JEREMY DELICINO, Esq.

State Bar No. 296120

835 5th Avenue, Suite 200A

San Diego, CA 92101

Telephone: (619) 357-6677

Attorney for Defendant

ALFREDO JOSEPH DINUNZIO

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF San Diego

Central Division

In order to render meaningful his Sixth Amendment rights to effective assistance of counsel and to confront witnesses against him as well as his due process right to a complete defense, Defendant Alfredo Dinunzio moves this Court for an order continuing the preliminary hearing in this case, which is currently scheduled to begin on March 14, 2016. This request is based on the accompanying declaration of Jeremy M. Delicino, the enclosed Points and Authorities, all documents on file in this matter, and such other evidence and argument to be introduced at the hearing on this motion.

DECLARATION OF JEREMY M. DELICINO, ESQ.

  1. I, Jeremy Delicino, hereby declare that I am an attorney in good standing with the Bar of the State of California, State Bar No. 296120;
  2. I have been retained as the attorney for Defendant Alfredo Dinunzio in this case;
  3. Dinunzio was charged by felony complaint on February 8th, 2016;
  4. On February 16, 2016, a bail hearing in this case was held. At that hearing, the court reduced the defendant’s bail from $500,000, the amount requested by the District Attorney’s Office, to $225,000. The court also set a preliminary hearing to begin on March 14, 2016. When that preliminary hearing was set, no discovery had yet been provided to either the defendant or his counsel;
  5. The day after the preliminary hearing date was set, the District Attorney’s Office provided counsel with its initial discovery disclosure. The disclosure comprised roughly 3,000 pages, and it included nearly all the voluminous documents from a civil suit between Dinunzio and the alleged victims, Gene and Miriam Summ. The initial disclosure also included roughly one thousand pages of relevant escrow documents and other financial records relating to the allegations in the criminal case and the civil suit;
  6. At the first readiness conference held one week later on February 23, 2016, I informally requested additional time to prepare for the preliminary hearing. I mentioned that the discovery consisted of more than 3,000 pages of discovery, and I would have insufficient time to prepare for the preliminary hearing because of the volume of discovery and other upcoming commitments. More specifically, I told the readiness judge that I was scheduled to be in a Daubert hearing in the federal district court in Utah the next week. My informal request to move the preliminary hearing date was denied. I indicated to Deputy District Attorney Rebecca Zipp, the assigned prosecutor, that I would likely file a § 1050 motion given the volume of discovery and my other professional commitments;
  7. The Daubert hearing in Utah was scheduled to take place from February 29 to March 4, 2016. I prepared extensively for the hearing, which was to ascertain the admissibility of evidence relating to the chemical and pharmacological structure of synthetic cannabinoids. In preparation for the hearing, I dedicated a significant portion of time during the period between the readiness conference and the Daubert hearing in order to familiarize myself with the principles of chemistry and pharmacology at issue with the alleged analogue substances in my federal case. In addition to reading scientific journal articles, reviewing transcripts from similar hearings in Virgina, New Mexico, and other federal district courts across the country, and researching the relevant drug schedules, I met and conferred with two defense experts, Dr. Anthony DeCaprio and Dr. Gregory Dudley, over the course of two days;
  8. The Daubert hearing had been scheduled several months before any charges were filed in this case. In addition, seeking a continuance of the matter in order to prepare for this preliminary hearing was not possible. Not only had the district court judge set aside the entire week for the hearing, but so had roughly a dozen attorneys representing the government and the co-defendants in the case. Similarly, four expert witness chemists—two defense experts from Florida and two DEA employees testifying for the government—had flown in for the hearing. In addition, I could not ask any of the attorneys for the co-defendants to stand in for me as I had been chosen to cross-examine the government’s pharmacological expert and prepare the direct examination of one of the defense’s expert witnesses;
  9. The Daubert hearing began as scheduled on February 29, 2016. It did, however, end early as the government tendered a global plea offer on the second day of the hearing;
  10. Because the hearing concluded on March 1st, I began resuming preparations for the preliminary hearing in this case. In addition to the discovery provided on February 17, 2016 and February 25, 2016, the District Attorney’s Office provided additional discovery on March 3, 2016;
  11. The discovery provided on March 3rd consisted of more than 12,000 pages. Included among the 12,000+ pages are literally thousands of pages of bank records and financial statements. Indeed, there are thousands of pages pertaining to accounts allegedly controlled by Dinunzio. Presumably, this discovery also contain records of transactions relating to the fraudulent activities alleged by the government in this case[1];
  12. Given the volume of discovery provided just last Thursday, I have not had sufficient time to review the discovery in preparation for the preliminary hearing;
  13. Even if I were to devote my time exclusively to this case, I would be unable to review the discovery provided thus far before the commencement of the preliminary hearing. Indeed, it is virtually impossible for one to review 12,000 pages of dense financial documents (in addition to the 3,000 pages previously provided on February 17th) within such a short time frame.[2]
  14. I am also aware that the government intends to call the two alleged victims in this case, Gene and Miriam Summ, at the preliminary hearing. One of the purposes of having the Summs testify on March 14, 2016 is to memorialize testimony in case either is unavailable for later proceedings.[3]
  15. Given the volume of discovery provided thus far, I have asked my full-time paralegal, Ysabel Lonazco, to assist me in preparing for the preliminary hearing. She has begun organizing some of the discovery provided, but she will not be able to dedicate sufficient time to reviewing the documents recently provided as she will be attending a three-day seminar dealing with electronic case management from March 10-12. She registered for this seminar months before the preliminary hearing scheduled in this case.
  16. I do not believe that the government is prejudiced by a continuance in this matter. There is no indication that either of the alleged victims suffers from any life-threatening illness, nor is there any suggestion that either would be unavailable to testify if a short continuance were granted.

POINTS AND AUTHORITIES

1. Proper Written Notice

In order “[t]o continue a hearing in a criminal trial, a party must file written notice within two court days of the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary …” Penal Code § 1050(b).

2. Due Diligence

In reviewing due diligence by the defense counsel, the courts “consider the extent of appellant's diligence in his efforts to ready his defense prior to the date set for hearing.” United States v. Flynt, 756 F.2d 1352, 1358-59 (9th Cir. 1985).

3. Denial Violates Dinunzio’s Right to Due Process

“Denial of a proper request for continuance to prepare a defense constitutes an abuse of discretion and a denial of due process.” People v. Cruz, 83 Cal.App.3d 308 (1978). Indeed, a court may not exercise its discretion in such a manner as to deprive the defendant of a reasonable opportunity to prepare his defense. Jennings v. Superior Court of Contra Costa Cty., 66 Cal.2d 867 (1967).

  1. Denial Violates Dinunzio’s Right to Effective Assistance of Counsel

Unsurprisingly, a defendant is entitled to effective assistance of counsel, one aspect of which is the investigation and presentation of crucial defenses. Hughes v. Superior Court, 106 Cal.App.3d 1, 4 (Ct. App. 1980). A defendant has the right to effective assistance of counsel at his preliminary hearing as it constitutes a “critical stage” of the proceedings. Coleman v. Alabama, 399 U.S. 1, 11 (1970). And counsel must actually be prepared and effective. People v. Fontana, 139 Cal.App.3d 326 (1982).

Indeed whether counsel had time to prepare is irrelevant to a determination of whether in fact counsel was prepared. A criminal defendant is entitled to a prepared counsel, not merely counsel who had time to prepare. People v. Fontana, 139 Cal. App. 3d 326, 333 (Ct. App. 1982).

  1. Denial Violates Dinunzio’s Right to Confrontation

The mere existence of an opportunity for cross-examination in a prior proceeding supplies only a limited indicator of the opportunity's adequacy. The United States Supreme Court has long held that the opportunity for cross-examination is inadequate when the accused has no lawyer. See Pointer v. Texas, 380 U.S. 400, 401 (1965). The presence and participation of counsel, however, do not necessarily ensure the opportunity's adequacy. Naturally, qualitative factors also play a role. Influential factors informing the adequacy of an opportunity to cross-examine include: the nature of the proceeding; the character of the witness and his connection with the events; the extent and subject of his direct testimony; the time and preparatory opportunities available to the accused and his attorney. People v. Gibbs, 255 Cal. App. 2d 739, 743 (Ct. App. 1967).

ARGUMENT

It is axiomatic that a defendant has a right to effective assistance of counsel. Requiring counsel to proceed without giving him sufficient time to prepare is essentially a constructive denial of that right. Further, the consequences of such a denial are particularly acute where, as here, the government may seek to introduce testimony from the preliminary hearing at trial. By its own acknowledgment, the government has had months to investigate this case—months to decide which documents it would like to rely upon, which witnesses it believes, and which charges to file. The defendant—whose liberty is at stake—has been afforded no such luxury. Instead, the government appears to believe that a little more than a week suffices to review more than 12,000 documents and adequately prepare to cross-examine critical witnesses. Alas, it does not.

Because Dinunzio’s right to effective assistance of counsel would be needlessly imperiled and his right to confront witnesses against him similarly compromised by proceeding as scheduled, a continuance of the preliminary hearing is warranted. A brief continuance to provide adequate time to review discovery, interview witnesses, and conduct other appropriate research and investigation would also honor Dinunzio’s right to present a complete defense.

Dated this 8thof March, 2016.

Jeremy Delicino, Esq.
Attorney for Defendant Dinunzio

1

Notice of Motion and Motion For Continuance of Preliminary Hearing Pursuant to PC § 1050

[1]Based on a spreadsheet prepared by my paralegal, it appears that the government's discovery disclosures were roughly as follows:

February 17, 2016: 3,072 pages

February 25, 2016: 17 pages

March 3, 2016: 12,339 pages

In addition, the government provided additional discovery on March 8, 2016. Counsel has not yet had the opportunity to review that latest disclosure.

[2]To provide this Court with some context, the following example may be instructive. Given the timing of the government’s disclosure, the defendant and his counsel have been afforded eleven days to review more than 12,000 pages of discovery. Were defense counsel able to review 100 pages per hour—itself likely an overly ambitious estimate given the content of the documents—it would take roughly 120 hours just to review the discovery provided last week. If counsel only reviewed 50 pages per hour, it would take virtually every hour between the government’s disclosure and the preliminary hearing just to ensure that counsel had reviewed the documents, to say nothing of the need to interview witness, research applicable law, and otherwise prepare a defense.

[3]The government has also filed a Motion for Conditional Exam, relying on the age of the alleged victims to justify its request. To the extent that such an exam would deprive Dinunzio of sufficient time to prepare for cross-examination, he opposes that motion and requests that this Court adopt the declaration and points and authorities detailed in this motion as a basis for denying the government’s request.