won 14 15 16 a7 18 19 20 21 22 23 24 25 26 27 28 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SONOMA HON, JAMIE E. THISTLETHWAITE COURTROOM 2 --000-- THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. SCR-661666 SCR-653238 Plaintiffs, vs. CELESTE MOON, Defendant. REPORTER'S TRANSCRIPT OF PROCEEDINGS 1538.5 MOTION --000-- WEDNESDAY, APRIL 15, 2915 OPY Appearances: FOR THE PEOPLE: Jill Ravitch District Attorney By: SCOTT UEMURA Deputy District Attorney FOR THE DEFENDANT: By: IZAAK SCHWAIGER Attorney at Law Reporter: KAREN M, STEWART, CSR NO. 874410 11 12 13 14 15 16 17 18 19 20 at 22 23 24 25 26 27 28 INDEX _OF EXAMINATION PEOPLE! CHARLES BLOUNT Direct Examination by Mr. Uemura Cross-Examination by Mr. Redirect Examination by DEFENSE. CELESTE MOON Direct Examination by Mr. Cross-Examination by Mr. INDEX _OF PEOPLE! (None marked.) DEFENDANTS: A- DvD A -1 - Transcript of DVD Schwaiger Mr. Uemura Uemura EXHIBITS Schwaiger PAGE 15 22 23 29 Iden. Evd. 24 38 24 3810 11 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 26 27 28 WEDNESDAY, APRIL 15, 2015 PROCEEDINGS --000- THE COUR Okay. I am calling the cases of Celeste Moon. The case in which we're here today for the motion to suppress is case ending 666. We also have a trailing case of 238. So Ms. Moon is present with her attorney, Mr. Schwaiger. MR. UEMURA: Scott Uemura for the People. THE COURT: Say that one more time, the last name. MR. UEMURA: Uemura. THE COURT: Nice to meet you. Are both sides ready to proceed? MR. SCHWAIGER: We are, your Honor, thank you. Good morning. MR. UEMURA: Yes, your Honor. THE COURT: So do we have a stipulation that there was no warrant? MR. UEMURI : So stipulated, your Honor. MR. SCHWAIGER: Yes, your Honor. THE COURT: Okay. MR. UEMURA: ‘Thank you, your Honor, the People would call Charles Blount. Mi “st Witoe one 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHARLES BLOUNT, Called as a witness herein, who having been first duly sworn, was examined and interrogated as is hereinafter set forth: THE CLERK: And if could you please state your name, spelling it for the record. THE WITNESS: Charles Blount, B-1-o-u-n-t. THE CLERK: Thank you. DIRECT EXAMINATION BY MR. UEMURA Q. Sir, I understand that you came off a couple consecutive nights of graveyard shift, so if you need me to speak slower or rephrase any questions, please just let me know. Okay? A. Yes, sir. a. What do you do? A. I'm a Deputy Sheriff with Sonoma County. Q. And how long have you been a Deputy Sheriff? AL 15 years. Q. Prior to becoming a Deputy Sheriff, did you go to a training academy or facility? A Well, just prior I was a Santa Rosa police officer for two years, and prior to that I was in the academy. Q. Okay. So before becoming a Santa Rosa police officer, you went to the academy? A. Yes.so 2 aw © 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. And at the academy did you receive training with respect to the California Vehicle Code? A Yes, sir. Q. And turning your attention to January 23rd, 2015, at approximately 4:45 a.m. in the morning, were you on duty on that date and approximate time? A. Yes, but that's a mistake in my report on the time. a Okay. A, It should have been 16:45, not 04:45. THE COURT: So we have an afternoon -- THE WITNES: Yes, it was the afternoon. THE COURT: Perfect. MR. UEMURA: Q. Just to clear it up, on January 23rd, do you recall coming in contact with a Celeste Moon? A Yes, sir. Q. And do you see Celeste Moon in the courtroom today? A. I do. Q. Can you please point to where she's seated and describe something that she is wearing today? A She's seated at the defendant's table there with the black blazer and red shirt. Q. Thank you. THE COURT: The record will reflect the identification of Ms. Moon. MR. UEMURA: Thank you, your Honor.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Now, Deputy Blount, you said that you contacted Ms. Moon at approximately 16:45 on January 23rd, 2015. Correct? A. Yes. Q. And do you remember where you initially saw the defendant? A. Yes, it was in the City of Santa Rosa on the corner of Humboldt Street and College Avenue. Q And that location is in Sonoma County? A Yes, sir. Q. Now, were you -- when you initially saw the defendant, were you in a patrol car or were you on foot? A. I was in a marked patrol car. Q. Okay. And at the time were you wearing a police uniform as you are wearing today? A. Yes, sir. Q. And that your uniform includes badges, patches and possibly a utility belt and a radio? AL Yes. Q. Okay. Now, when you first saw Ms. Moon, you're in a patrol car, where were you in relation to where she was? A. Basically on the same corner. I was southbound on Humboldt Street stopped at the intersection because I had a red light. Q. Okay. THE COURT: That's where you were?Berne aaa 10 4. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE WITNESS: Yes, your Honor. MR. UEMURA: Q And you were stopped at a red light you said? A. Yes. MR. SCHWAIGER: Can I interrupt and ask for a point of clarification? I really thought that Humboldt was east and west -- no, that is -- Humboldt is north and south, College is east and west. Thank you. I apologize for the interruption. MR. UEMURA: Q. Now, you said the defendant was on the corner of Humboldt and College. Correct? A. Yes, sir. a. And at some point did you proceed through the intersection after you stopped at the red light? A I was stopped at the red light, and then my light turned green and I started to proceed through the intersection and I was turning right or westbound on College. Q. Now, when you turned right onto College Avenue, did something happen? A Yes. Q. What happened? A The defendant Ms. Moon stepped off of the -- off the sidewalk and proceeded to go through the crosswalk. a. Okay. And at the time were you able to see whether the pedestrian crosswalk was illuminated for passage for her at that time?ea 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. It was clearly a red hand showing, meaning don't walk. Q Okay. Now, as she was crossing the street and as you were making that turn, at some point did she impede your method of travel in the patrol car? A. Yes. a. Okay. How did that happen? A. Well, she stepped right in front of my car as I was going through the intersection. Q. And how did you respond? A. I had to brake suddenly. Q. Once you applied your brakes, what did you do next? A. She proceeded to walk in front of my car and then I rolled down my window and mentioned to her that she was walking against the red signal and that that was illegal to do. Q. Okay. Now, you're saying that's illegal to do. Are you familiar with a California Vehicle Code section that makes that illegal? A Yes. 2. Which Vehicle Code is that? A I'd have to look in the report to get the exact number. Q. Would it refresh your recollection to review your report as to the specific Vehicle Code section? A. Yes, sir. Q. Can you please look at your report and lookqa. 12 13 14 15 16 17 18 19 20 on 22 23 24 25 26 27 28 up when your memory has been refreshed? A Okay. Q. Has your memory been refreshed as to the Vehicle Code section for walking against a red hand signal? A. Yes, it's -- Q. Go ahead. A. -- 21453(d) of the Vehicle Code. Q. Now, after you told the defendant of that violation, how did she respond? AL Rudely. She yelled an expletive at me. a. I'm sorry, could you -- what did she say? She yelled what? AL An expletive. THE COURT: What did she say? THE WITNESS: Specifically she said, fuck you, and she proceeded across the intersection. MR. UEMURA: Okay. Q. And after that happened, what did you do? AL I was already facing westbound so I proceeded westbound just a little ways until traffic was clear and I made a U-turn. Q. Okay. And what was your point in -- why were you making the U-turn at that point? A. To go back and contact Ms. Moon about her traffic violation. 2. At some point were you able to contact her? A. Yes.won 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. And where was that? A. On Humboldt Street south of College. o. Okay. And how did you contact her? A I pulled my patrol car in front of her and got out. Q. Okay. Once you got out of the patrol car, did you say anything to her? A. I'm sorry? Q. Did you say anything to her once you exited the patrol car? A. I told her to stop. Q. And was she facing you or facing away from you at that point? AL She was looking right at me and she was facing me. Q. How far away from you was she at that point? A. Not very far, maybe 15 yards. THE COURT: Okay. So I have to stop for a second because I'm just confused. I'm very familiar with that intersection living here for almost 40 years. So you are southbound on Humboldt, which is north and south, and you were turning right because you were going to go westbound. So when you saw Ms. Moon, was she walking on College or Humboldt? THE WITNESS: She was standing on the corner, and she proceeded south on Humboldt, which was across College. THE COURT: So she proceeded to walk on 1010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Humboldt proceeding going -- she was she -- corner, THE WITNESS: Across the intersection. THE COURT: So she was walking on College, THE WITNESS: She was walking on -- well, when I first saw her, she was stopped at the and then she walked south across the intersection, which to me means she's southbound on Humboldt crossing College. THE COURT: Got it. So when you contacted her, she was south of Mendocino -- THE WITNES: College. She had already -- THE COURT: South of College. THE WITNESS: She had already cleared the intersection and was continuing southbound on Humboldt. THE COURT: Got it now. MR. UEMURA: Thank you for the clarification. THE COURT: I'm sorry. MR. UEMURA: Q And so at this point you're outside the car, she's in front of you, 15 feet ahead of you, point? A. you told her -- what have you told her at that Well, I told her to stop. How did she respond to you telling her to She immediately turned and started running. When she ran, did you say anything to her? I again yelled at her to stop. 1110 11 12) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. And what did she do in response to you telling her to stop a second time? A. Nothing. She continued to run. a. Okay. How did you respond to her running away from you? A I started jogging behind her. Q. Okay. And when you were jogging behind her, were you eventually able to catch up to her? A Yes. Q. When you did catch up to her, what did you do? AL She had on some sort of a jacket and I just grabbed the back of her jacket. a. Okay. And what was the reason for grabbing the back of her jacket? A. To detain her. Q. And were you successful in detaining her? A. Well, partially. Q. Can you describe what you mean by partially successful in your attempts to detain her? A I detained her, but she wasn't under control yet. She stopped running because when I grabbed her jacket, she kind of sat down. Q. Okay. And what do you mean by she wasn't under control yet? A She wasn't yet handcuffed. a. Did you take steps to handcuff her? A. Yes. Q. And what did you do? 12es wone aw 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A Well, when she initially sat down, she just was screaming, so initially I just spoke to her and told her that she was being detained and that I was going to handcuff her and eventually she seemed to comply. Q. Okay. And you're saying that she seemed to comply. Was there something else that happened? A. Shortly thereafter, yes. She looked uncomfortable the way she was sitting and she was screaming, but once she stopped, I had her stand up with some assistance because she had calmed down and I told her I was going to handcuff her, but then when I went to actually handcuff her, she started screaming again and struggling to get away from me. a. How was she struggling to get away from you exactly? A. I had both of her arms -- or both of her wrists and she was pulling back and forth trying to step away from me and trying to pull her wrists out of my grasp. Q. Okay. And how did you respond to her struggling to get away from you? A. Well, for quite a while I just held onto her and talked to her, but that wasn't working. Q. Okay. So how did you respond when talking wasn't helping? A. I grabbed her by the back of the shoulders or the top of the shoulders and just forced her down to 13ere 10 11 12 13 14 15 16 a 18 19 20 21 22 23 24 25 26 27 28 the ground (indicating). Q. Okay. Now, once she was on the ground, were you able to handcuff her? aA. No. Okay. What happened later on the ground? A Once on the ground, I just contained her on the ground, I was able to grab her wrists again and hold onto them, but I wasn't able to handcuff her by myself. a. Okay. Did any other deputies arrive to assist you? A. Santa Rosa police officers arrived first. The first one there helped me handcuff her. Q. Okay. And with assistance, were you able to handcuff her then finally? A Yes. Q. Now, once you were actually able to detain her, did you determine her name? A. It was determined. I wasn't the one that did that. Q. Okay. Do you remember doing any records checks or anything on her once you determined her name? MR. SCHWAIGER: Object, relevance. MR. UEMURA: Withdrawn. THE COURT: Okay. MR. UEMURA: Nothing further, your Honor. THE COURT: Mr. Schwaiger. MR. SCHWAIGER: Thank you, your Honor. 1410 11 12 13 14 15 16 aq 18 19 20 21 22 23 24 25 26 27 28 CROSS-EXAMINATION BY MR. SCHWAIGER: a. Good morning, Deputy. AL Good morning, sir. Q. So you were turning right and my client stepped in front of you. Is that correct? A Yes, sir. Q. Okay. Did you have to do a U-turn or something to turn around and come back? A I did. Q. Did you do that U-turn right there on College Avenue? A. Yes. Q. Okay. And then when you recontacted my client, she was walking southbound on Humboldt. Correct? A. Yes, sir. Q. Where did you park your car when you decided to get out? A. Right along the curb. Q. In front of Ms. Moon, alongside of her, behind her? A. In front. Q. How far in front? A. My estimate is maybe 15 yards. Q. So then you stepped out of your patrol vehicle and you yelled at her to stop. Is that correct? Yes. 1511 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Was she walking towards you? A By the time I got out of my car, she had stopped walking and was just staring at me. Q. Okay. So she was facing southbound on Humboldt, you were looking northbound on Humboldt about 15 yards away, something like that? A Yes. Q. Okay. You say stop, and she just stares at you? AL Right. Q. What direction does she take flight? A. West. Q. Okay. So she had -- I'ma little bit confused. If she's going west on College -- is that right? A. No, she's going west through a parking lot. Q. Through a parking lot? A Between some buildings. Q. All right. So it is not on the street, per se, she is just going through like a residential area? A. It kind of looks residential, but I think that the houses have been converted to businesses. Q. Okay. All right. And then you start jogging along behind her. Is that correct? A. Yes, sir. Q. All right. When you said stop, did you identify yourself as a peace officer? 16aos 10 1 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 26 27 28 A Yes. Q. What did you say? A I said, stop, I'm a Deputy Sheriff. Q. And she didn't respond to that? A Well, no. Q. As a tangent, do Deputy Sheriffs normally enforce jaywalking within the City of Santa Rosa? MR. UEMURA: Objection, relevance. THE COURT: Sustained. MR. SCHWAIGER: Q. Did you contact Ms. Moon because she was jaywalking or because she yelled fuck you? A. Both. Q. Would you have contacted her had she not yelled fuck you? MR. UEMURA: Objection, relevance. THE COURT: Overruled. THE WITNESS: Yes. MR. SCHWAIGER: Q. You would have done a U-turn, come back, give her a citation for the jaywalking? A. Yes, sir. Q. Have you ever done that before? AL Specifically for jaywalking? a. Yes. MR. UEMURA: Objection, relevance. THE COURT: Overruled. THE WITNESS: I don't know if I've ever cited 17es wrne saw 10 41 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 26 27 28 that section or not. I've stopped people -- MR. SCHWAIGER: Q. How long -- THE COURT: Don't interrupt him, Mr. Schwaiger. THE WITNESS: I have stopped people for that section. MR. SCHWAIGER: Q. How long have you been a police officer? A A total of 17 years. o. Okay. Are you familiar with the Sheriff's use of force policy? A. Yes, sir. Q. Do you abide by it? AL Absolutely. Q. Were you abiding by it that day? A Yes, sir. Q. You described ultimately forcing Ms. Moon to the ground. How did that happen? A. Well, it was two instances that she went to the ground. Which one? Q. Did you force her to the ground on more than one instance? A Yes. Q. Okay. Describe them both for me. A First time she went to the ground was when I caught up to her and I grabbed her by the back of her coat, and she just -- as soon as I grabbed her, she just kind of sat down. Whether that was a result of 1810 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 me grabbing her or not, I'm not sure. The second time was when she was struggling after I'd stood her back up, and she was struggling pretty hard to get away from me, and at that time I put my hand -- hands on her top of her shoulders -- kind of missing the body part name there (indicating) -- THE COURT: Top of your shoulders. THE WITNESS: -- from behind and just pressed down (indicating). MR. SCHWAIGER: Okay. THE COURT: And for the record, Deputy Blount was putting each hand, one on the what I would just call the apex of the shoulder -- THE WITNESS: The trapezoid. THE COURT: Do you have a name for it? MR. SCHWAIGER: I believe the witness does. THE WITNESS: Trapezoid. THE COURT: Trapezoid. Like I know what that means, top of the shoulder. MR. SCHWAIGER: Q. So with regard to forcing her to the ground -- I want to make sure that I understand this right -- you put one hand on each shoulder -- is she facing towards you or away from you? A She's facing away from me. I'm behind her. Q. -- and then you force her down to the ground (indicating)? A. Yes, sir. Q. Was she screaming at that time? 19won oo 10 11 12 13 14 15 16 ay 18 19 20 21 22 23 24 25 26 27 28 A. Yes. Q. Did she tell you that she could not put her hands behind her back because she had a back injury? A No. Q. Would that have changed the way that you handled that situation if you had been told that? MR. UEMURA: Objection, calls for speculation. THE COURT: Sustained. MR. SCHWAIGER: Q. Have you ever had the opportunity to need to detain someone who has a back injury? MR. UEMURA: Objection, relevance. THE COURT: Overruled. THE WITNESS: Yes. MR. SCHWAIGER: Q. And how does that differ from how you detained Ms. Moon? MR. UEMURA: Objection, calls for speculation. THE COURT: Sustained. MR. SCHWAIGER: Q. How have you detained people in the past who have back injuries? THE COURT: Well, at this point unless you can -- unless this officer says that he heard her say back injury, it's not relevant, these questions. MR. SCHWAIGER: May I continue? THE COURT: Yes, of course. MR. SCHWAIGER: Q. Had she told you that, would you have done anything different? MR. UEMURA: Objection, calls for speculation. 20ene eo 41H ue 10 qa 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE COURT: And assumes facts not in evidence. At any time did Ms. Moon tell you that she had a back injury? THE WITNESS: Yes, ma'am. THE COURT: When did she tell you that? THE WITNESS: After she was handcuffed. THE COURT: Okay. Go ahead, Mr. Schwaiger. MR. SCHWAIGER: Q You're positive she never told you that beforehand? A I never heard that before. Q. So then with Ms. Moon facing away, you put your hands on top of her shoulders and pushed her down to the ground? AL Yes, sir. Q. Do you know what a carotid choke hold is, Deputy? A, Yes, sir. Q. What is it? A, It is a defensive tactics maneuver that is taught to us. Basically it's where the deputy or the officer is constricting the blood flow to a subject's brain and the goal of that is to render them unconscious, but not impede their airway, which allows us to handcuff them. Q. When are you allowed to use a carotid choke hold during the course of a detention? MR. UEMURA: Objection, relevance. THE COUR : Sustained, 2110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MR. SCHWAIGER: Q. Did you use a carotid choke hold in this event? A. I did not. Q. Did you ever put your hands or your arms around Ms. Moon's neck? A I did not. MR. SCHWAIGER: I have no further questions. THE COURT: Anything further? MR. UEMURA: Just briefly. REDIRECT EXAMINATION BY MR. UEMURA: Q. When you turned your car around and did the U-turn, did you have your lights and sirens on? A. I activated my lights. I don't remember if I needed to or did activate my siren. Q. Okay. And then when you parked your car in front of the defendant, did you park in a normal legal fashion or did you park up on a curb or, you know, any fashion that would have cut her off? AL I parked in a legal fashion along the curb. MR. UEMURA: Nothing further. THE COURT: Anything further on that, Mr. Schwaiger? MR. SCHWAIGER: No, your Honor, thank you. THE COURT: May Officer Blount step down? MR. UEMURA: Yes. THE COURT: Thank you. Other evidence? 2210 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MR. UEMURA: No, your Honor. THE COURT: Mr. Schwaiger? MR. SCHWAIGER: Yes, your Honor, the defense calls Ms. Moon. CELESTE MOON, Called as a witness herein, who having been first duly sworn, was examined and interrogated as is hereinafter set forth: THE CLER : And if you could please state your name, spelling it for the record. THE DEFENDANT: Celeste Moon, C-e-l-e-s-t-e, last name Moon, M-o-o-n. DIRECT EXAMINATION BY MR. SCHWAIGER: Q. Good morning, Ms. Moon. A. Good morning. Q. Did you come to my office yesterday -- A Yes. Q. -- to meet with me about this case? A Yes. Q. Did we review a video together? A Yes. MR. SCHWAIGER: May I approach the witness? THE COURT: Yes. MR. SCHWAIGER: Actually, Madam Clerk, may I have this marked defense's first. 2310 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE COURT: Is this the first time you have seen this video? MR. UEMURA: This is, your Honor. MR. SCHWAIGER: It is. THE COURT: So we're going to take a recess to give him a chance to look at the video. MR. SCHWAIGER: I don't believe that my discovery obligation under 1054 applies to necessarily a timely discovery for a 1538 motion. THE COURT: And I would disagree. How long is the video? MR. SCHWAIGER: 90 seconds. In fact, I've got something Mr. Prosecutor can play it on here in the courtroom if he wants. THE COURT: Perfect. We'll take a moment and give Mr. Uemura a chance to look at the video. MR. SCHWAIGER: May I pass these to Madam Clerk? THE COURT: Yes. THE CLERK: A and A-1. (Whereupon, Defense Exhibit A, DVD, was marked for identification.) (Whereupon, Defense Exhibit A-1, transcript of DVD, was marked for identification THE COURT: I'm going to step off the bench for a moment. 24wn 11 12 13 14 15 16 ay 18 19 20 21 22 23 24 25 26 27 28 (Recess taken.) THE COURT: Okay. Back on the record in Ms. Moon's matter, case ending 666. Mr. Uemura, did you get a chance to look at the video? MR. UEMURA: I did, your Honor. THE COURT: Any objections to it -- Mr. Schwaiger attempting to lay the foundation and it being played? MR. UEMURA: No, your Honor. THE COURT: Perfect. MR. SCHWAIGER: Okay. Thank you, your Honor. I apologize for consuming more of the Court's time than necessary. THE COURT: No, no apologies necessary, but I think opposing counsel no matter if you are a D.A. or private defense counsel has the right to look at physical evidence that is going to be shown in a hearing prior to it being advanced. MR. SCHWAIGER: Thank you, your Honor. May I approach the witness, please? THE COURT: Absolutely. MR. SCHWAIGER: Q. Ms. Moon, I'm handing you what's now been marked for purposes of identification as Defense A and Defense A-1. Do you know what those are? A. Yes. Q. What are they? 25wre BS ee 2a wan 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A This is the video that I viewed in your office and initialed yesterday, and this is a transcript of the video and what transpired on January 23rd. Q. Now, how do you know that is what transpired on January 23rd? A. I was there. Q. And having reviewed that video, can you say that it's -- what it shows is a true and accurate recording of what took place -- AL Yes. Q. -- when you encountered Deputy Blount? A. Yes. MR. SCHWAIGER: Your Honor, I would move Defense A and A-1 into evidence and I would like to play it for the Court. THE COURT: Any objection? MR. UEMURA: No, your Honor. THE COURT: Okay. So it can be played. Do you want me to walk down there? MR. SCHWAIGER: Your Honor, I'm totally out of battery, I apologize. It might be easier if the Court does. (Whereupon, the video was played.) THE COURT: One more time, Mr. Schwaiger. (Whereupon, the video was played.) MR. UEMURA: Can I ask you to play like the first five seconds again? 2610 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Whereupon, the video was played.) THE COURT: Okay. For the record, the Court, Mr. Schwaiger, Mr. Uemura, Deputy Blount, we have had a chance to look at the video that's been marked A and look at the transcript that is A-1. Is that correct? MR. SCHWAIGER: That's correct, your Honor. THE COURT: Please proceed. MR. SCHWAIGER: I have no further questions for Ms. Moon. MR. UEMURA: I have no questions, your Honor. THE COURT: Okay. I have a question. You've seen that video? THE DEFENDANT: Yes, ma'am. THE COURT: When the video is being played, you can only see the upper half of the bodies? THE DEFENDANT: (The witness nods.) THE COURT: You are shaking your head yes? THE DEFENDANT: Sorry, yes, your Honor. THE COURT: What is happening right at the start of the video? THE DEFENDANT: In terms of? THE COURT: In terms of you are saying, I can't, I have a back injury, what can't you do? THE DEFENDANT: I immediately said I'd had back surgery and I requested to be cuffed in front. THE COURT: And so what was the process that was happening when you said I can't? 27aw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE DEFENDANT: Your Honor, he continually jerked my arms behind my back, said stop resisting in a sing-song-ing mocking tone of voice, and I said, I'm limp, which I was, and it was like he wanted to hurt me, THE COURT: Okay. MR. SCHWAIGER: I might be able to help the Court. I think I know where the Court wants to go on this if I may? THE COUR And I don't want to lead -- I do not want the witness to be led. Go ahead, Mr. Schwaiger. MR. SCHWAIGER: Q. So the Deputy has told you something and is doing something and you say I can't. What is it you can't do? A. I -- I assumed he was -- wanted to handcuff me and I wanted to request it be done in front. Q. Right. Well, you told him you can't do something. What do you mean, I can't? You can't be cuffed in back? You can't -- what is the -- A Yes, can't be cuffed in back. THE COURT: Okay. Mr. Uemura, any questions on that? MR. UEMUR: : Just to clarify. Ms ‘ss VT 2810 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CROSS-EXAMINATION BY MR, UEMURA: a. You didn't actually say, I can't be cuffed in the back. You said, I can't. Right? Yes. THE COURT: Okay. TI don't have anything further. Do you have anything further? MR. UEMURA: No. THE COURT: Can this witness step down? MR. SCHWAIGER: Yes, please, your Honor. THE COURT: Any further witnesses? MR. SCHWAIGER: No, your Honor. THE COURT: Mr. Uemura? MR. UEMURA: Further witnesses, no. THE COURT: Okay. So you have the burden. There is no warrant. MR. UEMURA: Yes, your Honor. I think in this case, your Honor, it's pretty clear that there was at least reasonable cause or reasonable suspicion to detain the defendant based on the Vehicle Code violation. The officer testified to it being essentially a walking against the turn signal for pedestrians. She did it in a manner that cut off his direction of travel, he had to brake, and once he did, he simply told her, hey, you know, you're not supposed to be walking. I think her response was, you know, he said expletives, fuck you. 2910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At that point he did decide to cite her for that offense. I don't think that's relevant to whether he has done it before or will do it in the future in terms of citing people for that particular Vehicle Code. The fact is that he can. He did that by making a U-turn, coming back around and contacting her. When he contacted her, he had maybe his lights on, didn't know if he had his sirens on according to his testimony, and he certainly left room for her to maneuver when he parked his car. He comes out and attempts to contact her and identifies himself as an officer, and her immediate response is to flee. At that point the officer had grounds to detain her and she has now taken flight. 148 is resisting, obstructing or delaying an officer in the lawful performance of his duties, and immediately upon her flight, she has obstructed or delayed him in the lawful performance of his duty. I think we're -- the issue is getting close to really a trial issue, I think it is really more of a defense, but I'll lay it out for the Court. The officer was at that point able to arrest her for resisting arrest. He was effecting that arrest by contacting her, by giving chase. He then detained her by her sweatshirt, as he said, and then it was during that detention that he was trying to physically control her that she continued to resist. The video obviously is the fist time I've 30Berne 10 a1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 seen it and it looks like it's the first time the officer has seen it as well. The video shows him attempting to detain her. While there was certainly a use of force, the only thing that video shows that is different really from what his testimony is how on the second time when he was attempting to detain her as she continued to struggle he effected that detention. I would note for the record that after the first couple seconds of the video, you will see or you do see that the defendant has her, you know, hands toward her back and the officer behind her, and she kind of is -- she's kind of ducking downwards, it looks like she's either leaning forwards or ducking downwards, and I think, again, that corroborates the officer's testimony that she -- even after the detention, she continues to resist, obstruct and delay him in effectuating that arrest, and the force that was used was simply to maintain control of her and to arrest her for the offense, and the People would submit on that subject to rebuttal based on defense arguments. THE COURT: Okay. I do have another question to ask Ms. Moon. You are still under oath, Ms. Moon. Do you understand that? THE DEFENDANT: Yes, your Honor. THE COURT: This confrontation between you and the deputy that's on the video, where is that 31Ge oe Se ero 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 happening in relationship to the street, to the parking lot, where is it happening? THE DEFENDANT: It is in a hidden area near some garbage cans behind the building -- I don't have the exact street address, but it is the building on the corner of Humboldt and College and it's the southwest corner. It's a residential two-story building. THE COURT: So it is in the parking lot of a residential two-story building? THE DEFENDANT: Yes, your Honor. THE COURT: How did you get there? THE DEFENDANT: I ran away because I -- I felt like someone wanted to hurt me. He never identified himself as being a police officer and we were never face-to-face, and I heard someone come out of the car like they wanted to hurt me and I was afraid. THE COURT: Okay. Mr. Schwaiger? MR. SCHWAIGER: So I'll submit to the Court that -- that it might look like Ms. Moon is bending down -- may I give these back to the Court -- might look like Ms. Moon is bending down because her arms are being put behind her and that is a pretty natural motion to make. The grounds for the initial detention notwithstanding, because certainly the subjective intent of the officer is not relevant strictly speaking 32sone aw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to a Fourth Amendment determination, I would -- we end up with this kind of force being used because someone is crossing the street the wrong way, and this is not what the officer said happened. The officer said that Ms. Moon never told him she had a back injury, never said that, not until afterward. Well, we clearly heard that. She said it immediately preceding this officer choking her around the neck with his arm, throwing her to the ground, another thing the officer said specifically he did not do. So for whatever reason that the officer did not recollect to this Court the truth of what happened, it's clear that if his perception of the events is -- it's clear that if the officer is being earnest with the Court, his memory of the events has failed him, and if the officer's memory has not failed him, his testimony here is dishonest. That being said, the amount of force that was used to effect the detention especially based -- he said he's jogging behind this woman who tells him she has a back injury for jaywalking and he chokes her and throws her to the ground, it is grossly disproportionate to the offense, and as such it is a violation of Ms. Moon's right to due process of law. I did not title this motion motion to suppress Pursuant to 1538.5 as well as the Fourteenth Amendment, and I should have. To the extent that I need to 33aau 10 11 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 26 27 28 additionally place that in the caption, I will now, but I did put that in my motion, and then I believe because the force used is so disproportionate to the offense for which Ms. Moon was being detained, the Court can find violation of due process and can order the evidence seized suppressed. In this case, it might be difficult for the Court to find -- to determine where the line is if the Court determines this was a constitutional violation, what to suppress, certainly the Deputy's testimony that Ms. Moon continued to resist while she was on the ground and he had to call for backup, all of that if the Court found a constitutional depravation would be out to the extent that while that resisting on the ground was resisting, and that leaves us -- if the Court follows that tact, that leaves us with the issue of whether -- and this would be an issue for trial -- of whether Ms. Moon was actively resisting when she was fleeing and/or whether she was running away from someone who yelled something to her out a car window and she says she didn't know he was a police officer, but the issue of the officer's observation after Ms. Moon was on the ground I think it is for the Court to decide what to do with, and I would ask based on the evidence that's been presented the Court suppress this observation. THE COURT: Mr. Uemura? MR. UEMURA: Thank you, your Honor. 34aw 10 11 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 THE COURT: Is that close? MR. UEMURA: It is very close. THE COURT: Okay. MR. UEMUR. : Your Honor, I would clarify, the characterization of it being a choke I think is unfair to say the least. THE COURT: So the video speaks for itself. I don't believe that based on that video I could say it's a choke. Certainly it is an arm around the neck and certainly incredibly different than two hands pushing somebody down. MR. UEMURA: Certainly, And I think that is simply my point. I don't think it's a choke. An additional point to that, though, is once it does happen and they are on the ground, you can continue to hear her screaming and yelling and it appears that she continues to resist. Now, the issue, I guess, is whether that is resisting an unlawful arrest at that point, but I think it simply shows that she continued to resist and she was screaming and yelling to the point where she was not being choked. You cannot scream and yell when you're being choked. So I will say that it was not a choke for what that is worth. THE COURT: TI do not think based on the evidence that I have at this hearing there is any evidence that she was, quote/unquote, "choked". MR. UEMURA: Okay. And second I would say 3510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that Ms. Moon's actual testimony in terms of what happened, that does not make sense, either. I think when you look at it, she said that she was -- never saw the officer, he never identified himself and she was running away from a man who was trying to hurt her. Now, the officer is in a marked patrol car wearing a full police uniform. For that to happen, she would have had to have never seen the officer in the patrol car, never seen the officer when he got out of the patrol car and never seen the officer when she turned and ran away and then he eventually detained her. For that to happen, also she would have simply been walking along the street, I guess maybe heard a door close and then the door closing she thinks, oh, my God, I'm going to be injured from that door closing and this assuming dangerous man coming to attack me now. I don't think that's reasonable given the facts of what the officer testified to and what Ms. Moon has testified to. So I think in terms of judging the credibility of witnesses, that certainly goes to that issue. I won't comment on where the Court should strike or do anything in terms of the evidence, if the Court does find a due process violation, I don't think there is one, and I don't think that the motion should be granted. THE COURT: And can you both be here at 9:00 361 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 tomorrow? MR. SCHWAIGER: Yes, your Honor. THE COURT: Can you be here, Mr. Uemura, at 9:00 or around 9:00? MR. UEMURA: I have a calendar in Department 7 which is quite heavy from what I have learned in my first week here, but I can maybe try to. THE COURT: And it starts at 6:30? MR. UEMURA: It does start at 8:30, yes. THE COURT: Can you be here on Friday morning at 8:30 if we call you first? MR. UEMURA: I can be here Friday morning at 8:30. I don't have a calendar. THE COURT: Can you be here at 8:30? MR. SCHWAIGER: Let me check my schedule. THE COURT: We start our calendar at 8:30 on Friday, but I was thinking tomorrow is a relatively light day with just three folks that are going to be sentenced so I could get you in and out, but if you can't be here, you can't be here. MR. SCHWAIGER: Tomorrow is not good for me, either, your Honor. MR. UEMURA: I prefer Friday. MR. SCHWAIGER: Friday, I will be around. THE COURT: I'm going to bring back on Friday, 8:30, for ruling. MR. SCHWAIGER: Thank you, your Honor. THE COURT: And I'm going to -- A and A-1 are 3710 11 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 26 27 28 admitted into evidence and received. (Whereupon, Defense Exhibits A and A-1 were received into evidence.) THE COURT: And if you guys want to get here right at 6:30, I can call you first if you have other places to be. MR. SCHWAIGER: Thank you, your Honor. THE COURT: We're in recess. (Proceedings recessed.) 38won 10 a1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA) ) sst COUNTY OF SONOMA) CERTIFICATE OF SHORTHAND REPORTER I, KAREN M. STEWART, CSR No. 8744, a duly appointed, qualified and acting shorthand reporter for the County of Sonoma, do hereby certify: That on WEDNESDAY, APRIL 15, 2015, I reported in shorthand writing the proceedings had in the case of THE PEOPLE OF THE STATE OF CALIFORNIA versus CELESTE MOON. That I thereafter caused my said shorthand writing to be transcribed into longhand typewriting. That the foregoing pages 1 through 38 constitute and are a full, true, correct and accurate transcription of my said shorthand writing and a correct and verbatim record of the proceedings so had and taken, as aforesaid. Dated this 27th day of April, 2015. 39