismissal usually involves two motions. First, the defense makes a

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10 motion to obtain discovery that would prove the government is acting in a discriminatory

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11 matter. Second, assuming that the discovery establishes that the prosecution is
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discriminatory, the defendant moves to have the charges dismissed.

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13 A criminal defendant making a Murgia discovery motion has the burden of proof.
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14 (Id at 298.) The applicable standard for discovery related to the defense of discriminatory
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15 prosecution is "some evidence tending to show the existence of the essential elements of
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16 the defense, discriminatory effect and discriminatory intent." (People v. Superior Court
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17 (Baez) (2000) 79 Cal.4th 177, 1189.) In other words, a defendant must make a "credible
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18 showing of different treatment of similarly situated persons." (United States v.

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19 Armstrong (1996) 517 U.S. 456, 470.)

20 Murgia motions are based on the United States Constitution and are not subject
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21 to the discovery provisions of the Penal Code. (Murgia v. Municipal Court, supra, 15 Cal.
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22 3d 286, 294.; Pen Code Section 1054(e).) Therefore, the defendant need not have
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23 requested the same documents in a prior informal discovery request pursuant to Penal
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24 Code section 1054.5(b). Although in this case, there was a prior informal discovery
25 request as outlined in Exhibit A to this motion.
26 The information defendant seeks is supported by Bartin v. Superior Court, (1976)
27 64 Cal. App 3d 873, 876, where defendants were provided with discovery of records
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

COMPEL DISCOVERY PURSUANT TO MURGIA v. MUNICIPAL COURT 5
 1 relating to other arrests and prosecution to support his claim that no other persons
2 where prosecuted with this offense with which he was charged.
3 B. The Evidence Supports a Prima Facie Showing of Selective Prosecution.
4 Discriminatory Effect. and Discriminatory Intent.
5 Ms. Bassi was selected for prosecution while other similarly situated persons were

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6 not. The attached declarations of counsel point out that other people who have taken and
7 continue to take photographs, or record video, in the courthouse are not prosecuted. Ms.

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8 Bassi, who was injured during an altercation with Sheriffs Deputies, and who is a
9 journalist and community activist, is being prosecuted. Not only is she being prosecuted,

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10 but the prosecution has added new charges since the beginning of this case. Initially this

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11 case was filed with only Count 1. After Ms. Bassi insisted on a speedy trial, the
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prosecution added two counts. As the case was being litigated, the prosecution added

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13 Count 4. No other people are being charged with violations of Pen. Code§ 166 for
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14 violating a local court rule, or any specific order.

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15 The Courts have recognized that discriminatory enforcement is difficult to prove

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16 since evidence of it "lies buried in the consciences and files of the law enforcement
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17 agencies involved." (People v. Gray (1967) 254 Cal. App. 2d 256, 266.) Here, however, the
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18 instant facts present the court an unusual scenario where the court can and should
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19 reasonably infer unlawful motive based on all the direct and circumstantial evidence
20 cited above. The defendant is now entitled to, and respectfully asks the Court to compel
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21 discovery of the information and items necessary to fully investigate the claim.
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CONCLUSION
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24 The defense has made a prima facie showing that the Santa Clara County District

25 Attorney's Office, or the Sheriffs Office, has singled out Ms. Bassi for selective

26 prosecution by providing "some evidence tending to show the existence of the essential
27 elements of the defense, discriminatory effect and discriminatory intent." For these

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

COMPEL DISCOVERY PURSUANT TO MURGIA v. MUNICIPAL COURT 6
 1 reasons, this Court should compel the People to produce information and items
2 requested pursuant to Murgia.
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4 Dated: July 5, 2018.

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6 Respectfully Submitted,
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DMITRY STADLIN
10 Attorney for Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

COMPEL DISCOVERY PURSUANT TO MURGIA v. MUNICIPAL COURT 7
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EXHIBIT A e
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

COMPEL DISCOVERY PURSUANT TO MURGIA v. MUNICIPAL COURT 8
 Dmitry Stadlin

From: Rich, Daniella <[email protected]>

Sent: Thursday, January 4, 2018 6:34 PM
To: Dmitry Stadlin
Subject: RE: Phan, Janine shared 11 171134163 Bassi Susan Hazlett" with you.

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Mr. Stadlin,

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I apologize for not responding sooner. I was in court this morning and afternoon with calendars. My position is the
same- your request exceeds the scope of my discovery obligations under Penal Code section 1054.

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Thank you,

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Daniella Rich
Deputy District Attorney

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Santa Clara County Office of the District Attorney
70 W. Hedding Street -West Wing
San Jose, CA 95110
Office: (408) 792-2930
Fax: (408) 294-6746
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From: Dmitry Stadlin [mailto:[email protected]]
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Sent: Thursday, January 04, 2018 9:57 AM

To: Rich, Daniella <[email protected]>
Subject: Re: Phan, Janine shared "171134163 Bassi Susan Hazlett" with you.
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Dear Ms. Rich,

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Thank you for your prompt response. Could you please review the attached case (Murgia) regarding my supplemental
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discovery request and let me know if, after reviewing it, you still will not discover the requested information?
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Thank you,
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Dmitry Stadlin
Attorney at Law
93 Devine Street
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San Jose, CA 95110

Tel: (408) 645-7801
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Fax: (408) 645-7802

[email protected]
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Stadlinlaw.com

From: Rich, Daniella <[email protected]>

Sent: Thursday, January 4, 2018 8:31:10 AM
To: Dmitry Stadlin
Subject: RE: Phan, Janine shared 11 171134163 Bassi Susan Hazlett" with you.

Mr. Stadlin,

1
Thank you for your email. I have asked for the photos and Family Justice Center surveillance video to be discovered to
you. Your new discovery request for data on the frequency in which PC 166(a)(4) is charged for violating a court order
exceeds the scope of my discovery obligations under PC 1054.

Thank you,

Daniella Rich
Deputy District Attorney

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Santa Clara County Office of the District Attorney

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70 W. Hedding Street -West Wing
San Jose, CA 95110
Office: (408) 792-2930

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Fax: (408) 294-6746

From: Dmitry Stadlin [mailto:[email protected])

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Sent: Wednesday, January 03, 2018 8:44 PM
To: Rich, Daniella <[email protected]>

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Subject: RE: Phan, Janine shared "171134163 Bassi Susan Hazlett" with you.

Dear Ms. Rich,

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Attached are the motions I filed today in court, for your convenience.
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I am replying to the previous discovery request I had emailed you, so it's easier to keep track of.
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Based on our in-court discussions, I am also requesting the following:

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Any data kept by law enforcement (of course, including the DA's office) regarding frequency in
which Penal Code section 166(a)(4) is charged for violating any Santa Clara County Local Court
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Rule and the demographics of those charged.

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Thank you!
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Dmitry Stadlin
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Attorney at Law
93 Devine Street
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San Jose, CA 9511 O

Tel: (408) 645-7801
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Fax: (408) 645-7802

[email protected]
StadlinLaw.com

From: Dmitry Stadlin

Sent: Tuesday, December 19, 2017 4:13 PM
To: 'Phan, Janine' <[email protected]>

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Cc: Dan iella Rich <[email protected]>
Subject: RE : Phan, Jan ine shared "171134163 Bassi Susan Hazlett" w ith you .

Dear Ms. Phan,

I have CC'd Ms. Daniella Rich, the assigned Deputy Di strict Attorney.

Could you please also discover the fo llowing to m e:

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• Copy of Video Surveillance by Tech Miramontes - Pg. 3 of 7 of Dep. Carrasco's report
• Photographs taken by Dep. Carrasco of sign - Pg. 5 of 7 of his report

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• Copy of CD submitted by Dep. Carrasco into evidence locker, Evidence Item# 1

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• Body Worn Camera Footage from Dep. Carrasco from 09/01 / 17 during his interview of
Fanesa Fimbrez

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• Body Worn Camera Footage from Dept. Swenson during his interactions with James
Stephen and Susan Bassi on 12/09/16

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Th ank you,
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Dmitry Stadlin
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Attorn ey at Law
93 Devin e Street
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Sanjose, CA 95110
Tel: (408) 645-7801
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Fax: (408) 645-7802

ds@stad linlaw.com
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Stadli nlaw.com
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From: Phan, Janine [mailto:[email protected]]

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Sent: Tuesday, December 19, 2017 11:33 AM

To: Dmitry St adlin <ds@stad linlaw.com>
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Subject: Phan, Janine shared " 171134163 Bassi Susan Hazlett" with you.
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Here's the document that Phan, Janine shared with you.

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Thi s link only works for the direct recipients of this message.

171134163 Bassi Susan Hazlett

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 II
Microsoft OneDrive

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Microsoft respects your privacy. To learn more, please read our Privacy Statement.

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Microsoft Corporation, One M icrosoft Way, Redmond, WA 98052

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

COMPEL DISCOVERY PURSUANT TO MURGIA v. MUNICIPAL COURT 9
 1 DECLARATION OF COUNSEL IN SUPPORT OF MOTION
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3 I, DANIEL M. MAYFIELD, declare as follows:
4 1. I am an attorney licensed to practice law in California.
5 2. I have been practicing in Santa Clara County since 1982.

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6 3. My practice is almost exclusively criminal defense.
7 4. I have personally witnessed people taking photographs or video inside Courtrooms

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8 and Courthouses in this county.
9 5. I have seen this happen even after October 10, 2017.

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10 6. It is hard to say how many times I have witnessed this. However, it is common for

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11 people in the clerk's office to photograph files (despite the notice telling them not
12 to) and it is common for lawyers to photograph copies of "snap outs" so that the
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13 client can keep a copy and the lawyer can have an electronic copy.
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14 7. In addition, I believe that the definition of "Courthouse" includes the area outside
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15 the doors of the courthouse and immediately adjacent to the courthouse. In this
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16 area I have seen numerous individuals and news organizations take photographs.
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17 8. To the best of my knowledge, none of those people were prosecuted by the District
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18 Attorney's office for taking photographs in Court.

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20 I declare under penalty of perjury that the foregoing is true and correct to the best of my
21 knowledge.
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22 Executed on July 5, 2018, in San Jose, California.

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24 Dq/\•el /lic 1 h·et~

25 DANIEL M. MAYFIELD

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DECLARATION OF COUNSEL IN SUPPORT OF MOTION 1

 1 DECLARATION OF COUNSEL IN SUPPORT OF MOTION
2 I, Patrick Coughlin, declare as follows:
3 1. I am an attorney licensed to practice law in California.
4 2. I have been practicing in Santa Clara County for 6 years.

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5 3. I have personally witnessed people taking photographs or video inside Courtrooms

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6 and Courthouses in this county.

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7 4. I have seen this happen even after October 10, 2017.

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8 5. Specifically, I have witnessed the following:

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9 a. During a matter set in a felony case management courtroom, my client took
10 photographs on a date her matter was set for entry of plea. The assigned

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11 courtroom Sheriffs deputy asked her to stop. Unfortunately, I had not
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witnessed the initial exchange. My client did not stop. She was

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13 apprehended by several deputies and remanded. While her request to be
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14 released in light of a recent change of plea was denied, the judge made it
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15 clear that she would not be prosecuted for any violation of an order.
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16 6. Based on my personal knowledge, I know that none of those people were

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17 prosecuted by the District Attorney's office for taking photographs or video in

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18 Court.
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20 I declare under penalty of perjury that the foregoing is true and correct.
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21 Executed on July 3, 2018, in San Jose, California.

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ATTORNEY AT LAW
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 1 DECLARATION OF COUNSEL IN SUPPORT OF MOTION
2 I, Dmitry Stadlin, declare as follows:
3 1. I am an attorney licensed to practice law in California.
4 2. I am the attorney for the defendant, Susan Bassi, in this case.
5 3. I have been practicing in Santa Clara County for three years.

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6 4. I have personally witnessed people taking photographs or video inside Courtrooms

7 and Courthouses in this county.

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8 a. I have seen people taking photographs in the clerk's office at both the Hall
9 of Justice and the Family Justice Center.

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10 b. I have seen photographs taken at the Family Justice Center during their

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11 adoption day festivities.
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c. I know that Judge Manley routinely takes photographs with people that

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13 graduate from his program, at the Family Justice Center.
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14 5. I have seen this happen even after October 10, 2017.

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15 6. I have seen Court staff take photographs inside Courtrooms-without a court

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16 order allowing them to do so.

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17 7. Based on my personal knowledge, I know that none of those people were

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18 prosecuted by the District Attorney's office for taking photographs or video in

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19 Court.
20 8. I have spoken with numerous other attorneys that practice in Santa Clara
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21 County, and have tried to find another case where a person was being criminally
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22 prosecuted for taking photographs inside a courthouse. I have not found any other
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23 case -previously or currently pending-where that is the case.

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24 9. I have informally asked several prosecutors at the District Attorney's office as to

25 whether they have ever known of a prosecution such as this one. They did not.
26 10.I believe Ms. Bassi is the only person that is being prosecuted for such conduct.
27 11. I am aware that Ms. Bassi is a journalist and that she reports on local events.
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DECLARATION OF COUNSEL IN SUPPORT OF MOTION 1

 1 12. I am aware that Ms. Bassi has made public comments at the Board of Supervisors
2 meetings or hearings, some of which were critical of the District Attorney's Office,
3 and which were attended by a representative of, or by Jeffrey Rosen himself, the
4 elected District Attorney of this County.
5 13. Unlike Gang Experts that the prosecution routinely calls as witnesses in its cases,

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6 I do not claim to be able to definitively determine the intent of any one person.
7 However, I believe that this motion and the declarations attached do show "some

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8 evidence" to suggest that there is a discriminatory intent.

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10 I declare under penalty of perjury that the foregoing is true and correct.

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11 Executed on July 5, 2018, in San Jose, California.
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DMITRY STADLIN
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Attorney for Defendant
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DECLARATION OF COUNSEL IN SUPPORT OF MOTION 2

 PROOF OF SERVICE
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I, the undersigned, declare:

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I am over eighteen years of age and not a party to the above action. My business address

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is 93 Devine Street, San Jose, California 95110.

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On the date below, I personally served copies of the attached by giving a copy to the
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Deputy District Attorney in Department 48.
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14 And by email to:

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DDA Daniela Rich

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16 I declare under penalty of perjury that the foregoing is true and correct.
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17 Executed on July 5, 2018, in San Jose, California.

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DMITRY STADLIN
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

COMPEL DISCOVERY PURSUANT TO MURGIA v. MUNICIPAL COURT 10