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of San Jose has stuff that it's got from a gang prosecution,
and they do a public record request of that? I think this
has much broader implications, and I guess my point is that
I don't think you can -- and the reason it's all here
together, I don't think you can pull apart what's happening
in this case, Chandler's case, or the writ case; it's all
one thing. And if you do that and you start to allow people
to go and pluck documents they become aware of in the
investigative files of the DA, police department, or anybody
else, that could work as severe injustice. I think it's a
bad precedent, and it's not justified in this case because
they are going to get the information. I think the
arguments that you make about, well, this stuff is already
jin the public record; well, some of it is. We are worried
about the part that is not. we don't care about what's in
the record; we've already said that. we're worried about
the part that is not. That is significant. I wish I could
go through the transcript.

THE COURT: I appreciate there is obviously some
difference what's in the three pages of notes versus what's
in the police report, and what's in the preliminary
examination transcript. I understand that. And I guess,
you are right, it all should be heard together, but I guess
the question is does the statutory remedy in the government
code override the constitutional rights?

MR. SCHUMB: Well, but, remember, they are not
constitutional rights. This is the government code and

that's made very clear in the case law we cited, and that's

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The court concluded that, quote, for courtroom
evidentiary purposes, as far as the record shows, Lanning's
categorization of behavioral characteristic of child
molesters and child victims is the subjective conclusionary
approach that cannot -- reasonably cannot be reasonably
assessed for reliability.

The court further concluded that the government had
not shown that Lanning's testimony would reliability assist a
jury in understanding the evidence or determining a fact in
issue.

In addition, the court concluded that Lanning's
testimony carried a severe risk of unfair prejudice because
the jury could make a quick and justified jump from Lanning's
expert testimony about behavioral patterns to guilt in a case
that shows similar patterns.

Furthermore, the court concluded that many of
Lanning's opinions are actually common sense observations
that the government can simply argue in closing.

Your Honor, that case is on all fours with this
case, and Lanning was a far more qualified witness than
Officer Dillon. Thank you.

THE COURT: Thank you, Mr. Madden. I'll just note
that at least on these two particular issues, I did review
all of the moving papers from the initial moving papers that
were filed that addressed this issue, and then all of the
subsequent specific points and authorities that were filed
relating to these particular issues.

One thing that you raised, Mr. Madden, that I don't

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conduct that they wanted or that they were willingly engaged
in. So this is some of the most horrific conduct that, I
think, any parent of a child can imagine.

He violated his position of trust. He violated
his position of authority. And the conduct that's involved
here is, like I say, some of the worst I have ever seen.

And I've been doing sex cases for a very long time as well.

So I acknowledge that Mr. Chandler has a wonderful
Support system, but I find that to be all the more offensive
that he would commit this conduct with a loving family and
with people who, also, put their trust in him; I find it
more reprehensible.

I think that Mr. Chandler represents the most
extreme risk not only to re-offend but also to flee. The
idea that he would violate the social contract, the
employment contract, and morality contract that every single
person is charged with following, and that he would adhere
to a court date when he faces 75 years to life in prison, I
think, is almost laughable.

He has shown his disdain for his society. The
Court has to accept that the charges in this case are true.
I would invite the Court to flip back just five pages
earlier in the preliminary hearing transcript and read Judge
McKay McCoy's comments about the testimony that she heard,
the descriptions of the conduct that were given by these
very little children.

And I would ask the Court to do that before it

makes any determination that this defendant does not pose an

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481

sealed cover.)

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used by you folks, maybe investigators, other experts that
you will be consulting with. It will not be disseminated
anyway.

MS. FILO: What I said is the confidential records
should be retained by the attorneys in the criminal case and
used only in and for the benefit of the criminal case. The
documents may not be furnished to anyone other than those
within the employee of the District Attorney, the Law Offices
of Madden and Redding, or experts and consultants retained by
either of those offices to assist in the criminal action.

All confidential material shall be kept in the
office of the District Attorney or the Law Offices of Madden
and Redding. No copy of the materials should leave those
offices, including via electronic transmission of any sort
for any purpose except for transmissions between counsel and
experts or for use in connection with the criminal
proceedings in this matter.

MR. MATIASIC: Your Honor, I certainly think it
addresses it indirectly. I think the million-dollar question
for us, you know, whether or not the attorney who represents
Mr. Chandler in the civil action falls under the purview of
experts, consultant, et cetera.

MR. MADDEN: No.

THE COURT: Okay. So Mr. Madden is making it very
clear that the civil attorney is not going to be provided
this information. Am I correct, Mr. Madden?

MR. MADDEN: I expect to be ordered not to provide

it.

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Concerning Ms. Keller, I'm prepared to submit the
matter on all of my moving papers, unless the Court has any
specifics. But again, I went into great detail as to each
and every reason why Ms. Keller should not be allowed to
testify.

One point I would like clarified, it's not clear
from the papers, but the People referred to three statements
of Ms. Keller. And I have indicated it appears to me from
the moving papers that what is at issue is the one statement
concerning the feet. And I would like to hear -- get
confirmation from the People if that's their position,
because I only addressed that issue for the reasons I stated.

So as I stated in my conclusion, the statements to
Ms. Keller have no tendency and reason to support the
requisite intent. The acts and intent described in those
statements are not similar to those of the charged offense.
The evidence is prejudicial and confusing and there is danger
the jury will use the evidence for an improper purpose.

I will submit the matter, Your Honor.

THE COURT: Thank you, Mr. Madden.

Ms. Filo, any comments?

MS. FILO: Just briefly, Your Honor. I didn't -- I
did receive Mr. Madden's reply to our supplemental briefing,
and I do have a few comments, including those that he's made
today.

With respect to the grooming, what Mr. Madden has
referred to almost throughout his paperwork, and again in his

discussion today, is that Det. Dillon is not an academic.

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ruling.

MR. FISS: So both will be produced?

MR. GEFFON: The Court is ordering on October 4th
both the handwritten notes and the typed summary of events
made three months later is also being released?

THE COURT: Yes. Let's look at when we are going
to come back, and then we will figure out when I need to see
whatever I'm going to see. The morning of wednesday,
October 10th.

MR. SCHUMB: What time.

THE COURT: 9:00 in the rarefied air of Morgan
Hill, Department 105.

MR. MADDEN: That's fine.

MR. SCHUMB: Can I get any supplemental papers
filed on October 4th?

THE COURT: Yes.

MR. SCHUMB: I will serve those by e-mail.

THE COURT: I will give you an e-mail too.
October 10, 9:00, Department 105 in the morning, Morgan Hill
Mr. Huntington will prepare the order. The original should
be filed with the Court, but I will be happy to accept the
e-mail. If you want 72 hours to file a response, you may.

MR. HUNTINGTON: Thank you, Your Honor.

THE COURT: You're welcome.

(Recess.)

THE COURT: Note on the record. The records were

submitted to the Court regarding the writs for in camera

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sign the protective order, and does counsel know when I will
be provided information about what was said, the documents,
what have you?

MR. MADDEN: My understanding, counsel has them
now.

MR. MATIASIC: Your Honor, I'm prepared to furnish
it to the Court today.

THE COURT: Okay. Thank you. That was my
understanding that's what was going to occur. So I'm going
to -~ the protective order that you e-mailed me, Ms. Filo, is
that the same one you have or different?

MS. FILO: It's a little bit different. I found
one sentence in there that was incomplete.

THE COURT: If you would provide me that?

MS. FILO: Maybe we should just circulate this as
one document. If I could approach?

THE COURT: Yes. We're off the record while we
sign this.

(Whereupon, there was a discussion off the record.)

MS. FILO: Your Honor, at this time, the People and
the defense have signed the stipulation and order. Pursuant
to that order, a copy of the curriculum vitae of the
psychiatrist with whom Laurie met is being provided to the
defense. I'm handing it to him now in court.

THE COURT: What is being provided?

MS. FILO: It's the curriculum vitae, the CV of the
psychiatrist, and I assume Mr. Matiasic will give the

documents to the Court that will be reviewed in-camera.

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because you have that.

MR. MADDEN: That was my question. I wanted to
make sure we're not going to have a discussion concerning the
factual matter surrounding the arrest or the circumstances.

THE COURT: Right. And just so we're trying to get
a real clear clarification of the parameters of where we're
at, just so it's clear, he would be allowed to be impeached
with: He suffered a prior misdemeanor attempted burglary for
attempting to enter a house with the intent to rob someone.
That's the entire --

MR. MADDEN: Misdemeanor attempted burglary?

THE COURT: Intent -- yeah. Misdemeanor attempted
burglary, correct. To enter a house with the intent to
commit larceny.

Again, as I mentioned earlier, Ms. Filo, even
though this is not such a crime, you are bound by this
agreement.

Mr. Madden, you are right about whether or not it
was a clerical error. I'm not trying to make any future
rulings on the Monterey case. All I'm simply saying is that
the intent, based on everything you presented to me, is
clear. That's why I'm not -- I don't think in fairness the
People should be allowed to impeach him with a felony as
opposed to a misdemeanor.

MR. MADDEN: So in summary, you are granting my
motion and denying it in part?

THE COURT: Correct.

MS. FILO: Your Honor, the only clarification I

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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 19 of 173

6
1 MR. MADDEN: There was, virtually, no evidence
2 presented to her. It was argument of Mr. Clark the sum
3 total of which takes approximately five pages. And that's
4 including everything that the district attorney and
5 Mr. Clark and the Court said. I'm not faulting him. He
6 just made an off-the-cuff, informal motion. As the court
7 can see from my papers, that's not what I've done.

8 THE COURT: I would not expect you to do something like
9 that, Mr. Madden. Judge McKay McCoy denied the request for
10 bail without prejudice. I think he is entitled to bring his

11 motion.

12 MS. FILO: Your Honor, I think the problem is every

13 bail motion has to be denied without prejudice because, if
14 there is a change in circumstance, the defendant is

15 absolutely entitled to bring that before a new magistrate or
16 new judge and have that issue reexamined. It always has

17 been without prejudice.

18 But Judge McKay McCoy -- I think the argument here
19 is that you cannot present the same set of circumstances to
20 a judge every three weeks, hoping that the decision will be
21 different. There's no different information presented to

22 this Court. The information about Mr. Chandler's criminal
23 history was presented to Judge McKay McCoy. The information
24 about his ties to the community was presented to her. The
25 information that the crimes occurred in a classroom and he
26 would not be returning to that setting was presented to her.
27 The argument that he had no other history was presented to
28 her. The offer that he be placed on electronic monitoring

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coming around and contacting her at various points and how
she felt about those contexts; specifically, item number one
in the People's motion is relevant. Item one states:

Chandler came to Ms. Keller's classroom while she
was alone. He shut the door behind him. He asked if he
could take pictures of her toes for a massage class that he
was taking. He asked about massaging her feet.

Based on all of the information that has been
provided to the Court, Court finds Ms. Keller's testimony
would be relevant as it applies to the defendant's intent
relating to Victim No. 3.

As I mentioned above, I conducted a 352 analysis on
this evidence, balancing the probative value with the
prejudicial impact, Court finds the probative value outweighs
the prejudicial impact. Ms. Keller's testimony will not take
an undue consumption of time based on the information
provided. Does the Court find her testimony will confuse or
mislead the jury? I don't think it is necessary to address
every single point raised by each party. For example, the
fact Ms. Keller is an adult, Victim No. 3 is a child, I took
that into consideration, balanced that fact with a specific
body part of interest, the feet, or the People's suggestion
that they would have a difficult time proving the offense
involving Victim 3 without this evidence.

This is not a concern of the Court. My focus is
whether the testimony is relevant and should be allowed
pursuant to 352. In this instance, the evidence should be

presented to the jury and they may give it whatever weight

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Laurie or concerning Laurie will be clearly, if the act
occurred, it was sexual. It's not ambivalent conduct. They
are going to argue that it was his penis. I believe what
that child when she testifies is going to either testify that
he not only did everything that she said before, but he did
more as stated in her civil lawsuit; that he forced his penis
into her mouth.

MS. FILO: If the defendant --

MR. MADDEN: Obviously, it's a sexual act,
therefore, no need. The only justification for using the
testimony about Mr. Chandler's sexual interest in the feet of
Ms. Keller is to establish the intent issue on that count.
What I'm saying is that that's not necessary, therefore, it's
not probative and it's highly prejudicial.

THE COURT: Okay. Again, I am comfortable with the
ruling, which, Ms. Filo, is very narrow. It may be expanded
after a 402 hearing. You could comment about that in opening
statements if you choose to do so, in that narrow situation.
And this is over Mr. Madden's objection. If that occurs
during opening statement, and if there is an objection, your
objection is noted, but for my ruling you objected.

MR. MADDEN: I won't object during opening
statement.

THE COURT: I understand.

MR. MADDEN: But I do wish to be comfortable
knowing exactly what it is Ms. Filo will be allowed to say in
her opening statement, what she won't be allowed to say. The

reason that I'm uncomfortable about it is that Ms. Filo had

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San Jose, California June 11, 2013
PROCEEDINGS

THE COURT: Thank you. We'll call the matter of
the People v. Craig Chandler. Counsel, state your
appearances for the record.

MR. MADDEN: Thank you, Your Honor. Brian Madden
appearing for Mr. Chandler. He's personally present in
custody.

MS. FILO: Good afternoon, Your Honor. Alison Filo
appearing for the People.

THE COURT: Thank you. We're here for the in
limine motions, and I have had an opportunity to read and
consider all of the points and authorities that have been
filed relating to the various issues. What I was inclined to
do is first go through Mr. Madden's in limines. And you did
give me a sort of, like, a title sheet that said one through
five, and I'm simply going to go through that order because
that's the order I have them.

And the first one is dealing with the defense
request to exclude the prior attempted burglary conviction
for the purposes of impeachment in the event Mr. Chandler
testified. Again, I read and considered the moving papers
filed by the parties, and if either Ms. Filo or Mr. Madden
wish to make additional comments at this time, you may do so.

MR. MADDEN: Your Honor, let me just simply state
this. I believe that we have extensively and accurately
stated our position, both in the motion itself, the initial

motion, and in our reply to the People's opposition. I'm

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SAN JOSE, CALIFORNIA SEPTEMBER 28, 2012
PROCEEDINGS

THE COURT: On the record in C1236212, People of
the State of California versus Lyn Vijayendren.

MR. GEFFON: Good afternoon, Eric Geffon appearing
for Ms. Vijayendren. She is not present this afternoon.

THE COURT: And the People are not a party to this
motion at this time.

MR. HUNTINGTON: Good afternoon, Your Honor.
Andrew Huntington on behalf of san jose Mercury News.

THE COURT: In addition we have for purposes of
these proceedings a related criminal matter €1223754, People
of the State of California versus Chandler.

MR. MADDEN: Brian Madden appearing for
Mr. Chandler. He is not present. I will waive his
appearance. Mr. Schumb is not co-counsel in the criminal
case; however, he is co-counsel -- I'm co-counsel with him
in this matter.

MR. SCHUMB: The writ matter, Your Honor.

THE COURT: We are technically not on the writ
matter at this point, but we will get there.

First of all on the Vijayendren. Procedurally to
remind us this Court conducted the arraignment of the
defendant. At that time upon application of the defense and
the People taking no position, the Court ordered sealed
three pages of the affidavit of probable cause that was part
of the filing in this matter. Thereafter, a motion for

unsealing was filed, and has been fully briefed. we can

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they are interesting for a couple of reasons, as I pointed
out. One allowed it, one does not. One, however, was --
well, one allows it and one would not, but both allowed the
same witness, which is interesting. The analysis was really
quite good.

One of my real concerns about expert testimony in
this area is that this man, Rob Dillon, is not an expert.
He's an experienced officer. Not a sergeant. Not a
lieutenant. Not a captain. I don't believe he works in
sexual assaults any longer. I believe he's in patrol. I
could be wrong about that, but I think that's where he is.
He's not familiar, I'm assuming, as I indicated in my motion,
with any of the scientific literature on grooming. There is
a body of literature on it. It's a body of literature that
is unformed.

There is scientific agreement about what it is and
what it isn't. I addressed those points with respect to Dr.
O'Donohue's position, who is a scientist, who is a
psychologist, who is an expert, who has written. It will be
one thing if they are bringing in someone who is qualified
from an academic standpoint who is familiar with the
scientific literature, but they aren't. They are talking
about an officer who had 15 to 25 hours of whatever they get
in the academy, plus his experience during the three years.
And then they march somebody in, they talk about general
things. They can't know the facts of the case.

I'm offended by it. I always have been. And for

the reasons that I stated, this is not helpful at all, and,

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even a venue change, but saying that there's an alternative
document that provides a summary is not an alternative.

Finally with respect to Mr. Schumb's comments, you
know I disagree that we have attempted to get these notes on
Chandler. That's simply not true. with respect to that we
made some back-handed end around to get these notes is
simply not true, and there's no basis of fact. We were
reporting independently on the vijayendren case. our
reporters made a public records act in that case
specifically with regard to that case. To make it look --
to say this was a back-handed attempt to get something that
we attempted and failed to get in Chandler is absolutely not
true, and there's no basis for that.

THE COURT: Thank you. want a last word?

MR. GEFFON: Just briefly, Judge.

THE COURT: Go ahead.

MR. GEFFON: TI don't think it's necessary to have
finding of facts or studies to determine if someone would be
prejudice -- not just pretrial publicity -- we're not asking
the Mercury News that they can't write a story about this
case. We're talking about taking the entirety of the
district attorney's case and putting it in the newspaper.
That didn't happen on Cary Stainer; that didn't happen on
Richard Allen Davis. The entire case is contained in three
pages of handwritten notes and the amount of prejudice is
directly related to the percentage of the case that will
appear in the paper, and the percentage of the case that

will appear in the paper if this motion is not granted is

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During the trial, the attorneys may object to
questions asked of a witness. I will rule on the objections
according to the law. If I sustain an objection, the witness
will not be permitted to answer, and you must ignore the
question. If the witness does not answer, do not guess what
the answer might have been or why I ruled as I did.

If I order testimony stricken from the record, you
must disregard it and you must not consider that testimony
for any purpose.

You must disregard anything you see or hear when
the court is not in session, even if it is done or said by
one of the parties or witnesses.

You alone must judge the credibility or
believability of the witnesses. In deciding whether
testimony is true and accurate, use your common sense and
experience. You must judge the testimony of each witness by
the same standards, setting aside any bias or prejudice you
may have. You may believe all, part, or none of any
witness's testimony. Consider the testimony of each witness
and decide how much of it you believe.

In evaluating a witness's testimony, you may
consider anything that reasonably tends to prove or disprove
the truth or accuracy of that testimony.

Among the factors you may consider are:

How well could the witness see, hear, or otherwise
perceive the things about which the witness testified?

How well was the witness able to remember and

describe what happened?

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Chandler case. why they did it in that case, I don't know.
we had the same problem in the Chandler case. If you look
at the file, they attached the file in the Chandler case and
we had to do a motion in front of Judge Pennypacker to get
that sealed, but if I'm arguing against the wind, I will
hush up.

THE COURT: I don't want you to feel that way,
because I've tried, if nothing else, to convey my sincere
belief and understanding of the issues and the concerns.

I'm not unmindful of them. I appreciate the significant
interest to the defendant in a criminal case. I am not
unmindful of those at all, and I tried to balance them as
best I can.

what I'm going to do at this point is this. The
writ insofar as it applies to the three pages is denied, and
I'm not overly civilly worldly. There was a peremptory
order made by Judge Pierce, and I don't know if that by its
own terms expires. It's technically expiring based on my
ruling, so I'm denying the writ as to that.

I will do the following. Number one, I will give
the opportunity to further brief, if you want, the issue as
to the remaining matters in the first and second
supplemental statements from the district.

MR. SCHUMB: Thank you, Your Honor.

THE COURT: Number two, I'm going to invite,
unless there is an objection and unless I hear it, I'm going
to invite them to leave all those documents with me or

copies of them so I can review them in camera before our

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could see that the Court is headed in that direction and so,
you know, I think that alleviates my concern for now. But we
want to reserve the right to be heard once that information
is disseminated to counsel in terms of, you know, what type
of use it may have in the criminal proceedings, if that's
okay with the Court.

THE COURT: Absolutely. Absolutely.

MR. MATIASIC: The other issue that I've raised,
which I think it's important, that this information not be
disseminated. Ultimately may come out in the criminal
context, I understand that. But at least until that point in
time, you know, we don't want it released to any of the
attorneys of record or any of their experts, consultants, et
cetera, in the civil action as well. So if we could make
that part of that order, we certainly would appreciate it.

THE COURT: Is that contained in the stipulated
order that you prepared, Ms. Filo?

MR. MADDEN: JI believe it is.

THE COURT: I thought it was. If not directly
addressed, it was indirectly addressed because I could
control that until Laurie testifies. And then as you know,
it's a public record. It's going to be part of the
testimony.

Ms. Filo, is that addressed in --

MS. FILO: Judge, what I think I put in here was
that it's --

THE COURT: I thought it was pretty clear to me

that any information I release to you is only going to be

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specifically did not order sealed after looking at it. And
the reason why that is relevant is that report contains a
summary of what is contained in the notes. It contains the
information necessary to understand what happened in this
case, and the public's right to know certainly is taken care
of by seeing those reports and understanding the history of
what happened. There's no benefit to knowing the specific
words that were used during the interview when that makes up
the entire basis of the prosecution against my client. I
think because there are alternatives to these three pages of
notes being released and that a police report that is
significantly longer than three pages, to be honest I didn't
count it, but it's certainly 10 to 15 pages from my quick
count, and because all the information contained to
understand the notes is contained in the report, there's no
reason my client's right to a fair trial should be trampled
by allowing the only piece of evidence against her, and the
district attorney's entire case in chief should be placed in
the newspaper for every potential juror to read prior to the
case appearing in court. And for that reason I think the
Court should make an amendment order, which would seal only
the pages of handwritten notes, and it would not seal
anything else, and allow access to the information necessary
for the public to understand this case, at the same time
protecting my client's right to a fair trial and to due
process.

THE COURT: Thank you. Mr. Madden do you want to

be heard insofar as this issue insofar as what may or may

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1 MR. SCHUMB: So the stay is lifted only for the

2 | three pages and we will continue on for hearing for the

3 | other. Your Honor, can we pick that date?

4 THE COURT: Yes. You bet.

5 MR. FISS: The stay of the order till October 4th,
6 | is that with respect to only the three pages being place

7 | back into the file or does that also relate to the district
8 | producing the documents in response?

9 THE COURT: That also relates to the latter, to

10 | the district producing those three pages next Thursday,

11 | October 4th 8:00 a.m.

12 MR. FISS: And then my second question there are
13 | three pages of typed notes and three pages of handwritten
14 | notes. Does this order apply to both the typed and

15 | handwritten notes?

16 THE COURT: You are just going to help me. Is the
17 | typed version just a typed version of the handwritten?

18 MR. FISS: They are subsequently the same.
19 MR. GEFFON: Judge, I can tell the Court what
20 | happened. The handwritten notes were made

21 | contemporaneously. In October, three months later when

22 | Mr. Chandler was arrested, my client was asked to type up
23 | her memory of the October incident, which includes details
24 | of the interview, but she did that without the handwritten
25 | notes and from her memory. So they are covering the same

26 | subject, and I don't think there are any inconsistencies but
27 | they are not just a typed version of the interview notes.
28 THE COURT: Yes, they are included in the Court's

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in fact, isn't agreement in the scientific community about
what grooming conduct is. You could have certain conduct
that's identical conduct, which is grooming for one man, not
for another. Obviously, a school teacher who has access and
in the presence of children every day, who could have no
sexual interest in children will show all of these, quote,
grooming factors by virtue of the fact he's their teacher.

It's bootstrapping of the highest order and it's
very troubling to me and it doesn't really tell the jury
anything. It could be argued by the People -- they are going
to argue it, they have a right to argue it, but to bring in a
non-qualified expert to talk about it is wrong and it
shouldn't be allowed.

THE COURT: Thank you, Mr. Madden.

What is actually the case -- some of the cases I
read which concerned me, but apparently the courts allowed
it. In those cases, they allowed the expert to go that next
step and hypotheticals and identify certain factors. In this
particular case, if it's consistent with grooming, I think
that was occurring with those cases. Again, I haven't made a
final decision on this, but I would like additional
information and I'll rule on that before or as soon as I can
when I return.

MR. MADDEN: Will I be given an opportunity to
reply to that?

THE COURT: Absolutely. Absolutely. That's
another reason, Mr. Madden, that's why I'm asking Ms. Filo to

put in written form with the detailed offer of proof what you

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the trial, I may allow conferences with the lawyers at
sidebar. If this is allowed, it usually involves a question
of law or issue that may not be appropriate to discuss in
front of the jury. You are not to speculate about these
sidebar conferences or try to listen to what is being said,
nor are you to form any prejudicial opinion against a lawyer
or the side the lawyer represents because that lawyer
requests such a sidebar conference. I ask you to be patient
about these conferences if they occur. For more often than
not, such conferences make the proceedings move faster.

Finally, I would like to emphasize the importance
of being on time. We could not proceed with the trial if
anyone is not present.

At this time, we'll briefly go off the record so
that the Court could go over issues such as scheduling.

(Whereupon, there was a discussion off the record.)

THE COURT: We'll go back on the record. Record
will reflect that the Court had informal discussions with the
jury about scheduling and other issues that may come up
during the course of the trial. We're going to recess at
this time.

All members of the jury, you are ordered to report
to the jury assembly room on the second floor Monday, July
15th, at 9:00 a.m. And when you come to the courtroom, we
will begin the trial with opening remarks and witnesses will
be called to testify. Please do not leave the courtroom
without your jury badge and a little piece of paper with the

identifying information with my name, court, and phone

JAMIE L. MIXCO, C.S.R. NO. 12708



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described as a process of gaining a child's trust, the
situation in the instant cases is slightly more sophisticated
because the victims' abuser was a teacher, as such, he did
not necessarily have to gain their trust because he was in a
position of trust. He was able to direct them to submit to
misconduct without the necessity of gaining trust. He also
did not have to seduce or manipulate the victims in
cooperating or consenting. He essentially directed them as a
teacher in a position of authority to engage in the conduct
ox exercises occurring. He deceived or tricked the children
into participating in the inappropriate conduct.

It seems the children may have complied because the
defendant was in a position of authority, although it would
seem that some level of trust had to be established, so that
if the conduct became uncomfortable, a child did not pull off
the blindfold or item that prevented them from seeing.

It appears this evidence would be to some degree
relevant. This case or fact situation does not fall into
your classic grooming scenario. Assuming it is relevant in
this case, conducting a 352 analysis, balancing the probative
value and the prejudicial impact, confusing or misleading the
jury in an undue consumption of time, the Court at this time
is not going to allow Det. Dillon to testify in the area of
grooming.

As with many pretrial rulings, once the People have
presented a substantial portion of their case in chief, based
on the evidence presented through both direct and

cross-examination, Ms. Filo, if you believe the Court should

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presented to her in the form of asking her to refresh her
recollection. They were not used for any purpose by the
prosecution, and Mr. Schumb certainly did not ask about
them.

THE COURT: No, I understand that. I was just
trying to clarify that the complaining witness was examined
and testified as to the sum and substance of the conduct
alleged against Mr. Chandler vis-a-vis her, and that was the
discussion between her and Mr. Geffon's client contained
within those notes. That is, the interaction with
Mr. Chandler she testified to at the prelim. She was not
questioned about her statement to Mr. Geffon's client as
shown in the notes.

MR. MADDEN: It's more than that. I think to put
it in perspective, I think I would be accurate in stating
that her testimony at the preliminary examination was not in
anyway near as inclusive as it was on earlier occasions.

THE COURT: Again, I'm sorry. I'm not suggesting
that her testimony at the prelim mirrored the statement made
to the principal. May not. All I was saying is just I
wanted to be clear that this 40 pages refers to an interview
given by a student to mr. Geffon's client relative to the
alleged conduct of mr. Chandler as reflected in the counts
in the Information that is charged against him vis-a-vis
her, and she was examined regarding the sum and substance of
that allegation or those allegations at the prelim.

MR. MADDEN: I'm comfortable with your emphasis on

the allegation.

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that she was -- so she was so clear that Mr. Chandler's
behavior towards her was sexually motivated, and a part of
that was this specific interest in feet. And questions to
her about feet and wanted to take pictures of feet, that made
her so uncomfortable that she asked to transfer from one
school to another school. So it is the combination and the
intersection of those ideas that a otherwise non-sexual body
part now has specific sexual meaning to this defendant. And
then when this inexplicable conduct with Victim No. 3 occurs,
it now has an explanation. It's no longer inexplicable now.
It's understood now and it makes sense.

So it is because the People have that high burden
of proving that conduct is motivated by a sexual interest,
that the conduct with Ms. Keller becomes so highly relevant
and highly probative.

THE COURT: Thank you.

Mr. Madden.

MR. MADDEN: Do you have any questions about my
position as stated in my moving papers?

THE COURT: No. It's fairly clear to me.

MR. MADDEN: I hope it was better than fairly
clear.

THE COURT: Okay. No, it was.

MR. MADDEN: Your Honor, in short, without going
back over it, the incident with Ms. Keller has nothing to do
with sexual interest in children. It was a sexual
interest -- it was a sexual interest in Ms. Keller. It's not

a crime that would mean -- if this is allowed to come in,

JAMIE L. MIXCO, C.S.R. NO. 12708



Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 12 of 173

L K. MILLER , Deputy Clerk of the Superior Court of the State of California, County of Santa
Clara, do hereby certify the foregoing to be a full, true, and correct copy of documents requested and/or

specifically identified on the index pages of the Clerk's Transcript on Appeal, as the same now appear on

file in this office.

I further certify that I have complied with CCP 237 (a) (2) in that all personal juror identifying information

has been redacted, if applicable.

In witness, I have hereunto set my hand and the seal of said Superior Court, this: April 30, 2014

THE PEOPLE V. CRAIG RICHARD CHANDLER CASE NUMBER: C1223754

. 7


Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 5 of 173

INDEX TO CLERK'S TRANSCRIPT

PAGE

VOL.

SANTA CLARA COUNTY CASE NO. 61223754

CLERK'S CERTIFICATE

CLERK'S CERTIFICATION

NOTICE OF COMPLETION

PEOPLE'S EXHIBIT # 24

PEOPLE'S EXHIBIT #7



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THE COURT: Okay. Thank you. Then I will
definitely do that.

MR. MADDEN: I do want to address something else
that counsel had mentioned and concerning fees. I don't know
necessarily which party will be subpoenaing the doctor.
However, if she's testifying, it's my expectation and my
understanding she'll be testifying as a percipient witness as
to a statement. She was not asked to give an expert opinion,
won't be called as an expert, and I don't think her
professional fee, I don't think she's entitled really to
anything other than a witness fee.

THE COURT: Ms. Filo.

MR. MADDEN: That's just my observations.

MS. FILO: So, Your Honor, I think we have reserved
the right. When we talked about this informally, we had
talked about whether or not we would need to use the
psychiatrist in a dual capacity. It is clearly my
expectation that the defense will make noise about the idea
that Laurie has given fundamentally inconsistent statements.
To the extent that they do that, I think the People then have
both the right and the obligation as an effective advocacy to
provide the jury with some explanation as to how or why that
might have happened. It may very well be that the
psychiatrist who took that statement as a percipient witness
may be the best person to provide that information. I don't
know that because I haven't really spoken to her, and I don't
know what she would say in that regard.

So what I wanted to be clear about was that I think

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what the prejudice is in unsealing the document.

That is all. Thank you.

THE COURT: And I have a of couple questions. Let
me start with you, Mr. Geffon. Let's start with the last
one and work backwards because counsel raises a point that I
have been juggling, which is the current affidavit of
probable cause has got all this. It's already out there.

We are not -- the Court is not sanctioning the release of
information that is apparently not already out in the packet
of available materials. How does releasing the notes above
and beyond an accurate summary thereof prejudice the
defendant's right to a fair trial?

MR. GEFFON: Because, Judge, as the Court knows
from looking at both the report and the notes while the
report summarizes that there was an interview and the fact
there was interview taken of the child, this case rises and
falls on the very specific facts that were told to
Ms. Vijayendren during that interview, and whether those
very specific facts would lead a reasonable person to
believe that there was an act of abuse being reported.

I will tell the Court, I think the Court knows
from reviewing both, that while the report is, I believe, an
accurate summary of the interview, there are more details in
those three pages of handwritten notes than exist in the
police report. The context is there, but the very specific
words that were used, the very specific actions that were
reported, those are contained in the three page handwritten

notes, and those are the words or the evidence against my

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have completed their arguments, and I have instructed you on
the law. After I tell you to begin your deliberations, you

may discuss the case only in the jury room and only when all
jurors are present.

You must not allow anything that happens outside of
the courtroom to affect your decision.

During the trial, do not read, listen to, or watch
any news report or commentary about the case from any source.
Do not use the Internet or any other electronic source or
device in any way in connection with this case, either on
your own or as a group.

Do not investigate the facts or the law or do any
research regarding this case. Do not conduct any tests or
experiments or visit the scene of any events involved in this
case. If you happen to pass by the scene, do not stop or
investigate.

If you have a cell phone or other electronic
device, keep it turned off while you're in the courtroom and
during deliberations. Electronic device includes any data
storage device. If someone needs to contact you in an
emergency, the court could receive messages that will be
delivered to you without delay.

During the trial, do not speak to a defendant,
witness, lawyer, or anyone associated with them. Do not
listen to anyone who tries to talk to you about the case or
about the people or subjects involved in it. If someone asks
you about the case, tell him or her that you cannot discuss

it. If that person keeps talking to you about the case, you

JAMIE L. MIXCO, C.S.R. NO. 12708



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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
BEFORE THE HONORABLE ARTHUR BOCANEGRA, JUDGE, AND JURY

DEPARTMENT NO. 37

---000---
THE PEOPLE OF THE
STATE OF CALIFORNIA, )
)
PLAINTIFF, )
) CASE NO. C1223754
v. )
CRAIG RICHARD CHANDLER, )
)
)
DEFENDANT. )
/
---000---

REPORTER'S TRANSCRIPT OF PROCEEDINGS

JUNE 11, 2013

---000---
APPEARANCES:
FOR THE PEOPLE: ALISON FILO
Deputy District Attorney
FOR THE DEFENDANT: BRIAN MADDEN
Attorney at Law
OFFICIAL COURT REPORTER: JAMIE L. MIXCO

C.S.R. No. 12708

JAMIE L. MIXCO, C.S.R. NO. 12708


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motion. It was my understanding, until Ms. Filo stood up,
she wasn't opposing this motion, and I suppose that I'm
prepared to submit it. But pointing out these
inconsistencies, for example, is not tantamount to making a
finding of who they are believing, who the expert's believing
or not. That's what she's driving at. Maybe I'm
misunderstanding. He's just using that to explain the
significance of inconsistencies itself. But to talk about
the inconsistencies, you have to get into what they are.

THE COURT: My take from Ms. Filo is that the
nature of the question, the nature of the interrogation, and
just all the problems this particular expert will identify
generally, and in this case, it would seem like his
testimony -- that this could result in inconsistencies within
a particular child's testimony. And I think her objection
was to go through all the inconsistencies that he identifies
and point them out. I think it might be reasonable, and I'm
not saying this is what I'm saying, but it might be
reasonable when he's talking about that area, for example,
that this type of questioning or interrogation techniques
will result in inconsistencies within the interview. An
example of one might be appropriate, but to go through the
whole interview, I think would be time-consuming, but it does
illustrate his testimony and the point he's trying to make.

MR. MADDEN: I understand. And I think in his
report, even though it's obviously a lengthy report, I
haven't totaled them up, but I don't think there are more

than several things referring to each of the kids. It's not

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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 1 of 173

XAVIER BECERRA
Attorney General of California
Peacy S. RUFFRA .
Supervising Deputy Attorney General
JILL M. THAYER
Deputy Attorney General
State Bar No. 166428
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5954
Fax: (415) 703-1234
E-mail: Jill. Thayer@doj.ca.gov
Attorneys for Respondent

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

CRAIG RICHARD CHANDLER, 17-cv-00325-EMC
Petitioner, | EXHIBITS

SCOTT FRAUENHEIM, Warden,

Respondent.
Exhibit 2 Augmentation to State Court Clerk’s Transcript
Exhibit 3 State Court Reporter’s Transcript (Vols. 1-6)

Exhibits — Chandler v. Frauenheim, Warden - (17-cv-00325-EMC)



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MS. FILO: So, I mean, this is what I find sort of
ironic about the whole thing, is that the video or the tape
itself, the recording, is supposed to be the evidence. It
has always been the practice, and the jurors prefer, they
don't want to look back at the video. They want to look at
the transcript in the deliberation room. I'm always happy if
they get both. That's fine with me. If the Court would be
willing to give some sort of -- almost like a note-taking
admonition to the jury, which simply says that the transcript
is there to assist them as they review the video, but really
it is the video that they need to be watching, and that we
are presenting that testimony to them as if it were a live
witness.

THE COURT: Well, I feel comfortable with that
because that is the evidence. See, I wasn't aware of the
video. I wasn't sure if it was just tape recorded, and in
that sense, the transcript is a very important aid.

MS. FILO: Absolutely.

THE COURT: Whereas, you are visually watching it,
it's just a little different.

MR. MADDEN: Some are only audio recorded; some are
video recorded.

THE COURT: Okay. With the video recorded, I don't
have a problem with that because that is the evidence. With
the audio, no, because there I'm not going to have them place
your thing down and listen, because the transcript with only
audio is very helpful because you could hear the inflection

in the voices and what have you. But when you have a visual,

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see if that's what Laurie does claim at trial. Because if
she does, then the foundation or the necessity for

Ms. Keller's testimony evaporates because now Laurie is in
the same position as the remaining four complaining
witnesses.

THE COURT: Arguably so, but -- well, I don't want
to speak for you, Ms. Filo, but I'm comfortable with the
ruling, although it's tentative in the sense that I do want a
402 hearing. So is your concern about opening statements?

MR. MADDEN: That's what I was just getting to. My
immediate concern is I have no difficulty with a subsequent
402, the statements. That's what we do in trial. However, I
am concerned about an opening statement, and I want to
represent that to the Court. And I think that the People at
this point should be precluded from mentioning Ms. Keller,
identifying her as a witness, or identifying or referring to
her in opening statements.

MS. FILO: Judge, if I might? Whether he engaged
in additional conduct isn't really the point. We haven't
charged the defendant with oral copulation because it will be
the People's theory throughout this case that we don't
actually know exactly what happened in that classroom. What
we believe -- what we believe we could prove beyond a
reasonable doubt it was sexual. JI mean, there are all kinds
of kind of crazy elements to Mr. Chandler's behavior, and I
don't -- just because there happens to be additional conduct,
doesn't mean that the conduct with the feet is any more or

less sexual. That can be the basis of a 288 touching and

JAMIE L. MIXCO, C.S.R. NO. 12708



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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
BEFORE THE HONORABLE ARTHUR BOCANEGRA, JUDGE, AND JURY

DEPARTMENT NO. 37

---000---
THE PEOPLE OF THE
STATE OF CALIFORNIA, )
)
PLAINTIFF, )
) CASE NO. C1223754
v- )
)
)
CRAIG RICHARD CHANDLER, )
)
)
DEFENDANT . )
/
---000---

REPORTER'S TRANSCRIPT OF PROCEEDINGS

JULY 10, 2013

---000---
APPEARANCES:
FOR THE PEOPLE: ALISON FILO
Deputy District Attorney
FOR THE DEFENDANT: BRIAN MADDEN
Attorney at Law
OFFICIAL COURT REPORTER: JAMIE L. MIXCO

C.S.R. No. 12708

JAMIE L. MIXCO, C.S.R. NO. 12708



Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 4 of 173

INDEX TO CLERK'S TRANSCRIPT

PAGE

VOL.

SANTA CLARA COUNTY GASE NO. C1223754

PEOPLE'S EXHIBIT #7

PEOPLE'S EXHIBIT # 24

CLERK'S CERTIFICATE

NOTICE OF COMPLETION

CLERK'S CERTIFICATION



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it's important to see and hear both.

MS. FILO: I completely agree with Your Honor. And
so I just want to make sure I understand Mr. Madden's
position, are we stipulating to the admissibility? Normally
we could have to conduct a hearing outside the presence of
the jury to determine a time, place, and content which
suggests reliability. I want to make sure that --

MR. MADDEN: I would like that to occur. I would
like a foundation to be established, but I'm not anticipating
you have difficulty doing that.

MS. FILO: Because what I would rather do, I don't
want to do that if the Court would permit me, I would hope
not do that during the trial. I'm not sure how to --

THE COURT: Well, there is a couple of ways of
doing it. You know, it's probative for a foundation to be
laid, but if you could demonstrate to Mr. Madden that you
will lay the foundation and you have the evidence to support,
the easiest thing is that we're agreeing to a stipulation
because then that's simple and very quick.

MS. FILO: Because I believe there were -- I think
there were four officers. It may be only three. There are
either three or four officers who are interviewed in the
different interviews. I would need the better part of the
morning in order to bring one of them in and have them lay
that foundation. I want to build that into our schedule, if
that's necessary.

THE COURT: That's not a problem. I'm thinking

that if you meet with Mr. Madden, and, you know, obviously

JAMIE L. MIXCO, C,S.R. NO. 12708



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CALIFORNIA,

vs.

PEOPLE OF THE STATE OF
Plaintiff-Respondent,
CRAIG RICHARD CHANDLER,

Defendant-Appel lant.

COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT

COURT OF APPEAL
CASE NO.

SANTA CLARA COUNTY
CASE NO. C1223754

NN NS

APPEARANCES:

For the Plaintiff-
Respondent:

For the Defendant-
Appellant:

REPORTER'S TRANSCRIPT OF PROCEEDINGS ON APPEAL
FROM THE SUPERIOR COURT
IN AND FOR THE COUNTY OF SANTA CLARA
STATE OF CALIFORNIA

SEPTEMBER 28, 2012
VOLUME 2°

a” al

OFFICE OF THE ATTORNEY GENERAL
455 Golden Gate Avenue, Room 11000
San Francisco, California 94102

SIXTH DISTRICT APPELLATE PROGRAM
100 North Winchester Blvd., Ste.310
Santa Clara, California

BARBEE MACHADO, CSR 9355, Official Reporter

COPY 2251



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MR. MADDEN: Counts 1 through 3 involve the
2011/2012 school year; Counts 4 and 5 involve the 2010/2011
school year.

THE COURT: Okay. That's one question I had. The
other question I have, and Mr. Madden is correct, we're
dealing with an adult female, but I have no information about
the adult. I think it makes a difference if we're talking
about -- factually, are we talking about someone who, for
example, is petite with, let's say, petite feet? Because the
way I see it, there is some sort of foot interest and
because -- if we're just looking at children and adults, I
think it's important to get more information so I get a
better sense of, is there a close or connection between this
adult and possibly a child?

Do you hear what I'm saying as far as the issue of
relevancy goes? I don't know if either of you are going to
tell me: Well, it doesn't matter. I'm not sure if that's
the case either.

MR. MADDEN: Well, I wasn't -- I didn't represent
Mr. Chandler at the prelim. I never met Ms. Keller. I can't
address that issue. That information is not in the
information that I have in discovery.

THE COURT: Okay.

MR. MADDEN: However, the key problem here, as it
was the prosecutor's problem at the prelim, and in my opinion
a problem, the court didn't see at the prelim, that the issue
here is not a sexual interest in feet; it's a sexual interest

in children. And establishing a foot fetish, if there is

JAMIE L. MIXCO, C.S.R. NO. 12708



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So I just don't want the expert to be used to say
that these statements are in fact inconsistent when it
doesn't have any connection to a specific question or the
impropriety of the question in the way it was asked. And
again, to say something is round or something is curved, I
think that's well within the jury's decision-making abilities
to say, is that inconsistent? Or, is that a child just using
different words to describe the same thing?

So that was my concern, is that this -- in those
particular instances where he's talking about these
inconsistencies, there is no connection between what he's
identified and a specific impropriety within the context of
the interview.

If it is done in the way that Your Honor suggests,
which is: Did you find instances of misconduct or
interrogation misconduct? Yes. For instance, when the
officer asked this and she said it this time. Ms. Filo asked
it at the preliminary hearing, she said this. Those improper
questions or inaccurate questions can lead to confusing
results. I think that's fine. I just want to make sure that
this isn't flashed up as a chart somewhere to say the kids
are inconsistent when that's not tied to any forensic
interviewing technique, and it's not part of his general
presentation to the jury of forensic interviews.

THE COURT: I think I understand your concerns, and
I think we're on the same page. I'm identifying where I
believe the parameters are. For example, let's say he points

out something and he says, for example: Inconsistencies

JAMIE L. MIXCO, C.S.R. NO. 12708



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3

1 WEDNESDAY, JUNE 13, 2012; SAN JOSE, CALIFORNIA

2 PROCEEDINGS

3 -o0o-

4 THE COURT: The People versus Craig Richard Chandler,

5 who is present in court. Would counsel identify themselves
6 please?

7 MR. MADDEN: Brian Madden appearing for the defendant.
8 He is personally present.

9 THE COURT: You desire me to set bail in this case?

10 MR. MADDEN: That's the request by this motion. Yes.
a1 THE COURT: I've read and considered your moving papers
12 and the report from the office of pretrials services.

13 MR. MADDEN: I have one other document I wanted to give
14 to the Court. I've given a copy of it to the People

15 previously. That is the June 12th letter from LCA that I

16 refer to in my moving papers.

17 THE COURT: Any objection to my reviewing this?

18 MS. FILO: No, Your Honor.

19 THE COURT: Thank you very much.

20 MS. FILO: I guess I should state, Your Honor, first of
21 all, Alison Filo appearing for the People. Good afternoon.
22 I do have an objection to Court considering the motion at
23 all.
24 THE COURT: Basis?
25 MS. FILO: Your Honor, this issue was raised in front
26 of Judge McKay McCoy less than a month ago, at the

27 conclusion of the preliminary hearing, three-day-long long
28 cause hearing which was commenced on May 21st. The motion

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the trial judge, and whatever other legal steps are
necessary to protect his rights to a fair trial. in that
regard the findings in this Court's view are similar to
Mr. Chandler as to Ms. vijayendren.

MR. SCHUMB: Is there a finding under the writ
action?

THE COURT: No, I haven't gotten to the writ yet.
That's a whole different keg of worms, as it were. That's
why I was trying to move along sequentially.

To the extent the only issue was those three pages
then this probably would have mooted out the writ. The
issue I suppose now is, and I guess we will jump right into
it, the issue becomes the remaining matters that the Court
has been made aware of that the school district is prepared
to release, and how you all are asking me to address that in
the writ. This ruling is to the extent the analysis will
apply in part to the writ. The analysis I made and the
ruling I've made has been particularly as to those three
pages. I have not ruled on the balance of matters, and I'm
happy to address that and I'll rule all the parties can
present it. You want a few minutes to figure out where you
are?

MR. SCHUMB: The only issue is there are separate
statutory grounds under the writ with respect to the
Vijayendren notes; one of which was raised the fact that is
currently the subject of pending litigation between the
district and these parties, and, you know, on the grounds of

K, 6254 K being alleged has to do with the Sixth Amendment

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let me state for the record that the conduct involved is a
child who comes to Mr. Chandler's classroom door and is
apparently pounding on the door. The next door school
teacher, Mary Montgomery, comes out to hear what the raucous
is and asks the child, "What on earth are you doing?" He
says, "Well, the door is locked," then seconds later the door
is opened and Mr. Chandler's standing in the doorway.

So the question is: Does the child, him or
herself, have to be called in order to explain that, or could
Ms. Montgomery's testimony suffice? And Evidence Code §1241
talks about a statement which is explaining conduct. That's
what it is designed to do. And the defense has cited People
v. Hines. And in that case the declarant wanted or was
trying to testify about a phone conversation, and the
specific question was, "Who's there with you?" And she says,
"Williams is here with me." It's not conduct. There is no
conduct to explain.

It's not like he said, Hey, who is making that
terrible racket in the background? Why is your phone all
fuzzy, or why do you keep hanging up on me, and she's giving
the explanation to explain the conduct. She's simply
answering a question: Who is there with you? Williams is
here. So there is no conduct to explain, so the court says
no. That is classic hearsay. When you just ask somebody a
question, they answer it, it's hearsay.

This is a very different situation. This is
exactly what 1241 was designed to address, conduct that would

otherwise be unexplainable: Why on earth are you banging on

JAMIE L. MIXCO, C.S.R. NO. 12708



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satisfied with the content of my moving papers.

On the other hand, should the Court have any
question about any of it, I will be happy to answer any of
those questions.

THE COURT: I will note, and I think it's obvious,
that everything that has been written and placed into the
moving papers by both sides, I've considered it and should be
incorporated in my ruling. In the event that I don't make
any specific comment on a particular fact, it doesn't
necessarily mean that I haven't considered that. And I
agree, they were extensive and thorough.

Ms. Filo, you wish to make any comments?

MS. FILO: Your Honor, the only thing I would add
to my papers, it would actually apply to any of my opposition
or any of my submissions to the Court, as a general rule, I
do not address and did not address 352 concerns just because
it's not something where the law is really at issue. It's
something that I know Your Honor will consider it in making
its decision. So unless there is some specific legal issue
that I wanted to address with the Court, I did not address
352 concerns. And if the Court wanted to engage in that
discussion, I'm happy to do it, but it didn't seem necessary
to do that, the context of the submissions to the Court.

THE COURT: Okay. Thank you. I am going to just
state some of the background, because it was a lot.

Concerning the prior attempted residential
burglaries, Mr. Chandler pled to the charges, and by his

conviction, he essentially had a felony/misdemeanor attempted

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not impact mr. Chandler?

MR. MADDEN: I'm going to defer to Mr. Schumb on
this point.

MR. SCHUMB: Your Honor, if you are looking just
from the Vijayendren case, I think the only point that we
would make is that these notes were actually obtained in the
Chandler matter. They are part of the discovery in the
Chandler matter. They have not been used in court yet.

They were taken from that case by the DA used in this case,
and so they still exist in the Chandler case. They are
still discovery in the chandler case, and if you grant this
motion and allow these notes to be seen, it would violate --
it would allow the Mercury News to discovery in the chandler
case. I would submit, Your Honor, that's exactly what
happened here.

In this case the Mercury News didn't get the notes
on the Chandler case because they were not used in the
preliminary hearing. The district attorney made a decision
not to use them in the preliminary hearing. I know that
because I was there. The notes could not have been obtained
-- cannot be obtained in that case. The Mercury News wanted
them and so did a public records request to the district.

As part of that they then became aware as part of our
litigation that the notes had been sealed in this case, and
now they come and they've brought this motion after the
fact. So what we have here is they can't get the notes as
part of the Chandler discovery. They then try to get them

directly from the district, and now they have come here to

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great for Ms. Vijayendren is this isn't just a question of
what house was burglarized and what's the address, and what
was taken, but the ultimate question for the jury in this
case will be how did a reasonable person and how did

Ms. Vijayendren interpret the information that was given to
her. If these notes are put out to the public, then that
decision is made by people before they come to court. It is
the crux of the case, and it is basically tried in the court
of public opinion rather than the court of law, and the
reason that it is being tried there is that everything the
jury needs to make that decision will be printed in the
newspaper. Not part of it, not a summary of it, not a list
of things that they found, but the actual piece of evidence
that will be used to make a decision will be in the
newspaper. And that's what makes a difference from a case
that has a summary or indication of evidence and what the
evidence may show. That's the overriding difference. It's
a piece of evidence and it's the only evidence in the case.

I want to confer with Mr. Madden apparently.

THE COURT: No, no, fine. Anymore you want to add
on that point?

MR. GEFFON: No. TI think we are okay on that
point, Your Honor.

THE COURT: Counsel, do you want to add anything
on the point I was discussing with them? You don't have to
repeat everything we've already said. If there's anything
you want to weigh in on, feel free.

MR. HUNTINGTON: I don't hold myself out to be a

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opposition to the motion, and my reply to the People's
opposition. So the Court has read and reviewed all of that?

THE COURT: Yes.

MR. MADDEN: All right. I would like to say a
couple of things. If I could impose on the Court, perhaps,
to take up the grooming testimony first. I re-read all of
the papers yesterday afternoon, last night, and this morning.
And most importantly, I went down and re-read quite carefully
the Raymond case, the federal case that's extensively cited
in my motion in limine. I submit to the Court that the
Raymond case is as thoughtful and as a complete and accurate
assessment of the issue of a police officer testifying about
the subject of grooming. It could not be more specific. It
was incredibly well-thought-out, well-researched, and
well-written. I know the Court has read that case.

As far as I'm concerned, as the Court knows,
Officer Lanning, or Det. Lanning, whoever it is, the title,
was not allowed. His testimony was found to be inadmissible
in the Raymond case. And I submit to the Court that that
federal officer, although not a scientist, not a
psychologist, was sort of in the same -- not sort of, but in
the same position as the proposed expert, Officer Dillon.
Both are police officers. Officer Dillon's police
experience, writing experience hails in comparison to Officer
or Det. Lanning.

To my knowledge, Officer Dillon has written
nothing. He has never been published, no articles,

peer-review, or otherwise. And he's not going to be like

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interests to see that all parties before the Court have
their fair trial rights protected, and that in their
reporting the news, which is their right and responsibility,
they do so in an appropriate way. So that courts down the
road, including this Court, won't rue the day they did what
they did. And I have confidence within the parameters of
this case that that is going to happen. TI have a good
relationship, as I say to the lawyers, with the jail.
never tell the them how to run the jail, and they don't tell
me how to run the court. And I just assume that the media
handles the matter responsibly as they should, and I have
every confidence that they will to do. To the extent that
it's a motion to seal it is denied. Therefore, madam clerk,
we need to unseal the sealed portion and return to the
affidavit of probable cause. Any issue?

MR. SCHUMB: Your Honor, are you going to address
the impact on mr. Chandler?

THE COURT: By implication I think I did, but I
will again. To the extent, again, all matters in the
Court's view that have been in the public record from the
extent of the affidavit of probable cause and the
misdemeanor case and the transcript of the preliminary
examination, I'm not satisfied that there are sufficient
factual or legal bases to find that there is a substantial
probability that his ability to get a fair trial is
impaired. And I am satisfied in the context, again, that
less restrictive means short of sealing would be

appropriate, with appropriate voir dire, appropriate work by

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1 Monday, and we have addressed these issues.

2 At this time, we're going to recess for the rest of
3 the day. I'll order Mr. Chandler and both counsel here at

4 9:00 o'clock Monday, July ist, and we'll begin jury selection
5 at that time.

6 MR. MADDEN: Thank you, Your Honor.

7 (Whereupon, the Court recessed.)

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criminal attorney, but I have to think there has got to be
other evidence used at trial other than a simple document.

THE COURT: Interestingly enough, it may not be in
this case, but that's not necessarily the ultimate
controlling point.

Matter submitted?

MR. GEFFON: Submitted.

MR. MADDEN: Submitted, Your Honor.

MR. HUNTINGTON: Submitted, yes.

THE COURT: The Court is very mindful in its 33
years of experience in the criminal justice system in Santa
Clara County of the significant constitutional rights that
are at issue here. And when I say first, it doesn't mean
it's paramount, it's just that it's first in order, is the
First Amendment right of access, as well as the sixth
Amendment right of the defendant to get a fair trial. And
it is not the least bit surprising that in many a case these
rights come in conflict. And it becomes the duty of the
Court to give value to both of those rights within the
framework and parameters set forth in the law to secure the
fair exercise of those rights. There are certain factors
here in making a full and complete record that are of value
or importance to the Court.

Number one, the information contained within the
three pages of notes, the sum and substance of it, is
currently in the public record. It is in the public record
in the balance of the affidavit of probable cause that has

been filed in the Vijayendren case. It is before the

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used, but it is used in the misdemeanor, allowing a
misdemeanor conviction.

The question that I would have would be, will the
People be -- the People then will not be allowed to discuss
the misdemeanor conviction, for example, in opening
statement?

THE COURT: That's correct.

MR. MADDEN: All right. And then if Mr. Chandler
chooses to testify, should I decide to lessen the blow of the
impeaching misdemeanor conviction, would I be using simply
the conviction itself? For example: Mr. Chandler, were you
convicted of a misdemeanor attempted burglary when you were
19 years old? Is that -- am I hearing that correctly?

THE COURT: You are correct. You are correct. I
don't think you necessarily need to use the actual document.
I mean, asking him the question and him responding in the
affirmative is fine.

MR. MADDEN: All right. What would then the People
be allowed to discuss, if anything, on that subject?

THE COURT: They would be allowed to obviously ask
the same questions they wanted to. Probably a little
differently to clarify it. And the only other thing they
will be allowed to do is the actual record of conviction.
Because there is a record, I'm assuming that the People would
get and have, which is the document. I don't think it offers
much, but I think in fairness to them, I would allow them to
do that because I'm not allowing any witnesses to be called

in order to prove up the conduct. And that's pursuant to 352

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then any man who has any interest in any body part of an
adult female necessarily has that same interest in children.
It just doesn't follow, that's why it's not relevant.

THE COURT: Okay. Let me ask a couple of questions
to both of you because there was some information that was
lacking for me. I mean, there is some information that when
we're dealing with 352 and prejudicial versus probative, the
first thing that comes to mind when I was reading the in
limine motions is that this incident did not appear to be
1101 or 1108. It looks to me, because let's say there is
lewd conduct towards a woman, an adult, that's not 288(a).

The thing that comes to my mind when I read these
is basically, for lack of a better word, some sort of foot
fetish. I don't know the date of the incident, when this
incident occurred as it relates to the time frame in the
pending charges. Wasn't clear to me at all.

So, Ms. Filo, do you have an approximate date when
this incident occurred?

MS. FILO: I do, Your Honor. It was in 2005.

MR. MADDEN: I think that's correct. That's
consistent with my recollection. So that was a minimum of 6
years -- am I doing my math correctly? This was a 2011
arrest. Minimum 5 years prior to that; at least 5 years
prior.

THE COURT: And it appears that the incidents
involved in our case occurred in 2012.

MS. FILO: No, Your Honor. It was 2010/2011 school

year and then the 2011/2012 school year.

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client.

THE COURT: Well, Tet me ask you this also,
because I have not read the preliminary examination
transcript in the Chandler case, and I'm certainly no mr,
Schumb and Mr. Madden and I don't know what you have as part
of your case, but the minor testified at the prelim;
correct?

MR. GEFFON: She did testify at the prelim.

THE COURT: Is the information not contained
within that transcript? I don't mean the notes. 1 mean the
contents, the sum and substance of what we're talking about?

MR. SCHUMB: If I may address that, Your Honor. I
believe that's in my declaration. No, she didn't, and there
are, in fact, some very, very material omissions. The
district attorney did not try to refresh her recollection
with it or use the notes in any other way or exam ina
formal fashion and that's why there's one reason there's
going to be a prejudice that is going to attend to
Mr. Chandler. These are allegations that have not been used
jin the preliminary hearing. They could serve as a basis for
criminal charges. They may never be used. The DA may not
try to elicit, did not try to use the notes to refresh her
recollection, and therefore, they are uncharged allegations
at this point to the extent that they haven't been a basis
for the holding that is currently against him. So that's
our great concern, obviously, in the criminal case is that
these allegations are going to be made public, and are not

currently a basis for the charges, and they may never be,

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they decide and deserves.

Based on the moving papers only, I don't believe
that Ms. Keller should be allowed to testify about Items 2 or
3 or the workers -- excuse me -~ or the sexual harassment
claim. However, based on what occurred at the preliminary
examination, and I think the potential problems that may be
raised by Ms. Keller, before she testifies, we will schedule
a 402 hearing so I could listen to her testimony.

At this point, it would be my intent to allow her
to testify about that one conversation. I expect that based
on what I heard at this point, she may be allowed to have --
you know, having other conversations with him that may have
played a part in her discomfort.

So that's the tentative ruling with Ms. Keller. I
think that I just wanted to give counsel an idea of how I am
leaning towards this particular evidence. It will be
probably expanded maybe a little more narrow, depending on
the 402 hearing. So we'll have to schedule that.

Yes, Mr. Madden.

MR. MADDEN: Your Honor, I think I understand the
Court's ruling. I think I have an additional comment.

THE COURT: Of course.

MR. MADDEN: May I ask the Court a question? If
Laurie was making an allegation -- Laurie is complaining
witness No. 3.

THE COURT: Okay.

MR. MADDEN: The one ostensibly different than the

other four. With the other four, each of the other four have

JAMIE L. MIXCO, C.S.R. NO. 12708



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EXHIBIT 3
(Vol. 4)


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harassment, even a finding of sexual harassment in 2005 of
another adult woman has no relevance or bearing in a child
molestation prosecution. The only snidbit that the People
should be talking about, and I think that's all they are
talking about, but they don't seem to have the ability to
admit it, is that specific comment about the feet. And
that's what I addressed in my comments too.

Just so the record is clear, and I know that it is
and I'm being redundant. If the Court will indulge me, I
would appreciate it. The problem with Officer Dillon as an
expert is that the People have chosen not to use a qualified
expert, but to use an officer who is not qualified to testify
about these things.

From People v. Raymond, this is from page 5 of my
initial motion to exclude the grooming evidence, starting on
page 10 of my brief, starting with the words "in this
regard."

The court was troubled by the fact that Lanning
said that his information and opinions were based on his
acquired knowledge and expertise. The court found this
insufficient to support a fair assessment of the data used or
the reliability of Lanning's opinions. The court was also
troubled by any lack of benchmark regarding the frequency of
the specific grooming behaviors by the absence of any
discussion of false positives, by the absence of any
discussion of cases in which grooming behavior is present,
but there is no crime, and by the lack of any objective way

to test or challenge Lanning's opinion.

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reconsider and allow Det. Dillon to testify based on the
state of the evidence, bring it to my attention. Or, at the
conclusion of the defense's case, if you believe you should
be allowed to call Det. Dillon as a rebuttal witness, you
obviously may make that request at that time.

I wish in this particular matter I could make a
firm ruling, but as the evidence is presented and I get more
information about the case, both through direct and cross, I
may reconsider it. I'm not saying I will change my ruling,
but as Ms. Filo suggested in her points and authorities, at
one point she argued that based on the case she expects the
defense to present, then she should be allowed to rebut it
with Det. Dillon. That may be the case. I don't know, but
at this point, this is the Court's ruling. So obviously,
neither counsel will make any reference to it unless they
approach the Court and I make a ruling.

This reminds me, I should say this also, I would
anticipate that if we reach this point, I would set a time to
have a 402 hearing before Det. Dillon will be allowed to
testify. So that's the ruling on that particular area.

Concerning Ms. Keller, I have read and considered
the motions filed by both parties relating to the testimony
of Ms. Keller, as mentioned earlier. As with the grooming
issue, I have spent a substantial amount of time considering
whether to allow or exclude Ms. Keller's testimony and have
conducted a 352 analysis. You both raised valid points why
or why not her testimony should be allowed. I find that

Ms. Keller's testimony is relevant concerning the defendant

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she qualifies as both a Evidence Code §1360 witness, person
to whom an act of child abuse was described, and the hearsay
exception that applies thereto, but may also be needed for
purposes of explaining to the jury why this inconsistency
might exist in the context of the case like this.

So whether it's this particular psychiatrist or
another expert, I do think the People at this point with this
knowledge now have some obligation and right to explain to
the jury how this inconsistency arose. If we are going to
use her as an expert, I expect we would have to pay her as
well.

MR. MADDEN: I have no objection to the People
paying anyone, Your Honor. I want to make it clear we were
not going to be doing that. Secondly, I will represent to
the Court that I will vigorously oppose the People using this
witness as an expert to explain any inconsistencies for
reasons that will be clear in the moving papers I expect to
file.

THE COURT: Okay. I will note that we did discuss
this informally.

MR. MADDEN: Yes.

THE COURT: Mr. Madden clearly objected to the
unknown psychiatrist being called in a dual role. You
indicated that it's something that you want to reserve the
right to raise once you get the information.

Based on the little information I have, we don't
know whether it's inconsistent statements or simply an

expansion of what occurred. In any event, it's my intent to

JAMIE L. MIXCO, C.S.R. NO. 12708



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(Whereupon, an in-camera hearing was concluded, and
the transcript of the proceedings, Volume 5, pages 482
through 484, is sealed by order of the Court and is under
separate, sealed cover.)

THE COURT: We'll go on the record on the matter of
the People v. Chandler. Record will reflect that all counsel
have left the courtroom. They left just a few minutes ago.
The Court has reviewed the documents. Counsel's informed of
that, and the redacted copies will be faxed to each attorney
pursuant to their agreement and stipulation, and I am
ordering that the original and the Court's redacted copy be
sealed in a confidential envelope and not be open without
further order of this court. That will give any reviewing
court an opportunity to see the original and what the Court
redacted.

That concludes the matter. We'll be in recess.

(Whereupon, the Court recessed.)

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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 3 of 173

COURT OF APPEAL, STATE OF CALIFORNIA,
IN AND FOR THE SIXTH APPELLATE DISTRICT

THE PEOPLE PLAINTIFF
AND RESPONDENT

Vv.

COURT OF APPEAL NO.:
CRAIG RICHARD CHANDLER DEFENDANT T 040429

AND

ae SUPERIOR COURT CASE#: (C1223754

RI AUGMENTATION TO THE CLERK'S TRANSCRIPT ON APPEAL
CUAUGMENTATION TO THE CLERK'S TRANSCRIPT ON APPEAL PURSUANT TO CRC 8.340
[SUPPLEMENTAL CLERK'S TRANSCRIPT

NOTICE OF COMPLETION OF AUGMENTATION: APRIL 30, 2014


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au

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subject to the protective order that we would execute as
proposed.

THE COURT: Okay. Ms. Filo, thank you for putting
that on the record. I will note that, as you mentioned, we
did have informal discussions about this particular issue,
and everything that you said essentially was discussed
informally.

Mr. Madden, do you wish to supplement anything that
Ms. Filo had said, at least at this point?

MR. MADDEN: No. I agree with her summary, and
although I did not look at my computer, I came over here, I'm
sure it's in there and I have a hard copy. I read the
proposed stipulation and order. It looks appropriate to me,
as does the proposed waiver of privilege for which Mr.
Matiasic signed.

THE COURT: Okay.

Counsel, you had some concerns that you wanted to
raise at this point?

MR. MATIASIC: I did. Thank you very much, Your
Honor. I appreciate the opportunity to be heard. Basically,
the reason why we came down here was, as Ms. Filo indicated,
she was kind enough to let us know the direction the Court
appeared to be headed, but we certainly had some concerns
with respect to the contours of and the parameters in which
this particular information would, number one, be
disseminated; and number two, be used to provide the
backdrop.

Perhaps it is kind of echoing some of what counsel

JAMIE L. MIXCO, C.S.R. NO. 12708



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selection process and stuff. And although I'll be back
Wednesday, I may or may not be ready to rule on Friday, but
we'll talk about it.

MR. MADDEN: Okay.

THE COURT: Okay. I think those are all Mr.
Madden's motions.

MR. MADDEN: I have some other things to talk
about, but I will be happy to discuss that in chambers.

THE COURT: Okay.

MR. MADDEN: Just to alert Ms. Filo and sort of a
laundry list of things that have to be resolved.

THE COURT: Okay.

MR. MADDEN: Quasi-motions in limine.

THE COURT: Then I just want to touch on Ms.
Filo's. She had some motions in limine in her initial brief
she filed after her witness list on page 9. She has the
statement of the children describing acts pursuant to 1360,
and we already addressed grooming. So that's the only
additional one, Ms. Filo, is the 1360 issue you put in your
in limine motions.

MS. FILO: That was it, Your Honor.

THE COURT: Okay.

Mr. Madden, do you have any response to that?

MR. MADDEN: No, Your Honor. I think that
statements are admissible under 1360. I assume the People
are going to play the audio/videotapes and provide
transcripts to the jurors?

MS. FILO: Your Honor, generally the way I do it

JAMIE L. MIXCO, C.S.R. NO. 12708



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MR. SCHUMB: The 5th. I'd like a little more
time.

MR. HUNTINGTON: Your Honor, before you begin the
scheduling, I'm really confused.

THE COURT: Good. I've accomplished something.

MR. HUNTINGTON: I'm unclear as to what the basis
is for staying your order till next week if the writ has
been denied.

THE COURT: The writ has been denied. I'm giving
them, because, obviously, once the matters are back in the
file, they are a matter of open record. I am satisfied that
I have tried to address appropriately significant
constitutional issues on both sides. I am allowing them a
very small window of opportunity if they wish to seek higher
review, and if they do, so be it, and if they don't, so be
it. If the Court of Appeal determines that my orders should
be stayed while they review it, that's fine, and if they
choose not to, then Thursday morning you are going to come,
the representatives are going to be at the front desk, and
it will be in the court file.

MR. HUNTINGTON: If they appeal as opposed to
additional briefing?

THE COURT: No. My ruling is final. It was just
to give them a chance if they want to seek a higher ruling.

MR. SCHUMB: Under the rest of the documents the
writ is stayed, left in effect until the next hearing date?

THE COURT: I have not ruled on the writ. only

the three pages, that's all I've ruled on today.

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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 56 of 173

there aren't less restrictive means. to protect the
defendant's right to a fair trial short of sealing those
three pages. Jury selection may be significantly more
difficult. Voir dire may go on for a longer time. It may
take a larger panel of jurors than normal. I seriously
doubt, at least on my experience, that ultimately -- I won't
put a double negative. I am confident that with appropriate
work by the Court and appropriate work by counsel that a
fair jury will be able to be impaneled for the fair trial
rights of both defendant and the People. And I will expect
that a learned trial judge will give all appropriate
deference to counsel in conducting appropriate voir dire,
recognizing that to the extent there is more publicity in
this case than there is in the typical misdemeanor, that
more extensive voir dire may be necessary. I think it
should be allowed, and I think ultimately you will be able
to find 12 jurors that have not prejudged the issues in this
case. To the extent there are jurors or potential jurors
who may do so, undoubtedly, have already started that
process with the matters in the public record that have
already been published, and there's been nothing that has
been published so far that would in the Court's view
challenge the conclusion that fair jurors could not be
found. I am also confident that to the extent the Court
unseals these notes that those in the media who have
interest, including and beyond those before the court here,
that they are going to report the matter and handle those in

a responsible manner, because certainly it is in their

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grooming. I think that's what the case law really says he
cannot do.

I agree with the Court, that it is a little bit
unique in this situation, and I think I have to be able, and
the jury has to be able, to understand. And I think it is
disabusing jurors of the notion that if you sexually assault
a child, or four children, or five children, that you are a
rampant pedophile that will assault every child in arm's
reach. Particularly, when I see Mr. Madden's witness list
that has 35 children on it, I think there is going to be some
attempt to say, you know, all of these children engaged in
this behavior, why is it just these five? Why would just
these five be singled out by Mr. Chandler?

And so I think that the process of grooming in the
traditional sense by the creepy old neighbor in the alleyway
to entice children, give them gifts to gain their trust, Mr.
Chandler was able to skip that step. But there is a process
by which a selection occurs, which victims are going to be
safe: How am I going to be able to escape detection? Which
are the leaders in the classroom or not the leaders in the
classroom? Who have parents that are non-English speakers?
Those kinds of issues that really occur in a selection
process.

How do we desensitize or how would someone
desensitize a child to behave such that it would become
normal, which is exactly what the Court talked about. That,
I think, is what the People are intending to use Det. Dillon,

to discuss how someone who wants to commit this type of crime

JAMIE L. MIXCO, C.S.R. NO. 12708

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17

undeniable risk to our society and to this Court in failing
to appear.

THE COURT: Any response, Mr. Madden?

MR. MADDEN: No, Your Honor.

THE COURT: Okay.

MR. MADDEN: I'm sorry, Your Honor. There is something
I wanted to point out to the Court. I know you have a
document from pretrial services, which I'm sure you've read.
There was, as they stated, when they did their report, there
was concern of: Should the Court grant a bail motion, where
would he go?

A typical place would be to his home with his wife
and children. However, pretrial services expressed a
concern about the wisdom of that and asked him for a
secondary address. It was his mother who lives in Monterey.
And, whether it's his mother or any other family members or
friends, Mr. Chandler is more than willing to abide by an
order that he reside in any place that's reasonable, should
the Court be concerned about that. And I did address that
earlier. Thank you.

THE COURT: Thank you.

Well, I'm certainly satisfied that Mr. Chandler
has an excellent support system. But the inquiry does not
end there. I have considered the comments of Judge McKay
McCoy. And I don't find sufficient unusual circumstances to
depart from the bail schedule.

I also have in mind that I'm allowed to consider

the issue of public safety and victim impact. I am greatly

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13

1 appears to have been no medical injuries. There, certainly,
2 was no use of a firearm or any use of controlled substances.
3] These are statutory things in terms of the

4 seriousness of the offense the Court has to concern itself

5 with. So, if we take a look at Mr. Chandler, with the

6 exception of what I would refer to a minor criminal record
7 that I've indicated in my moving papers, he has worked, for
8 ten years, as a school teacher. He is married. He is a

9 homeowner. He has a house in San Jose. It's within a mile
10 of this courthouse.
11 The children involved in this case all were
12 students of his at a school on the other side of town,
13 certainly more than five miles from here, not near his
14 house. I assume, since it was a public school, these
15 children live within reasonable proximity to that school.
16 Mr. Chandler has a young family himself. His wife is a
17 teacher. His children are very young. Four, 18 months, and
18 three months.
19 As the Court can tell from his family and friends
20 being here, he has close family. All of the people that
21 I've identified all live within 75 miles of this courthouse.
22 These are people who can and will take him in, depending on
23 what terms or terms and conditions the Court would order.
24 There's no reason to believe that he would flee. As I've
25 indicated in my moving papers, I'm in possession of his
26 passport. I would, certainly, be more than willing to
27 surrender that to the Court-designated person.
28 I realize, if bail is to be set, it would have to

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are hoping to present through this particular expert witness.
And once I get the response, I will rule, you know, as soon
as possible.

MR. MADDEN: Your Honor, with respect to this one,
since the People have not written their opposition, I want to
give the People a reasonable amount of time, could we get a
date?

THE COURT: Ms. Filo.

MR. MADDEN: That would be reasonable.

MS. FILO: Judge, I should be able to have it
within a week or so.

THE COURT: Let's say --

MS. FILO: The 18th, maybe?

MR. MADDEN: On or before the 18th.

THE COURT: You comfortable with that, Mr. Madden?

MR. MADDEN: Sure.

THE COURT: You file your response on or before
June 26th. I selected that date because I will be back that
day.

MR. MADDEN: Okay. That's a Wednesday?

THE COURT: Yes, June 26th.

MR. MADDEN: Should we -- okay. Maybe that Friday
we should --

THE COURT: Right. We'll talk about a date when
we're done this afternoon.

MR. MADDEN: Okay.

THE COURT: But I'm going to want to meet with

counsel that week sometime to just finalize the jury

JAMIE L. MIXCO, C.S.R. NO. 12708



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must end the conversation.

If you receive any information about this case from
any source outside of the trial, even unintentionally, do not
share that information with any other juror. If you do
receive such information, or if anyone tries to influence you
or any juror, you must immediately tell the courtroom deputy.

Keep an open mind throughout the trial. Do not
make up your mind about the verdict or any issue until after
you have discussed the case with the other jurors during
deliberations.

Do not take anything I say or do during the trial
as an indication of what I think about the facts, the
witnesses, or what your verdict should be.

Do not let bias, sympathy, prejudice, or public
opinion influence your decision.

You must reach your verdict without any
consideration of punishment. I want to emphasize that you
may not use any form of research or communication, including
electronic or wireless research or communication to research,
share, communicate, or allow someone else to communicate with
you regarding any subject of the trial.

When the trial has ended and you have been released
as jurors, you may discuss the case with anyone, but under
California law, you must wait at least 90 days before
negotiating or agreeing to accept any payment for information
about the case.

You will be given notebooks and you may take notes

during the trial. Do not remove them from the courtroom.

JAMIE L. MIXCO, C.S.R. NO. 12708



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What was the witness's behavior while testifying?

Did the witness understand the questions and answer
them directly?

Was the witness's testimony influenced by a factor
such as bias or prejudice, a personal relationship with
someone involved in the case, or a personal interest in how
the case is decided?

What was the witness's attitude about the case or
about testifying?

Did the witness make a statement in the past that
is consistent or inconsistent with his or her testimony?

How reasonable is the testimony when you consider
all of the other evidence in the case?

Did other evidence prove or disprove any fact about
which the witness testified?

Did the witness admit to being untruthful?

Do not automatically reject testimony just because
ef inconsistencies or conflicts. Consider whether the
differences are important or not. People sometimes honestly
forget things or make mistakes about what they remember.
Also, two people may witness the same event, yet see or hear
it differently.

If you do not believe a witness's testimony, that
he or she no longer remembers something, that testimony is
inconsistent with the witness's earlier statements on that
subject.

If you decide that a witness deliberately lied

about something significant in this case, you should consider

JAMIE L. MIXCO, C.S.R. NO. 12708



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STATE OF CALIFORNIA )

COUNTY OF SANTA CLARA )

I, JAMIE L. MIXCO, HEREBY CERTIFY THAT:

The foregoing is a full, true, and correct
transcript of the testimony given and proceedings had in the
above-entitled action taken on the above-entitled date; that
it is a full, true, and correct transcript of the evidence
offered and received, acts and statements of the Court, also
all objections of counsel, and all matters to which the same
relate; that I reported the same in stenotype to the best of
my ability, being the duly appointed and official
stenographic reporter of said Court, and thereafter had the
same transcribed into typewriting as herein appears.

I further certify that I have complied with CCP
237(a) (2) in that all personal juror identifying information

has been redacted if applicable.

Dated:

Jamie L. Mixco, C.S.R.
Certificate No. 12708

ATTENTION:
CALIFORNIA GOVERNMENT CODE
SECTION 69954(D) STATES:

"ANY COURT, PARTY, OR PERSON WHO HAS PURCHASED A TRANSCRIPT
MAY, WITHOUT PAYING A FURTHER FEE TO THE REPORTER, REPRODUCE
A COPY OR PORTION THEREOF AS AN EXHIBIT PURSUANT TO COURT
ORDER OR RULE, OR FOR INTERNAL USE, BUT SHALL NOT OTHERWISE
PROVIDE OR SELL A COPY OR COPIES TO ANY OTHER PARTY OR
PERSON."

JAMIE L. MIXCO, C.S.R. NO. 12708


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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 38 of 173

very unique position I think with regard to the other cases
where a certain piece of evidence is being sought or a
certain report is being sought, but there's an entire case
otherwise that is not being sought to put in the public
record. If this motion to seal, as we are calling it, is
not granted, the entire case that the district attorney has
with regard to Ms. Vijayendren will appear in the newspaper
in the very not too distant future. That will undoubtedly
destroy my client's rights to a fair and impartial jury
because everyone will have read not just a piece of it, but
the entirety of the case against my client. That is the
overriding interest that the Court has to weigh in this
case.

As I've laid out in my original papers and having
mentioned in the motion to unseal as well, there are five
criteria to look at. There is no question there is a
overriding interest as my client's right to due process and
a fair and impartial jury. The overriding interest
certainly supports sealing of those records. A substantial
probability exists that her interest will be prejudiced if
these records are revealed, and that is because they are the
entirety of the case against her.

The next item, Judge, I think is important is
whether there are alternatives to these records, and I think
that's really where this case gets decided in my opinion.
And that is because the Mercury News does have and they have
attached it to their motion to unseal Exhibit B the entire

remainder of the police report, which this Court

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
BEFORE THE HONORABLE ARTHUR BOCANEGRA, JUDGE, AND JURY

DEPARTMENT NO. 37

---000---
THE PEOPLE OF THE
STATE OF CALIFORNIA, )
)
PLAINTIFF, )
) CASE NO. C1223754
Vv. )
)
)
CRAIG RICHARD CHANDLER, )
)
)
DEFENDANT. )
/
---000---

REPORTER'S TRANSCRIPT OF PROCEEDINGS

JUNE 28, 2013

---000---
APPEARANCES:
FOR THE PEOPLE: ALISON FILO
Deputy District Attorney
FOR THE DEFENDANT: BRIAN MADDEN
Attorney at Law
OFFICIAL COURT REPORTER: JAMIE L. MIXCO

C.S.R. No. 12708

JAMIE L. MIXCO, C.S.R. NO. 12708



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MS. FILO: Yes, Your Honor. I mean, it is not -- I
mean, if the evidence were: Mr. Chandler came into a room
and said, Hey, you got a nice pedicure, that was the end of
it, that's not relevant. But when he does it with a sexual
intent, with a -- as the defense has even described it, kind
of this creepy interest in an abnormal body part, that's what
makes it relevant. So unless there is some -- unless there
is something to give the comment context, then it's not --
then it's not relevant. I mean, it's only relevant if that
is accompanied by her very clear sense and feeling that this
was part of a larger sexual interest in her. I mean, that's
the only way that it's relevant. Otherwise, it's: Hey,
could I take a picture of your feet? I mean, kind of weird,
but it's not -- it's the sexual component of it that makes it
relevant.

THE COURT: I think her feeling of discomfort is
relevant. Obviously, she can't testify to Mr. Chandler's
intent and what his motives were. But, Ms. Filo, I think
it's important that you keep your comments narrow with
Ms. Keller, you know, obviously until we have a 402 hearing,
but I'm not going to know specifically what she's going to
testify to or how comfortable I feel about the parameters of
her testimony.

MS. FILO: Your Honor, would it be possible to
schedule that hearing? I know we're not usually in session
on Fridays, but we may run a little short the week of July
the 8th. Maybe we could do July 12th, that way we could have

that hearing done prior to opening statements?

JAMIE L. MIXCO, C.S.R. NO. 12708



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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 62 of 173

is that once these records are part of the investigative
file under F, it seems like they get a special place. All
we're asking for, and this is using the balancing test under
6455, was, hey, it's a much simpler balancing test than NBC.
It's, hey, what's the balancing of the rights and is there
an alternative? well, the public is going to get these
notes. This is not an issue that somehow there's some
information or allegations that the public will never know
of. It's just a matter of when. And if you allow, Your
Honor, the Mercury News to circumvent the discovery statutes
that prohibit anyone from the public from getting these
documents, well, you know, a defendant is going to filea
public records request. well, who knows how this could be
used or abused. So it seems to me that F in the reply brief
from the Mercury they dismissed it saying, hey, you know,
the school district is not an investigative agency, but the
point that we are making is these are in possession of the
DA's office in the Chandler case, so I really think this
particular ground deserves some close scrutiny by the Court,
if it's had a chance to look at it. I just think that once
this door gets open, it could work in many ways, and,
obviously, we have the Mercury News here, but standing in no
special position than anyone else; just another person. So
the defendant could do the exact same thing, right, and get
confidential stuff that's part of an investigative report
that may not have been provided to them. A victim, a third
party, could be a gang case, and when you start to think

about the implications of that, Your Honor, what if the city

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STATE OF CALIFORNIA )

COUNTY OF SANTA CLARA )

I, JAMIE L. MIXCO, HEREBY CERTIFY THAT:

The foregoing is a full, true, and correct
transcript of the testimony given and proceedings had in the
above-entitled action taken on the above-entitled date; that
it is a full, true, and correct transcript of the evidence
offered and received, acts and statements of the Court, also
all objections of counsel, and all matters to which the same
relate; that I reported the same in stenotype to the best of
my ability, being the duly appointed and official
stenographic reporter of said Court, and thereafter had the
same transcribed into typewriting as herein appears.

I further certify that I have complied with CCP
237(a) (2) in that all personal juror identifying information

has been redacted if applicable.

Dated:

Jamie L. Mixco, C.S.R.
Certificate No. 12708

ATTENTION:
CALIFORNIA GOVERNMENT CODE
SECTION 69954(D) STATES:

"ANY COURT, PARTY, OR PERSON WHO HAS PURCHASED A TRANSCRIPT
MAY, WITHOUT PAYING A FURTHER FEE TO THE REPORTER, REPRODUCE
A COPY OR PORTION THEREOF AS AN EXHIBIT PURSUANT TO COURT
ORDER OR RULE, OR FOR INTERNAL USE, BUT SHALL NOT OTHERWISE
PROVIDE OR SELL A COPY OR COPIES TO ANY OTHER PARTY OR
PERSON."

JAMIE L. MIXCO, C.S.R. NO. 12708



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burglary conviction. He entered the pleas with the
understanding he would be sentenced on the misdemeanor
664/459. And if he successfully completed probation on the
misdemeanor, the felony attempted burglary would be
dismissed.

Court believes, based on everything presented to me
this was a negotiated disposition, although somewhat unusual.
After completing probation, the felony charge, which he had
pled to, was dismissed pursuant to 1203.4 rather than being
dismissed pursuant to the negotiated disposition.
Nevertheless, I believe the intent of the parties was clear.

The issue before the Court, I believe, is whether
the Court should allow the People to impeach Mr. Chandler if
he chooses to testify with a misdemeanor attempted burglary.
I will note that even though there is technically no crime
with misdemeanor attempted burglary, the District Attorney in
Santa Cruz on behalf of the People agreed to this conviction.
I believe Ms. Filo is bound by that agreement or disposition
entered by that particular county.

The Court believes it has broad discretion in
deciding whether to allow a defendant to be impeached with
the prior conviction. Based on the cases cited by both
counsel and Evidence Code Section 552.5, if the Court decides
to allow the People to impeach Mr. Chandler, they may do so
with the records of the conviction.

I have conducted and engaged in a 352 analysis,
taking into consideration all of the information provided,

including the fact that the attempted burglary incident is a

JAMIE L. MIXCO, C.S.R. NO. 12708



Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 32 of 173

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19

STATE OF CALIFORNIA

ss
COUNTY OF SANTA CLARA )

I, ASHLEY PARROTT, do hereby certify that
foregoing is a full, true and correct transcript of the
proceedings had in the within-entitled action on JUNE 13,
2012.

That, I reported the same in stenotype being the
qualified and acting official court reporter of the Superior
Court of the State of California, in and for the County of
Santa Clara, appointed to said court, and thereafter had the
same transcribed into typewriting as herein appears.

I further certify that I have complied with CCP
Section 237(a) (2), im that all personal juror identifying

information has been redacted, if applicable.

Ashley Parrott, CSR No. 13157

ReuT EY DADDAMm red 19167



Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 98 of 173
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1 MR. MADDEN: We all have lives.
2 THE COURT: It sounds like Ms. Filo could file it

3 relatively quickly.

4 MR. MADDEN: It sounds like it's been done.
5 MS. FILO: It's somewhere.
6 THE COURT: Soon as you file it, if you could file

7 it with the court in some manner, they will put it in my box.
8 I will have it when I come back.

9 MS. FILO: Certainly.
10 MR. MADDEN: Ms. Filo -- I'm satisfied with Ms.
a1 Filo e-mailing to me when she finds it. I assume that will
12 be before the end of the week.
13 THE COURT: Okay.
14 MR. MADDEN: I will be gone the rest of the week,
15 but I will be back next week. I could address it.
16 THE COURT: Then we'll do that and we'll address it
17 when we come back. We'll be talking about our scheduling

18 when we are done here.

19 The next motion is -- before we move on, I could
20 tell you, I was looking at it as a foot fetish issue. Quite
21 frankly, I didn't know this involved one particular child and
22 that was the only conduct involved with that particular
23 child. That, I didn't know.
24 MR. MADDEN: Well, that's not exactly right, Your
25 Honor. I mean, there will be testimony of other children --
26 at least two of the three named victims that will indicate
27 that Mr. Chandler put things on their feet that they were to

28 identify right, objects. So it's not just the child in Count

JAMIE L. MIXCO, C.S.R. NO. 12708


Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 13 of 173

EXHIBIT 3
(Vol. 1)


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crime of moral turpitude, including dishonesty. I considered
the remoteness of the conviction, the dissimilarities between
the offending charge and the prior conviction. The Court
believes the probative value outweighs the prejudicial impact
and will allow the People to impeach Mr. Chandler with his
prior attempted burglary conviction as a misdemeanor if he
chooses to testify.

So on this particular in limine motion, that's the
Court's ruling. And on this particular in limine motion, Mr.
Madden, that will be a continuing objection by the defense.
If Mr. Chandler testifies, you will not have to object in
front of the jury, unless you wish to do so, obviously. As
far as the Court is concerned, your objection on this
particular issue is standing.

MR. MADDEN: May I be heard, Your Honor?

THE COURT: Yes, of course.

MR. MADDEN: A couple of points. JI know the Court
didn't mean to, but this was a Monterey County case, not a
Santa Cruz case.

THE COURT: Thank you.

MR. MADDEN: Number 2, the Court indicated there
was a clearance pursuant to Section 1203.4. I believe that
is clearly in error, even though the clerk noted it.
Unfortunately -- well, all we have is the clerk's minute
order, but you can't get 1203.4 relief for an offense that
you were not placed on probation for. So that was clearly a
clerical error, and I suppose it's not particularly relevant

since the Court is not allowing the felony conviction to be

JAMIE L. MIXCO, C.S.R. NO. 12708



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like pages and pages and pages of inconsistencies. I think
he took several examples for each of the kids. He was
limited and will be limiting his testimony.

THE COURT: Right. That was my expectation. I
think the amount of information that was presented is to
thoroughly demonstrate the points you were trying to make.

My feeling was that not everything that was attached was
going to try to be presented to the jury.

MR. MADDEN: Correct.

THE COURT: But it was basically trying to
demonstrate to the Court why this was relevant and allowable.

MR. MADDEN: Right.

THE COURT: So is that clear enough what I'm
thinking? Because I think it would be fair for you to make a
point and then use an example to illustrate that point. But
I don't think it should be numerous, and I don't think it
should be excessive, because I think illustrating the point

in one particular area of the interview will be sufficient.

MS. FILO: I guess my problem -- and again, when
I'm looking through -- when I'm looking through the motion, I
guess the motion -- I guess his report isn't -- it is -- I'm
sorry. It's pages 27 through 31 or -- sorry -- 32 of Dr.

O'Donohue's report. And what it says is things are primary
inconsistencies, secondary inconsistencies, things like that.
None of those things are ever tied to an inappropriate
question. So he's not in any of these examples saying this
inconsistency was the result of this kind of questioning.

That's my concern.

JAMIE L. MIXCO, C.S.R. NO. 12708



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440

the five I've given you, and I'm satisfied with -- we'll
stipulate they could be substituted for the original.

THE COURT: Thank you. We have the original
attachments and we will attach it to the originals. You
agree with that as well, Ms. Filo?

MS. FILO: Absolutely.

THE COURT: I didn't specifically rule that the
People's motion under 1360 is granted as well.

MS. FILO: Thank you.

THE COURT: We'll be in recess. When you are
ready, Mr. Madden, we could go into chambers.

MR. MADDEN: Thank you, Your Honor.

(Whereupon, the Court recessed.)

JAMIE L. MIXCO, C.S.R. NO. 12708



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The next one is motion to admit testimony from Dr.
William O'Donohue, an expert in the interviewing of victims
of child sexual abuse. Again, I read and considered the
points and authorities, and any additional comments? I will
start with, Ms. Filo.

MS. FILO: Thank you, Your Honor. So this was
actually one that I didn't necessarily oppose, because I
think the defense is entitled to present an expert on the
issue of forensic interviews, for lack of a better word. The
only thing I do object to, and will object to, is in that
motion, Dr. O'Donohue talks about primary inconsistencies,
secondary inconsistencies. He uses -- he wants to point to
examples of the children's responses that are inconsistent
with each other. That, I think, is well within the purview
of the jury, whether those statements are in fact
inconsistent, whether they are -- that is something that's
well within the scope of the jury.

I think to point out or to question or criticize
the interrogation methods or the time and place or how many
people had access to the child, I think those are all
appropriate issues for the defense.

But I think the expert cannot be used to tell the
jury what is or is not a consistent or inconsistent statement
that's well within their purview.

So with that exception, I would submit the motion.

THE COURT: Mr. Madden.

MR. MADDEN: Well, I will make two comments, Your

Honor. The People did not provide any opposition to this

JAMIE L. MIXCO, C.S.R. NO. 12708



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is -- yes, I have the transcripts available to the jurors. I
have now done this, I don't know, more times than I could
recall, and my only frustration with doing that, and I
understand it's a local Rule of Court, but my experience has
been that they literally read through the transcript and pay
no attention to what's on the screen.

So certainly if the Court would permit it, I would
much rather play the video and simply make the transcript
available to them afterwards. I don't know how the Court
wants to do it, but I just am -- I've just seen it time and
time and time again, where they insist on reading the
transcript and will not even look at the video and --

THE COURT: The video is the interview?

MS. FILO: Correct.

MR. MADDEN: Well, I disagree with Ms. Filo. I
think it's helpful having both simultaneously. Not only that
it's in evidence, should they need to see it in
deliberations, that's theirs to see. I don't see that as a
big problem.

THE COURT: If there is any objection, I could
request the jurors that: You have the transcript. This is
going to be in evidence. You will have it for you during
deliberations. I'm going to ask all of you to -- as we do
with the witnesses -- to watch the interview and I could make
that suggestion, because I do think it's important. The
video is in evidence as well.

MR. MADDEN: Yeah, it will be. Not only that, the

transcript itself is not evidence.

JAMIE L. MIXCO, C.S.R. NO. 12708



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to the People. The People filed a response. The People
indicated verbally that they were going to address three
issues. They did it as three issues. They didn't address
two of the issues. I'm -- if the People want to file a reply
or an opposition, that's fine. I'll file a reply. But I
mean, I'm in total agreement with the Court's initial
comments. This is neither admissible under 1108 or 1101

for -- mainly for probative value because of the conduct.

THE COURT: Well --

MR. MADDEN: It's not probative because it involves
an adult and it's not illegal conduct. It's not sexual
conduct.

MS. FILO: It is sexually -- it may be sexually in
her eyes.

MR. MADDEN: I misstated that. I didn't mean to
say it couldn't be interpreted that way. I apologize.

THE COURT: I could tell you, I'm not prepared to
rule on it this afternoon because I've looked at this and I
was trying to work it through my mind. There was a lot of
things happening here. And I was aware of what happened at
the preliminary examination and some of the problems that
arose, so I think that I have a pretty clear idea of the very
narrow area the People are looking at. And you're requesting
this information specifically under 1101(b) and intent?

MS. FILO: Absolutely, Your Honor. And again, I
have a thorough motion in limine; that the only thing I could
think of is that I misfiled it in my own computer system. TI

don't know how it didn't get included in my motions to the

JAMIE L. MIXCO, C.S.R. NO. 12708



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why this isn't a prior restraint; they don't have them yet.

THE COURT: You never heard that phrase coming
from me. It's not a prior restraint case.

I guess my question is this. If they have
lawfully, and I guess that's a matter of interpretation,
sought information in different ways, and in one way
constitutionally they are entitled to it, and arguably in
another way they are statutorily not, it’s your position
that the statute overrides?

MR. SCHUMB: I think I got them, and I will tell
you why. Here's why I got them. If they are not allowed to
get these documents because they are part of the DA's file
and they are part of an investigative record ina pending
case. Then that precedent comes through K, 6455K, that
says, "Another important right or action pending." The
government code built in a protection that you couldn't
circumvent what another agency or entity is doing by using
the public record request, and that's why it exempts the
litigation in B.

THE COURT: Now, you are comparing two statutes,
but what about through the vijayendren file and the weighing
and the balancing on the constitutional right I did?

MR. SCHUMB: Because I catch them with K. I catch
them with 6455 K, because what you can find, Your Honor, is
that vijayendren, I believe the disclosure in that case
works to violate the constitutional rights of another, as I
think it does with Mr. Chandler and/or the DA's files, then

I think you have good cause under the vijayendren balancing

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additional statutory protection sought. And for all the
reasons noted in the prior ruling, the application for the
writ is denied as to the three pages of notes only.

MR. SCHUMB: Might I address those grounds
briefly?

THE COURT: Sure.

MR. SCHUMB: The new one, Judge, is B because we
didn't amend the writ.

THE COURT: It's all in your pleadings, but go
ahead.

MR. SCHUMB: It’s not in the writ because we
didn't know about some of these things.

THE COURT: I thought B was in there?

MR. SCHUMB: I don't think B is. K is in the
writ. So K is basically if there was a statute or ruling K
was Sixth Amendment. I think you addressed that. However,
B, is whether there is a law suit pending, and since the
filing of the writ two civil lawsuits have been filed
against the District naming, we believe, my client and
Ms. Vijayendren. So there's now a separate civil lawsuit
pending, and obviously these notes are very relevant in that
litigation. So there is a ground under B, which is pretty
unconditional, the record pertaining to the pending
litigation to which a public entity is a party. So we gota
claim filed; litigation is pending in my opinion.

THE COURT: So what's been filed is a claim for
damages with a public. entity?

MR. SCHUMB: Correct. And we have a copy of that.

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THE COURT: I've read and considered this letter dated
June 12, 2012, from LCA monitoring.

MR. MADDEN: Thank you very much. I should point out
Mr. Smith is also present and standing. Thank you.

THE COURT: We've met.

MR. MADDEN: Should the Court, at any time, have
questions concerning ~-

THE COURT: I'm pretty familiar with the program.

MR. MADDEN: I am not going to have any of the
aforementioned family and friends testify, but I would like
to have them identified and have each of them stand so the
Court will know who they are.

THE COURT: Please do so.

MR. MADDEN: Thank you.

Maria Chandler. This is the defendant's wife.

THE COURT: Good afternoon, ma'am.

MR. MADDEN: Peterann Yousecoff and her husband Walt
Yousecoff. These are ~- Ms. Yousecoff is the defendant's
mother. She lives with Mr. Yousecoff in Monterey.

THE COURT: Good afternoon. Welcome to Department 52.

MR. MADDEN: Fran and Tom Denton.

THE COURT: Good afternoon, folks.

MR. MADDEN: Mr. and Mrs. Denton are the defendant's
wife's parents. They live in Vallejo. Thank you.

Katherine. Katherine Denton is the defendant's
aunt. She's an appellate attorney and lives in San
Francisco.

THE COURT: Good afternoon, ma'am.

AeuTEY DADDATTM feD 17767



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entirety of the case, it is not unusual that, particularly
in the case of a misdemeanor and in a number of felonies,
that the entirety of the People's case is going to be in the
affidavit of probable cause. A residential burglary is
going to have the police report affidavit, is going to have
the reporting of a theft, the items that were stolen, if it
was a case that was solved by fingerprints, the fact that
fingerprints were taken and identified, and that's the case.
So the fact that the entirety of the case is contained in
your mind in the three pages, how other than your darn good
faith belief based on your experience, how does that lead me
to the conclusion that her rights to fair trial are going to
be substantially impaired.

MR. GEFFON: Because it's a difference between a
summary of an entire case as you described, the affidavit of
probable cause would be the report about fingerprints, a
statement that there was a certain address burglarized, and
the fact that in this case the handwritten notes are a
physical piece of evidence. They will be marked and
admitted as constituted and that is different than a
affidavit of probable cause. This is Exhibit Number 1 for
the People. It is the only exhibit they will mark in the
case, and they will rest once that exhibit is admitted. And
that's different than a summary of the evidence, which is
what we normally see in an affidavit of probable cause, and
I would submit that it is even in a misdemeanor case unusual
that a single piece of evidence makes the entire case, and

what makes this case unique and what makes the prejudice so

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going to require much more than laying a foundation for
those notes and admitting them, because the truth or
falseness of the allegations is undoubtedly not an issue for
the misdemeanor trial; that has nothing to do with it. The
allegations could be totally fabricated. The issues
vis-a-vis Ms. Vijayendren are going to be, having received
that information as Mr. Geffon stated, how should she have
responded or did she respond in an appropriate or not in an
appropriate way. So you are right, it's a very
straightforward case.

with the totality of the record that we have, is
there a possibility that the defendant's right to a fair
trial could be prejudiced if that information, meaning those
notes, came into the public record? And I suppose the
answer is yes. That's not the standard, and that's what I'm
going to have to get to. Is the defendant's right to a fair
trial an overriding interest that may overcome the right of
public access? By law, absolutely, and the Court has no
quarrel with it. Has it been shown that there is a
substantial probability that the defendant's right to a fair
trial will be prejudiced if the record is not sealed? 1
accept counsel's good faith belief that that's true. I'm
not convinced that evidentially and factually I would make
that finding. I think there is a possibility. I don't
think it rises to the level of a substantial probability
when we take it in the context of all that is already in the
record and remains out of the record at this point.

Additionally, I think I'm challenged to say that

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guess I would make to -- that I understand the Court's ruling
perfectly. I understand that that was the intent of the
parties. I actually don't think it was a clerical error that
the count was dismissed pursuant to 1203.4, because as it
turns out, there would be no other legal mechanism by which
it could be dismissed. Once he had pled, there was no other
way to dismiss it. I think that was the mechanism by which
the court had to because there was no -- you couldn't Section
17; it's a non-alternative felony. Doesn't matter for
purposes of this.

THE COURT: My understanding was in that unique
situation out of Monterey, I was assuming what was going to
happen was the judge -- sentencing judge wasn't going to
allow him to withdraw his plea of guilty, enter a plea of not
guilty, and dismiss it. I would think procedurally that
would probably been the cleanest way to do it after he
successfully completed probation.

MR. MADDEN: That would have been one way. But of
course he was completing probation on a misdemeanor matter,
placed on misdemeanor probation. I think the case is almost
more tend to amount to a deferred entry of judgment or Prop
36, where we do this and you're not going to have any record
for purposes for this. The 1203.4 certainly would apply to
the misdemeanor.

THE COURT: Right. No, I agree. And at least for
my purposes, for all of these reasons, that's my ruling.

MR. MADDEN: All right.

THE COURT: Thank you.

JAMIE L. MIXCO, C.S.R. NO. 12708



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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
BEFORE THE HONORABLE ARTHUR BOCANEGRA, JUDGE, AND JURY

DEPARTMENT NO. 37

---000---
THE PEOPLE OF THE
STATE OF CALIFORNIA, )
)
PLAINTIFF, )
) CASE NO. C1223754
ve. )
)
)
CRAIG RICHARD CHANDLER, )
)
)
DEFENDANT . )
/
---000---

REPORTER'S TRANSCRIPT OF PROCEEDINGS

JULY 3, 2013

---000---
APPEARANCES:
FOR THE PEOPLE: ALISON FILO
Deputy District Attorney
FOR THE DEFENDANT: BRIAN MADDEN
Attorney at Law
OFFICIAL COURT REPORTER: JAMIE L. MIXCO

C.S.R. No. 12708

JAMIE L. MIXCO, C.S.R. NO. 12708



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difficulty at the preliminary examination, as did the
officer, limiting questions and responses consistent with the
court's ruling at that time.

THE COURT: I understand. And, Mr. Madden, when I
say she would be narrow in her opening statements is
consistent with my ruling as to item number one, and what she
says in that conversation, that he came around, that it made
her feel very uncomfortable, which is consistent with what I
ruled. I mean, how she felt about that -- those context and
what he said I think is relevant.

MR. MADDEN: How is it relevant? That she felt
sexually harassed?

THE COURT: No, I didn't say sexually harassed.

MR. MADDEN: Clearly, she was sexually harassed.

THE COURT: Well, she felt uncomfortable about what
was occurring.

MR. MADDEN: That is what sexual harassment is.

THE COURT: We could call it whatever we want, but
you're telling me she thinks it's only fair to make these
comments and not to testify how it made her feel if she
wasn't uncomfortable.

MR. MADDEN: Yes, I totally mean that. She
could -- I believe that the Court's -- I believe the Court's
ruling is incorrect. But not withstanding that, it's more
incorrect if she's allowed to express her feelings about how
she felt about that. It's not necessary.

MS. FILO: Judge --

THE COURT: You want to respond?

JAMIE L. MIXCO, C.S.R. NO. 12708



Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 17 of 173

4

1 for setting of bail was brought by counsel at that time.

2 Not this counsel but another attorney. All of the same

3 issues were raised in front of her. I brought a copy of

4 that transcript for the Court on the off-chance you had not
5 seen it.

6 THE COURT: I haven't seen it.

7 MS. FILO: Because this issue has been litigated and

8 the defendant's motion was denied, no change of

9 circumstances has been shown. And the People would object
10 to it being heard at all. I think the remedy here is a writ
11 ox motion for reconsideration.

12 THE COURT: If I can see that transcript please.

13 MR. MADDEN: Your Honor, let the record reflect that I
14 have not seen this transcript.
15 THE COURT: Show it to Mr. Madden please.
16 MS. FILO: I'm sorry.
17 MR. MADDEN: Before I get to that, in the interest of
18 time, I have not represented Mr. Chandler until the

19 arraignment after the preliminary examination. I have read
20 all of the police reports up to date; however, I've not been
21 able to obtain a copy of the preliminary hearing transcript.
22 THE COURT: But I take it this is --
23 MR. MADDEN: I have no doubt that that's the case. But
24 I just want to address: First of all, there is no -- I'm
25 not exactly sure what Ms. Filo's point is as if there was
26 some statutory or caselaw telling you how many times you can
27 have a bail motion. There's no authority for limiting it to
28 one, just as a matter of law.

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THE COURT: We can't do it July -- well, right now
I don't think we could do it July 12th because I don't expect
to be here.

MS. FILO: Okay. That will be a problem.

THE COURT: But I have to confirm whether I will be
here or not that particular day. If I'm here, yes.

MS. FILO: All right. I would be happy to see if
Ms. Keller will be available maybe for an hour or so on the
llth. But I guess my point is, or my thought is, that I'm
more than happy to do the 402 hearing prior to opening
statements, if that could be accommodated within the Court's
schedule.

THE COURT: Okay. Which we'll address --

MS. FILO: As it goes.

THE COURT: -- in chambers when we talk about
scheduling this morning.

MS. FILO: Okay.

THE COURT: Yes, Mr. Madden.

MR. MADDEN: Are we done with that, Your Honor?

THE COURT: Yes, we are.

MR. MADDEN: Okay. We could go off the record if
you want.

THE COURT: Yes.

(Whereupon, there was a discussion off the record.)

THE COURT: We'll go on the record on the matter of
the People v. Chandler. Mr. Chandler is present, Mr. Madden
is present, Ms. Filo is present. We had informal discussions

in chambers concerning jury selection that is going to begin

JAMIE L. MIXCO, C.S.R. NO. 12708



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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 59 of 173

rights. There's a couple other grounds. Do you want to
stay releasing the notes for five days while you look at
those as well? Could we maybe get some briefs on file, say,
Tuesday and come back next Friday? I don't want to --
obviously, I see where you are going, but I would like to at
least have an opportunity to be sure that you've looked at
the statutory bases that we are operating under, and give us
an opportunity to look at any other remedies we might seek.

MR. HUNTINGTON: I mean, I don't want to open up
for further delay. It would be pending grounds for a ruling
on the motion to unseal and give an opportunity for all
sides if there is an expectation we will receive further
briefing on this issue, I don't see it as the basis for
further delay for the release of the three pages.

MR. SCHUMB: It's my understanding, Judge, in
ruling on this issue you also are ruling on the issue as to
all the arguments raised in the writ, and I just want to
make sure that kind --

THE COURT: Let me have a minute.

MR. MADDEN: Your Honor, may we be excused for a
few minutes?

THE COURT: We will consider ourselves in a brief
recess, and I'll just be right here.

(Recess.)

THE COURT: Let's go back on the record briefly.
Insofar as the three pages of notes, let it be noted that
the Court has reflected on those insofar as the writ

application, and the points and authorities filed and

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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 6 of 173

vo. CI2Z23754+ ange 7]

X | Edentizication  [5C] adnittea
PEOPLE vs_ CHANDLER
pate__WUL 182013 cece STAFARD

BH 3269-4 rev e/ss


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You may take your notes into the jury room during
deliberations.

I do not mean to discourage you from taking notes,
but here are some points to consider if you take notes:

One, note-taking may tend to distract you. It may
affect your ability to listen carefully to all of the
testimony and to watch the witnesses as they testify;

And two, the notes are for your own individual use
to help you remember what happened during the trial. Please
keep in mind that your notes may be inaccurate or incomplete.

At the end of the trial, your notes will be
collected and destroyed.

You must decide what the facts are in this case.
You must use only the evidence that is presented in the
courtroom. Evidence is the sworn testimony of witnesses, the
exhibits admitted into evidence, and anything else I tell you
to consider as evidence.

The fact that the defendant was arrested, charged
with a crime, or brought to trial is not evidence of guilt.
Nothing that the attorneys say is evidence. In their opening
statements and closing arguments, the attorneys will discuss
the case, but their remarks are not evidence. Their
questions are not evidence. Only the witness's answers are
evidence. The attorneys' questions are significant only if
they help you understand the witness's answers.

Do not assume that something is true just because
one of the attorneys asked a question that suggests it is

true.

JAMIE L. MIXCO, C.S.R. NO. 12708



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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 76 of 173

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401

TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

---000---
THE PEOPLE OF THE STATE OF )
CALIFORNIA, )
)
Plaintiff - Respondent, )
)
v. ) No. C1223754
)
CRAIG RICHARD CHANDLER, *
)
Defendant - Appellant. )
' COPY)
VOLUME 3

PAGES 401 - 441

JUNE 11,

2013

~--000---

REPORTER'S TRANSCRIPT ON APPEAL
FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
BEFORE THE HONORABLE ARTHUR BOCANEGRA, JUDGE, AND JURY

---000---

APPEARANCES:

FOR PLAINTIFF-RESPONDENT:

FOR DEFENDANT-APPELLANT:

OFFICE OF THE ATTORNEY GENERAL
BY: KAMALA D. HARRIS,
Attorney General of the State
of California

In Propria Persona

JAMIE L. MIXCO, C.S.R. NO. 12708



Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 31 of 173

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18

concerned that, if bail were set in this matter and

Mr. Chandler were released, it would have a grave emotional
impact upon the victims in this case. At that age, I could
conceive they would have nightmares with the thought that
he's out and about.

So, Mr. Madden, your motion to set bail is
respectfully refused. I will return the preliminary
examination transcript to the district attorney. And I take
it this matter has been set for further proceedings?

MR. MADDEN: Yes, Your Honor. Thank you.

THE COURT: It shall remain as set.

MS. FILO: Thank you, Your Honor.

THE COURT: Mr. Madden, always a pleasure to have you
in my courtroom.

MR. MADDEN: Thank you, Your Honor.

-o00-

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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 74 of 173

STATE OF CALIFORNIA 3
ss.
COUNTY OF SANTA CLARA )

I, BARBEE MACHADO, Official Reporter of the County of
Santa Clara, State of California, do hereby certify that the
foregoing pages, 251-291, comprise a full, true and correct
transcription of my stenographic notes in the aforementioned

case of the proceedings held on September 28, 2012.
I further certify that I have complied with ccP

237(A)(2) in that all personal identifying information has

been redacted, if applicable.

Dated this 22nd day of January, 2014

BARBEE MACHADO, CSR 9355

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has already told you, but this wasn't any type of treating
therapist with whom the victim sought out treatment and went
to treatment and disclosed certain materials. This was
someone selected by me. This is basically my consultant, and
I consider it to be protected under the ambit of both the
attorney/client privilege and the word-product as described
in Cc 2018.

So, you know, frankly, I'm just having difficulty
seeing how, you know, my consultant's identity, you know,
should be disclosed in the context of this criminal
proceeding without having a benefit of any type of
additional, you know, protection in terms of how it will be
utilized in the civil proceedings.

I guess my first question is: If we turn over this
type of information, has the Court made any type of
definitive ruling? I'm ignorant to what the nature of the
motion in limine was in the criminal matter. I request how
it will be utilized in the context of the criminal case.

THE COURT: Essentially, what I perceive that is
going to occur is whatever information this psychiatrist had
important to the interview with Laurie will be provided to
court. I will view that information in-camera. Once I
review the information, if I believe that certain
information, certain statements that Laurie made to the
psychiatrist are relevant to those proceedings, then those
particular statements will be disclosed to counsel.

As I perceive what's going to happen is I have the

documents. What I think is relevant will be unredacted. So

JAMIE L. MIXCO, C.S.R. NO. 12708


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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 67 of 173

interest, which is constitutional, right? The DA's
operation and public safety is part of the government
interest. Once that right is created in that document, you
can't then go over and have it -- ignore it when you are
dealing with another situation such as Vijayendren. So it
qualifies or colors the documents such that when you get to
the vijayendren decision, you say to yourself, okay, I've
got other important constitutional and statutory rights over
here that outweigh the disclosure of the documents that will
be frustrated if I disclose in Vijayendren, and, therefore,
the balancing I make is not now.

THE COURT: Except, of course, they are not here
screaming for that. They are not claiming any challenge
rights. It is understandably coming from you and Mr.
Geffon. In other words, the investigating agency has no
problem with this information getting out.

MR. SCHUMB: Why do you think that is? why do you
think those notes happen to just be in this other file?
They couldn't be in the Chandler file because they never put
allegations of child abuse in a felony file. Those are
always sealed in a little protective envelope, but here we
find them just flopping around attached to this misdemeanor
file, and that's what really worries me, Judge, is that the
DA can selectively just sprinkle this stuff out here, all to
the detriment of another criminal defendant. That's really
the problem, really, was their decision to attach those
notes, which was very unmindful of what's happening in the

Chandler case. They couldn't and wouldn't do it in the

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THE COURT: So you may comment.

MR. MADDEN: All right.

THE COURT: No arguments in my court. You may comment,
express your views, make observations. No arguments.
Arguments are confined to six-year-old children.

MR. MADDEN: I tend to agree with that, Your Honor.
Unfortunately, many times in my adult life I've argued.

THE COURT: Not in my court.

MR. MADDEN: That's true. All right. So I think
this --

Does the Court mind if I sit?

THE COURT: No, I don't mind at all.

MR. MADDEN: I think that the starting place is:
Obviously, with these charges, the schedule is no bail.
That's our starting place. On the other hand, as I've
stated in my points and authorities, notwithstanding the
fact that this is a violent felony, the defendant, even
though it's a violent felony, is entitled to a bail hearing
which is what we are having. And, in that hearing, the
issues that the Court has to address -- I've addressed in my
moving papers -- they are found in section 1271. Also, 1275
of the Penal Code is also relevant in terms of finding
dangerousness. I think I would like to turn my attention to
that right now.

Penal Code Section 1275 states or the heading is:
Matters considered in fixing amount of bail, reduction of
bail below approved schedule. In setting, reducing, or

denying bail, the judge or magistrate shall take into

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you. This is a back-handed way to get that discovery. so
for you to grant this motion then opens up the discovery in
the Chandler matter, and I would submit, Your Honor, that's
not the right of ~- the Mercury News has no right to do
that, and the court's own rules do not allow, and, in fact,
mandate the sealing of a file when there are documents and
they are a part of the discovery. And so I believe I
asserted that in my initial brief in support of the writ.

THE COURT: Thank you.

MR. MADDEN: One moment, please, Your Honor.

MR. SCHUMB: Just to reiterate very quickly, Your
Honor, the bottom line is if you grant the motion in this
case, it's essentially granting a discovery motion for the
Mercury News' access to discovery in Chandler, and we don't
think the law allows for that. So that's a back-handed
attack literally on this motion and the reason why the Court
should seal.

THE COURT: If I didn't make it clear at the
beginning, the People through Ms. Filo are not present, and
have made clear they have no position or interest before the
Court.

MR. MADDEN: That's my understanding.

THE COURT: You may proceed.

MR. HUNTINGTON: Thank you, Your Honor. Let me
start off by saying that the public is entitled to
information regarding the investigation of a public
employee, and mr. Geffon explained the exceptions to that or

the four steps outlined in the NBC case. However, I have to

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And the other one is F, and this kind of gets to the heart
of Mr. Chandler's position here. Mr. Chandler is the
unintended victim of the way the DA put documents in the
Vijayendren case. These are investigatory records in a
pending criminal action. This could go the other way. one
of these days, the Mercury could send a public request to
the coroner or some other public entity and say, hey, we
want to see some of these reports, or some other public
entity involved in some other kind of criminal case. And
even though those are records that are relevant in the
criminal case, who knows might be pre-charging. It might be
during the pendency of the verdict or during the pendency of
the case, and say, hey, we want to get these records, or the
DA or the defendant could have an issue with it. And that's
what's happened here. So these are records in

Mr. Chandler's case. They haven't been used yet. They may
never be used. They contain allegations which have never
been made public. That's an important issue. There's a big
difference between what's in the preliminary hearing
transcript, what's in the notes, and what's in

Ms. Vijayendren's notes. very significant differences. And
who knows, this could dissuade a witness from wanting to
testify. I mean if the notes and the testimony of the
alleged victim were compared, one newspaper, I'm not sure
the Mercury could say, gee whiz, this point towards
innocence. And it could dissuade the witness from
testifying. Who knows? I don't know how they are going to

be used. So what we really have is and the position I took

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14

1 be substantial bail. And I think substantial bail is, quite

2 frankly, in the area of $250,000 which I consider to be very

3 substantial bail. But, in addition to that, I would expect

4 that the Court want more than that. The Court would

5 probably want electronic monitoring as outlined in

6 Mr. Smith's letter. And I think that would provide any

7 concern that we would have concerning dangerousness of other

8 children.

9 As the Court knows, I've handled hundreds of these
10 cases during my career, and I honestly cannot think of one
11 case I've had where the client re-offended during the
12 pendency of a criminal proceedings. And I've had many.

13 Now, that doesn't guarantee anything, but what I'm saying

14 is, in my experience, people without criminal records,

15 people who come from good families, people who have deep

16 ties to the community tend to answer these charges. They

17 are not a danger. They stay around. They follow the

18 court's orders. They appear at court appearances. And I

19 believe that Mr. Chandler is just that kind of person.

20 Certainly, running a defense in this case is going
21 to -- this is not relevant but I want to put it on the

22 record anyway -- running a defense in this case, in terms of
23 what's going to be needed, in terms of experts and testing
24 and stuff, it's very, very difficult to do when a client is
25 in custody. I'm not going to say it's a denial of due

26 process because that's wrong. It's not true. But I'm not
27 asking that Mr. Chandler be released so that he can abscond
28 or he could misbehave again and be charged with another

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the following morning.

It was my understanding from the conversation with
the Court and with counsel that sort of the difficult way to
do this would be to have Laurie come in pursuant to a
subpoena or a court order, that she would be compelled to
testify; that she would be required to disclose the name of
the expert or consultant with whom she gave statements that
were either consistent or inconsistent with previously given
statements. Armed with that information, I contacted Mr.
Matiasic again, let him know what the Court's intended ruling
was, and suggested to him that the easier way to do this
might be through stipulation and order with a waiver of the
privilege.

Mr. Matiasic had some concerns about the impact
that might have on the civil case, and we discussed the
possibility of preparing a protective order, which would
address his concerns in the civil case, but still give us the
information we believe we need, and I believe ultimately will
be compelied by the Court in the criminal case.

I have prepared a proposed stipulation and order.

I e-mailed that to both the Court and counsel this morning.

I -- and to Mr. Matiasic. I brought hard copies today. I
think Mr. Matiasic has a few concerns he would like to
address with the Court. But otherwise, I believe that with
that -- with the execution of that protective order, the name
of the psychiatrist with whom Laurie met and will be
disclosed and a waiver will be entered with respect to

that -- with respect to any statements made to her and all

JAMIE L. MIXCO, C.S.R. NO. 12708



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such a thing, in an adult, that it does not follow that you
have a sexual interest in children at all.

THE COURT: Well, if there is a foot interest in an
adult and that interest in this particular incident is,
basically, go away. No interest, then --

MR. MADDEN: I didn't understand that.

THE COURT: The adult was not interested,

Ms. Keller.

MR. MADDEN: Okay.

THE COURT: You know, like you used the term
"creepy". Just stay away from me. She's basically -- the
offer of massage, or whatever, with the feet was rejected.
Okay. And if there is a foot fetish, then is it reasonable
to assume that, well, maybe I could satisfy that fetish with
a child who won't reject me, who trusts me, and allows me to
do it?

MR. MADDEN: Well, then you have to extend that
logic to include, if a man has then a sexual interest ina
woman's mouth and her breasts, her buttocks, her vagina, does
that mean he has a sexual interest on those body parts of the
child? I think the answer is clearly no.

THE COURT: Well, Ms. Filo, go ahead.

MS. FILO: Thank you. I think if an adult male has
a sexual interaction with an adult female and they have
sexual intercourse, and he says, I'm interested in an adult
female's vagina, fine. But if an adult male has -- if he has
sexual intercourse with a child, then we could also say he's

interested in a child's vagina. They are not mutually --

JAMIE L. MIXCO, C.S.R. NO. 12708



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and that could truly taint the jury pool against him. And I
think Your Honor knows how subtle something such as news
article can be. I also think the fact that the notes are
purported to be handwritten notes give greater credibility
to a news story to the folks who are reading it, and we
think this is so. And they may not be true. The
allegations made by the alleged victim, you know, may be
untrue. So, again, we expect Mr. Chandler to be concerned
about the fact that that would happen. Thank you.

Any more questions?

THE COURT: Yes. You may be seated. TI want to
check something for a moment. I want to clarify because
maybe I misheard or misread or misunderstood. Is not the
minor, the student, who was the subject of the notes,
testified at the prelim, and is a charged complaining
witness in your case?

MR. MADDEN: Yes.

THE COURT: I thought I heard you say were
uncharged.

MR. SCHUMB: What I said was the allegations that
she omitted.

MR. MADDEN: Let me respond. The child we are
talking about is the complaining witness in Count 2 of the
then Complaint and Information. I have reviewed the
preliminary examination at length, and although I don't have
it with me, I can tell you that I agree with mr. Schumb that
the direct substance of the contents of those notes were

never presented to her in the form of questions, never

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right here. And he goes: First says round and then says
curve, okay. Let's say he's using that as an example. Well,
if that's the example, the jury is going to say, you know, it
goes to his weight.

But my concern is repeated examples: Here and here
and here, and just over and over. I think that's excessive.
And I'm hoping, Mr. Madden, you're following what I think is
appropriate and I think you understand Ms. Filo's concerns.

MR. MADDEN: I do, and I think I understand the
Court's concern and I think things will work out. Obviously,
if you think that it's becoming excessive or consuming an
undue amount of time, I'm sure Ms. Filo will object and you
make a ruling, so --

THE COURT: Absolutely. Absolutely. And off the
record briefly.

(Whereupon, there was a discussion off the record.)

THE COURT: We'll go back on the record. The next
in limine is No. 3, motion to exclude evidence related to an
incident involving Mr. Chandler and Hilda Keller.

MR. MADDEN: Yes, Your Honor.

THE COURT: Okay. Ms. Filo.

MS. FILO: Judge, I had a beautiful motion written
in opposition to this, and I had my girlfriend walk over what
I thought I had filed with the court, which I did, and it's
not in here. So I don't know if I wrote it separately or
what I did. But if the Court will permit it, I would like to
make my oral response to the defense's motion.

THE COURT: Sure. And not file it?

JAMIE L. MIXCO, C.S.R. NO. 12708



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I ruled on the constitutional balance. And no matter what I
think as to the government code is that going to override
the constitutional determination I already made?

MR. SCHUMB: The point I'm trying to make is you
got two people both who have constitutional rights. It
seems to me like if your action violates one of their
constitution rights, you can't allow it to happen on behalf
of the other person. That's the balancing. And maybe
that's where we disagree.

THE COURT: I think I found against mr. Geffon's
client on the constitutional issue, and I found against your
client on the constitutional issue. You are raising the
statutory issue in your writ.

MR. SCHUMB: Right.

THE COURT: And my question is, accepting the
merits of the argument by statute, is that going to override
the constitutional rulings I've already made?

MR. SCHUMB: The statutory findings are there to
protect the government processes, such as the operation of
the district attorney's office. It seems to me as though
that is exactly the overriding governmental interest that
does justify not turning over the notes in the Vijayendren
case.

THE COURT: Except in this case the DA filed the
notes as part of their affidavit of probable cause.

MR. SCHUMB: But that's random. The point is, see
-- what my point is in my papers is that once the notes are

protected, because they protect an important governmental

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1 MS. FILO: She didn't even bring it. I thought

2 this was it. I thought it had been filed with the court. I
3 thought it was here. It's not, and it's not in here either.
4 THE COURT: I could tell you I have never seen any

5 response or opposition.

6 MS. FILO: Entirely my responsibility, Your Honor.
7 So -- but I do have very strong feelings about this
8 particular motion, and it is based on this. The People have

9 the burden of proving beyond a reasonable doubt that a 288 (a)
10 touching is lewd and lascivious; that it's done with lewd
i intent. And when we're talking about sexual organs or a body
12 part that everyone -- all of us would accept or understand is
13 designed for sexual pleasure, then I think that obstacle is
14 relatively easy for the People to overcome. Certainly, when
15 you are touching, you know, intimate body parts, unless
16 you're a member of a specified medical profession, you are
17 doing it for sexual pleasure. That's the only reason that
18 body part is being touched.

19 Here, we have a unique situation, where Victim No.
20 3 really is only touched on her feet. That's the body part
21 that's at issue. And to be honest, the People would not have
22 even filed that as a 288(a) count had we not had this
23 background information of Mr. Chandler's interaction with
24 Ms. Keller. I don't know that we could have proven that that
25 conduct was in any way lewd or suspicious or sexually
26 motivated absent this other piece of information, which
27 becomes so highly relevant and highly probative.

28 And in the context of Ms. Keller, what we find is

JAMIE L. MIXCO, C.S.R. NO. 12708


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humble opinion, I will take that expertise every time.

Lastly, with respect to Hilda Keller, I guess I
wasn't quite sure again what Mr. Madden was suggesting. The
three conversations that I listed in my papers were the three
conversations that she specifically referenced in the police
report. I cannot imagine that that is the sum total of what
made her feel so uncomfortable, why she would have put in for
a transfer, why she felt like Mr. Chandler's behavior towards
her was so offensive and was so sexually motivated, that she
ultimately sought relief from her employer.

So again, I think the appropriate way to address
that is through a 402 hearing so that we could figure out
what the sum total is of that testimony, and if necessary,
limit it or tailor it. But I want to be clear that I don't
think it's appropriate to limit the scope of that testimony
to one comment about feet. That doesn't address the concern
that we have. The concern we have is, what is Mr. Chandler's
intent when he talks about those things? And that is the
subject of the motion.

THE COURT: Okay. Did you have a response or
comment, Mr. Madden?

MR. MADDEN: Your Honor, I'm perplexed. Is
Ms. Filo suggesting that admissible -- the testimony of the
alleged sexual harassment of Ms. Keller is admissible in this
trial? She can't be suggesting that. It clearly is not.

But I'm having a hard time understanding. Sounded like she's
reserving the right to see how things unfold. Let's see how

it works out. Plain and simple, an allegation of sexual

JAMIE L. MIXCO, C.S.R. NO. 12708



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think had specifically been discussed or raised before, at
least from the cases I recall, the witnesses that -- the
proposed witnesses and the experts concerning grooming also
testified about or were requesting to testify about the
particular facts of the case.

MR. MADDEN: I'm sorry.

THE COURT: It seemed like they were being asked
questions about the specific facts of the case that they were
being called as a witness, giving hypotheticals and what have
you.

MR. MADDEN: Not in US v Raymond was just like
this. They were going to basically be testifying to
something that has come to be called profile evidence and
used in various ways by the People throughout the decades.

THE COURT: Right.

MR. MADDEN: But in Raymond, the subject matter of
the testimony was exactly as it is proposed in this case, not
to talk about the specifics of this case. In the same way
that in Raymond, Lanning was not proposing to talk about the
specifics of that case.

THE COURT: Right. One of the concerns was
profiling; correct?

MR. MADDEN: Yes.

THE COURT: In any event, let me rule on these two
issues.

Concerning grooming, I have read, as I said, and
considered all of the points and authorities that have been

filed, as well as taken into consideration all comments that

JAMIE L. MIXCO, C.S.R. NO. 12708



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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 35 of 173

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA

BEFORE THE HONORABLE KENNETH SHAPERO, JUDGE

CRAIG CHANDLER

Petitioner,
vs.

EVERGREEN SCHOOL DISTRICT,

Respondent.

oN NN

REPORTER'S TRANSCRIPT OF PROCEEDINGS
HEARING ON MOTIONS
SEPTEMBER 29, 2012

APPEARANCES :

For the Petitioner: CHRISTOPHER E. SCHUMB, ESQ.
an
BRIAN MADDEN, ESQ.

For the Respondent
Evergreen School
District: ADAM FISS, ESQ.

For San Jose Mercury
News: T. ANDREW HUNTINGTON, ESQ.

For Lyn Vijayendren: ERIC GEFFON, ESQ.

BARBEE MACHADO, CSR 9355, Official Reporter

NO. 1-12-cv-231067

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STATE OF CALIFORNIA )

COUNTY OF SANTA CLARA )

I, JAMIE L. MIXCO, HEREBY CERTIFY THAT:

The foregoing is a full, true, and correct
transcript of the testimony given and proceedings had in the
above-entitled action taken on the above-entitled date; that
it is a full, true, and correct transcript of the evidence
offered and received, acts and statements of the Court, also
all objections of counsel, and all matters to which the same
relate; that I reported the same in stenotype to the best of
my ability, being the duly appointed and official
stenographic reporter of said Court, and thereafter had the
same transcribed into typewriting as herein appears.

I further certify that I have complied with CCP
237(a) (2) in that all personal juror identifying information

has been redacted if applicable.

Dated:

Jamie L. Mixco, C.S.R.
Certificate No. 12708

ATTENTION:
CALIFORNIA GOVERNMENT CODE
SECTION 69954(D) STATES:

"ANY COURT, PARTY, OR PERSON WHO HAS PURCHASED A TRANSCRIPT
MAY, WITHOUT PAYING A FURTHER FEE TO THE REPORTER, REPRODUCE
A COPY OR PORTION THEREOF AS AN EXHIBIT PURSUANT TO COURT
ORDER OR RULE, OR FOR INTERNAL USE, BUT SHALL NOT OTHERWISE
PROVIDE OR SELL A COPY OR COPIES TO ANY OTHER PARTY OR
PERSON." ~~ ~~

JAMIE L. MIXCO, C.S.R. NO. 12708



Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 11 of 173

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA.
IN AND FOR THE COUNTY OF SANTA CLARA

_--LAINTIFF: THE PEOPLE OF THE STATE OF CALIFORNIA

DEFENDANT: CRAIG RICHARD CHANDLER

NOTICE OF COMPLETION OF:

CLERK'S TRANSCRIPT &] REPORTER'S TRANSCRIPT
CICORRECTIONS/ADDITIONS BX] AUGMENTATION

CASE NUMBER: C1223754

YOU ARE HEREBY NOTIFIED THAT THE TRANSCRIPT(S) ON APPEAL IN THE ABOVE-ENTITLED ACTION HAVE
BEEN COMPLETED.

CLERK'S CERTIFICATE OF MAILING

ICERTIFY THAT IAM NOT A PARTY TO THIS CAUSE AND THAT A TRUE COPY DAVID B. 3 SAKI, COURT CLERK
OF THIS DOCUMENT WAS MAILED FIRST CLASS POSTAGE FULLY PREPAID \
IN A SEALED ENVELOPE ADDRESSED AS SHOWN BELOW AND THE DOCUMENT | fi
BY: |
K MILLER DEPUTY CLERK

WAS MAILED AT
cour OF APPEAL ~] [ d]

SAN JOSE, CALIFORNIA ON APRIL 30, 2014
SIXTH APPELLATE DISTRICT

333 W. SANTA CLARA ST. STE. 1060
SAN JOSE, CA 95113

L_

L
["
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|
|
|

ATTORNEY GENERAL

455 GOLDEN GATE AVENUE
ROOM 11000

SAN FRANCISCO, CA 94102

L_

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[

|
|
JIoL

JEFFREY S. KROSS
P O BOX 2252
SEBASTOPOL, CA 95473-2252

|

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STATE OF CALIFORNIA )

COUNTY OF SANTA CLARA )

I, JAMIE L. MIXCO, HEREBY CERTIFY THAT:

The foregoing is a full, true, and correct
transcript of the testimony given and proceedings had in the
above-entitled action taken on the above-entitled date; that
it is a full, true, and correct transcript of the evidence
offered and received, acts and statements of the Court, also
all objections of counsel, and all matters to which the same
relate; that I reported the same in stenotype to the best of
my ability, being the duly appointed and official
stenographic reporter of said Court, and thereafter had the
same transcribed into typewriting as herein appears.

I further certify that I have complied with CCP
237(a) (2) in that all personal juror identifying information

has been redacted if applicable.

Dated:

Jamie L. Mixco, C.S.R.
Certificate No. 12708

ATTENTION:
CALIFORNIA GOVERNMENT CODE
SECTION 69954(D) STATES:

"ANY COURT, PARTY, OR PERSON WHO HAS PURCHASED A TRANSCRIPT
MAY, WITHOUT PAYING A FURTHER FEE TO THE REPORTER, REPRODUCE
A COPY OR PORTION THEREOF AS AN EXHIBIT PURSUANT TO COURT
ORDER OR RULE, OR FOR INTERNAL USE, BUT SHALL NOT OTHERWISE
PROVIDE OR SELL A COPY OR COPIES TO ANY OTHER PARTY OR
PERSON."

JAMIE L. MIXCO, C.S.R. NO. 12708



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I will redact everything that I believe isn't relevant to
being disclosed. Okay. The actual information I have will
be put in a confidential, sealed envelope as well as the
redacted copy. So I have the original and what I'm
disclosing to counsel.

I'm assuming that, as you may appreciate, the name
of the psychiatrist will have to be disclosed in the event
that Laurie testifies, and then there is some inconsistencies
ox consistencies -- as I foresee what will happen is there
are other Evidence Codes exceptions that will allow the
People to call her as well.

I'm not sure if this is all the things you already
know or I'm just repeating what -- or basically this is the
way I foresee this happening. Do you have any concerns or
comments based on that?

MR. MATIASIC: Well, Your Honor, I think in terms
of procedurally, how we go about disclosing the information
to the Court and language of the protective order seems to be
appropriate. I guess what I have concerns about later too,
and my consultant has already raised to me is, you know,
someone was desirous of trying to call her as a witness ina
criminal proceeding, you know, this consultant doesn't appear
without having her fee paid. And because I got her involved
in this case, you know, we certainly are not going to be
footing the bill to have her come in and testify, you know,
unless it's for us in the civil proceeding.

So I know she's concerned about the effect it has

on her ability to relate with Laurie going forward, but I

JAMIE L. MIXCO, C.S.R. NO. 12708



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THE COURT: We'll have the order filed. And just
so the record is clear, I will specifically order Mr. Madden
not to provide any information that the Court releases to Mr.
Chandler's civil lawyer, or any other lawyer involved in that
civil action. I think the protective order is clear, but
just for clarity purposes, I will make that order as well.

I will conduct an in-camera hearing of the records
I review and try to make a ruling as soon as possible. I'm
not sure if there is a lot or very little or how much time it
will take me. If I'm able to, I will provide it to counsel
by Monday, a ruling at least, but definitely sometime next
week. Are you all comfortable with that? I know you want it
as soon as possible, and I know looking at Mr. Madden, is it
possible to do it this afternoon?

MR. MADDEN: Judge, you don't know me that long,
but you have figured me out.

THE COURT: Okay. We could -- I could take a look
at it this afternoon and --

MR. MADDEN: Your Honor, just do your best.

THE COURT: If you want to stick around.

MR. MADDEN: Let me stick around for a while, see
how you are doing. If you are telling me that it will take a
month, I will go home.

THE COURT: Let's go off the record briefly.

(Whereupon, there was a discussion off the record.)

(Whereupon, an in-camera hearing was held, and the
transcript of the proceedings, Volume 5, pages 482 through

484, is sealed by order of the Court and is under separate,

JAMIE L. MIXCO, C.S.R. NO. 12708



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THE COURT: I mean, that's true. She's the
alleged victim.

MR. MADDEN: Yes, that is true.

THE COURT: I just wanted to be clear if it wasn't
an uncharged incident -- he's charged with it --

MR. MADDEN: That's correct.

THE COURT: She can testify at the prelim. She
was questioned about the sum and substance of the
allegations on direct and cross?

MR. MADDEN: She was questioned about the
allegations.

THE COURT: And the notes were not used. She
wasn't impeached with her statements or otherwise, but her
allegations were a matter of public record.

MR. MADDEN: Yes, but I might further add that she
was never questioned about her conversation with Ms.
Vvijayendren.

THE COURT: I think all the prelim suggests is
that she acknowledged that she had a conversation that is in
the record. I just wanted to be clear because I was hearing
that that was not a currently charged allegation against
Mr. Chandler, hence, I misspoke.

MR. SCHUMB: I just misspoke, Your Honor.

THE COURT: No problem. Mr. Geffon, putting you
back on the hot seat.

MR. GEFFON: Yes, Judge.

THE COURT: The idea that the three pages as it

were is, quote, the sum and substance of the case or the

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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 10 of 173

IN THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA

COURT OF APPEAL NO. 11040429
THE PEOPLE
SANTA CLARA COUNTY NO. C1223754
Vv.
CRAIG RICHARD CHANDLER
CLERK'S CERTIFICATE
L K. MILLER , DEPUTY COUNTY CLERK OF THE COUNTY OF SANTA

CLARA, STATE OF CALIFORNIA, DO CERTIFY THE FOLLOWING:

In response to the Augmentation order filed 04/08/14, I am transmitting item C to the Sixth District Court of
Appeal:

"Copy of People's Exhibit No. 16 (DVD containing audio & video from the defendant's iPhone), admitted
into evidence on July 29, 2013."

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND AND THE SEAL OF SAID
SUPERIOR COURT, THIS 04/30/2014

DATE

DEPUTY CDERK

. Hy)


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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 44 of 173

one hundred percent, and for that reason it's common sense
that the prejudice would exist.

I would submit to the Court there are obviously
reliable alternatives to these three pages of notes. There
is no basis to indicate or reason to believe the police
report is not accurate. This Court has the ability to
compare the three pages of notes with the report in case
there is any question about that. And I would point out
that part of the police report that the Mercury News does
have included in Exhibit B includes a statement, a summary
of the statement of my client. Basically, her side of the
story including the conversation she had with the student
are right there in the police report, and they have that
information. If there's any question about that accuracy,
this Court obviously can settle that.

So I think given there are reasonable
alternatives, given the amount of prejudice that would come
from these three pages of notes, the Court's order to seal
only those notes leaving everything else accessible to the
public and allow the Mercury News to write all the stories
that they feel are appropriate is an appropriate way to
balance the First Amendment and my client's sixth Amendment
rights to due process and a fair trial.

THE COURT: Thank you. Mr. Schumb.

MR. SCHUMB: I'm not asserting that the Mercury
News was trying to get the documents in the Chandler
criminal case. It's just that you didn't try to get them

from the district because you couldn't get them in the

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I'm going to concede that. That's not necessary to make one
an expert. We call law enforcement officers as experts in
drug recognition or symptoms. They are not peer reviewed.
They don't write literature about it, but they are experts
because they are out there on the street.

And what he's talked about in his motion is that
that's an area of expertise for someone who is a psychologist
or professor of psychology, someone like Dr. O'Donohue.
Someone who spends most of his professional time studying the
sexual abuse of children. I can't think of anybody who fits
that definition better than Det. Dillon. After that, it's
all about what has he read, what studies has he read, what
literature has he read. I don't think the answer to that --
I think the appropriate way to address it is to voir dire it
through qualification of him or through a 402 hearing. We're
happy to indulge either of those hearings, if that's at
issue.

Tf it's just Mr. Madden who disagrees with the idea
that law enforcement could be an expert on human behavior,
particularly this kind of human behavior, what he's saying
is: I have a real expert on that topic. Then put him up.
He's already retained. We disclosed the existence of this
expert well in advance of the trial. He has a competing
expert, we have this situation all of the time. You think
your expert is better than our expert, they are both entitled
to testify. So I guess I would just say that there is
nothing about Det. Dillon's experience or expertise that's

insufficient other than he's not an academician. And in my

JAMIE L. MIXCO, C.S.R. NO. 12708



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1 MR. MADDEN: Sue Lewman. Ms. Lewman is the defendant's
2 aunt, and she lives in Castroville. Thank you.

3 THE COURT: Good afternoon.

4 MR. MADDEN: Julia Silvestri. Julia Silvestri is a

5 cousin of the defendant. She lives in Danville.

6 THE COURT: Good afternoon.

7 MR. MADDEN: And Mr. Castillo. Mr. Castillo is a

8 family friend. He lives in Salinas. Thank you, sir.

9 THE COURT: Good afternoon, sir.
10 MR. MADDEN: Barbara Lucino and Joe Lucino. Mr. and
11 Mrs. Lucino are close family friends. They live in

12 Monterey.
13 And, finally, we have Rachel.
14 THE COURT: Good afternoon, folks. Thank you for
15 coming.
16 MR. MADDEN: She is the defendant's sister-in-law.

17 THE COURT: Good afternoon.

18 MR. MADDEN: Your Honor, basically, should I call these
19 witnesses to testify, they would all testify, essentially,
20 as his character witnesses, giving their opinion that they
21 do not believe that the defendant is present danger to the
22 children, and, secondly, they do not feel he would be at
23 flight risk. And I'm prepared, if the Court will accept the
24 representation as to what they would testify to, to proceed
25 to argument without calling these witnesses.

26 THE COURT: I will assume that that evidence would be
27 before the Court.
28 MR. MADDEN: Thank you, Your Honor.

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But, most importantly, it's my understanding --
and I was not at the prelim and haven't read the transcript
but -- it's my understanding that the bail motion was not a
noticed motion. There were no papers filed. I believe it
was something of a summary nature presented orally after
there was a holding order that -- I'm guessing here -- took
just a few pages.

And it's my understanding that -- I'm informed and
I believe -- that Judge McKay McKoy indicated that she was,
at that point, obviously, denying the motion for bail, but
it was my understanding that she indicated she was doing so
without prejudice, realizing that the defendant would be
bringing that motion again in front of another court after
the arraignment.

THE COURT: Let him see the preliminary examination
transcript.

MS. FILO: Sure, Your Honor. I think I got the full
transcript yesterday or, maybe, the day before.

MR. MADDEN: Thank you.

(Pause in the proceedings.)

MR. MADDEN: I'm finished, Your Honor. I have no
difficulty with the Court reading it. But I would call the
Court's attention to Page 514 lines 27 to 28. Let me read
it: The motion to reduce bail is denied without prejudice.
Some other judge may feel differently or analyze the case
differently from the way I do.

THE COURT: You have affirmative evidence that was

never presented to Judge McKay McCoy?

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that's why we charged it that way, was to keep our burden --
T mean, to keep what we had to prove kind of to that
standard, just that any touching was a sexual touching.

So whether she -- you know, I don't know. I
haven't seen what Mr. Madden is referring to. But whether
there is additional conduct or not, the evidence isn't being
offered out of necessity; it's offered on theory of intent,
which is, you know, specifically permitted under 1101(b). So
whether there is additional stuff, I just don't think is the
analysis.

THE COURT: Yes, Mr. Madden.

MR. MADDEN: Your Honor, in all respect to Ms.
Filo, I don't have a transcript of the case of People v. Lyn
Vijayendran, the vice -- the former principal who was
prosecuted for failing to report. However, I have read that
on a number of occasions, and that is not the way that Ms.
Filo argued what happened in this case with respect to
complaining witness No. 2 and Count 2 Becky. It was very
clear and she was very emphatic with that jury that this was
Mr. Chandler putting his tongue on Becky's foot and putting a
penis in her mouth and ejaculating in her mouth. So their
position as just stated by Ms. Filo is inconsistent with what
she has already argued in the Vijayendran case.

THE COURT: You said Becky.

MR. MADDEN: I did say Becky, yes.

THE COURT: Okay.

MR. MADDEN: Lyn Vijayendran was the defendant in

that case. Becky is the child in Count 2.

JAMIE L. MIXCO, C.S.R. NO. 12708



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you have the witnesses to lay the foundation. If he feels
comfortable with it, as long as there is a stipulation for
some sort of foundation so it has some meaning to the jurors,
the date so she -- with the date, the time, the place, and
all that. My main concern is that the jurors have a
reference point to what they are about to hear. And if we
could do it by way of stipulation, I think that's very
efficient. I mean, it doesn't add or take away from the
trial, but it's something I'm hoping you and Mr. Madden could
work out. And if not, we will set aside a morning for you to
do that.

MS. FILO: Okay.

THE COURT: I'm pretty flexible about that. We're
going to go off the record for a minute.

(Whereupon, there was a discussion off the record.)

THE COURT: We'll go back on the record. I forgot
to mention that counsel and the Court discussed counsel
ve-filing all of their motions and stipulating that the
re-filing of these we could make as originals. And the
reason the Court is making this request is because on the
originals I inadvertently used them as my working copy and
wrote all over them. And my understanding is counsel feels
comfortable with doing that and we will substitute. The
newly filed motions are identical to everything that has been
filed as originals. Correct, Mr. Madden?

MR. MADDEN: Yes, Your Honor. And so the record is
clear, what I did is that I got clean copies of my motions

without any of the attachments and the motions themselves,

JAMIE L. MIXCO, C.S.R. NO. 12708



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review regarding the writ.

(Recess.)

290



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15
1 criminal offense. I have no issue that that's not going to
2 happen.
3 And I think he has enough of a background and
4 analysis of this case. And, as I've indicated in my moving
5 papers, not only section 1271 but also section 1275 would
6 certainly justify a finding of unusual circumstances that
7 would allow the Court to depart from the no bail schedule
8 and impose substantial bail under appropriate terms and
9 conditions. Thank you.
10 THE COURT: Thank you.
11 People's response please?
12 MS. FILO: Thank you, Your Honor. I think that, in
13 order for the Court to understand what this case really is,
14 the Court needs to hear the facts. And I apologize for
15 stating them this way, but this is what they are.
16 Mr. Chandler ~-
17 THE COURT: They are what they are.
18 MS. FILO: They are what they are.
19 THE COURT: You can't change them.
20 MS. FILO: Mr. Chandler was a second grade school
21 teacher who had his female students -- seven- and
22 eight-year-old little girls -- stay behind during their
23 recess. He locked the door. He put a blindfold on them.
24 And he put his penis in their mouth. There was sperm found
25 on the chairs which the girls described.
26 Certainly, those can't be described as acts of
27 force because these little girls didn't know what was
28 happening to them. But I can assure you that it is not

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San Jose, California July 3, 2013
PROCEEDINGS

THE COURT: Thank you, ladies and gentlemen. I'll
call the matter of the People v. Chandler.

Counsel, state your appearances for the record.

MR. MADDEN: Brian Madden appearing for Mr.
Chandler, Your Honor. He's personally present in custody.

MS. FILO: Good afternoon, Your Honor. Alison Filo
for the People. Present in court this afternoon, I'll let
him make his own appearance, the attorney for Laurie Doe.

THE COURT: Thank you.

MR. MATIASIC: Good afternoon, Your Honor. Paul
Matiasic on behalf of the victim, Laurie Doe.

THE COURT: Okay. Thank you. What is the status?

MS. FILO: Your Honor, if I may? Mr. Matiasic and
I had a conversation. We've had some continuing
conversations over the last few days. When Mr. Madden made
some arguments with respect to one of our motions in limine,
he made reference to the idea that the allegations with
respect to Laurie Doe had greatly expanded and were greater
than those disclosed to the San Jose Police Department and/or
disclosed at the preliminary hearing in May of last year.

In an attempt to follow up on those
representations, I contacted Mr. Matiasic and was informed
that, yes, in fact those allegations had expanded and that
they had come in the context of a attorney/client privilege
or work-product privileged situation. I let Mr. Matiasic

know that I would be discussing it with the Court, and did so

JAMIE L. MIXCO, C.S.R. NO. 12708



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COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE OF
CALIFORNIA,

COURT OF APPEAL
NO.

PLAINTIFF AND SUPERIOR COURT

RESPONDENT, NO. C1223754
vs. VOL. 1
CRAIG RICHARD CHANDLER, PAGES 1~19

DEFENDANT AND
APPELLANT.

FILE COPY

FROM THE SUPERIOR COURT OF SANTA CLARA COUNTY

HONORABLE ROBERT M. FOLEY, JUDGE

REPORTER'S TRANSCRIPT ON APPEAL

JUNE 13, 2012

APPEARANCES:

FOR THE PLAINTIFF OFFICE OF THE ATTORNEY GENERAL
AND RESPONDENT: 455 GOLDEN GATE AVENUE, SUITE 11000
SAN FRANCISCO, CA 94102

FOR THE DEFENDANT SIXTH DISTRICT APPELLATE PROGRAM
AND APPELLANT: 100 N. WINCHESTER BLVD., SUITE 310
SANTA CLARA, CA 95050

ASHLEY PARROTT, CSR 13157
OFFICIAL COURT REPORTER

AguTDY DADDATTM rep 19757



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TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
---000---

THE PEOPLE OF THE STATE OF
CALIFORNIA,

Vv.

)
)
)

Plaintiff - Respondent, )
)
) No. C1223754
)

CRAIG RICHARD CHANDLER,

Defendant - Appellant.

' COPY]

VOLUME 5
PAGES 468 - 486

JULY 3, 2013

---000---

REPORTER'S TRANSCRIPT ON APPEAL
FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA

BEFORE THE HONORABLE ARTHUR BOCANEGRA, JUDGE, AND JURY
---000---

APPEARANCES:

FOR PLAINTIFF-RESPONDENT: OFFICE OF THE ATTORNEY GENERAL
BY: KAMALA D. HARRIS,
Attorney General of the State
of California

FOR DEFENDANT-APPELLANT: In Propria Persona

JAMIE L. MIXCO, C.S.R. NO. 12708


Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 33 of 173

EXHIBIT 3
(Vol. 2)


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not believing anything that witness said. Or, if you think
the witness lied about some things, but told the truth about
others, you may simply accept the part that you think is true
and ignore the rest.

The trial will proceed in the following manner:

The attorneys will be permitted to make opening
statements if they choose to do so. An opening statement is
not evidence, neither is it an argument. The attorneys are
not permitted to argue the case at this point in the
proceedings. An opening statement is simply an outline or
road map by counsel of what he or she believes or expects the
evidence will show in this trial. Its sole purpose is to
assist you in understanding the case as it is presented to
you.

The People will then present evidence which they
believe supports the charges and allegations contained in the
Information. The defendant may present evidence, but
remember, the defendant does not have to do so. The burden
is on the People to prove every charge and allegation beyond
a reasonable doubt.

Thereafter, I will instruct you on the applicable
law, then each attorney will have an opportunity to present
oral arguments in support of their side of the case. This is
their opportunity to tell you why they believe the evidence
supports their view of the case.

You will then retire to consider your verdicts.
Your verdicts must be unanimous.

In closing, I would also like to note that during

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reasons why he's knocking on the door: Giving notice that

he's going to come in. Maybe not allowed to enter the

w NY

classroom without first knocking. So it's in my opinion

4 ambiguous without the statement.

5 So for those reasons, the evidence will be allowed

a

over the defense objection. And this is another in limine

motion, Mr. Madden, will be continuous throughout the trial

o ~~

and you will not have to interject and object when the

9 testimony occurs, unless you wish to do so. And your
10 objection will be noted at that time, in any event.

11 MR. MADDEN: Thank you, Your Honor. I appreciate
12 that courtesy.
13 THE COURT: You are welcome.
14 The next motion is the defense objection to the
15 People's expert relating to grooming. This is an interesting
16 area for me, and I do have some questions. Maybe if I just
17 state my comments and concerns and confusions, maybe Ms. Filo
18 or Mr. Madden, or probably Ms. Filo initially, you could
19 address them. There is a lot going on here.
20 I did review the cases cited by Ms. Filo, and
21 generally grooming seems to suggest that it is the gaining of
22 trust, the selection of specific victims, and the normalizing
23 of the behavior. At least some of the cases that I reviewed
24 mentioned by the People seem to involve individuals that were
25 generally desensitizing the child to inappropriate behavior,
26 targeting select or specific children, and eventually getting
27 the child to agree or consent to certain behaviors or sexual

28 acts, obviously with their knowledge, and then getting the

JAMIE L. MIXCO, C.S.R. NO. 12708


Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 144 of 173

EXHIBIT 3
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they don't have to be mutually exclusive; they certainly
don't have to be mutually inclusive. But the problem I have
is that the object itself in this -- with this particular
victim is not a sexual organ.

So, Mr. Madden is focusing on the age of the
participants; that somehow the conduct is less sexual because
of the age of the participants. What I'm saying is that it's
not the age that's the primary focus; it's the body part that
ends up being the primary focus. So it is in that connection
that the -~ I mean, again, the People have the burden of
proving beyond a reasonable doubt that that touching is
sexual, and it's not an overtly sexual body part, so how do
we prove that? How would we ever prove that absent a
statement from Mr. Chandler: I have this crazy thing about
feet, you know. We would never be able to prove that.

So it's not 1108 that the People are offering the
evidence. It is 1101(b). This is classic 1101(b): motive,
opportunity, lack of mistake, intent. What is his intent
when he sees a foot? And that's where the People believe
that this evidence is critical. I mean, I don't know how
we -- I think being able to prove that a sexual -- that a
touching of a foot in absence of any other information is
sexual would be highly difficult without knowing that there
has been a prior instance of a sexual interest in feet. The
age is not the issue; the body part is the issue.

MR. MADDEN: I disagree with counsel's analysis,
and I stated it in writing. I might add that my motions in

limine were submitted in a timely fashion. They were given

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
BEFORE THE HONORABLE ROBERT M. FOLEY, JUDGE

DEPARTMENT 52

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,

vs. NO. C1223754

CRAIG RICHARD CHANDLER,

Defendant.

REPORTER'S TRANSCRIPT
MOTION TO SET BAIL

JUNE 13, 2012

APPEARANCES:

FOR THE PEOPLE: ALISON FILO, ESQ.
DEPUTY DISTRICT ATTORNEY

FOR THE DEFENDANT: BRIAN MADDEN, ESQ.
ATTORNEY AT LAW

ASHLEY PARROTT, CSR NO. 13157
OFFICIAL COURT REPORTER

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that door, child? And he says, "Well, because it's locked."
"Oh, okay." And then the door opens. So that is exactly the
kind of conduct 1241 is designed to address, and I think the
case that has been cited for something contrary to that
position is inapplicable.

THE COURT: Thank you.

Any additional comments, Mr. Madden?

MR. MADDEN: I would indicate that the conduct has
been explained and is not an issue in this case. I've
indicated that in both my motion and my reply. I do believe
that Hines is fable to the People's position as the reasons I
stated. I will submit it on that.

THE COURT: If I understand the facts and the
issues, is that Ms. Montgomery was a teacher who had a
classroom next to Mr. Chandler's. All of the facts are in
the moving papers. It was my understanding that the reason
for asking for this particular evidence and the theory by the
People was that Mr. Chandler would have his classroom door
locked during regular school hours, which is during the
period of times that the alleged misconduct with the children
occurred. It would seem that that would be relevant.

Pursuant to Evidence Code 1241, primarily, and the
circumstances of this incident, the Court will allow
Ms. Montgomery to testify about this incident. The Court
believes that the relevance in knocking on the classroom door
is to gain entrance into a locked classroom. Simply knocking
on the door in the Court's opinion is ambiguous without the

contemporaneous by the student. There could be a lot of

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would desensitize and select a victim from a world of
victims. I mean, you have a county of them, a city of them,
you know, a neighborhood of them, a classroom of them. No
matter how big or small that universe is, each offender has
to choose a victim. How is that process done and why? And
what do you do to accomplish that? And that, I think, is
really the focus of Det. Dillon's proposed testimony.

THE COURT: Okay. And I think that's very helpful,
because the moving papers were rather just general about
grooming, and, quite frankly, it wasn't very helpful. I
mean, at least identified the issues. What I'm going to
request, Ms. Filo, because this again is important to both of
you, is to prepare something in written form to present to
the Court real narrowly what you are hoping to present, and
the fact that it's just general and how it factors into this
particular case. And give Mr. Madden an opportunity to see
what your offer of proof is and responding.

MR. MADDEN: If I could respond? Thank you, Your
Honor.

THE COURT: Yes.

MR. MADDEN: First of all, as stated in my motion,
there really is no California law on this subject.

THE COURT: Right.

MR. MADDEN: This is really the latest evolution
and -- along the line of the prosecutor's attempt to bring,
in my opinion, especially in this county, non-expert
witnesses to talk about syndromes that are very questionable.

There is no California law. There are two federal cases, and

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Officer Lanning. He's not going to be testifying about the
facts of this case, but just the general subject of, quote,
grooming. So I think that the Lanning case is the beginning
and the end of the analysis, and that's the spine of my
position. I'm not going to repeat any of the other arguments
that I made.

I will say one other thing about grooming, then I
will move on to the other. I'll make this comment, and I
addressed it in the reply. The Court, when we were last in
court, wanted a detailed offer of proof why it's relevant in
this case from the People. I submit the Court did not get a
detailed offer of proof. It got a few sentences of
generalities, of conclusions. I don't think it's what the
Court was talking about, and I don't think the People gave
that to the Court because they forgot to, it's just they
couldn't.

For purposes of this case, Officer Dillon is not an
expert. He may be an expert as Officer Lanning was in the
Raymond case, in terms of helping teach other police officers
and prosecutors how to detect or prosecute child molesters,
but he's not an expert in terms of being able to testify
about the subject of grooming for all of the reasons stated
in my brief, which I will not repeat here.

And I might add on this subject, I believe the
People failed to address three of the five reasons, any one
of the five will preclude this expert -- purported expert
from testifying, and the People did not address three of the

five.

JAMIE L. MIXCO, C.S.R. NO. 12708



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next meeting. You've more than made your record. I'm going
to stay the order I've made today until wednesday, October
3rd at 5:00 p.m. Actually, that's not fair because nothing
can happen at 5:00 p.m. It will be Thursday, October 4th at
8:00 a.m. Unless there has been some stay granted, then
those three pages will be back in the affidavit of probable
cause Thursday morning at 8:00.

Now, I don't know what you guys have discussed
scheduling-wise. If we are going to continue this it's
going to be on a very short schedule. my schedule is
impacted also, which we haven't discussed. I'm going to be
right here all next week. It's a short week. The week
thereafter I'm going to be in Morgan Hill, where I'm happy
to have you all join me. Then I'm going to be away for the
rest of the month of October. So I'm on a short schedule.
I'm happy to keep this on a short schedule. i'd be thrilled
to have something on file, at least with a copy to the Court
and to counsel by Monday afternoon Tate.

MR. SCHUMB: How about Monday, October 1st?

THE COURT: Yes, and then have you all back here
next Friday afternoon -- actually, I'm going to say in the
morning late because I have calendars.

MR. MADDEN: TI have conflicts both in the morning

and afternoon next Friday. The Friday after I'm totally
available.

MR. SCHUMB: I've a Goodwill Board retreat that
day.

THE COURT: Next Friday.

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was presented to her.

These exact same arguments were presented to Judge
McKay McKoy. She heard three days worth of testimony from
live victims. This was not a Prop 115 hearing. I can tell
you what her comments were at the end of that hearing. She
was -~ I think fair to say -- beyond appalled by the
defendant's conduct, and what she believed was sufficient
evidence to hold him to answer as charged. So I think it
is -- I think bringing this motion again within three weeks
with no change of circumstance is really judge shopping.

THE COURT: May I see the transcript?
MS. FILO: Absolutely. If I can approach, Your Honor.

(Ms. Filo approached the bench.)

(Pause in the proceedings.)

THE COURT: Any reply, Mr. Madden? I've read the
transcript.
MR. MADDEN: I believe the transcript --

In terms of the representations I made earlier
concerning the issue of the motion being made without
prejudice, it was, obviously, not a noticed motion. What
I'm proposing here is far different than -- I disagree with
the People -- I'm presenting information to the Court that
was not in front of this Court.

I'd also point out that Ms. Filo was given my
moving papers two days ago, and I don't have any moving
papers supporting her position, and I've not heard a statute
or case mentioned supporting her position. So I believe

that we are entitled to this hearing as a matter of right,

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San Jose, California July 10, 2013
PROCEEDINGS

THE COURT: Before we take our recess, I'm going to
read just a few instructions that aren't going to take me
very long, and then once I finish reading the instructions,
I'm going to go over informally some scheduling issues and
some other things related to this trial before we take our
recess.

Our system of justice requires that trials be
conducted in open court, with the parties presenting
evidence, and the judge deciding the law that applies to the
case. It is unfair to the parties if you receive additional
information from any other source, because that information
may be unreliable or not relevant, and the parties will not
have had the opportunity to examine and respond to it.

Your verdict must be based only on the evidence
presented during the trial in this court and the law as I
provide it to you.

During the trial, do not talk about the case or
about any of the people or any subject involved in the case
with anyone, not even your family, friends, spiritual
advisors, or therapists.

Do not share information about the case in writing,
by e-mail, by telephone, on the Internet, or by any other
means of communication. You must not talk about these things
with other jurors either until you begin deliberating.

As jurors, you may discuss the case together only

after all of the evidence has been presented, the attorneys

JAMIE L. MIXCO, C.S.R. NO. 12708



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1 child to agree not to tell. So it seemed like there was --
2 grooming seemed to address, you know, getting the trust,
3 picking a specific individual, gradually getting them to
4 agree to the sexual conduct.
5 Here, it was a little unclear to me because we have
6 a different situation that I didn't see, because we have Mr.
7 Chandler who is a teacher who is in a position of trust.
8 That's not to say that a fact-situation like that would not
9 involve that person in that position selecting certain
10 children and then gaining more trust to be involved in that
il particular activity.
12 In a sense, I see this as, you know, children are
13 being blindfolded, are being tricked into certain behavior,
14 but at the same time, I think that you have to get the
15 children's trust to agree to this type of behavior. I don't
16 know if they had a choice under the circumstances because
17 this is the teacher, and I'm not sure if there was any
18 situation going on, where after the tidbit occurred, Don't
19 tell anybody what's going on.
20 So I'm not sure what the People are requesting,
21 whether their expert will be talking about generally what
22 grooming is and the factors and how it applies in our
23 particular case. I can say that some of the points Mr.
24 Madden brought up, and I think in his motion he actually

25 labeled them one through five --

26 MR. MADDEN: That's correct, Your Honor.
27 THE COURT: Let's see --—
28 MR. MADDEN: On page 11 on my reply.

JAMIE L. MIXCO, C.S.R. NO. 12708


Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 25 of 173

12
1 consideration the protection of the public, the seriousness
2 of the offense charged, the previous criminal record of the
3 defendant, and the probability of his or her appearing at
4 trial or hearing in this case.
5 It goes on, and subparagraph (b) will state: In
6 considering the seriousness of the offense charged, the
7 judge or magistrate shall include consideration of the
8 alleged injury to the victim and the alleged threats to the
9 victim or a witness of the crime charged, the alleged use of
10 a firearm or other deadly weapon in the commission of the
11 crime charged, and the alleged use or possession of
12 controlled substances by the defendant.
13 I think that last paragraph is particularly
14 important because, when you analyze those things, none of
15 those items that I just read are present in this case.
16 There is -- although I haven't read the preliminary
17 examination transcript as I previously indicated, I have
18 read the police report. And, obviously, since these cases
19 are charged as Penal Code Section 288 (a), notwithstanding
20 multiple victim allegations, they aren't 288 (b) counts.
21 These are non-forceable sex counts.
22 Furthermore, I'm not aware, from reading the
23 police reports, that there were any threats to any of the
24 complaining witnesses in this case. From reading the police
25 report, it's clear to me that there were no physical
26 injuries to the children. I'm not going to address the
27 issue of emotional injuries since that would be
28 inappropriate at this point and speculative. However, there

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Court -- strike that. It is in the public record through
the testimony at the preliminary examination of mr. Chandler
by the minor who was the subject of the interview contained
within the notes. To be clear what is in the public record
is not a verbatim outline of the interview. As has been
accurately portrayed, those three pages of the notes played
no role in the preliminary examination. The document was
neither used to refresh the witness's recollection nor was
it used to impeach the witness, It played no role in the
preliminary examination, and as counsel has noted it is part
of, apparently, the discovery provided in that case.

The fact that the affidavit of probable cause in
the misdemeanor case contains a summary as opposed to
verbatim is not a distinction of tremendous importance or
value to the Court. The fact that the three pages of notes
reference details that are not necessarily contained within
the summary or are not consistent with the testimony at the
preliminary examination, doesn't change the Court's
conclusion that the sum and substance of the notes are in,
fact, currently in the public record, and the Court thinks
that is an important factor.

As to the idea that these notes somehow constitute
the entire evidentiary basis for the prosecution in the
misdemeanor case, the Court does not challenge or question
counsel's interpretation or argument of that, or the
representation of what the People's intentions are as to how

they intend to prosecute the case. I will accept that's

true because to make a prima facie showing I suppose isn't

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3. And I might add, I share -- I mean, although I have been
mystified as to why the complaining witness in Count 3 is
even there, but that's the People's decision.

THE COURT: Okay. Anyway, I identified that
struggling with the 1101/1108(b) and the issue adult/child
are issues there, and I would make every effort to address it
as soon as I come back.

The next one is motion to exclude evidence related
to an incident involving -- excuse me -- this is No. 4,
motion to exclude the testimony of Mariam Montgomery about
the doors to Mr. Chandler's classroom being locked on one
occasion, and I will take any additional comments from either
side. This is the locked door incident, Mr. Madden.

MR. MADDEN: Your Honor, I'm a little bit lost
here. Did Ms. Filo respond to this?

THE COURT: I believe she did.

MR. MADDEN: Your Honor, again, I'm satisfied with
my motion itself and with my reply, and I don't want to
regurgitate that. I think my position was clearly stated in
both documents. The second one, taking into account the
People's position, I disagree with their position for the
reasons stated. Unless you have a question, I will --. you
could address -- Ms. Filo could address you.

THE COURT: Okay.

Yes, Ms. Filo.

MS. FILO: Thank you, Your Honor. The only thing I
wanted to point out, the defense has cited People v. Hines in

its opposition to the People's assertion that this -- well,

JAMIE L. MIXCO, C.S.R. NO. 12708



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discuss semantically whether it's a motion to unseal or a
motion to reconsider the Court's order to seal. In either
event, as the Court has explained to counsel, it's the
Court's intention to rule on the merits of the propriety of
sealing those documents, and with that in mind, mr. Geffon,
if you would like to proceed, you may.

MR. GEFFON: Thank you, Judge. Judge, just by way
of procedural history with regard to the facts of the case
my client is charged, as you know, with one count of failing
to report an act of abuse as a mandatory reporter. The
facts are that in October of 2011 my client, who was the
principal at 0.B. whaley Elementary School, received a
complaint from a parent about a particular teacher. My
client after getting in contact with the district, conducted
an interview at the district's request of that child and
took notes during that interview. It was in that interview
that the information came forward that is now alleged she
should have realized was an act of abuse.

This is a very unique case in that the entirety of
the People's case are those three pages of notes. I can
explain to the Court and as an officer of the Court tell you
in speaking with Ms. Filo, the deputy district attorney
prosecuting this case, she's explained to me that
presentation of evidence and her case in evidence for this
case will take approximately two hours, and it will consist
of simply putting these three pages of notes in evidence and
explaining the context of how they were taken. This makes

up the entirety of the People's case. That puts us ina

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number. Have a safe weekend and see you all on Monday.

Let's go back on the record. Record will reflect
the jury has been excused until Monday morning. Both Mr.
Chandler and counsel are here. I will order both Mr.
Chandler and counsel here tomorrow morning at 9:00 a.m. for
further in limine motions. So we'll be in recess until
tomorrow morning.

MS. FILO: Thank you, Your Honor.

MR. MADDEN: Thank you, Your Honor.

THE COURT: Welcome.

(Whereupon, the Court recessed.)

JAMIE L. MIXCO, C.S.R. NO. 12708


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THE COURT: Okay.

MR. MADDEN: All right. And so I'm troubled by Ms.
Filo's representation, that we don't know what happened. I'm
not sure what I'm going to argue. She didn't say that. I
might have misstated what she just said. That's all I'm
reading and my stomach is a pretty good guide for me. I
can't just sit here and let that be represented by the People
because that's not what the People have argued and that's not
what they're going to argue in this case. They are going to
argue that it was oral copulation and that he ejaculated in
children's mouth's. Period.

THE COURT: Okay. At least returning to your
points, what you are saying about the civil lawsuit and how
it expanded, but at this point, that's the evidence Ms. Filo
has; that it's the touching of the feet. And as I understand
the fact situation, there was also touching of the face, and
the child said it felt like a glue stick; it was sticky. And
so I took into consideration the argument or the inference
that glue stick, what was sticky on the face, wasn't
necessarily a glue stick, but, you know, you could argue a
penis. Okay. So I took into consideration it was not just
the feet.

There is other conduct going on, and you're asking
me to limit them as far as what they should be allowed to
present after having found that it is relevant. I think
that's going to be presented and you're going to be taking
the -- or at least questioning the child with credibility.

MR. MADDEN: My point is the evidence even of

JAMIE L. MIXCO, C.S.R. NO. 12708



Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 21 of 173

8

1 as I've indicated in my moving papers, and I wish to

2 proceed.

3 THE COURT: Might I have an offer of proof?

4 MR. MADDEN: Yes. What I want to do is address the

5 Court concerning the pivotal issues which I think are the

6 present dangerousness of the defendant; that is, danger to

7 the public, danger to other children in the community which,
8 I think, is, obviously, one of the critical inquiries. And
9 T want to address the issues of the defendant's flight risk
10 which, also, is absolutely a pivotal issue.

11 I don't intend to have live witnesses testify;

12 however, there are approximately 12 family members and close
13 friends who have come from within 75 miles of this

14 courthouse who are here today that I'd like to identify.

15 And I also have presented the document from LCA, a
16 letter from Lee Smith, which I think is very important

17 because I'm asking the Court not just to set bail but to, in
18 addition to that -- I have absolutely no difficulty with him
19 being released conditionally. For example, released and

20 monitored on EMP, GPS, you know, areas where he cannot go or
21 areas he is to go, being subjected to a curfew.

22 What I want to do is present evidence to the Court
23 to convince the Court that there is absolutely no danger --
24 no realistic danger -- of my client fleeing and certainly no
25 substantial likelihood or probability of him endangering any
26 other children in the community at this point.

27 THE COURT: You may proceed.
28 MR. MADDEN: Thank you.

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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 65 of 173

because it's not just about her anymore, it's about
Chandler, which is why we are here, and the DA's files, and
that's what creates, I think, a weighing in favor of the
defendant, and, more importantly, the constitutional rights,
the sixth Amendment right. So that's why we are all here is
that you are supposed to put all this in the mixer. when
you are looking at Vijayendren, my expectation is you are
going to look at Chandler and that's what the writ does. 1
pull you back into my problem here. You can see under F
this could have some real serious implications. we're not a
party in Vijayendren. So that creates a huge problem, and
that's why F, which is their basis under the CPRA to get
these documents, and it works an injustice.

THE COURT: Here your record is as complete as it
can be, hopefully, in this. I am juggling those statutory
rules in 6254 with the constitutional rights. Now, ina
vacuum, which I know we are not, but let's just say that in
the misdemeanor case those three pages weren't in the
affidavit, and the only thing I had in front of me was their
filing the action with the district to get them, and we have
your writ. Now, I'm looking at a straight -~ I'm looking at
the statutes, and I'm ruling based on the statutes. But now
I've got this other thing, and they have made a --
reasonable minds will differ -- reasonable request that the
matters in the -- that they have access to the affidavit of
probable cause, and his counsel with your able assistance or
her counsel with your able assistance has sought to have

that sealed, and I get into that constitutional balance, and

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given statements, and the People have argued, and the People
will argue, that Mr. Chandler put his penis in the mouths of
those four other children. Their argument concerning

Ms. Keller seems to be -- the foundation for their position
seems to be their difficulty in establishing the intent with
respect to the touching of Laurie, because up until this
point, the People have no evidence that would support a
conclusion that Mr. Chandler put his penis in Laurie's mouth.
However, the People have indirectly argued and suggested, and
you could tell from the tone of the interrogation by the
police, that they -- I believe that the People will argue
that it is more probable than not that Mr. Chandler put his
penis on Laurie's leg. All right. Stay with me here.

THE COURT: Okay.

MR. MADDEN: Three of the five complaining
witnesses have filed civil lawsuits. It's my understanding
that certain allegations have expanded and/or changed. And
with respect to Laurie, it's my understanding that the
allegation has bloomed to the defendant forcibly putting his
penis into her mouth. She never told that to the police in
two different interviews. She never said anything about that
at the preliminary examination, and although I wasn't the
attorney, I have seen the transcript, as the Court has, and
there were very specific questions about that. Up until this
lawsuit, the allegations were touching with the foot only.

What I'm suggesting to the Court is that the Court
consider withholding its ruling that you just gave concerning

evidence of the defendant's interest in Ms. Keller's feet to

JAMIE L. MIXCO, C.S.R. NO. 12708



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TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

---000---
THE PEOPLE OF THE STATE OF )
CALIFORNIA, )
)
Plaintiff - Respondent, )
)
Vv. ) No. C1223754
)
CRAIG RICHARD CHANDLER,
)
Defendant - Appellant. )
' COPY
VOLUME 4

PAGES 442 - 467
JUNE 28, 2013

---000---

REPORTER'S TRANSCRIPT ON APPEAL
FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
BEFORE THE HONORABLE ARTHUR BOCANEGRA, JUDGE, AND JURY

~--000---
APPEARANCES:
FOR PLAINTIFF-RESPONDENT: OFFICE OF THE ATTORNEY GENERAL
BY: KAMALA D. HARRIS,
Attorney General of the State
of California
FOR DEFENDANT~APPELLANT: In Propria Persona

JAMIE L. MIXCO, C.S.R. NO. 12708



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San Jose, California June 28, 2013
PROCEEDINGS

THE COURT: Thank you, ladies and gentlemen.
Welcome to Department 37. Thank you for your patience. I'll
call matter of the People v. Chandler, and I'll note that Mr.
Madden is present with his client, Mr. Chandler, and Ms. Filo
is present on behalf of the People.

We're here this morning to address some additional
in limine motions. As I recall, the Court needs to rule on
two specific issues that remain: The issue regarding
grooming and the issue regarding Ms. Keller. JI will note -~
well, before I go forward, I'll let both counsel know that
I'm prepared to rule. But if counsel has any additional
comments they wish to make, I will listen to anything else
you have to say.

Ms. Filo? Mr. Madden?

MR. MADDEN: Let me start with this, Your Honor.
I'm sure you have all of the documents. Just so I'm
comfortable, if we address the issue of the grooming motion
in limine first, the Court of course has my motion in limine.
The People filed a supplemental brief, which I assume the
Court has seen and reviewed and the Court -- I filed on the
24th my reply to the People's supplemental brief. I'm
assuming the Court has had an opportunity to see and review
that.

Additionally, with respect to the Helen Keller
motion -- Hilda Keller. That won't be the last time I make

that mistake. We have my motion, then we have the People's

JAMIE L., MIXCO, C.S.R. NO. 12708



Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 8 of 173

No. €122375¢, mag 24 7

|

PEopLE vs_CMANDLE A -
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Court, so I apologize to both Court and counsel. And I will
go back and find it. It's in my computer somewhere because I
wrote it, but I will get it to the Court. And we certainly
have plenty of time prior to the trial, and I'm happy to
defer the ruling on the motion until Your Honor returns.

THE COURT: Because we have so much time, I mean,
it sort of benefits you, Ms. Filo. And I think the word Mr.
Madden was looking for when he was speaking was -- I think
the sense I got, what he wanted to say, is somewhat
frustrated.

MR. MADDEN: Yes.

THE COURT: But I know that these rulings are
important to both of you, and I know, Mr. Madden, you don't
want to get a preliminary ruling and then I change it. You
want to know where you stand going in, as you do, Ms. Filo.
And I think I owe it to both sides to look at this carefully,
because, quite frankly, I didn't look at it as carefully as I
thought. I had some concerns based on the same issues Mr.
Madden's raised already.

MR. MADDEN: Your Honor, I have no objection to the
People having a reasonable amount of time to file an
opposition to this, provided I have sufficient time too, and
TI guarantee you I will file a reply to it. So we have time
to do those things, and I'm happy to do it informally.

THE COURT: Okay.

MR. MADDEN: Without specific dates and times
because I know you are going on vacation very soon.

THE COURT: Right. It sounds --

JAMIE L. MIXCO, C.S.R. NO. 12708



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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 42 of 173

strongly disagree with his analysis. with regard to the
prejudice probability, he has not provided any findings of
fact, and the case law is pretty clear, pretrial publicity
is not equal an unfair trial. He's got to provide specific
evidence, which he has not; he's simply providing
conclusionary statements saying if this information is
published, it's going to result in an unfair trial. and the
case law is clear that simply does not meet the standards of
sealing.

As we have shown in our papers the jury pool in
Santa Clara County, the sixth largest county in the State of
California, is substantial. There's no evidence that a
handful of articles in the Mercury News or other
publications is going to contaminate that entire jury pool.
Cases with far greater publicity, the Stainer case, the
Richard Allen Davis case were held and tried in Santa Clara
County, and if those cases don't meet the standard for
contamination, there's no reason that the Chandler case can.

with respect to other alternatives, I don't
believe there's any case law supporting that just because
we're relying on representation, we don't know for sure,
because we don't have the document, that the police report
provides an accurate summary. we don't know if that's true
or not, but I have no reason to doubt it either. That is
not an alternative that is set out in the case law. The
alternatives would be in jury voir dire, peremptory
challenges, assembling a larger than normal jury pool,

specific instructions or admonitions, postpone the trial, or

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487

TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

---000---
THE PEOPLE OF THE STATE OF )
CALIFORNIA, )
)
Plaintiff - Respondent, )
)
v. ) No. C1223754
)
CRAIG RICHARD CHANDLER,
)
Defendant - Appellant. ) ~
' COPY,
VOLUME 6

PAGES 487 - 498

JULY 10, 2013

---000---

REPORTER'S TRANSCRIPT ON APPEAL
FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA

BEFORE THE HONORABLE ARTHUR BOCANEGRA, JUDGE, AND JURY
---000---

APPEARANCES:

FOR PLAINTIFF-RESPONDENT: OFFICE OF THE ATTORNEY GENERAL
BY: KAMALA D. HARRIS,
Attorney General of the State
of California

FOR DEFENDANT-APPELLANT: In Propria Persona

JAMIE L. MIXCO, C.S.R. NO. 12708



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counsel has made this morning and on prior occasions. I have
spent a substantial amount of time considering this motion.
The issue of grooming as it relates to this specific case is
a concern for the Court because of the limited information
provided concerning this area, the lack of cases addressing
this area, the apparent lack of any published cases in
California addressing this area, and the unique facts in this
case.

I will make some preliminary comments concerning
some of the issues raised before I rule. First, the jury
need not be wholly ignorant of the subject matter of the
opinion to justify its admission. Even if the jury has
knowledge of the matter, expert opinion may be admitted
whenever it will assist the jury.

The expert testimony proposed by Det. Dillon in the
area of grooming will be based on his special training and
experience. It appears to this court a sufficient foundation
could be laid based on information provided.

Returning to the limited cases in this area, they
generally involve an individual getting the trust of a child
and then slowly desensitizing the child to inappropriate
behavior, targeting or selecting specific children, and
eventually getting the child to agree or consent to certain
sexual conduct with their knowledge and then getting the
child to agree not to tell.

Our fact situation does not fall into the classic
grooming cases as described in the cases. As the People

state in their motion, although grooming is generally

JAMIE L. MIXCO, C.S.R. NO. 12708



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Case 3:17-cv-00325-EMC Document 9-4 Filed 10/17/17 Page 104 of 173

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THE COURT: I don't -- I had it here somewhere.
But general reference to some of the points you raised. As
you both know, the jury doesn't need to be wholly ignorant of
the subject matter of opinion to justify its admission. Even
though the jury has knowledge of the matter, the expert's
opinion may be admitted whenever it's to the jury. And in
this type of area we're talking about expert opinion based on
special training and experience.

So those are the areas I'm a little concerned with.
Ms. Filo, I'm thinking what I'm going to need from you is a
detailed offer of proof and what you would present and how it
is relevant in our case because I don't have a lot of
information. But since we have so much time before the
actual evidence, it gives me the luxury to ask for that. I'm
not saying I'm excluding it, but I want to make sure I feel
comfortable, that if I do allow it, it's appropriate. And so
those are the -- this isn't a classic grooming case, at least
from what I read in cases. It's very different.

MS. FILO: Your Honor, I guess what I should say is
this. The proposed expert is Robert Dillon. He's a
detective with the San Jose Police Department who specialized
in child exploits and has done hundreds and hundreds of child
sex assault cases. And one of the things I have been very
careful to do, the case law instructs me, is not to give him
any real specifics about our particular fact-pattern because
I think that that's inappropriate and I don't think that Det.
Dillon is entitled to say the behavior that Mr. Chandler

engaged in on this occasion or that occasion constitutes

JAMIE L. MIXCO, C.S.R. NO. 12708



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criminal case, there's no basis for it. So when you tried
to do the public records request and met a roadblock, now
you came over here. So that's the back-handed nature of it.

The other thing I will say, Your Honor, is the
consolidated matter you have here in our writ case has all
the statistics about the Mercury's circulation and the jury
pool. I think there's quite good evidence on the record
that writing six or seven articles or even one article could
affect a good part of the jury pool.

And the final thing is that in this case the notes
will be made public. There is not an issue of if; it's
when. All we're talking about is a scoop. They are just
going to have them before everybody else will. Everybody
will get them at the trial, and I think the only reason we
are here is they want them just before everybody else can
get them. Because they are coming out; it's a matter of
when.

THE COURT: You want to respond?

MR. HUNTINGTON: I'm just confused by mr. Schumb's
statement. We're not here because of the writ petition;
we're here because there is a motion to seal. That's the
only reason we are here. The fact that this is a key piece
of evidence or the only key piece of evidence is really
irrelevant. There's no case law that simply says because
the document pertains to key evidence it should somehow be
sealed.

Finally, what Mr. Geffon is saying is that the

police report contains an accurate summary, then I don't see

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