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SHARON BETH MARSHALL, ESQUIRE:
"Good afternoon. So I think it's time that you guys actually get some full truth because there is truth to be had in this case. And the truth is that my client, P.M., who is an excellent emergency department nurse, is not guilty of all seven counts that are alleged. So guilt must be proven beyond a reasonable doubt. If you have reasonable doubt, the prosecutor has not proven her case and my client remains presumed innocent. He is innocent now. He has been this entire time. He is presumed innocent unless the prosecutor proved her case beyond a reasonable doubt.
In terms of G.M., she is the risk director at the hospital and reviews instances of alleged inappropriate acts. G.M. testified that she found no hospital policy that was violated. She also testified that she does not take anything at face value, neither does F.A., a character witness, and a lot of other witnesses testified similarly. And you all shouldn't take everything at face value either. It's time to dig deep and look further.
The reasonable doubt jury instruction says that unless the evidence proves my client guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. The truth is, ladies and gentlemen, that you do not have the evidence that you need to have in this case. You need specific evidence as to the precise and different and unique anatomies of these three women. And nobody gave you that. Every woman's anatomy is different.
Now, the defense expert I found to be extremely credible as balanced against M.W., who runs a 24/7 business for law enforcement, we clearly know what her bias is. This is a gal who is super impressive. She has testified as an expert in 80 trials, balanced for both the prosecutor and the defense.
Her particular focus, throughout her career has been womens' genitalia. When charge nurse J.K. is preparing to do a catheter, she tells her patient that she is "about to get all up in her business". And J.K. and O.C. testified, as well as Expert S.W., said that clitoral touching absolutely happens during catheter procedures. S.W. testified that the genital area is cleansed from clitoris to anus. I have a question. Why would a clitoris need to be cleansed if there was no possibility of it being touched?
The labia has to be separated. The tissues and anatomical structures, including but not limited to the clitoris, must be pushed back. Not sure what the confusion is of the prosecutor. But the labia are spread, the tissues are manipulated, pushed back and up or down depending on where the woman's particular anatomy is. S.W. testified you do the manipulation any way that you can in order to access the urethra.
In terms of visualization that the prosecutor was talking about, you can't do visualization unless you do manipulation first. So the non-dominant hand of the nurse is on the clitoris throughout, purposefully. There is no accident. We are not talking about, 'oops, I made a mistake'. This is one of the structures that is manipulated so that the urethra can be visualized and a catheter can be sterile and enter into the urethra.
Nurse S.W. also says that you are constantly moving your hand because things shift and things change and perhaps you are going to slip a bit on a labia and you need to push it more forcefully. Whatever it is, there is no standard hand position. Obviously, hands are different from person to person. Finger length is different from person to person. And the most important thing above all is to make sure that the catheter remains sterile so there is no bacteria from the labia and the other anatomical structures that can get introduced into that sterile environment and cause serious risk to the patient.
So Nurse S.W. said that sometimes catheterization is an extremely difficult procedure. Of course, unfortunately, she didn't have the specific facts and details to decide what actual manipulation was going to be required during that particular catheterization. There are no photos that have been memorialized. The women didn't go and get photographed. But the bottom line is that every woman's body is different and that is how it is. O.C. says it is "a surprise" when you get down there, as she said, and looks around and cleans and visualizes. It is only then when you really realize what you are actually "contending with". Those were her words. Now, the prosecutor poo pooed this, you know, oh, catheterization isn't so difficult. Sometimes it really is. And without actually knowing what you were contending with, we can't make a decision as to what was appropriate or inappropriate.
My client testified very truthfully, very believably, very credibly that he is a nurse. It hits him to the core just upon hearing the allegations. This is so not who he is as a person, as a nurse. It kills him that these charges have even been levied. So think about all of the possibilities with regard to difficulties and issues that you have to contend with as to what possibly Nurse M. was faced with.
What factors can make catheter insertion difficult? Prolapse, rectocele, cystocele, a woman's positioning, obesity. The DA, you know is trying to slam that term. There is no offense. It's a medical term. There are medical terms that in regular parlance might not be politically correct. Obesity is a medical term. Post-menopausal, shrinkage and atrophy, urethral retraction, thick labia, no labia, hidden urethra, all sorts of things. But we had no specific facts, did we?
Womens' sensitivities are also very different. One woman can be extremely sensitive. But women may actually feel like they are being rubbed when a catheter procedure is happening. They may feel circular motions. They will feel contact on their clitoris.
Getting the job done is not always easy, but nurses get it done. Their job is to make their patient comfortable and safe. And a lot of times, they are following doctors' orders in order to make the patient feel better. That's what my client was doing and only what he was doing. J.D. testified that surrounding tissues are actually touched. There is separation, there is manipulation, and there is pulling up. Up, being the clitoris. Tissue needs to be pushed up and out of the way so the tissue can be retracted to keep that sterile environment.
The clitoris is right at the top where the left and right labia meet at the top of the genitals. If you are holding labia separated, you have the left labia, you have the right labia, and you are separating. Where are you holding, ladies and gentlemen? You are holding the clitoris. And many folks told you that, right? Even M.W. testified that there is separation. Sometimes there is a lot of tissue, and the only way to visualize it is to separate and manipulate so you are able to see where the urethra is.
Now, as we don't know the specific facts about the particular private areas of these three women, what the prosecutor is asking you is to just take a guess that all of these women looked anatomically the same, that they had no issues, all good, easy and simple. And sometimes that's how a catheterization procedure is and sometimes it's not. And we don't guess here. We don't presume facts. We don't assume facts. We need facts! We need the truth in order to ascertain what actual evidence we have before us in order to make a decision. Based on what the prosecutor presented you and argued that she has proven beyond a reasonable doubt, she produced no specific facts that you all need to determine whether or not touching was appropriate or inappropriate.
My client is honest, truthful and sexually appropriate. All four character witnesses, and even a fifth with Nurse J.D. The honesty and truthfulness remain uncontested by the prosecutor.
And, of course, a common thread that ran throughout the testimony is, I need to know a lot more and a lot of witnesses said that. S.W., M.W., J.D. and F.A. You all need a lot more facts that you weren't given. Again, the prosecutor wants you to imagine this Barbie world where everybody is slender and has the same body type and the same anatomy. Is that reasonable? No. I'm looking around the jury box. It's not reasonable because it's not reality. We live in reality, ladies and gentlemen. We live in reality where facts and truth are important.
Stephen Trevino for the People (P): How is it that you came in contact with the defendant on that day?
Witness One (W1): So, prior to arriving to the area of Lankershim and Kittridge we received a radio call indicating that the P.R. had observed an individual armed with a firearm in his waistband and provided the suspect and vehicle description.
P: And did you find that vehicle?
W1: We did.
P: And was the defendant inside it?
W1: Yes.
P: Did you approach it?
W1: So, due to the nature of the call and them possibly being armed with a firearm, we ordered them outside the vehicle. As we activated lights and sirens and forward facing red light, the defendant immediately exited the vehicle.
P: Was there anyone else in the vehicle?
W1: Yes.
P: How many people?
W1: Two, total of two.
P: Where was the defendant situated in the vehicle?
W1: The passenger seat.
P: What happened next after you ordered everybody out?
W1: My partner, who was driving that day, had indicated that he had discovered a firearm inside the vehicle. He then notified me of his findings.
P: Did you observe the firearm?
W1: I did.
P: Where was it?
W1: It was in the driver's side cup holder.
Court (C): Sorry, sir, just a question: is that cup holder in between the driver's seat and the passenger's seat, or is it to the left of the driver's seat?"
W1: Correct. It's going to be in the middle- inside the middle compartment, between the driver and passenger seat.
C: All right. Thank you. Next question please.
P: Did you secure the gun that you found?
W1: My partner did.
P: And to your knowledge, was it in good working order?
W1: Yes.
P: Did you render it safe?
W1: My partner did.
P: To your knowledge, was a DNA swab done on the gun?
W1: Yes.
P: And was that then booked under [xxxxx] as the D.R. number?
W1: Yes.
P: And was there a DNA swab taken of the defendant?
W1: Yes.
P: And was that also booked under the same D.R. number?
W1: Yes.
P: No further questions for this witness at this time, your honor.
SHARON BETH MARSHALL, ESQUIRE: Did you watch the videos in this case?
W1: I did.
S: All of them?
W1: Of what we're referring to, the investigation, yes.
S: About six hours' worth?
W1: Approximately.
S: Okay. And did you order them out or did your partner order them out?
W1: My partner did.
S: And that was Officer C.; am I correct?
W1: Correct.
S: All right. And Mr. M. immediately exited the vehicle; is that right?
W1: Correct.
S: But Mr. B. stayed in the vehicle for about 15 seconds; do you agree?
W1: Correct.
S: And had to be yelled at several times?
W1: It took him some time to get out before he actually did.
S: Did you yell at him, or was it Officer C., to get out of the car?
W1: My partner.
S: Officer C.?
W1: Correct.
S: You got information from the P.R. that he was watching on his security camera?
W1: Correct.
S: And he saw Mr. B. conceal upon him what he thought was a firearm?
W1: Correct.
S: And that- well, you advised, "You were walking with a gun"? And Mr. B. said, "Yeah"; is that right?
W1: I cannot recall.
S: You don't remember that?
W1: I would have to review my report to recollect my memory.
S: It was actually from the body worn.
W1: Okay. I don't- I don't recall.
S: Okay. And you questioned him that he didn't know that he had left the firearm in the vehicle; is that right?
W1: I don't recall.
S: You don't recall that either?
W1: I don't.
S: Okay. And did you ask him, is it your gun?
W1: I don't recall.
S: Did Officer C. also have a conversation with my- with Mr. B.?
W1: I'm sure he did at some point.
S: And did you talk to Mr. B. about how much stuff was in the car?
W1: I don't recall.
S: Do you recall Mr. B. say, "That's my stuff in there, man. That's mine"?
W1: I don't recall.
S: That's interesting. So you don't remember any statements that were made under Miranda?
W1: I mean, I inputted what was pertinent to the information that was to Miranda and our discovery of the gun.
S: So, I mean, the question is possession, right?
W1: Correct.
S: And somebody developed the opinion that Mr. B. was the sole possessor of the gun; is that right?
W1: I don't recall that portion of that in which you're indicating of the possession.
S: Okay. Do you remember that Mr. M. was cited and released?
W1: He was questioned and released.
S: Detained and released?
W1: Correct.
S: Is that right?
W1: Correct.
S: And was there a determination that he was on probation?
W1: I don't recall.
S: Did you talk to Mr. B. about the fact that it was in his cup holder?
W1: I believe so.
S: And you were surprised that Mr. B. didn't know why?
W1: I don't recall.
S: Did you know Mr. B. from prior arrests?
W1: My partner did.
S: And he was difficult to understand, would you agree?
W1: Can you explain further?
S: Sure. He was muttering for a lot of it, shaking his head "No"?
W1: At some times, yes.
S: Okay. And a lot of it was undecipherable. You couldn't tell what he was saying?
W1: In some ways, yes.
S: All right. So you did question Mr. B. about who had the gun?
W1: I would have to review my report.
S: You don't remember that?
W1: No.
S: When was the last time you reviewed your report?
W1: Today.
S: When was the last time you reviewed the body worns?
W1: Approximately two weeks ago.
S: Was it your partner that believed that Mr. B. was the sole possessor of the gun?
W1: I cannot speak on that.
S: Why is that?
W1: Because if my partners believe the findings, which I don't remember discussing between each other.
S: Well, have you had not been testifying about your partner officer's beliefs and opinions throughout this examination?
W1: But not the sole purpose of Mr. B. being the possessor of the gun.
S: Did he think that he was the possessor of the gun?
W1: I don't recall.
S: And was there a phone call to your superior regarding the circumstances that you had?
W1: I believe so.
S: And, during that did the officer- it was either you or Officer C.- say "Based on everything, it's the driver"?
W1: I believe so.
S: And there was a question as to whether or not Mr. M. was even going to go to jail; is that true?
W1: Correct.
S: And it's your understanding that Mr. M had just gotten picked up from work by Mr. B.?
W1: That's what they had indicated.
S: That's what who had indicated?
W1: Your defendant.
S: Mr. M.?
W1: He had indicated that Mr. B. had picked him up.
S: And didn't Mr. B. also tell you that he had picked him up?
W1: Correct.
S: Did you release him?
W1: I don't- I don't recall. We might have both walked him out.
S: And did you believe that Mr. B. was the sole possessor of the gun?
W1: I don't recall my-
S: Beliefs?
W1: Well, indicating that Mr. B. had been- under Miranda, they had both indicated that- Mr. B. had indicated that he had seen, observed, and held the gun at one point. And, through those, we were both unsure of who was actually the possessor after we read the Miranda rights.
S: And then you detained and released him, is that right?
W1: Correct.
S: And you decided not to hold him on a probation violation; also true?
W1: Correct.
S: No further questions at this time. Thank you.
S: I would like to call Officer L. to the stand.
S: Did you speak to my client?
W2: No, I did not.
S: You didn't. And did you watch the police videos?
W2: I saw- yes. Police videos, yes.
S: And do you understand what Mr. M.'s statement was with regard to the gun?
W2: I don't remember much. It's been a while since I viewed the video.
S: Sure. Okay. Do you remember whether or not Mr. B. saw the officers behind him, panicked, and gave Mr. M. the gun?
W2: I don't remember that part. I viewed the video, but I don't recall that part.
S: Okay. You don't remember that Mr. M. said that Mr. B. handed it to him after panicking and seeing officers?
W2: I believe I read something in the report regarding something like that.
S: Okay. And that Mr. M. returned the gun to him right away? Do you remember that too?
W2: Not much. I mean, I'll have to read the report to read back to that section.
S: Does it sound familiar?
W2: Sounds familiar.
S: Okay. And then after Mr. M. gave Mr. B. the gun right back, Mr. B. then put it in the center console; is that right?
W2: I believe there was either something I read like that or something I heard on video.
S: Sounds familiar?
W2: Sounds familiar.
S: Okay. And you know that Mr. M. was detained but there was- it was decided that there was no probation violation; is that right?
W2: According- I believe that in the arrest report I read something about contacting probation, and they refused to hold him.
S: I have no further questions for this witness. Thank you so much.
SHARON BETH MARSHALL, ESQUIRE: Your honor, under People v. Hurtado, which is a 1996 case at 47 CAL.APP.4TH 805-"
C: Ms. Marshall, hold on, please. When someone cites a case, I want to- the court wants to look it up.
S: Certainly.
C: All right. What page?
S: The pinpoint cite is Pages 810 and 811.
C: Understood. Go ahead.
S: As to that, they discuss CALJIC 12.06 regarding momentary possession. Possession is not lawful if it is De Minimis, and for the purpose of abandoning it. That's what happened in this case. Mr. B. recognized law enforcement behind him, said, "Oh, fuck," essentially, and hoisted the gun off to my client.
My client having nothing to do with the gun, gave it back to Mr. B., and Mr. B. then put it in the center console where it was discovered. The length of time can be- can be considered n deciding if the matter- if the gun was physically handled for the purpose solely of abandonment, disposal, or destruction.
At page 812, the court talks about how possession can be fleeting, De Minimis, and reflexive, and that is not criminal possession.
I'm quoting for the court at page 813. Firearms are admittedly dangerous items. It is the possession of these items rather than the brief possession for disposal or self-protection which poses the danger which is criminalized. Public policy-wise, there is an encouragement of disposal and discouraging retention.
The public policy here actually was to hold somebody accountable who is actually accountable for the gun, which is not my client. Footnote four talks about, quote, actual control, care, and management of and not a passing control, fleeting, and shadowy in nature, and that's quoting from People v. Mijares, which is a 1971 case, 6 CAL.3D 415 AT 420.
That's exactly what happened here. Mr. M. was detained briefly. He was released. They decided that he wasn't going to be on a probation hold. That's why he was released, and I would argue to the court that based upon- even based upon the strong suspicion standard at a preliminary hearing, this does not meet the strong suspicion standard. I would ask that the matter be dismissed and that Mr. M. be released from custody.
C: Submitted?
S: Submitted.
C: Mr. Trevino, your response, sir.
P: Yes, your honor. The defense stipulated to the testing of the DNA in this case, and that stipulation included that J.M. was included in the 81 percent of proportions and Mr. B.-
C: Mr. Trevino, I'm sorry to cut you off, but I don't think that counsel is disputing that Mr. M. touched the gun, just that the possession of the gun, the touching, was fleeting or De Minimis.
P: And also, your honor, within the stipulation was that Mr. B. was excluded from the gun when it was swabbed for DNA testing. So the argument that it was Mr. B.'s gun doesn't particularly hold weight because Mr. B.'s DNA wasn't on it. It was excluded or found to be excluded from the testing done.
C: How do you deal with the witness testimony that Mr. B. was seen walking with a gun in his possession, getting into the car, driving the car, the car was pulled over. There was only testimony about one gun. Can you deal- can you talk about that, please?
P: Unfortunately, we don't have that witness here, but it would be our position that the witness was simply incorrect on who he saw with the gun and then driving the vehicle or what they then did with it. I think that's particularly the- the analysis from the report and the fact that it excluded the only other person talking about having had possession of the gun is incredibly pertinent to the case, and, for purposes of preliminary hearing, would show that by the probable cause standard that Mr. M. was, in fact, the one who did possess the gun rather than Mr. B. And there is- there is no testimony really that the gun seen by the witness in the earlier report is actually the gun that was recovered by police officers at the scene of the stop. It's possible that Mr. B. had his own gun and simply got rid of it earlier or placed it somewhere else.
C: Isn't that what we call "Anything is possible"?
P: Surely, but the fact is that there's no testimony or evidence that this is that same gun that the witness thinks that Mr. B. had. The only evidence in the testimony that we do have is that the gun that was recovered was tested for DNA, and the DNA showed an 81 percent contribution from Mr. M. and excluded Mr. B.
C: Understood.
P: Submitted.
C: All right. The court believes that the people have not met their burden of proof in this case. The court's going to dismiss this case pursuant to Penal Code Section 871.