Alix Tichelman bail doc 7162014.docx

					     BIGGAM, CHRISTENS EN & MINSLOFF
     Athena R. Reis, SBN 268477
2    2 103 N. Pacific Avenue
     Santa Cruz, CA 95060
 3   (83 1)429-13 1 1
     Fax : 429-5664
4

 5   Attorney s for ALIX TICHELMAN
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                SUPERIOR COURT OF THE STATE OF CALIFORNIA
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                      FOR THE COUNTY OF SANTA CRUZ
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9    THE PEOPLE OF THE STATE OF                 )
     CALIFORNIA,                                ) Case No . F27 144
10                                              ) NOTICE OF MOTION AND MOTION
            Plaintiff ,                         ) FOR RELEASE ON OWN
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                                                )
               vs .                             ) RECOGNIZANC E OR BAIL
12                                              ) REDUCTION

     ALIX TICHELMAN                             )
13                                              )
            Defendant.                          ) Date: July 16, 2014
14                                              ) Dept. 3
                                                ) Time: 8:15a.m.
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     TO:    THE HONORABLE TIMOTHY VOLKMAN, JUDGE OF THE
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            SUPERIOR COURT:
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            Alix Tichelman moves this court for an order for releasing her on her own
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     recognizance, or, in the alternative, a significantly reduced bail. Ms. Tichelman ,
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     age 26, does not have a si gnificant criminal history, has a stable residence and will
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     return to future court appearances, and is n ot a danger to others.
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                                STATEMENT OF THE CASE
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            Ms. Tichelman is charged with manslaughter in violation of Pena l Code
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     section 192; giving away heroin in violation of Health and Safety Code section
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25   11352, subdivision (b); possessi on of heroin in v iolation ofHealth and Safety Code
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     section 11350; tran sportation of heroin in violation of Hea lth and Safety Code
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     section 11352, subdi vision (b); two counts of engaging in prostitution in violation
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     of Penal Code section 647, subdivision (b), and destroying or concealing evidence
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 5   in v iolation of Pena l Code section 135.
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                          STATEMENT OF RELEVAN T FACTS
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            On November 23, 2013, nearly seven and a half month s before Ms.
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 9   Tichelman 's arrest, Forrest Hayes wa s found dead of a suspected drug overdose on

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     his yacht in the Santa Cruz Harbor.
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            The night prior , Mr. Hayes had arranged to spend time with a woman he met
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13   online believed by police to be a prostitute named Alix Tichelman. The interaction

14   was captured by a video cam era installed on the boat.
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            The video showed a man and a woma n engaged in soci al conversation as the
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     two were seated in the parlor area of the yacht. The man was seated on a b ench
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18   drink ing a beverage and appeared to be enjoying himself during th e conversation.

19   The woman was seated on the floor.
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            The man calmly watched the woman inject hersel f w ith an unknown
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22   substance. The man gestured in a m a nner directing the woma n to similarly inject

23   him in the arm with the same substan ce. The man and the woma n ki ssed and
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     hu gged each other on the floor of the yacht before the man repositi oned himself on
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     a bench and extended hi s anns. The man calmly watche d as the woman kneeled
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     between his legs and examined his veins. The man rubbed a nd hit his inner elbow
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     in an attempt to help the woma n locate a vein. The m an shined the light from h is
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 5   cell phone onto his inner elbow to assist her. The man was injected.
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            The man and the woma n kissed again. The man then became lethargic and
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     nodded off. Shortly thereafter, the woman gathered severa l items and walked to the
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 9   yacht's exit. A window shade was drawn and blocking the exit. The woman lifted

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     the shade, wa lked through the door, and then pu lled the shade back to its original
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     position.
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13          On July 4, 2014, police arrested Alix Tichelman in Santa Cruz County .

14                          RELEVANT PERSONAL HISTORY
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            Ms. Tichelman is twenty-six years old and resides in Folsom, California
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     with her parents Bart and Leslie Ann Tichelman. Her crimina l history consists of
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18   two misdemeanor arrests in the State of Georgia: one for driving under the
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     influ ence of a lcohol and the other for domestic battery and makin g a false report.
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     The u ltimate disposition of the two arrests is pr esently uncl ear.
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22          Leslie Ann Tichelman works part-time in retail and Bart Ti chelman works in
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_.




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clea
   n
tech
 nol
 ogy
  in
 the
Fols
 om
area .
 Mr.
 and
Mrs.
Tich
elma
 na
  re
hom
eow
ners
 and




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     would like to see their daughter returned to their care during the pendency of this
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     case.
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               Alix Tichelman is agreeable to abiding by any condition s of release imposed
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 5   by the court, including an ankle monitor, daily telep honic check-ins with pretria l

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     services, and random drug testing.
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                                           ARGUMENT
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9    1.        This Court should release Ms. Tichelman on her own recognizance.

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               Californi a Constitution article I, section 12, as amended bv Proposition 4 in
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     1982, provides: "A person may be released on his or her own recognizance in the
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13   court 's discretion." Penal Code section 1270 (a) provides that the court or

14   magistrate, who could release as defendant from custody upon the defendant giving
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     bail, may release a person arrested for or charged with an offense, other than a
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     capital offense, on his own recognizance.
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18             Even a defendant charged with a violent of serious fel ony as defined in
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     Penal Code section 667 .5 (c) and 1192.7 (c) respectively, is eligible for release on
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     hi s own recognizance after a hearing. (See Pen. C. 1270. 1 (a)). The cowt cannot
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22   decline to release a person simply becau se he is charged with a violent or serious

23   felony.
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     Ill
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             In such a case, the court must consider:
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             evidence of past court appearances of the detained person, the
 3           maximum potential sentence that could be imposed, and the danger
             that may be imposed to other persons if the detained person is
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             released . In making the d etermin ation whether to release the detained
 5           person on his or her own recogn izance, the court shall consider the
             potential danger to other persons, including threats that have been
 6           made by the detained person and any past acts of violence. The court
 7           shall al so consider any evidence offered by the deta ined person
             regarding his or her ties to the community and his or her ability to
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             post bond. (Pen. C. § 1270.1 (c).)
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             The Court's discretion to release a defend ant on hi s own recognizance "'is
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      not ...an arbitrary discretion to do abstract ju stice according to the popu lar
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12    meaning of that phrase , but is a discretion governed by legal rules to do justice
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      according to law."' (In re Podesto (1976) 15 Cal.3d 921,933, quoting Ex Parte
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      Hoge (1874) 48 Cal. 3, 5.) The government bears the burden of producing
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16    evidence on the detainee's record of appearance at prior court hearings and the

17    severity of the sentence he faces at "own recogn izance" release hearings. (VanAtta
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      v . Scott (1980) 27 Cal.3d 424, 438-439, superceded on other ground s via
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20    constitutional amendment as enacted by Proposition 4 as recognized in People v.

h21   York (1995) 9 Cal. 4 1 1133, 1134 n .7.)

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             The facts outlined above favor Ms. Tichelman 's release on her own
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24    recognizance. Mr. Hayes and Mrs. Tichelman were engaged in a consensual adult

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      encounter in which Mr. Hayes was an eager part icipant. Any harm suffered by Mr.
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      Hayes was unintentional and Ms. Tichelman does not pose a danger if released.
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      2.     Ms. Tichelman i s entitled to bail.
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 5           Pre-trial defendant s are entitled to bail but for those charged with capital
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      offenses where "the proof of his or her guilt is evident or the presu mption thereof
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      great. (Pen . C. §§ 1270.5, 127 1.)
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 9           Where a person is charged with a violent offense or a felony sexual assault,
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      bail may be denied "when the facts are evident or the presumption great and the
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      court finds based upon clear and convincing evidence that there is a substantial
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13    likelihood the person 's release would result in great bodily harm to others ." (Cal.

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      Const. art. I, sec. 12 (b).) Where a person is charged with a felony "when the facts
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      are evident or the presumption great and the court finds based on clear and
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17    convincing evidence that the person has threatened another with great bodi ly harm

18    and that there is a substantial likelihood that the person would carry out the threat if
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      released ," bail may also be deni ed. (Cal. Const. art. I, sec. 12 (c).)
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             Clear and convincing evidence is defined as requiring a high probability ,
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22    based on evidence so clear as to leave no substantial doubt, and sufficient ly strong
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      to command the unhesitating assent of every reasonable mind. (In re Nordin ( 1983)
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      143 Cal. App. 3d 538, 543.)
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            Given th a t the information that purp orts to substantiate the case against Ms .
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     Tichelman indicates that harm resul ting to Mr. Hay es was unintentional, this Court
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     cannot find by clear and convincing evidence that there is a substantial likelihood
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 5   that her release would result in great bodily harm to anyone. Becau se Ms.
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     Tichelman does not fall into any of the above exception s, she is entitled to bail.
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     3.     Bail as currently set at 1.5 million is excessive.
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9           Excessive bail may not be required. In fixing the amount of bail, the court

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     shall take into consideration the seriousness of the offense charged, the previous
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     crimina l record of the defendant , and the probabi lity of his or her appear ing at the
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\3   trial or hearing of the case." (Cal. Const. art. I, sec. 12.)

\4          Penal Code section 1275 (a) states that:
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            The public safety shall be the prim ary consideration.
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             In considering the seriou sness of the offense charged, the jud ge or
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             magistrate shall includ e consideration of the alleged injury to the
18          victim, and alleged threats to the victim or a witness to the crime
            charged, the alleged use of a firearm or other dead ly weapon in the
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            commission of the crime charged, and the a lleged use or poss ession
20          of controlled substances by the defendant.

21          In fixing bail in a narcotics case:
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            the jud ge or magistrate shall consider the following: (1) the alleged
23          amounts of controlled substances involved in the commission of the
             offense, and (2) whether the defendant is currently released on bail
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            for an alleged violation of Chapter 6 (commencing with Section
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             11350) of Division 10 of the Hea lth and Safety Code. (Pen. C. §
             1275 (b).)
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 3          The factors listed in Penal Code section 1275 are not necessarily exhaustive.

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     (In re Albe rt o (2002) 102 Cal. App . 4th 421 , 430.)
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            Based on Ms. Tichelman's insignificant criminal history and the substance
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 7   of the case against her, bail as set is excessive. Moreover , Ms. Tichelman has not

 8   threat ened any witness, and did not use any weapon in the commission of the
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     alleged offense. In light of the totality of circumstances , a substantial downward
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     departure from bail as presently set is warranted.
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12   4.     The court must look at the individual facts of the pending case in
            setting bail.
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14          The popular fallacy that the Court is to assume a person guilty for purposes

15   of bail evolved from a misreading of language in Ex parte Duncan ( 1879) 53 Cal.
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     4 1, a habeas corpus case.    In Duncan , the Supreme Court reviewed the bail set by
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18   the Municipal Court. The Supreme Court explained that the assumption of guilt

19   standard is confined to a habeas review of a trial court bail setting. The Court
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     observed that "we must assume in this proceeding [habeas review of trial court bail
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     setting] that the petitioner is guilty of the ten distinct feloni es of which he is
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23   indicted." (Id. at 4 11 [emphasis in original].) The court contrasted this standard of
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     review with the standard which would have applied "had the proceedings to let him
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     to bail been originally before us." (Id.) That is, the stan dard of review on habeas is
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     different from the one to be used by a trial court in the first insta nce. (Id. )
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            Similarly, Chief Justice Wallace, revi ewing a similar bail reduction request
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5    from a ba il set by a police court on a charge of murd er in Ex Parte Ryan, presumed

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     guilt "for the purpose of this proceed ing." (Ex Parte Ryan (1872) 44 Cal. 555,
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     558.) Inattentive scholarship has resulted in the Supreme Court's "in this
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9    pro ceeding" emphasis being dropped from later incarnations of the quote. And so,

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     the myth has developed that a trial court must presume guilt when setting ba il.
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            The United States Supreme Court's statement that the presumption of
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     innocence" has no application to a determination o the rights of a pretrial

14   detainee during confinement before his trial has even begun" should not be
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     misunderstood. (Bell v. Wolfish (1979) 441 U.S . 520, 533.) As the District of
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     Columbia Court of Appea ls put it, "[t]o apply [the presu mpti on of innocence] to the
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18   pretrial bond situation would make any detention for inability to meet conditions of
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     rel ease uncon stitutional. (Blunt v. United States (D.C. App. 1974) 322 A.2d 579,
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     584, superceded by statute on other grounds as stated in Best v. Un ited States
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22   (D.C. App. (1994) 65 1 A.2d 790 .) However, the fact that a presumption of
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     innocence is unwatTanted does n ot suggest that a presumption of guilt is wa rranted .
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     Rath er, it supports defendant 's position that the Court should evaluate each case on
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     its merits in fixi ng bail.
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             That gui lt is not presumed is the only natura l implication of the
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5    Constitutional and statutory l anguage allowing a complete denial of bail where the

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     "presumption [is] great." (Cal. CONST. art. I, sec. 12 (c); Pen. C . § 1271.) Were
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     gu ilt to be presumed in every bail setting, there would be no need to include
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9    language regarding the presumption of guilt with regard to certain crimes. "It is a

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     maxim of statu tory construction that 'Courts shou l d give meaning to every word of
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     a statute if possible, and should avoid a construction making any word surplu sage."'
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     (Reno v. Baird (199g) 18 Cal. 4th 640, 658 [citations omitted].)

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             Finally, even if there were authority for presuming defendant's guilt in
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     setting bail, there is absolutely no rea son to suggest that this presumption is a
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     conclusive one. As such, defendant would b e allowed to rebut any presumption
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18   that did, in fact, exist.

19           Because there is no authority permittin g or instructing thi s Court to presume
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     defendant 's guilt, the Court should determine defend ant's custody status based
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22   upon an individu alized consideration of the reason for her current detention.

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     5.     Under the United States and California Constitutions, bail may be fixed
 2          only to guarantee defendant 's future court appearance.

 3          a. Considering public safety in sett ing bail violates the Eighth Amendment
               to the United States Constitution.
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 5          Bail may be denied only in capital cases or those wh ere the judi cia l process

 6   is threatened becau se of defendant 's intimidation of witnesses and with strict
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     procedural safeguard s. (United States v. Salerno (1987) 48 1 U.S . 739, 753, 755.)
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            If bai l is available, th en bail must be fixed only in that amount necessary to
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10   guarantee the defendant 's appearance in court. ( Id.; see also United States v.
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     Salerno, supra, 481 U.S. at 753 noting that Stack v. Boyle is limited to those
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     situations where bail is permitted by statute.)
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14          [T]he modern practice of requiring a bail bond or th e deposit of a sum
            of money subject to forfeiture serves as an additional assurance of the
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            presence of an accused. Bail set at a figure higher than an amount
16          reasonably calculated to fulfill this purpose i s 'excessive' under the
            Eighth Amendment. (Id.)
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            As the United States Supreme Court has made clear, because securing
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19   attendance in court is the only function of bail where bail is available, consideration
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     of other factors is violativ e of the Eighth Amendmen t to the United States
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     Constitution.
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23   Ill

24   Ill
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             b. The California Constitution does not condone factorin g the publi c
 2              safety into a bail determination.

 3           Article I, section 12 (c) of the Cal ifornia Constitution allows the Court to
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     consider "the seriou sness of the offenses charged, the prev ious crimina l record of
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     the defendant , and the probabi l ity of his or her appea ring at the trial or hearing of
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 7   the case" in fixing bail.

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             The portion of Article I section 28 (c) of the Cali fornia Constitution relating
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     to bail is inoperative as this section did n ot take effect because proposition 4
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II   (amending article I, section 12) received more votes in the election. (In re York

12   (1995) 9 Cal. 4th 1133, 1140, n.4; People v. Banow (199 1) 233 Cal. App. 3d 72 1,
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     723.)
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             As such Penal Code sections 1270, 1270 .1 and 1275, wh i ch allow the
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16   consideration of public safety in fixing the amount of bail, are unconstitutional.
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     Ill
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     Ill
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20   Ill

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     Ill
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                                       CONCLUSION
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            Based on the foregoing, Ms. Tichelman 's release is warTa nted. Alternatively,
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     bail should be substantially reduced.
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     DATED: July 14, 20 14                     Respectfully su bmitted,
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                                               Larry Biggam, SBN 530 19
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14                                             Attorneys for ALIX TICHELMAN

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     BIGGAM , CHRISTENSEN & MINSLOFF
     Athena R. Reis: SBN: 268477
 2   2 103 N. Pacific Avenue
     Santa Cruz, CA 95060
 3   (831)429- 1311
     Fax: 429-5664
 4

 5   Attorneys for ALIX TICHELMAN
 6
                SUPERIOR COURT OF THE STATE OF CALIFORNIA
 7
                      FORTHECOUNTYOFSANTACRUZ
 8

 9   THE PEOPLE OF THE STATE OF
     CALIFORNIA,                                    Case No. F27 144
10                                                  DECLARATION OF COUNSEL IN
            Plaintiff,                              SUPPORT OF MOTION FOR
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                                                    RELEASE OR BAIL REDUCTION
               vs.
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     ALIX TICHELMAN                              Date: July 16, 2014
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            Defendant.                           Dept. 3
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                                               ) Time: 8:15a.m.
                                                )
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        I, the undersigned, declare under penalty of perjury as follows:
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     1. I am a public defender for the City and County of Santa Cru z and in that
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19      capacity I have been assigned to the defense of the defend ant in the above-

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        entitl ed action.
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     2. I am informed and believe that:
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23          a. The "Statement of Relevant Facts" at pages two an d three is mad e on

24              information and beli ef and is taken from the foll owing items disclosed to
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                me by the District Attorney 's office: a vid eo clip presumab ly taken from
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               Forrest Hayes's yacht lasting approximately twenty minutes, Santa Cru z
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               Police Department report numb er 13S-09680 written by Officer Rosell,
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 5             and Santa Cruz Police Department report number 13S-09680 written by

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 7                        ---- ..
               Officer Sc honfi ld.
            b. The "Relevant Persona l History " section at page three is based on
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 9             information and belief and determined through my review of Ali x

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               Tichelman 's record of criminal hi story provided to me by the District
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               Attorney's Office and interviews w ith Alix Tichelman and h er father
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13             Bart Tichelman.

14   3. Bail was set at $1.5 million dollars on July 4, 2014.
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     4. I believe that bail, as presently set, is unreasonably great and disproportion ate to
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        the offense and offender and violates the constitutional proscription against
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        excessive bail.
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     5 . I believe that the prospects of criminal penalty for failure to appear in
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        accordance with the terms of a release on own recogni zance are well understood
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        by the defendant and are a deterrent to flight.
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23   6. In view of the above, I respectf1.11ly request that the defendant be released on
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        own recognizance, or in the a lternative , that bail be substantially reduced.
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            Th e foregoing is tru e and correct of my own knowl edge, except as to th ose
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     matter s stated on information and be lief, and as to those, I believe them to be true.
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            Executed on July 14, 20 14 at Santa Cruz, Cal ifornia .
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                                                 Athena Re is, SBN 268477
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                                                   Attorney for ALIX TICI-IELMAN
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     That I was, at the time of the service of the papers herein refened to, over the age of 18 years and
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     not a party to the with in entitled action .
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6    On the date below, I served the NOTICE OF MOTION AND MOTION FOR RELEASE ON

7    OWN RECOGNIZANCE OR BAIL REDUCTION
 8   by delivering to and leaving with the parties below, a copy of said document.
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10   District Attorney
     c/o reception
11   701 Ocean St. Room 200
12   Santa Cruz, CA 95060

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15   I declare under penalty of perjury that the foregoing is true and conect. Executed on
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     __ v_l-+Vf _Jf---- -' 2014, at Santa Cruz, California
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20                                                                   Ryan Monis

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