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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF _______
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
v.
_______________________,

Defendant.

) Case: ________
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MOTION TO DISMISS THE

INDICTMENT, OR IN THE
ALTERNATIVE COUNT 3 AND GUN
ENHANCEMENT IN COUNT 4 (PC
995(A)(1)(B)); JOINDER IN CODEFENDANTS 995(A)(1)(B)
Date: ________
Time: ________
Place: ________

TO: GERALD T. SHEA, DISTRICT ATTORNEY OF SAN LUIS OBISPO COUNTY;

AND TO THE CLERK OF THE ABOVE-ENTITLED COURT:
PLEASE TAKE NOTICE that on July 25 2013 at 1:30 p.m., or as soon thereafter as the matter
may be heard in Department 4, the Defendant, CARLOS ESPINOZA, by and through his
attorney, R. THOMAS ALLEN, will move, and does hereby move for an order of this Court to
set aside the Indictment pursuant to Penal Code Section 995(a)(1)(B) in that Defendant has been
indicted without reasonable or probable cause, or in the alternative, dismiss Count 3 and the Gun
Enhancement in Count 4.
This Motion will be supported with the attached Statement of Facts, Points and Authorities,
records and documents on herein, and on any argument that may be presented at the hearing held
herein, and any arguments and Points and Authorities relevant to this Motion filed on behalf of
the Co-defendants by their respective counsel.

Dated: April 27, 2015

Respectfully submitted,
________________________
________________________
Attorney for Defendant,
________________________

STATEMENT OF THE CASE

Defendant, Carlos Espinoza is being prosecuted by Indictment on Four Felony Counts,
namely: Count 1: a felony violation of Section 182(A)(1) PC, Conspiracy to commit the crimes
of Possession of Marijuana for Sale; Transportation of Marijuana; Employment of a Minor to
Transport Marijuana all in violation of Sections 11359; 11360(a) and 11361(a) of the Health and
Safety Code. Count 2: a felony violation of Section 11359, Health and Safety Code, possession
for purpose of sale marijuana. Count 3: a felony violation of Section 11360(A) Health and
Safety Code, the unlawful transportation of marijuana. Count 4: a felony violation of Section
11361(A) Health and Safety Code, hire, employ or use I.P a minor in unlawfully transporting,
carrying, selling, giving away, preparing for sale, and peddling marijuana. As to Count 1, the
People have alleged four overt acts; As to Count 4, the People have alleged an Enhancement of
a principal in said offense was armed with a firearm.
Defendant, Carlos Espinoza, asserts in the following Statement of Facts and the Points
and Authorities in support of his argument that he has been Indicted without reasonable or
probable cause.
ISSUES IN CONTENTION
1. There is insufficient competent evidence to charge Defendant Carlos Espinoza with the
allegations in Counts 1, 2, 3, and 4 of the Indictment. Defendant asserts that the testimony
adduced during the Grand Jury proceedings is based upon illegally obtained evidence and
therefore is incompetent.
2. Defendant asserts as to Count 1 that the People misdirected the Grand Jury as to the
elements of Conspiracy;

3. Defendant asserts, as to Count 4, Employment of a Minor to Sell or Carry Marijuana, that

the evidence adduced during the Grand Jury proceedings is insufficient for the Grand Jury to
return an Indictment.
4. Insufficient evidence produced at the Grand Jury proceedings to warrant the filing of the
Gun Enhancement as to Count 4.
STATEMENT OF FACTS & POINTS AND AUTHORITIES
Section 995 of the Penal Code, insofar as it applies to an Indictment, provides in pertinent part as
follows:
a) Subject to subdivision (b) of Section 995a, the indictment or information shall be set aside
by the court in which the defendant is arraigned, upon his or her motion, in either of the
following cases:
1. If it is an indictment:
a. ***
b. That the defendant has been indicted without reasonable or probable cause.
(emphasis added)
1. GRAND JURY EVIDENCE AND TESTIMONY ARE THE PRODUCT OF AN
ILLEGAL STOP AND DETENTION OF DEFENDANT, CARLOS ESPINOZA.
Defendant, Carlos Espinoza has previously filed a Motion to Suppress Evidence pursuant to
Section 1538.5 of the Penal Code and is scheduled to be heard on July 25, 2013 in this Court.
Defendant, Carlos Espinoza reasserts the Arguments and Statement of Facts of said Motion as it
set forth fully herein.
2. MISSTATEMENT OF THE LAW RELATIVE TO CONSPIRACY AS ALLEGED IN
COUNT 1 RESULTED IN AN INDICTMENT OF DEFENDANT, CARLOS ESPINOZA
WITHOUT REASONABLE OR PROBABLE CAUSE.
Although mis-instruction by the Prosecution may not be the basis for an attack on the Indictment
by way of a 995 PC Motion to Dismiss (see, People v. Gordon (1975) 47 Cal.App.3d 465, 476) it
may nevertheless be attacked by way of a 995 PC Motion where the Prosecution has misstated its
burden (see Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1022 fn. 1) or where the

Indictment was founded on less than reasonable or probable cause. (see, People v. Gnass (2002)
101 Clap.4th 1271; People v. Superior Court (Mouchaourab) (2000) 78 Clap.4th 403, 424-425)
For purposes of the Motion to Dismiss Count 1 of the Indictment, Conspiracy, Defendant
reasserts the Statement of Facts as set forth in his Motion to Suppress Evidence filed herein on
July 1, 2013. Additionally, Defendant requests that the Facts and Argument filed by Jessica
Garcia through her Attorney, Kirk Endres on July 15, 2013 commencing on Line 8 of Page 3 and
ending on Line 21, Page 6, as it addresses the issue of Misstatement of the Law by the
Prosecution when instructing the Grand Jury as to the elements of Conspiracy and what the
Prosecution has proven as to Count 1 of the Indictment.
3. INCOMPETENT AND INSUFFICIENT EVIDENCE AS TO COUNT 4,
EMPLOYMENT OF A MINOR TO SELL OR CARRY MARIJUANA, PRESENTED TO
THE GRAND JURY.
(a) Defendant, Carlos Espinoza, adopts the Statement of the Case; Grand Jury Evidentiary Rules:
Evidence of Youth and Arguments asserted by Defendant, Mario Baguada, through his attorney,
Jeffery Stulberg, as set f forth in his Motion to Set Aside the Indictment, filed on or about July
16, 2013 herein, (contained in Page 2, commencing on Line 9 and concluding on Page 6, Line 16
of the Defendant, Mario Baguadas Motion) and the Statement of the Case, Evidentiary Rules,
Evidence of Youth and related Arguments contained in the Motion to Dismiss filed by Codefendant Jesus Garcia Guzman, by this attorney Jeffry Radding on July 5, 2013, commencing at
Page 3, Line 6 and concluding on Page 9, Line 3, in addition to the Partial Grand Jury Transcript
commencing at page 100 and concluding on Page 103 Line 28, for the assertions that the
Prosecution failed to produce competent and sufficient evidence for the Grand Jury to return an
Indictment.
As to Defendant Carlos Espinoza, when detained, he was the sole occupant and driver of the
white Chevy Van. No evidence was produced to establish that Defendant Espinoza was aware of
the presence or age of the alleged minor, the subject of Count 4 of the Indictment.
(b) Testimony as to the minors age is based upon incompetent hearsay and thus inadmissible
in a Grand Jury Proceeding. Proposition 115, Truth in Evidence, does not apply to Grand Jury
proceedings. (see, for example, Crawford v. Washington (2004) 543 U.S. 1095 as it relates to
violation of confrontation clause) (The People have the burden of establishing by competent,

relevant and admissible evidence the fact of age. No such evidence was produced.
(c) The Prosecution must establish that Defendant, Carlos Espinoza, had knowledge of the
presence of a minor and that he knew that said minor was under the age of 18. It must
further be proven that the minor was employed by Defendant, or involved in the proscribed
conduct. No such evidence was produced. The Prosecution concurrently has the burden of
proving that the defendant did not reasonably and actually believe that the minor was at least
18 years of age. The Prosecution had the obligation to inform the Grand Jury of the Prosecutions
burden and that if that burden had not been met, an Indictment shall not be returned.
4. INSUFFICIENT EVIDENCE PRODUCED AT THE GRAND JURY PROCEEDINGS
TO WARRANT THE FILING OF THE GUN ENHANCEMENT AS TO COUNT 4
For purposes of this Argument, Defendant Carlos Espinoza asserts that the gun allegedly found
in a defendants possession, was allegedly located in a vehicle other than Defendant Espinozas.
There is no assertion nor evidence that Defendant Espinoza knew of the existence or presence of
said firearm. The prosecution will assert that they need not prove that Defendant Espinoza was
aware of the presence of the firearm in order to satisfy the requirements of possession if
Defendant Espinoza is a principal in the commission of one of the related offenses. (see,
People v. Overten (1994) 28 CA4th 1497, 1501)
For purposes of this Argument, Defendant reasserts his argument contained in Paragraph (2) for
the premise that the Prosecution has failed to establish the existence of a conspiracy as it
relates to Defendant Espinoza. Additionally, Defendant asserts that to uphold an almost 20 year
old ruling that is devoid of any equal protection or due process consideration is violative of
Defendant Espinozas Fifth and Fourteen Amendment U.S Constitutional protections.
CONCLUSION
Based upon the foregoing Argument and Statement of Facts, this Court is requested to Dismiss
the Indictment in its entirety as the People have failed to produce competent, relevant, reliable
evidence and legally correct instructions to the Grand Jury. In the alternative, Defendant requests
that Count 4 be dismissed in its entirety, including ;the Gun Enhancement.
Dated: April 27, 2015

Respectfully submitted,
________________________
ROBERT THOMAS ALLEN
Attorney for Defendant,
CARLOS ESPINOZA