Before Judge Robert Perry
Nature of Proceedings: MOTION FOR NEW TRIAL AND SENTENCING
Cause is called for motion for new trial pursuant to Penal Code Section 1181. The motion is argued by Dylan Schaffer, Michael Rains and David Stein and is taken under submission.
The court takes a brief break.
Pursuant to Penal Code Section 1191.1, the next-of-kin may address the court. The following individuals address the court: Cephus Johnson (uncle), Charmine Jones (aunt), Chantay Moore (sister), Sophina Mesa (mother of victim’s child) and Wanda Johnson (mother).
On his own behalf, the defendant, Johannes Mehserle addresses the court.
Counsel for the people, David Stein, gives his argument for sentencing of the defendant.
Counsel for the defense, Michael Rains, gives his argument for sentencing of the defendant.
The court takes second break.
The court gives opening remarks before rendering its ruling on the motion for new trial.
Motion for new trial due to newly discovered evidence of weapons confusion involving tasers in the cross-draw position is denied. Motion for new trial regarding instructions re: unlawful detention and arrest is denied. Motion for new trial regarding failure to give unanimity instruction for involuntary manslaughter is denied. Motion for new trial as to evidentiary issues is denied. Motion for new trial regarding insufficiency of evidence to support involuntary manslaughter conviction is denied. Motion for new trial regarding improper instruction re: enhancement allegation under Penal Code Section 12022.5(a) is granted. The court finds that there was insufficient evidence at trial to sustain the jury’s finding on gun allegation enhancement and motion for new trial for insufficient evidence on gun allegation is also granted. The court dismisses the gun allegation pursuant to Penal Code Section 1385 for insufficiency of the evidence.
Defendant waives arraignment for judgment and states there is no legal cause why sentencing should not be pronounced. Court orders the following judgment:
The Court orders probation denied.
Serve 2 years in any state prison. Court selects the low term of 2 years in Count 1.
Nature of Proceedings: MOTION FOR NEW TRIAL AND SENTENCING
(CONTINUED)
Defendant is given total credit for 292 days in custody 146 days actual custody and 146 days good time/work time.
The defendant is to pay a restitution fine pursuant to section 1202.4(b) Penal Code in the amount of $200.00.
Defendant is to pay a parole restitution fine, pursuant to Penal Code Section 1202.45, in the amount of $200.00 said fine is stayed and the stay is to become permanent upon successful completion of parole.
The court orders that restitution ordered payable to the Victim Compensation and Government Claims Board, in the amount of $7,500 for funeral expense, on behalf of Wanda Johnson, claim no. A09-1703941. The People reserve jurisdiction for future restitution orders pursuant to Penal Code Section 1202.4(f); 1202.46.
The defendant is to pay a court security assessment in the amount of $30.00 pursuant to Penal Code Section 1465.8(a)(1). Further, the defendant is to pay a criminal conviction assessment of $30.00 pursuant to Government Code Section 70373.
Pursuant to Penal Code Section 296, the defendant is ordered to provide buccal swab samples, a right thumb print, a full palm print impression of each hand, and any blood specimens or other biological samples as required by this section for law enforcement identification.
Booking no. 1364345, Probation no. x- 02061073
Defendant is advised of his appeal rights. Notice of appeal is received. Further, the defense files a motion for bail on appeal is filed this date.
Off-the-record: Court’s exhibit no. 8 (box containing letters and postcards from the public regarding the sentencing of defendant Mehserle) is marked for identification.
