DALE MICHAEL RUBIN State Bar No. 68595 2275 Huntington Drive, Suite 902 San Marino, CA 91108 (213) 407-1235 drubin@s rr.com Attorney for Defendant MICHAEL GARGIULO SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES PEOPLE OF THE STATE OF NO. SA068002 CALIFORNIA, MOTION TO DISMISS INFORMATION; POINTS AND AUTHORITIES and ) ) ) Plaintiff, ) ) vs. ) DECLARATION IN SUPPORT ) ) ) ) ) THEREOF (995 Penal Code and MICHAEL GARGIULO, nonstatutory due process} Defendant. TO THE ABOVENAMED PLAINTIFF AND TO JACKIE LACEY, DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES: PLEASE TAKE NOTICE that MICHAEL GARGIULO (hereinafter defendant) will move the court, through his counsel, for an order dismissing the information because defendant was not legally committed by a magistrate and that defendant was committed in violation of his due process rights. This motion will be made pursuant to the United States Constitution, Amendments V, VI, VIII and XIV; the California Constitution Article 1, sections 7, 15 and 30 (b); PenalCode sections 995, 865 and 872; and on any further or additional evidence or arguments that shall be presented at hearing of this motion. This motion will be based upon this notice; on the points and authorities attached hereto; on the information, pleadings, and documents previously filed with this Court and on the exhibits attached hereto. DATED: January 30, 2019 Dake Michael Rubin DALE MICHAEL RUBIN Attorney for Defendant MICHAEL GARGIULO. POINTS AND AUTHORITIES Defendant submits the following points and authorities in support of his motion to dismiss the information: IT CASE BACKGROUND. Defendant was arrested herein by the Santa Monica Police Department on or about June 6, 2008. Pursuant to the terms and conditions of the Memorandum of Understanding in Death Penalty Cases, CHARLES LINDNER was appointed counsel for defendant in March, 2009. At or about that time Mr. Lindner obtained approval for the appointment of his son, ABRAHAM LINDNER, as paralegal in this case. It is not known the amount of funding approved for this appointment. It should be pointed out that Mr. Lindner's son Abe has absolutely no education or experience qualifying him for any appointment in the investigation and/or presentation of a capital case. The undersigned is informed and believes that subsequently additional funding requests were made and approved for payment of the “paralegal”.Counsel cannot provide further or additional information because the California State Bar issued an order sealing the 987.9 records, including the trust account records and funding requests. The undersigned requested these documents from the 987.9 clerk and was told that they are sealed. See Exhibit 1 attached hereto and incorporated herein by reference. The undersigned was appointed at various times during this period as “parttime” mitigation counsel because of the Court's reluctance to adequately fund a fulltime second counsel in this matter. As mitigation counsel 1 was able to convince Mr. Lindner to obtain the appointment for CHRISTIAN FILIPIAK as the mitigation specialist based on my prior association with Mr. Filipiak investigating numerous state and federal death penalty cases. Between 2009 and 2012 I became aware of problems with Mr. Lindner’s handling of the case. His son Abe was present at every court hearing, sitting beside defendant at counsel table. Abe was also present during interviews at Men’s Central Jail. Ihave been informed by deputy sheriffs working the attorney room of disputes/arguments between Mr. Lindner, his son Abe and the defendant, including shouting matches in which Mr. Lindner and his son Abe were asked by the sheriffs to leave the room. In 2010, prior to the preliminary examination, defendant requested that Richard Steven Jones, a witness to the Bruno homicide, be subpoenaed or conditionally examined because of his exculpatory statements made to police concerning his observations immediately before and after the Bruno murder. That was not done and the witness expired in 2013 without having been interviewed by anyone from the defense. Tam also aware that during this period of time defendant made numerous Marsden motions to the court regarding Mr. Lindner’s handling of the case. Mr. Lindner denied