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Case5:08-cr-00938-JW

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UNITED STATES DISTRICT COURT

 

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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UNITED STATES OF AMERICA,

)

CR-08-00938 JW

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)

 

PLAINTIFF,

)

SAN JOSE, CALIFORNIA

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)

 

VS.

)

APRIL 1, 2011

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)

 

JAIME HARMON,

 

)

PAGES 1-59

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)

 

DEFENDANT.

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)

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TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE JAMES WARE

 

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UNITED STATES DISTRICT JUDGE

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A

P P

E

A R A

N C

E S:

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FOR THE PLAINTIFF: UNITED STATES ATTORNEY'S OFFICE

 

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BY:

GRANT P. FONDO AND AMBER S. ROSEN

150

ALMADEN BOULEVARD

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SUITE 900 SAN JOSE, CALIFORNIA 95113

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FOR THE DEFENDANT: LAW OFFICES OF J. TONY SERRA

 

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BY:

J. TONY SERRA AND SHARI WHITE

506

BROADWAY

 

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SAN FRANCISCO, CALIFORNIA 94133

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ALSO PRESENT:

THEODORE STALCUP

 

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OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR CERTIFICATE NUMBER 9595

 

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INDEX OF WITNESSES
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MARK PORTER
EXAMINATION BY MR. SERRA
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INDEX OF EXHIBITS
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MARKED
ADMITTED
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PLAINTIFF'S
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DEFENDANT'S
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SAN JOSE, CALIFORNIA

 

APRIL 1, 2011

 

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P R

O

C E

E

D

I

N

G S

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(WHEREUPON, COURT CONVENED AND THE

 

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FOLLOWING PROCEEDINGS WERE HELD:)

 

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THE CLERK: CALLING CASE NUMBER 08-938,

 

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UNITED STATES VERSUS JAIME HARMON, ON FOR

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EVIDENTIARY HEARING.

 

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MR. FONDO: GOOD MORNING, YOUR HONOR.

 

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GRANT FONDO FOR THE UNITED STATES.

 

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THE COURT: GOOD MORNING.

 

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MR. SERRA: GOOD MORNING, YOUR HONOR.

 

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IT'S TONY SERRA AND SHARI WHITE. WE'RE HERE ON

13

BEHALF OF MRS. HARMON. SHE IS PRESENT BEFORE THE

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COURT.

15

THE COURT: GOOD MORNING.

 

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MR. SERRA: GOOD MORNING.

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THE COURT:

 

THIS IS A PROCEEDING ON

 

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POST-TRIAL PROCEEDINGS THAT ARE PENDING BEFORE THE

19

COURT, AND THE COURT WAS PERSUADED TO ALLOW THE

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PARTIES TO CONDUCT AN EVIDENTIARY HEARING WITH

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RESPECT TO ONE ASPECT OF THIS CASE, AND WE HAVE

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TAKEN THE TASK OF SUMMONING MR. PORTER BEFORE THE

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COURT FOR PURPOSES OF THIS.

 

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MY INTENT IS TO SPEAK WITH HIM AND ASSURE

 

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HIM OF THE NATURE OF THESE PROCEEDINGS, AND THEN TO

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PERHAPS HAVE SOME BASIC QUESTIONS FROM THE COURT,

 

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AND THEN TO ALLOW THE PARTIES TO CONDUCT AN

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EXAMINATION OF MR. PORTER WITH RESPECT TO THESE

4

MATTERS, PRESUMING THAT HE IS HERE.

 

5

MR. PORTER?

 

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JUROR PORTER: YES.

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THE COURT: PLEASE COME FORWARD, SIR.

 

8

THANK YOU VERY MUCH FOR RESPONDING TO THE

9

COURT'S ORDER THAT YOU APPEAR.

 

10

BEFORE I BEGIN, AMONG THE MESSAGES THAT I

 

11

HOPED YOU WOULD RECEIVE IS AN OFFER FROM THE COURT,

12

IF YOU WISH, TO SPEAK WITH AN ATTORNEY ABOUT THESE

13

PROCEEDINGS BECAUSE THEY DO -- THERE WILL BE

14

QUESTIONS RAISED ABOUT YOUR SERVICE AS A JUROR AND

15

YOUR BACKGROUND, AND THAT IF YOU WISH, THE COURT

16

WOULD APPOINT AN ATTORNEY TO REPRESENT YOU.

17

I WAS HOPING THAT THAT MESSAGE WOULD BE

18

RECEIVED WITH THE NOTION THAT THIS IS NOT A

19

PROCEEDING WHERE YOU ARE THE FOCUS FOR PURPOSES OF

20

THE COURT TAKING ANY ACTION AGAINST YOU, BUT I

21

WANTED YOU TO FEEL THAT YOU HAD THE OPPORTUNITY TO

22

SPEAK WITH SOMEONE ABOUT THESE MATTERS BEFORE YOU

23

WERE EXAMINED.

24

IT IS MY INTENT TO HAVE YOU PLACED UNDER

 

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OATH AND TO ASK CERTAIN QUESTIONS THAT MIGHT BE PUT

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TO YOU BY THE COURT AND BY THE PARTIES, AND

 

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SOMETIMES PEOPLE PUT IN THAT POSITION FEEL THAT

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THEY WOULD WISH TO HAVE AN ATTORNEY TO REPRESENT

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THEM AND THEIR INTERESTS, TO TALK TO ABOUT IT, AND

5

SO I WANTED TO ADVISE YOU OF THAT OPPORTUNITY THAT

6

YOU WOULD HAVE IF YOU WISHED TO PARTAKE OF IT.

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AND I HADN'T HEARD THAT YOU WISHED TO

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PARTAKE OF IT, BUT I WANTED TO GET YOUR STATEMENT

9

HERE ABOUT THAT.

10

IS THAT -- DID YOU UNDERSTAND THAT YOU

 

11

HAD THAT RIGHT?

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JUROR PORTER: I DID UNDERSTAND THAT,

 

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YOUR HONOR, BUT I'VE DONE NOTHING, SO LET'S DO

14

THIS.

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THE COURT: ALL RIGHT.

VERY WELL.

 

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SO IT IS MY INTENT TO HAVE MS. GARCIA

17

GIVE YOU AN OATH AND THEN TO HAVE YOU TAKE THE

18

WITNESS STAND FOR PURPOSES OF THESE PROCEEDINGS.

19

THE CLERK: WOULD YOU PLEASE RAISE YOUR

20

RIGHT HAND.

21

 

MARK PORTER,

22

BEING CALLED AS A WITNESS, HAVING BEEN FIRST DULY

 

23

SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:

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THE WITNESS:

I DO.

 

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THE CLERK: THANK YOU.

PLEASE BE SEATED.

 

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PLEASE STATE YOUR FULL NAME AND SPELL

 

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YOUR LAST NAME FOR THE RECORD.

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JUROR PORTER: MARK ANTHONY PORTER,

4

P-O-R-T-E-R.

5

THE COURT: THANK YOU, MR. PORTER.

 

6

I JUST GAVE YOU A BRIEF ADMONITION PRIOR

7

TO YOUR BEING SWORN.

8

YOU'VE BEEN SUMMONED BEFORE THE COURT

9

HERE AS PART OF AN EVIDENTIARY HEARING TO INQUIRE

10

ABOUT YOUR BACKGROUND, VARIOUS FORMS THAT YOU

11

FILLED OUT IN CONNECTION WITH YOUR SERVICE AS A

12

JUROR IN THIS CASE, AND NOW YOU'VE TAKEN AN OATH BY

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THE AD -- ADMINISTERED BY THE CLERK.

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THE POINT OF IT IS TO BRING TO YOUR MIND

15

THAT YOU HAVE TO ANSWER ALL OF THE QUESTIONS THAT

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ARE PUT TO YOU TRUTHFULLY.

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DO YOU UNDERSTAND ALL OF THAT, SIR?

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JUROR PORTER:

YES, SIR, I DO.

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THE COURT: VERY WELL.

I ALSO ADVISED

20

YOU THAT YOU HAVE THE RIGHT TO SPEAK WITH AN

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ATTORNEY, AND THAT IF YOU WISHED, THE COURT WOULD

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APPOINT AN ATTORNEY TO REPRESENT YOU.

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AND DO YOU WAIVE YOUR RIGHT TO HAVE THE

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COURT APPOINT AN ATTORNEY TO REPRESENT YOU WITH

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RESPECT TO THESE PROCEEDINGS?

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JUROR PORTER:

YES, SIR, I DO.

 

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THE COURT:

THANK YOU, SIR.

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I SHOULD PREFACE ALL OF THIS WITH THE

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CONTINUING GRATITUDE OF THE COURT FOR YOUR SERVICE

5

AS A JUROR IN THIS CASE.

NOTHING THAT WE DO HERE

6

TODAY IS INTENDED TO TAKE AWAY FROM THAT.

7

BUT THERE ARE SOME ASPECTS THAT THE LAW

8

IMPOSES UPON JURY SERVICE THAT WE WANT TO MAKE

9

CERTAIN WERE OBSERVED WITH RESPECT TO YOUR SERVICE

10

AS A JUROR HERE, AND THAT'S THE POINT OF OUR

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QUESTIONING IS TO UNDERSTAND THAT THERE MIGHT HAVE

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BEEN SOME PROVISIONS THAT WERE CALLED INTO QUESTION

13

BY THE PAPERS THE COURT HAS RECEIVED.

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IT COULD BE THAT SOME OF THE QUESTIONS

15

PUT TO YOU TODAY WOULD CALL INTO QUESTION YOUR

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QUALIFICATIONS TO SERVE AS A JUROR.

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YOU STARTED YOUR SERVICE BY FILLING OUT A

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QUESTIONNAIRE THAT WAS SENT TO YOU BY OUR CLERK'S

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OFFICE.

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JUROR PORTER: I DON'T REMEMBER, BUT

 

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OKAY, YES, SIR.

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THE COURT: ALL RIGHT.

IT DOESN'T

 

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SURPRISE ME THAT YOU MIGHT NOT REMEMBER THAT.

24

AND THOSE ARE PAPERS THAT WOULD BE SENT

25

TO YOU, LIKE ALL JURORS, JUST TRYING TO GET A

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LITTLE BIT OF A STATEMENT ABOUT YOUR BACKGROUND AND

 

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YOU WOULD SEND THOSE BACK IN, AND THEN AS CASES

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WOULD COME UP, THE WAY IT NORMALLY WORKS IS YOU'RE

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ON A TELEPHONE SYSTEM THAT YOU CALL IN AND ARE TOLD

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WHETHER OR NOT YOUR SERVICES ARE REQUIRED ON A

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PARTICULAR CASE.

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DOES THAT SOUND FAMILIAR TO YOU AT ALL?

 

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JUROR PORTER: SLIGHTLY.

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THE COURT: ALL RIGHT.

AND THEN AFTER

10

YOU COME TO THE COURTHOUSE, THERE'S A PROCESS BY

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WHICH YOU ARE ASSEMBLED DOWNSTAIRS, THERE MIGHT

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HAVE BEEN A BRIEF QUESTIONNAIRE THAT ASKED FURTHER

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ABOUT YOUR BACKGROUND, AND THEN YOU'RE SUMMONED UP

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TO THE COURTROOM, AND IN THIS CASE YOU WERE

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SUMMONED TO THE COURT WHERE THE UNITED STATES

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GOVERNMENT HAD A CLAIM AGAINST MS. JAIME HARMON.

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DO YOU REMEMBER YOUR SERVICE AS A JUROR

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IN THIS CASE?

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JUROR PORTER:

OH, YEAH.

YES, SIR, I DO.

 

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THE COURT:

AND IN THE COURSE OF THAT,

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YOU WERE ULTIMATELY PLACED IN THE JURY BOX AND

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FURTHER QUESTIONS WERE PUT TO YOU BY THE COURT AND

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BY THE PARTIES WITH RESPECT TO YOUR SERVICE AS A

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JUROR.

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DO YOU REMEMBER THAT PROCESS?

 

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JUROR PORTER:

YES, SIR, I DO.

 

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THE COURT: ALL RIGHT.

SO MOST OF OUR

3

QUESTIONS WILL BE GEARED TOWARD THAT PERIOD OF

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TIME, YOUR FILLING OUT THE FORMS, COMING TO COURT,

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AND YOUR BEING SWORN ULTIMATELY AS A JUROR IN THE

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CASE.

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I DO UNDERSTAND THAT THERE WERE SOME

 

8

OTHER STATEMENTS THAT YOU MADE AFTER THE TRIAL TO

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THE PRESS.

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DO YOU REMEMBER GIVING STATEMENTS TO THE

 

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PRESS?

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JUROR PORTER: YES.

 

13

THE COURT: ALL RIGHT.

SO THAT MIGHT BE

14

A LEGITIMATE AREA OF INQUIRY AS WELL.

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YOU CAME TO JURY SERVICE HAVING YOURSELF

16

HAD A BACKGROUND, ALL JURORS DO, AND PART OF THE

17

QUESTIONS THAT MIGHT BE PUT TO YOU HAVE TO DO WITH

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YOUR BACKGROUND IN TERMS OF ANY OFFENSES THAT YOU

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MIGHT HAVE BEEN CHARGED OR CONVICTED OF, AND THAT

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WOULD BE A LEGITIMATE AREA OF INQUIRY, TOO.

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LET ME FIRST CALL ON THE MOVING PARTY,

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THE DEFENDANT HERE, TO ASK ANY QUESTIONS THAT YOU

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WOULD HAVE OF MR. PORTER.

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MR. SERRA: THANK YOU, YOUR HONOR.

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YOUR HONOR, MAY WE PROJECT ONE OF THE

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EXHIBITS AND MAY I QUESTION HIM WHEN WE USE THE

 

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PROJECTOR TO PROJECT IT?

 

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THE COURT: SURE.

NOW, THERE ARE TWO

 

4

WAYS

TO DO IT.

YOU CAN PUT A PAPER DOCUMENT ON THE

5

ELMO

THERE AND IT WILL BE PROJECTED TO THE WITNESS

 

6

AND TO ALL OF US ON THESE SCREENS, OR IF YOU HAVE

7

IT IN A COMPUTER FORM, WE HAVEN'T SET THAT UP, BUT

8

WE COULD SET THAT UP.

 

9

 

MS. WHITE:

WE'LL USE THE ELMO.

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THE COURT: ALL RIGHT.

VERY WELL.

11

AND THERE ARE WAYS TO ZOOM IN ON THAT

 

12

DOCUMENT SO THAT WE CAN SEE PORTIONS OF IT MORE

13

CLEARLY.

14

 

IS THAT COMING UP ON YOUR SCREEN, SIR?

 

15

JUROR PORTER: YES.

16

THE COURT:

SO MS. GARCIA CAN SHOW YOU

 

17

HOW TO TURN ON THE RIGHTS ON THE SIDE OF IT AND

18

OTHER WAYS OF MANIPULATING THAT MACHINE SO WE GET A

19

CLEAR IMAGE.

 

20

 

(PAUSE IN PROCEEDINGS.)

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EXAMINATION

22

BY MR. SERRA:

 

23

Q

GOOD MORNING, MR. PORTER.

24

A

GOOD MORNING.

25

Q

CAN YOU SEE WELL ENOUGH ON THE SCREEN?

IS IT

 

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CLEAR?

 

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A

NO, IT ISN'T.

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THE COURT: YES.

YOU MIGHT WANT TO ZOOM

 

4

IN ON VARIOUS PARTS OF IT.

MOVE IT AROUND.

5

 

I FIND THAT SOMETIMES THESE HANDWRITTEN

6

DOCUMENTS DON'T SHOW UP VERY WELL.

 

7

 

AND IT ALSO MIGHT BE THAT YOU NEED -- YOU

8

CAN BRING THAT CAMERA DOWN RATHER THAN HAVE IT AT

 

9

ITS FULL EXTENSION. THERE'S A BUTTON ON THE SIDE

10

TO LOWER THE ARM.

 

11

 

MS. WHITE: OKAY.

12

THE COURT: THAT'S STARTING TO GET

 

13

BETTER.

 

14

BY MR. SERRA:

15

Q

FIRSTLY, SIR, DO YOU RECOGNIZE YOUR NAME AT

 

16

THE TOP OF THIS EXHIBIT --

 

17

 

WHICH IS EXHIBIT D, YOUR HONOR, ATTACHED

 

18

TO THE MOVING PAPERS OF THE DEFENDANT.

 

19

 

DO YOU RECOGNIZE YOUR NAME AT THE TOP

 

20

LEFT, SIR?

 

21

A

I DO.

22

Q

AND DO YOU SEE YOUR SIGNATURE DOWN AT THE

 

23

LOWER RIGHT?

 

24

A

MORE OR LESS, YES.

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MR. SERRA:

COULD THIS BE MOVED SO WE CAN

 

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SEE?

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MS. WHITE: ONE MOMENT.

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BY MR. SERRA:

4

Q

THERE, I'VE MOVED IT.

CAN YOU SEE IT NOW?

 

5

A

YES.

6

Q

IS THAT YOUR SIGNATURE?

 

7

A

IT IS.

8

Q

AND DO YOU SEE RIGHT ABOVE YOUR SIGNATURE, IT

 

9

SAYS

"I DECLARE UNDER PENALTY OF PERJURY THAT ALL

10

THE ANSWERS ARE TRUE TO THE BEST OF MY KNOWLEDGE

11

AND BELIEF?"

 

12

DO YOU SEE THAT?

13

A

I CAN'T READ THAT.

 

14

Q

DO YOU SEE THAT ABOVE YOUR SIGNATURE?

 

15

A

I CAN'T READ THAT.

 

16

Q

I THINK WE OUGHT TO --

17

 

THE COURT:

MAYBE GIVE A PAPER COPY TO

 

18

THE WITNESS.

 

19

MS. WHITE: MAY I APPROACH, YOUR HONOR?

 

20

THE COURT: CERTAINLY.

21

BY MR. SERRA:

22

Q

ARE YOU ABLE NOW TO READ THE PORTION ABOVE

 

23

YOUR

SIGNATURE THAT I ATTRACTED YOUR ATTENTION TO?

24

A

YES.

25

Q

RIGHT NOW GO TO -- I'M INTERESTED IN A FEW

 
 

12

 

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QUESTIONS ON ITEM 16 AND 17.

 

2

 

CAN YOU FIND, ON THE EXHIBIT, 16?

 

3

A

YES.

4

Q

LET ME READ IT.

"ARE ANY CHARGES NOW PENDING

 

5

AGAINST YOU FOR A STATE OR FEDERAL CRIME PUNISHABLE

6

BY IMPRISONMENT FOR MORE THAN ONE YEAR?"

 

7

 

YOU ANSWERED NO.

8

FAIR?

9

A

YES.

10

Q

NOW LET'S GO TO 17.

THIS IS -- THIS SPEAKS IN

11

THE PAST TENSE.

"HAVE YOU BEEN CONVICTED OF A

 

12

STATE OR FEDERAL CRIME PUNISHABLE BY IMPRISONMENT

13

FOR MORE THAN ONE YEAR?"

 

14

 

DO YOU SEE THAT ONE?

 

15

A

YES.

16

Q

DO YOU SEE WHERE YOU SAID NO?

 

17

A

YES.

18

Q

NOW, ISN'T IT A FACT THAT YOU HAD BEEN

 

19

CONVICTED OF NUMEROUS OFFENSES THAT WERE PUNISHABLE

20

BY IMPRISONMENT FOR THAT MORE THAN ONE YEAR?

 

21

A

NO.

22

Q

LET ME CALL YOUR ATTENTION FIRST TO -- I'M

 

23

GOING TO GO YEAR BY YEAR, IF I MAY.

 

24

 

IN 1980, WEREN'T YOU CONVICTED OF

 

25

POSSESSION OF DEADLY WEAPON?

 
 

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A

NO.

2

Q

IN 1982, WEREN'T YOU CONVICTED OF BAD CHECKS?

 

3

A

I THINK THERE WAS ONE CHECK, OKAY.

 

4

Q

IN 1982, DIDN'T YOU SUFFER ANOTHER BAD CHECK,

 

5

TO WIT, 476 OF THE CALIFORNIA PENAL CODE,

6

CONVICTION?

 

7

A

I DON'T REMEMBER.

 

8

Q

ISN'T IT TRUE IN 1994 YOU WERE CONVICTED OF

 

9

WELFARE FRAUD?

 

10

A

YES.

11

Q

ISN'T IT TRUE THAT IN 1980, THE DEADLY WEAPON

 

12

CHARGE SUBJECTED YOU TO PUNISHMENT -- SUBJECTED --

13

I'M NOT SAYING YOU GOT IT -- BUT SUBJECTED YOU TO

14

PUNISHMENT OF MORE THAN ONE YEAR?

 

15

A

NO.

16

Q

ISN'T IT TRUE THAT THE TWO 1982 BAD CHECK

 

17

CONVICTIONS SUBJECTED YOU -- I'M NOT SAYING YOU GOT

18

IT -- BUT SUBJECTED YOU TO A SENTENCE OF MORE THAN

 

19

ONE YEAR?

 

20

THE COURT:

WELL, I'M NOT SURE THAT YOUR

 

21

CLARIFICATION IS CLEAR TO THE COURT, BECAUSE TO BE

22

SUBJECTED TO SOMETHING MEANS THAT YOU ARE

23

ACTUALLY -- YOU ACTUALLY INCUR IT.

 

24

 

IT -- SO YOU MIGHT WANT TO CLARIFY

 

25

WHETHER YOU MEAN --

 
 

14

 

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BY MR. SERRA:

 

2

Q

WELL, THAT YOU COULD HAVE BEEN PUNISHED, AS

 

3

THE FORM INQUIRES, BY IMPRISONMENT FOR MORE THAN

4

ONE YEAR?

 

5

A

I'M SORRY.

6

MR. FONDO: SORRY. OBJECTION, YOUR

 

7

HONOR. MISSTATES THE EVIDENCE AS PART OF THE

8

QUESTION.

 

9

 

DEFENSE COUNSEL SAID THERE WERE TWO

 

10

CONVICTIONS FOR BAD CHECKS. I'M NOT SURE THAT'S IN

11

EVIDENCE. I'M NOT SURE THAT'S CORRECT.

 

12

 

THE COURT:

I -- WHY DON'T YOU REPHRASE

13

YOUR

QUESTION?

14

MR. SERRA:

LET ME READ 17.

IT SAYS,

15

"HAVE YOU BEEN CONVICTED OF A STATE OR FEDERAL

 

16

CRIME PUNISHABLE BY IMPRISONMENT FOR MORE THAN ONE

17

YEAR?"

 

18

 

HE ANSWERS NO.

 

19

I'M NOW ASKING, TAKING FROM HIS CRIMINAL

20

RECORD, WHETHER OR NOT, IN FACT, HE WAS -- ONE,

 

21

TWO,

THREE, FOUR, AT LEAST FOUR CONVICTIONS WHERE

22

HE WAS PUNISHABLE BY IMPRISONMENT FOR MORE THAN ONE

23

YEAR.

24

 

THAT'S WHERE I WAS, YOUR HONOR, ASKING

 

25

HIM WHETHER HE --

 
 

15

 

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THE COURT: WHETHER HE UNDERSTOOD.

 

2

MR. SERRA: -- UNDERSTOOD THAT.

3

JUROR PORTER: SHOULD I ANSWER?

4

THE COURT:

YOU MAY.

5

JUROR PORTER: AGAIN, I ONLY REMEMBER ONE

6

CHECK; AND, NO, I DON'T REMEMBER IT BEEN

 

7

PUNISHABLE; AND, NO, I WAS NOT CONVICTED OF ANY

8

TYPE OF WEAPON CHARGE THAT I REMEMBER.

9

MR. SERRA:

YOUR HONOR, MAY I HAVE AN

 

10

EXHIBIT FURNISHED ME THIS MORNING BY PROSECUTION

11

MARKED AS DEFENSE NEXT IN ORDER?

12

THE COURT: WE CAN EITHER USE THE EXHIBIT

13

DESIGNATIONS THAT WERE IN THE MOTIONS, OR WE CAN

 

14

GIVE IT A NEW DESIGNATION.

15

MR. SERRA:

THIS ONE WAS HANDED TO ME.

I

16

DON'T THINK IT WAS PART OF THE PREVIOUS RESPONSES

17

BY THE GOVERNMENT.

18

THE COURT: VERY WELL.

SO YOU SHOULD

 

19

SPECIFY A DESIGNATION THAT YOU WOULD WISH US TO

20

GIVE IT AND WE'LL ASSIGN THAT.

21

OTHERWISE THE CLERK CAN COME UP WITH ONE.

 

22

MR. SERRA:

WELL, I'LL SAY, SINCE WE HAVE

23

OTHER EXHIBITS THAT I BELIEVE ENDED IN D, THAT THIS

24

WOULD BE DEFENSE E.

25

THE COURT: VERY WELL.

WE CAN USE THE

 

16

 

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ALPHA DESIGNATION EXHIBIT E AS MARKED ON THAT

 

2

DOCUMENT FOR IDENTIFICATION.

 

3

 

(WHEREUPON, DEFENDANT'S EXHIBIT E WAS

 

4

MARKED FOR IDENTIFICATION.)

 

5

MR. SERRA: MAY I APPROACH THE WITNESS?

 

6

THIS

SEEKS TO REFRESH RECOLLECTION ONLY, YOUR

7

HONOR.

 

8

 

THE COURT: CERTAINLY.

 

9

BY MR. SERRA:

 

10

Q

SIR, I'D LIKE YOU TO LOOK -- THIS IS A LISTING

11

OF VARIOUS PEOPLE AND THE CHARGES THAT WERE LODGED

 

12

AGAINST THEM, AND I'M HANDING YOU -- IT'S TWO

13

PAGES, BUT I'M NOW REFERRING TO THE FIRST PAGE.

14

 

I'D LIKE YOU JUST TO READ WHAT -- THE

15

YELLOW PART OF THAT, AND THEN I'M GOING TO ASK YOU

16

SOME

QUESTIONS.

17

THE COURT:

READ IT TO HIMSELF?

 

18

MR. SERRA: YES, YOUR HONOR.

 

19

Q

READ IT TO YOURSELF.

20

A

OKAY.

21

Q

HAVING READ THE PROFFERED MATERIAL, IS YOUR

 

22

MEMORY NOW REFRESHED THAT IN 1980 YOU WERE -- YOU

23

SUFFERED A CONVICTION OF PENAL CODE SECTION

24

12020(A), WHICH IS A POSSESSION OF DEADLY WEAPON

25

CHARGE?

 
 

17

 

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1

A

AND, AGAIN, I DON'T REMEMBER THAT, NO.

 

2

Q

OKAY.

WELL, 1980 IS A LONG TIME AGO.

3

A

YES.

4

Q

I WANT TO GO ON TO ANOTHER EXHIBIT.

 

5

MAY WE NOW HAVE B?

6

B HAS TWO PORTIONS.

JUST SHOW THE FIRST

 

7

PORTION.

 

8

 

AND, SIR, WE'LL ALLOW YOU TO HAVE A COPY

 

9

OF IT IN THE EVENT THAT YOU CAN'T READ IT FROM THE

10

PROJECTION ON THE COMPUTER SCREEN.

 

11

 

MAY WE APPROACH TO GIVE HIM A COPY,

 

12

BECAUSE I'M ASSUMING IT'S STILL FUZZY UP THERE.

13

 

JUROR PORTER: YES.

 

14

THE COURT: YES.

15

BY MR. SERRA:

 

16

Q

SIR, AGAIN, TRYING TO EXPEDITE MATTERS, YOU

 

17

SEE YOUR SIGNATURE AT THE BOTTOM?

 

18

A

I DO.

19

Q

AND DO YOU SEE IT'S A JUROR QUALIFICATION

 

20

QUESTIONNAIRE?

 

21

A

UM-HUM.

22

Q

AND DO YOU SEE YOUR NAME AT THE TOP OF THAT?

 

23

A

I DO.

24

Q

AND I WANT TO CALL YOUR ATTENTION TO NUMBER 7,

 

25

TO GET CONTEXT.

 
 

18

 

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1

 

SO LOOK AT 5.

SAME AS BEFORE.

"ARE

2

THERE ANY CHARGES NOW PENDING AGAINST YOU?"

3

 

AND YOU ANSWER NO, AND I HAVE NO ISSUE

 

4

WITH

THAT.

 

5

 

NUMBER 6. "HAVE YOU EVER BEEN CONVICTED,

6

EITHER BY YOUR GUILTY OR NOLO CONTENDRE PLEA, OR BY

7

A

COURT OR JURY TRIAL, OF A STATE OR FEDERAL CRIME

8

FOR WHICH PUNISHMENT COULD HAVE BEEN MORE THAN ONE

9

YEAR

IN PRISON?"

 

10

 

AND IN THIS FORM, SIR, YOU SAY YES.

 

11

A

YES.

12

Q

AND WHY IS IT THAT IN THE PREVIOUS EXHIBIT, TO

13

WIT,

D AS IN DOG, YOU SAID NO; AND IN THIS EXHIBIT,

14

B AS IN BOY, YOU SAY YES?

 

15

A THIS IS -- I ANSWERED THIS QUESTION BASED ON

16

MY WELFARE FRAUD.

 

17

Q

AND WHY DIDN'T YOU ANSWER THE PREVIOUS

 

18

EXHIBIT'S QUESTION WITH REGARD TO YOUR WELFARE

19

FRAUD?

 

20

A

BECAUSE I DIDN'T DO MORE THAN ONE YEAR.

 

21

Q

DO YOU READ IT -- IT SAYS PUNISHABLE.

THAT

22

MEANS YOU DON'T HAVE TO DO THE TIME.

IF YOU'RE

 

23

SUBJECTED TO THE TIME, THAT WAS THE INTENT OF THAT

24

QUESTION.

 

25

 

IT'S THE SAME AS IN B.

 
 

19

 

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1

A

OKAY. WELL, I ANSWERED BASED ON THAT.

 

2

Q

PUNISHMENT COULD HAVE BEEN MORE THAN ONE YEAR?

3

A

OKAY.

I ANSWERED BASED ON THE FACT THAT I DID

4

ONLY

FOUR MONTHS IN COUNTY JAIL.

I DID NOT DO A

 

5

YEAR.

6

Q

GOING NOW TO 7, THAT'S WHAT I'M MOST

 

7

INTERESTED IN, "IF YES, WERE YOUR CIVIL RIGHTS

8

RESTORED," AND YOU SAID YES?

 

9

A

YEAH.

I KNOW THAT MY CIVIL RIGHTS WERE NEVER

 

10

TAKEN AWAY, SO I ANSWERED THE QUESTION THAT, BASED

11

ON THE FACT THAT SINCE I HADN'T LOST THEM IN THE

12

FIRST PLACE, MY ASSUMPTION IS THAT I STILL HAD

13

THEM.

14

Q

SIR, WAS -- ISN'T IT A FACT THAT AT SOME POINT

15

IN THE STATE PROCEEDING, THERE WAS APPLICATION MADE

16

BY YOU TO HAVE YOUR RECORD EXPUNGED, AND THEY CALL

 

17

THAT

A 1203.4 MOTION.

 

18

DO YOU RECALL THAT?

19

A

I'M SORRY. CAN YOU ASK THAT QUESTION AGAIN?

 

20

Q

SURELY.

21

ISN'T IT A FACT, WITH REGARD TO THE 1994

 

22

CONVICTION WHEREIN YOU INDICATE THAT YOUR CIVIL

23

RIGHTS WERE RESTORED, THAT, IN FACT, THERE WAS A

24

MOTION MADE, NOT TO RESTORE YOUR CIVIL RIGHTS, NOT

25

FOR A PARDON, BUT, IN ESSENCE, TO HAVE YOUR

20

 

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1

CONVICTION EXPUNGED?

 

2

 

AND WHAT'S THAT CALLED.

I DON'T KNOW IF

3

YOU KNOW WHAT IT'S CALLED, BUT IT'S CALLED A 1203.4

4

MOTION.

5

 

DO YOU RECALL THAT?

6

A

ARE YOU ASKING ME IF AT SOME POINT I ASKED

 

7

THAT

THE FELONY BE REMOVED OR DROPPED TO A LESSER

8

CHARGE? IS THAT WHAT YOU'RE ASKING ME?

 

9

Q THAT -- THAT IS ONE WAY TO SAY IT, YES.

 

10

A IF YOU'RE ASKING ME WHETHER I ASKED TO HAVE

11

THE FELONY REDUCED TO A MISDEMEANOR, THE ANSWER TO

12

YOUR

QUESTION IS YES.

13

Q

AND THEREAFTER, DID YOU ASK THAT IT BE

 

14

EXPUNGED? OR WITH THE MOTION TO REDUCE IT TO

15

MISDEMEANOR, AT THAT TIME, DID YOU ASK THAT IT BE

16

EXPUNGED?

 

17

A

NO, I DON'T REMEMBER ASKING FOR IT TO BE

 

18

EXPUNGED.

 

19

Q

ISN'T IT A FACT, SIR, THAT THE MOTION THAT WAS

20

MADE

ON YOUR BEHALF, TO HAVE IT REDUCED TO A

 

21

MISDEMEANOR AND TO HAVE IT EXPUNGED, WAS DENIED?

22

A

AND AGAIN, THE ANSWER TO YOUR QUESTION IS I

23

DON'T REMEMBER ASKING TO HAVE IT BE EXPUNGED. I

24

MERELY ASKED TO HAVE IT REDUCED FROM A FELONY TO A

25

MISDEMEANOR.

 
 

21

 

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1

 

IF THOSE TWO GO TOGETHER, THEN THE ANSWER

2

TO YOUR QUESTION WOULD BE YES.

 

3

 

MR. SERRA:

MAY WE HAVE NUMBER 5?

 

4

THE COURT:

IT HELPS US IF YOU JUST COME

 

5

TOTALLY IN ON IT AND THEN YOU COULD MOVE IT AROUND

6

TO SEE VARIOUS PARTS OF IT.

 

7

 

MR. SERRA:

I ONLY DO THIS SEEKING TO

 

8

REFRESH MEMORY, BECAUSE IT'S ALREADY IN THE FILES.

 

9

 

MAY I APPROACH?

10

THE COURT: CERTAINLY.

11

AND I'M SUGGESTING THAT THE ARM OF THAT

 

12

CAN GO DOWN. THAT SOMETIMES HELPS THE VISIBILITY

13

OF IT.

THERE'S A BUTTON THAT ALLOWS YOU TO --

14

THERE YOU GO.

 

15

 

(PAUSE IN PROCEEDINGS.)

16

BY MR. SERRA:

 

17

Q

HAVING READ THE AREA ON THE DOCUMENT THAT WE

 

18

JUST

SHOWED YOU, IS YOUR MEMORY REFRESHED NOW THAT

 

19

YOUR

PETITION TO THE COURT IN YOUR FELONY MATTER TO

20

HAVE

THE CONVICTION REDUCED TO MISDEMEANOR AND

 

21

EXPUNGED PURSUANT TO CALIFORNIA PENAL CODE SECTION

 

22

1203.4 WAS DENIED?

 

23

A

AND LET ME ANSWER YOUR QUESTION AGAIN, SIR. I

24

ASKED ONLY THAT IT BE REDUCED TO A MISDEMEANOR.

I

25

NEVER ASKED FOR IT TO BE EXPUNGED.

 
 

22

 

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1

Q

FINE.

2

A

AND IT WAS DENIED.

 

3

Q

AND IT WAS DENIED.

4

 

SO YOU NOW CONCEDE YOU WERE CONVICTED OF

 

5

AT LEAST ONE FELONY, NOT REDUCED TO A MISDEMEANOR,

6

AND IT WAS NEVER REDUCED TO A MISDEMEANOR BECAUSE

7

YOUR

1203.4 WAS DENIED. IS THAT A FAIR STATEMENT?

8

 

MR. FONDO: OBJECTION. MISSTATES THE

9

EVIDENCE.

 

10

THE COURT:

I'LL ALLOW IT AS TO HIS

 

11

UNDERSTANDING AT THIS POINT.

 

12

 

JUROR PORTER: YES.

13

MR. SERRA:

I WANT TO NOW PLACE REMARKS

 

14

ON THE SCREEN.

 

15

 

(DISCUSSION OFF THE RECORD BETWEEN

 

16

DEFENSE COUNSEL.)

 

17

BY MR. SERRA:

18

Q

DO YOU SEE -- ARE YOU ABLE TO READ THIS

 

19

EXHIBIT?

 

20

A

NO.

IT'S FUZZY.

21

 

MS. WHITE: MAY I APPROACH?

22

BY MR. SERRA:

 

23

Q

SIR, THIS IS THE ATTACHMENT TO THE PREVIOUS

 

24

EXHIBIT I SHOWED YOU, WHICH WAS YOUR JUROR

25

QUALIFICATION QUESTIONNAIRE.

 
 

23

 

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1

 

SO IT REFERS TO YOUR ANSWER IN 7.

 

2

AND IT, THEREFORE, IS AN ATTACHMENT, YOUR

3

HONOR, TO B.

 

4

 

DO YOU SEE WHERE, UNDER REMARKS -- YOU

 

5

RECOGNIZE YOUR HAND PRINTING THERE?

 

6

A

I DO.

7

Q

DO YOU SEE UNDER THE REMARKS, YOU SAY, "I CAN

 

8

VOTE

BUT CANNOT PURCHASE A WEAPON UNTIL I HAVE PAID

9

FULL

RESTITUTION."

 

10

A

YES.

11

Q

HOW DID YOU DERIVE THAT YOU COULD VOTE AND

 

12

POSSESS A WEAPON AFTER YOU HAD PAID FULL

13

RESTITUTION? WHERE DID THAT COME FROM?

 

14

A

I VOTE REGULARLY, AND WHEN I WENT TO COURT,

 

15

THE JUDGE SAID "I WILL REDUCE THIS TO A FELONY -- I

16

MEAN

REDUCE THIS TO A MISDEMEANOR WHEN YOU'VE PAID

 

17

ALL THE CHARGES AND WHEN YOU'VE PAID ALL THE

18

RESTITUTION," AND I HAVEN'T FINISHED PAYING THE

19

RESTITUTION.

 

20

Q

WELL, WE SHOWED YOU THAT IT WAS NEVER UNDER --

21

WHEN

THE 1203.4 WAS DENIED, IT WASN'T REDUCED.

 

22

SO, THEREFORE, ISN'T -- YOU KNOW THAT

23

WITH

A FELONY CONVICTION, YOU CAN'T VOTE?

24

A

WRONG, SIR.

I HAVE BEEN VOTING IN EVERY

25

ELECTION IN THE LAST 15 OR 20 YEARS, SO I CAN -- I

24

 

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1

GO DOWN, I REGISTER, I VOTE.

 

2

Q

BUT ISN'T THERE A FORM, WHEN YOU FILL OUT, I

 

3

DON'T KNOW, YOUR APPLICATION TO VOTE, THAT ASKS

4

YOU,

"HAVE YOU BEEN CONVICTED OF A FELONY?" JUST

5

LIKE

HERE?

6

A

I DON'T REMEMBER.

 

7

Q

AND THE IDEA THAT IF YOU PAID FULL

 

8

RESTITUTION, HAVING A FELONY CONVICTION, THAT YOU

 

9

COULD POSSESS A WEAPON, WHERE DID YOU GET THAT?

10

A

AGAIN, IN COURT, THE JUDGE MADE IT VERY CLEAR

11

THAT

ONCE I PAID THE RESTITUTION FOR THE WELFARE

12

FRAUD, THAT MY CONVICTION WOULD BE DROPPED FROM A

13

FELONY.

 

14

MY ASSUMPTION IS IF I NO LONGER CARRIED A

15

FELONY, I WOULD BE ENTITLED TO PURCHASE A WEAPON.

 

16

 

NOW, IF THAT'S A WRONG ASSUMPTION, SO BE

17

IT, BUT THAT'S AS I SAW IT.

 

18

Q

BUT WEREN'T YOU TOLD -- OR WEREN'T YOU

 

19

KNOWLEDGEABLE THAT THE 1203.4 WAS DENIED;

20

THEREFORE, IT WASN'T REDUCED; THEREFORE, YOU CAN'T

21

HAVE

A WEAPON; THEREFORE, YOU CAN'T VOTE? DIDN'T

22

SOMEONE TELL YOU THAT?

 

23

A

NO.

24

Q

DID YOU GET THE FORM THAT INDICATES YOUR

 

25

1203.4 WAS DENIED? DID YOU GET THAT FROM YOUR

25

 

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1

LAWYER, THE CLERK, OR ANYONE?

 

2

A

YOU'RE ASKING ME ABOUT SOMETHING THAT HAPPENED

3

15 YEARS AGO, AND I'M TELLING YOU, AS I UNDERSTAND

 

4

IT, I HAVE VOTED IN EVERY ELECTION FOR THE PAST

5

UMPTEEN YEARS WITHOUT AN ISSUE.

 

6

 

AND AS I UNDERSTAND IT, ONCE I PAY BACK

 

7

THE RESTITUTION TO THE STATE OF CALIFORNIA FOR THE

8

WELFARE FRAUD, THE FELONY WILL BE REDUCED TO A

9

MISDEMEANOR.

 

10

 

AND IF I NO LONGER CARRY A FELONY, I'LL

 

11

BE ABLE TO PURCHASE A WEAPON IN THE UNITED STATES.

12

Q

DO YOU -- DO YOU SEE -- AND I CAN BRING IT UP

13

IF YOU CAN'T READ IT -- DO YOU SEE IT SAYS,

14

QUESTIONS 5 AND 6, "CRIMINAL RECORD" ON THE RIGHT

15

SIDE

OF THE EXHIBIT?

 

16

A

I SEE THAT.

17

Q

DO YOU SEE WHERE IT SAYS, "THE SENTENCE" --

 

18

STRIKE THAT.

 

19

 

ONE IS, "DISQUALIFIED FROM JURY SERVICE

 

20

ONLY

FOR CRIMINAL OFFENSE PUNISHABLE BY

 

21

IMPRISONMENT FOR MORE THAN ONE YEAR, BUT IT IS THE

 

22

MAXIMUM PENALTY AND NOT THE ACTUAL SENTENCE WHICH

23

CONTROLS."

 

24

 

DID YOU EVER READ THAT WHEN YOU WERE

 

25

FILLING OUT THESE QUESTIONNAIRE FORMS?

 
 

26

 

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1

A

I DON'T REMEMBER.

2

MR. SERRA:

AND LASTLY, YOUR HONOR, WE

 

3

WOULD LIKE TO SHOW HIM A TRANSCRIPT OF HIS ANSWERS

4

GIVEN DURING VOIR DIRE PRIOR TO BEING QUALIFIED AS

5

A JUROR IN THIS CASE, AND THERE'S TWO PAGES THAT I

6

WANT

TO SHOW.

7

Q

DO YOU REMEMBER, SIR, WHEN YOU WERE IN THE

 

8

JURY

-- YOU WERE IN A SEAT.

I DON'T KNOW WHERE YOU

9

WERE, IT COULD BE IN THE BOX OR ELSEWHERE, BUT HIS

 

10

HONOR WAS QUESTIONING THE JUROR BEFORE YOU AND --

11

YOU CAN LOOK TO REFRESH YOUR MEMORY, BUT THE JUROR

12

BEFORE YOU --

 

13

 

THIS IS PAGE 78, YOUR HONOR.

14

-- INDICATES "I WAS CONVICTED OF TWO

 

15

FELONIES."

 

16

 

"THE COURT:

ALL RIGHT.

AND HOW LONG AGO

17

WAS THAT?"

 

18

 

THE JUROR SAYS, "ABOUT TEN YEARS AGO."

 

19

AND THEN HIS HONOR SAID, "TEN YEARS.

20

THAT

DOES RAISE A QUESTION AS TO WHETHER OR NOT

21

YOUR

CIVIL RIGHTS WERE AFFECTED BY THAT."

22

AND THEN HE SAYS, HIS HONOR SAYS, "ONE OF

23

THE RIGHTS YOU CAN LOSE BY BEING CONVICTED OF A

 

24

FELONY IS THE RIGHT TO VOTE OR THE RIGHT TO SERVE

25

AS TRIAL JUROR."

 
 

27

 

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1

 

NOW, THAT WAS RIGHT -- ON THE NEXT PAGE,

 

2

THE JUDGE WAS GOING TO BE TALKING TO YOU.

 

3

 

BUT DO YOU REMEMBER HEARING THAT, YOU

4

KNOW, DIRECTED TOWARD, I PRESUME, A JUROR SITTING

 

5

NEXT

TO YOU DURING THE VOIR DIRE PROCESS?

 

6

A

YES, I DO.

 

7

Q

AND THEN GOING TO THE NEXT PAGE, HIS HONOR

 

8

SAYS, "LET'S SEE. MR. PORTER."

9

 

AND THEN YOU, "PROSPECTIVE JUROR: IT WAS

10

ME.

I HAD A -- I GUESS IT WAS WELFARE FRAUD.

I

11

GOT FOOD STAMPS OVER THE AMOUNT I WAS SUPPOSED TO

 

12

RECEIVE.

IT WAS 25 YEARS AGO AND THAT'S WHAT

 

13

HAPPENED."

 

14

AND THEN THE COURT SAYS, "THOSE ARE THE

 

15

KINDS OF MISTAKES WE LIVE TO REGRET, BUT YOU'VE

 

16

MOVED AHEAD. THANK YOU VERY MUCH, MR. PORTER."

17

 

BUT NOW I'M ZEROING IN.

18

YOU KNEW, DID YOU NOT, THAT YOU'D BEEN

 

19

CONVICTED OF A FELONY IN '94?

 

20

A

I ANSWERED THE QUESTION BY SAYING I HAD A

 

21

WELFARE FRAUD.

 

22

Q

NO.

YOU SAID IT WAS 25 YEARS AGO, SIR.

 

23

A

MAYBE IT WAS 15 YEARS AGO.

24

Q

YEAH.

25

A

I ANSWERED THE QUESTION.

 
 

28

 

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1

Q

NOW, A WELFARE FRAUD CAN BE CHARGED, YOU KNOW,

2

DEPENDING ON HOW MUCH AND HOW PROTRACTED THE

 

3

ELEMENTS ARE, CAN BE CHARGED AS A MISDEMEANOR OR A

4

FELONY.

 

5

 

SO YOU DIDN'T SAY, "YES, YOUR HONOR, YOU

6

KNOW, I WAS CONVICTED OF A FELONY.

I THINK IT WAS

7

25 YEARS AGO.

MIGHT HAVE BEEN 16."

8

 

YOU DIDN'T SAY ANYTHING LIKE THAT, SIR,

9

DID YOU?

 

10

A

NO, I DIDN'T.

 

11

Q

WHY NOT?

12

A

NO REASON.

I TOLD HIM I HAD A WELFARE FRAUD,

13

AND MY ASSUMPTION IS THAT THE COURT WOULD KNOW OR

14

ASK MORE QUESTIONS.

 

15

Q

WERE YOU TRYING TO DECEIVE HIS HONOR BECAUSE

16

YOU WANTED TO BE ON THE JURY?

YOU KNEW YOU HAD A

17

FELONY.

 

18

A

I WOULD RATHER HAVE NOT DONE TWO WEEKS OF JURY

19

DUTY, OKAY? JUST LIKE EVERYBODY ELSE.

 

20

Q

ISN'T IT JUST LIKE YOU VOTING?

YOU HAVE A

21

FELONY ON YOUR RECORD AND YOU'VE BEEN VOTING.

 

22

 

YOU'RE NOT QUALIFIED TO VOTE, SIR.

23

YOU'RE JUST LIKE -- YOU'VE GOT A FELONY ON YOUR

24

RECORD, YOU'VE GOT TO TELL THE COURT ABOUT IT.

25

YOU'VE GOT TO PUT IT ON THE FORM.

YOUR RIGHTS

 

29

 

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1

HAVEN'T BEEN RESTORED.

 

2

 

YOU TOLD A BUNCH OF FIBS, DIDN'T YOU?

 

3

A

NO.

4

MR. SERRA:

YOUR HONOR, AT THIS POINT I

 

5

HAVE

NO FURTHER QUESTIONS.

6

THE COURT: VERY WELL.

DOES THE

 

7

GOVERNMENT WISH TO QUESTION THE WITNESS?

 

8

 

(DISCUSSION OFF THE RECORD BETWEEN

 

9

GOVERNMENT COUNSEL.)

 

10

 

MR. FONDO: NO QUESTIONS, YOUR HONOR.

 

11

THE COURT:

MR. PORTER, THERE WAS ONE

12

ASPECT OF YOUR STATEMENT THAT I WANTED TO INQUIRE

13

JUST

A LITTLE BIT MORE ABOUT, AND I CAN APPRECIATE

14

THAT

SOMETIMES THESE LEGAL PROCEEDINGS THAT TAKE

15

PLACE CAN BE COMPLICATED.

 

16

 

BUT WHAT WAS YOUR UNDERSTANDING AS TO

 

17

WHETHER A NEW MOTION WOULD NEED TO BE FILED TO TAKE

18

ANY FURTHER ACTION TO RESTORE YOUR RIGHTS ONCE YOU

 

19

HAD PAID WHATEVER FINE OR RESTITUTION WAS

20

OUTSTANDING?

 

21

 

DID YOU -- DID YOU UNDERSTAND THAT IT

 

22

WOULD JUST BE DONE AUTOMATICALLY AND YOU DIDN'T

23