11686
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 IN AND FOR THE COUNTY OF SANTA BARBARA
3 SANTA MARIA BRANCH; COOK STREET DIVISION
4 DEPARTMENT SM-2 HON. RODNEY S. MELVILLE, JUDGE
5
6
7 THE PEOPLE OF THE STATE OF )
8 CALIFORNIA, )
9 Plaintiff, )
10 -vs- ) No. 1133603
11 MICHAEL JOE JACKSON, )
12 Defendant. )
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17 REPORTER’S TRANSCRIPT OF PROCEEDINGS
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19 TUESDAY, MAY 24, 2005
20
21 8:30 A.M.
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23 (PAGES 11686 THROUGH 11751)
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27 REPORTED MICHELE MATTSON McNEIL, RPR, CRR, CSR #3304
28 BY: Official Court Reporter 11686
1 APPEARANCES OF COUNSEL:
2
3 For Plaintiff: THOMAS W. SNEDDON, JR.,
4 District Attorney -and-
5 RONALD J. ZONEN, Sr. Deputy District Attorney
6 -and- GORDON AUCHINCLOSS,
7 Sr. Deputy District Attorney 1112 Santa Barbara Street
8 Santa Barbara, California 93101
9
10
11 For Defendant: COLLINS, MESEREAU, REDDOCK & YU BY: THOMAS A.
MESEREAU, JR., ESQ.
12 -and- SUSAN C. YU, ESQ.
13 1875 Century Park East, Suite 700 Los Angeles, California 90067
14 -and-
15 SANGER & SWYSEN
16 BY: ROBERT M. SANGER, ESQ. 233 East Carrillo Street, Suite C
17 Santa Barbara, California 93101
18
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20 For Witness GIBSON, DUNN & CRUTCHER, LLP Jay Leno: BY: THEODORE J.
BOUTROUS, JR., ESQ.
21 333 South Grand Avenue Los Angeles, California 90071
22 -and-
23 NBC UNIVERSAL TELEVISON GROUP
24 BY: JAMES M. LICHTMAN, Senior Vice President,
25 Litigation 330 Bob Hope Drive, Suite C-283
26 Burbank, California 91523
27
28 11687
1 APPEARANCES OF COUNSEL (CONTINUED):
2
3 For Witness LAW OFICES OF FELDMAN & ROTHSTEIN Mary Elizabeth BY:
THOMAS D. ROTHSTEIN, ESQ.
4 Holzer: 790 E. Colorado Boulevard, Suite 800 Pasadena, California 91101
5 -and-
6 OVERLAND BORENSTEIN SCHEPPER &
7 KIM LLP BY: MARK E. OVERLAND, ESQ.
8 300 South Grand Avenue, Suite 2750 Los Angeles, California 90071
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28 11688
1 I N D E X
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3 Note: Mr. Sneddon is listed as “SN” on index.
4 Mr. Zonen is listed as “Z” on index. Mr. Auchincloss is listed as “A” on index.
5 Mr. Mesereau is listed as “M” on index. Ms. Yu is listed as “Y” on index.
6 Mr. Sanger is listed as “SA” on index.
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9 DEFENDANT’S
10 WITNESSES DIRECT CROSS REDIRECT RECROSS
11 LENO, Jay 11691-M 11707-Z 11712-M 11713-Z
12 11717-M
13 (Further)
14 McCULLUGH,
15 Sulli 11718-SA 11723-A 11724-SA
16 WAKEFIELD, Monica
17 De La Santos 11726-SA 11738-SN 11740-SA 11742-SN
18 HOLZER, Mary
19 Elizabeth 11744-M
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28 11689
1 E X H I B I T S
2 FOR IN DEFENDANT’S NO. DESCRIPTION I.D. EVID.
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4 5107 Kaiser Permanente lab report 11733 11743
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28 11690
1 Santa Maria, California
2 Tuesday, May 24, 2005
3 8:30 a.m.
4
5 THE COURT: Good morning, everyone.
6 COUNSEL AT COUNSEL TABLE: (In unison)
7 Good morning, Your Honor.
8 THE JURY: (In unison) Good morning.
9 THE COURT: Call your next witness.
10 MR. MESEREAU: Your Honor, the defense will
11 call Mr. Jay Leno.
12 THE COURT: All right. Come forward, please.
13 When you get to the witness stand, remain standing.
14 Face the clerk here and raise your right
15 hand.
16
17 JAY LENO
18 Having been sworn, testified as follows:
19
20 THE WITNESS: Yes, I do.
21 THE CLERK: Please be seated. State and
22 spell your name for the record.
23 THE WITNESS: My name is Jay Leno. L-e-n-o.
24 THE CLERK: Thank you.
25
26 DIRECT EXAMINATION
27 BY MR. MESEREAU:
28 Q. Good morning, Mr. Leno. 11691
1 A. How are you?
2 Q. Fine, thank you.
3 Mr. Leno, in your work, do you deal with
4 children’s organizations?
5 A. Yes, quite a bit.
6 Q. And what do you do?
7 A. There are groups like Phone Friends,
8 Make-A-Wish. You’ll get phone calls, children in
9 the hospital. “Could you give them a call?”
10 And they’ll ask you questions about, you
11 know, “Oh, did you meet Britney Spears?” Whatever
12 it might be. But usually that type of thing.
13 It’s usually kids that are maybe lonely or
14 sick or something, and they watch T.V. or they watch
15 it late at night, and you try to cheer them up. And
16 it usually goes through, as I said, organizations
17 like Phone Friends and Make-A-Wish.
18 Q. Do you have a specific procedure that you
19 typically follow to learn about a child’s desire in
20 this regard?
21 A. Well, when it comes from a legitimate
22 organization, there’s no procedure. We deal with
23 them on -- I would say maybe 15 a week sometimes,
24 20 a week.
25 So, “Oh, could you call” -- you’ll get a
26 list of children, “These are some kids that would
27 like to hear from you today.”
28 “Okay.” 11692
1 Sometimes they’re in Minneapolis or --
2 they’re all over the country. And you have a five-
3 or ten-minute phone call. And then sometimes you do
4 a follow-up, and you send a picture and hats, you
5 know, things like that.
6 Q. Now, do you have someone who screens these
7 calls for you?
8 A. Well, my assistant, who screens them. Not
9 necessarily those calls, but, you know, all calls,
10 yeah.
11 Q. And is there a particular number that people
12 get ahold of if they want to reach you or talk to
13 you about something like this?
14 A. I’m pretty accessible, either through the
15 main Tonight Show number or my number at the show.
16 Q. How many years have you been dealing with
17 children’s organizations like the ones you’ve
18 described?
19 A. Well, I’ve been doing The Tonight Show about
20 13 years and -- certainly that long. And before
21 that, more informally.
22 Q. And does your work with children involve
23 simply talking to them on the phone, or do you make
24 visits and things of that sort?
25 A. Any of those things. Sometimes with
26 Make-A-Wish, you’ll have a situation where -- those
27 are especially sad, because sometimes they’re
28 terminally ill children. They’ll say, “Oh, this 11693
1 kid’s 15, and he always wanted to go for a ride in a
2 Lamborghini,” or something like that.
3 And sometimes kids will come over to the
4 garage and we’ll take them for a ride. And maybe
5 they want a back-stage tour of The Tonight Show.
6 Maybe they want to sit at the desk and talk in the
7 microphone. So it varies. Sometimes it’s just a
8 phone call, and sometimes it’s a little more than
9 that.
10 Q. And if you decide to do something for a
11 child, or an organization of children, what are the
12 kinds of things you will do? What benefits will you
13 provide them?
14 A. Sometimes it’s an auction-type deal to raise
15 money. Sometimes they’ll say, “We’re having” -- you
16 know, “This child was in a car accident,” or
17 whatever it might be.
18 “The family is having an auction. Would you
19 sign some items or have celebrities sign items?”
20 Sometimes you’ll make a donation. Sometimes
21 it’s tickets to the show. It really varies on a
22 case-by-case basis.
23 Q. And if people want to raise money through
24 you, how do they go about it?
25 A. Well, you just sort of call and tell us what
26 the situation is, and if we can do something to
27 help, that’s what we do. I mean, we try to do a
28 little something for everybody that calls. 11694
1 Sometimes it’s more; sometimes it’s less.
2 Q. Do you sometimes reject requests from
3 parents or children?
4 A. I don’t know if “reject” is quite the word.
5 I mean, sometimes -- you try to make -- if it goes
6 through a legitimate organization, no, you don’t
7 reject them.
8 Sometimes you get the odd, you know, “I’m a
9 farmer. Our crops are” -- “our tractor’s broken.
10 Our fields are not doing well,” and the return
11 address is Brooklyn, New York.
12 So you go, “Hmm, that seems a little
13 suspicious.” You know. So that one you kind of go,
14 “I don’t really know how legitimate that one is.”
15 So, you know, you take them on a
16 case-by-case basis.
17 Q. At times do people who want to reach you get
18 ahold of you directly?
19 A. Yes.
20 Q. And how does that happen?
21 A. They just call me. I’m pretty accessible.
22 I pick up the phone. I go, “Hi, this is
23 Jay.”
24 And they go, “No, it’s not.”
25 And I go, “Yes, it is.”
26 And then I spend ten minutes convincing them
27 it is me, so -- but, yeah.
28 Q. Will they call the studio to reach you 11695
1 directly?
2 A. Yes, and I’ll probably get a lot more calls
3 after this.
4 (Laughter.)
5 My phone will be ringing tomorrow.
6 Thank you for that.
7 (Laughter.)
8 Q. If they call the studio, can they get right
9 to you or do they go right --
10 A. Sometimes they can get right to me,
11 actually. Yes, they can. Up until today they could
12 get right to me.
13 (Laughter.)
14 Until just a few moments ago, you could
15 reach me quite easily.
16 (Laughter.)
17 Q. The numbers that might get right to you,
18 where do they get access to that?
19 A. Well, other performers, comedians, car guys.
20 I mean, my number is pretty much out there. I mean,
21 I wasn’t even unlisted until a couple of years ago.
22 I was in the phone book.
23 Q. Do you know someone named Jamie Masada?
24 A. Yes, Jamie owns The Laugh Factory, a comedy
25 club in Hollywood.
26 Q. Have you known him for a long time?
27 A. Yes. I’m not -- I don’t -- I tend to work
28 some of the other clubs. I don’t work his club very 11696
1 often. I’ve been doing this a long time, so I had
2 some clubs that I worked. And then he opened up,
3 and he was sort of the new club. And I kind of
4 stuck with the clubs that I worked all the time.
5 But, yes, I know him. Yeah.
6 Q. And would it be accurate to say he’s a
7 friend of yours?
8 A. Well, an acquaintance, yeah. A “friend” is
9 all right. He’s asked me for favors and things,
10 yeah. “Friend” is okay.
11 Q. Is he a close friend?
12 A. No, I wouldn’t say close friend.
13 Q. Do you go to The Laugh Factory often?
14 A. No, not very often.
15 Q. When were you last there, if you remember?
16 A. Oh, maybe a year ago. Not quite a year ago.
17 A comedian, George Miller, had passed away, and
18 there was -- they had a little service for him with
19 a bunch of comics, and we all went down and told
20 some jokes. I think that was about a year or so
21 ago. Maybe a little bit longer.
22 And occasionally -- Jamie does a lot of
23 benefits, and he’ll say, “Oh, could you come down
24 and do 15 minutes or something?”
25 And that’s usually what it was. I don’t
26 work there but I’ll go down and do benefits and
27 things.
28 Q. Do you know someone named Louise Palanker? 11697
1 A. Yeah, Louise is a comedian. Yeah.
2 Q. Is she a friend of yours?
3 A. Yes, I’ve known Louise for a long time.
4 Q. And would you describe her as a close
5 friend?
6 A. No, not a close friend, but an acquaintance.
7 She dated a friend of mine, and I got to know her
8 through him.
9 Q. Do you remember a couple of years ago
10 receiving a call from a child named Gavin?
11 A. Yes.
12 Q. And approximately when did that happen?
13 A. Well, let’s see. It’s quite a few years
14 ago. I guess 2000 maybe.
15 Q. And was it your understanding that Gavin had
16 cancer?
17 A. Yes.
18 Q. Okay.
19 A. That’s what I was told.
20 Q. Did you ever talk to Gavin’s mother?
21 A. I believe I did. The circumstance -- I had
22 gotten a number of calls, and I had -- you know,
23 there are ways to sort of legitimize this. I had
24 gotten these calls. And I called the hospital. I
25 was put through to a room. I believe if I -- I
26 believe I spoke to Gavin. And I think I spoke to
27 possibly his brother, and I think I spoke to his
28 mother. 11698
1 It’s a little confusing, because these kind
2 of conversations do tend to run together. When you
3 make three or four of them a day, and you’re calling
4 hospitals, especially when it’s five years ago, it’s
5 a little tricky.
6 But I’m told -- I was told by Louise that
7 they were really happy to hear from me, that I had
8 called the room. So that verified yes, I did call.
9 Because whenever I hear from a child, I
10 always try to follow up on it. So I’m sure I
11 called.
12 Q. Now, how did you learn about Gavin?
13 A. I had gotten a number of voice mails from
14 him. That’s how I was made aware.
15 Q. Okay. And did the voice mails give you a
16 number to call the hospital?
17 A. I’m not sure if the voice mails gave me the
18 number or if I got the number from Louise, but
19 somehow I obtained the number. I can’t be sure on
20 that point.
21 Q. And you’ve indicated, Mr. Leno, you think
22 you talked to Gavin’s mother, right?
23 A. I think so. Yes.
24 Q. Okay. And do you recall whether she called
25 you or you called her?
26 A. No, I called. I called the hospital room.
27 I had gotten a number of voice mails from the child,
28 and I called the hospital room. 11699
1 Q. And they put you through at Kaiser to Gavin?
2 A. I guess it was Kaiser. I can’t remember
3 what hospital it was, but they put me through to the
4 room. Now, I’m not sure whether he was maybe a
5 little groggy. I spoke to someone. It might have
6 been the brother. And I believe I spoke to the
7 mother but I can’t be 100 percent sure, but I think
8 I did.
9 Q. Do you recall what Gavin said to you?
10 A. The conversation in the hospital? Or any of
11 the voice mails?
12 Q. Well, let’s start with the voice mails.
13 A. Okay. The voice mails I got were, “Oh, I’m
14 a big fan. You’re the greatest.” Overly effusive
15 for a 12-year-old.
16 Most of the times when you talk to children,
17 they talk like, “Hi, how are you doing. Uh, good to
18 see you.”
19 Yeah, I mean, it’s -- you kind of have to
20 pull it out of them: “Hi, how you feeling?”
21 “Good. Hi.” I mean, you’re talking to a
22 kid.
23 And this was -- sounded -- very adult-like
24 conversation. I thought -- it just, you know,
25 perked my interest at the time.
26 Q. When you say “overly effusive,” what do you
27 mean?
28 A. “Jay Leno, you’re the greatest.” You know, 11700
1 “I think you’re wonderful. You’re my hero,” this
2 type of thing, which seemed a little odd to me at
3 the time, for someone so young. Why a comedian in
4 his mid-50s would be -- you know, I’m not Batman.
5 You know what I mean? It just seemed a little
6 unusual, but okay.
7 And then I got two or three more.
8 Q. Okay. Were the two or three more messages
9 from Gavin, as far as you know?
10 A. Yes.
11 Q. Did you ever get any messages from anyone
12 who claimed to be Gavin’s mother?
13 A. No. I didn’t get any from the mother. Just
14 from the child.
15 Q. Okay. And based on those messages you then
16 called the hospital?
17 A. Called the hospital. And I believe I sent,
18 you know, hat, T-shirts, that type of thing.
19 Q. Okay. And you spoke to Gavin at the
20 hospital, right?
21 A. Again, to the best of my knowledge, I did.
22 Whether he was groggy, or in bed, or “Hi, uh, uh.”
23 And then I spoke to someone else. And then
24 I believe I spoke to the mother, who seemed very
25 pleased that I called.
26 Q. Do you recall what the mother said to you?
27 A. No. Very general. “Thank you so much.”
28 And, you know, my conversation was along the 11701
1 line, you know, “Our prayers are with you,” that
2 type of thing. And, “If he gets out, and he’d like
3 to tour the Tonight Show studios...,” you know, that
4 type of thing.
5 Q. Was that the only time you recall speaking
6 to Gavin?
7 A. Yes, I believe that is.
8 Q. And was that the only time you recall
9 speaking to the mother?
10 A. Yes, I believe so.
11 Q. Do you recall ever getting any messages
12 after that from Gavin or the mother?
13 A. No, I don’t think I did. I don’t think I
14 got any more after that.
15 Q. Okay. At some point, did you complain to
16 Louise Palanker about messages you were getting from
17 Gavin?
18 A. It wasn’t so much a complaint. I just said
19 to her, “What’s the story here? This” -- “This
20 doesn’t sound like a 12-year-old. This sounds like
21 an adult person.”
22 It seemed -- I -- I think the words I used
23 was, “It seemed a little scripted in his speech.”
24 And then she said to me, you know, “That’s
25 just the way he is. He wants to be a comic, so he
26 writes everything out before he says it, and then he
27 kind of reads it.”
28 And I said, “Oh, okay.” Well, that sort of 11702
1 made sense at the time.
2 Q. Now, the child at the time was approximately
3 13, right?
4 A. No, I think he was younger than that.
5 Q. He was younger than that? Okay.
6 A. This is about, what, --
7 Q. 2000?
8 A. 2000, yeah.
9 This was just another typical day at the
10 office up to this point. I didn’t think anything
11 unusual. So I guess he was younger than that,
12 wasn’t he?
13 Q. What, about 10?
14 A. 10 or 11 possibly.
15 Q. Did you ever ask Louise Palanker who was
16 writing these questions out for Gavin?
17 A. No, I don’t think I said that. I think I
18 just said, you know, it sounded real scripted. It
19 sounded like -- it didn’t sound like....
20 And she said, “Well, he’s very mature and he
21 wants to be a comic, and so he’s very careful in
22 what he says.”
23 And I said, “Oh, okay.”
24 Q. Did that seem unusual to you?
25 A. Well, once I got that explanation, it didn’t
26 seem unusual. It was just unusual for a child to
27 contact me directly, because usually, as I said, at
28 the very least, a parent, a doctor, a nurse, a 11703
1 teacher, Phone Friends, Make-A-Wish, those people
2 call and say, “You’ll be getting a call from this
3 young boy or this young girl.”
4 “Oh, okay.”
5 “Expect it at this time.”
6 “Okay.”
7 To just get a call out of the blue was a
8 little unusual.
9 Q. When you say it seemed scripted, do you mean
10 coached?
11 MR. ZONEN: I’m going to object as
12 speculative.
13 THE WITNESS: No, it just --
14 THE COURT: Just a moment.
15 THE WITNESS: Oh.
16 THE COURT: Sustained.
17 THE WITNESS: Okay. Sorry.
18 Q. BY MR. MESEREAU: Did Louise tell you
19 someone had written out what Gavin was supposed to
20 say?
21 MR. ZONEN: I’m going to object as hearsay,
22 Your Honor.
23 THE COURT: Sustained.
24 Q. BY MR. MESEREAU: At some point did you ask
25 that Gavin stop calling?
26 A. I asked Louise, I said, you know, “I’ve been
27 getting a lot” -- I don’t think I said, “Stop
28 calling.” But I said, you know, “I’ve been getting 11704
1 a lot of these calls.”
2 And she said, “Oh, I’ll take care of it.
3 Don’t worry about it.”
4 And I said, “Okay.”
5 Q. When you said that to Louise, was it your
6 desire that those calls stop?
7 A. Yes.
8 Q. And why was that?
9 A. Um, because it was kind of the same call,
10 sort of over and over again.
11 Q. Did the child seem to call more than most
12 do?
13 A. Well, most children don’t call. You call
14 them, and you do follow-ups, and things like that.
15 Every now and then I will give a child a
16 private number if it seems especially -- I didn’t do
17 that in this case. But I’m not saying I never get
18 calls directly from children, but this was a little
19 unusual.
20 Q. Do you recall the mother being in the
21 background of your call to Gavin?
22 A. I remember someone in the background, but
23 again, I couldn’t say it was the mother. It could
24 have been a nurse. I just remember hearing someone
25 talking as he was talking.
26 Q. And after your last conversation with Gavin,
27 did you ever do anything for Gavin?
28 A. No. I never sent any money. Or -- I mean, 11705
1 I sent, I think, Tonight Show paraphernalia, hats,
2 T-shirts, pictures. I wasn’t asked for any money,
3 nor did I send any.
4 Q. In your conversation with Gavin, did you
5 decide at some point to terminate the call?
6 A. No, it wasn’t -- whatever conversation we
7 had, the best of my recollection, it was very brief.
8 Because he was ill and I think he was, you know,
9 maybe in the hospital bed or something. And that
10 seemed more, “Hi, how are you?”
11 “Okay.”
12 “Okay. Hey, listen, keep your hopes up,”
13 and this type of thing.
14 Q. And do you recall whether or not you ever
15 met Gavin?
16 A. No, I don’t think I ever met him.
17 Q. Do you recall whether or not you ever met
18 the mother?
19 A. No, never met the mother.
20 Q. Okay. Did you tell any of your assistants
21 to try and stop the calls?
22 A. I don’t believe so. I think I just spoke to
23 Louise about it. And I think Louise said, “Oh, I’ll
24 take care of it. I’ll speak to him.”
25 Q. Did the calls stop?
26 A. Yes.
27 MR. MESEREAU: No further questions, Your
28 Honor. 11706
1 THE COURT: Cross-examine?
2 MR. ZONEN: Thank you.
3
4 CROSS-EXAMINATION
5 BY MR. ZONEN:
6 Q. Mr. Leno, good morning.
7 A. How are you?
8 Q. Very well, thank you. How are you today?
9 A. Fine.
10 Q. Welcome to Santa Maria.
11 A. Why, thank you. It’s a lovely town.
12 Q. Mr. Leno, is it fair to say that you
13 probably get calls, maybe 100 calls a year or even
14 more from children who are in distress?
15 A. A lot more than that. Yeah. Easily a
16 couple of hundred. Maybe three or four, maybe five,
17 six, seven a week. You know, one a day probably.
18 Q. Would you say that your recollection of your
19 conversation with Gavin was as clear as your
20 conversation with any of the other children you may
21 have spoken to over that same year?
22 A. Not much clearer, because, again, the
23 conversation was in 2000. I thought nothing unusual
24 until, what, three or four years later. So then I
25 was thinking back, you know.
26 Q. Three or four years later you did get a call
27 from law enforcement; is that correct?
28 A. Yes. 11707
1 Q. And at that time they asked you about any
2 conversations you may have had with a young child
3 named Gavin?
4 A. Yes, they did.
5 Q. At the time of that conversation, were you
6 familiar with the content of a documentary that had
7 screened entitled, “Living with Michael Jackson”?
8 A. Yes, I had seen that.
9 MR. MESEREAU: Objection; beyond the scope.
10 MR. ZONEN: It deals with recollection and
11 familiarity with the name.
12 THE COURT: All right. Overruled.
13 Q. BY MR. ZONEN: That’s the Bashir
14 documentary, Martin Bashir?
15 A. Yes. I saw that, yes.
16 Q. And the part that you actually saw of that
17 documentary, did it feature a child named Gavin?
18 A. Yes, it did.
19 Q. At the time that the police contacted you,
20 did you make an association between the name “Gavin”
21 and that feature with Michael Jackson?
22 A. Well, I had made it before that. The
23 feature was on, and I had heard from a friend of
24 mine --
25 MR. MESEREAU: Objection; hearsay.
26 THE COURT: Sustained.
27 THE WITNESS: Oh.
28 Q. BY MR. ZONEN: At that point in time, you 11708
1 heard -- excuse me, let me try that one more time.
2 A. Okay.
3 Q. At some point in time you drew a correlation
4 between the Gavin who was in the documentary “Living
5 with Michael Jackson” and the Gavin who had called
6 you; is that correct?
7 A. Yes. Because the name “Gavin” is very
8 unusual. And I saw, “Gavin, cancer.... Hey, wait a
9 minute. I spoke to a Gavin that had cancer. I
10 wonder if it’s the same one.”
11 Q. All right. Did that cause you to believe at
12 the time law enforcement contacted you that that was
13 the same child?
14 A. Well, they didn’t contact me until two years
15 later.
16 Q. Okay. All right. Now, in the course of the
17 conversations -- excuse me. In the course of the
18 phone calls that were made by Gavin to you --
19 A. Uh-huh.
20 Q. -- that went to your voice mail --
21 A. Right.
22 Q. -- do you have a sense of how many calls
23 those were?
24 A. Well, I think there were at least three or
25 four. I think it was some -- there were three or
26 four. And then I think we had gone on hiatus,
27 vacation. And when we had come back, there were a
28 few more. 11709
1 And that’s when I spoke to Louise and said,
2 “Um, what’s going on? I keep getting a lot of these
3 calls.”
4 And she said, “I’ll take care of it. He
5 gets overanxious,” whatever it might be.
6 I said, “Okay. It’s not a big deal.” And
7 then I didn’t hear any more.
8 Q. Did she explain to you that Gavin was in and
9 out of the hospital dealing with chemotherapy?
10 A. Yes, she did.
11 Q. And had a fair amount of time on his hands?
12 A. Oh, yeah. Yeah.
13 Q. Did she tell you that he, in fact, did watch
14 your show every night?
15 A. She did. She went on to explain that he was
16 a big fan. You know, you just tend to be -- in my
17 position, as I said, there’s a lot of odd -- you
18 don’t know whether it’s a radio station playing a
19 trick on you. So your first contacts sometimes are
20 very, Uh-huh, okay. How are you doing? Where are
21 you from? You know.
22 And then it wasn’t until I called the
23 hospital, “Oh, this really a child who really is
24 sick. Okay.” Then it got more real, you know.
25 Q. Were you aware -- did you become aware at
26 any time that Gavin Arvizo was a graduate of the
27 comedy camp at The Laugh Factory?
28 A. I found that out later, yeah. 11710
1 Q. And you’re familiar with the comedy camp,
2 are you not?
3 A. I know of it. I don’t have -- I have never
4 been to it, but I know of it, yeah.
5 Q. You understand that’s a Jamie Masada
6 creation?
7 A. Right, right, right, right.
8 Q. And that’s for disadvantaged children?
9 A. Right.
10 Q. Were you aware that he had had kind of a
11 long association with comedians like Chris Tucker
12 and George Lopez and had even met Adam Sandler?
13 A. Yeah, I found that out later.
14 Q. Would that tend to suggest to you that he
15 really did have a sincere appreciation of comedians?
16 A. Yes, it did.
17 Q. Does that clarify, at least in your mind, to
18 some extent the motivation for the multiple voice
19 messages that he left?
20 A. Yes, it became clear.
21 Q. Did he ask you for money in any of these
22 calls?
23 A. No, no one ever asked me for anything. And
24 I’m sure of that, because if they had, I would have
25 sent something.
26 Q. Did Gavin ask you to do anything in these
27 calls other than speak with him?
28 A. I know I sent a picture and a hat and some 11711
1 other things. I was told by Louise he had the
2 picture over his bed and he was thrilled to get it.
3 So other than that, no, I was never asked
4 for any, you know, financial things or anything like
5 that.
6 Q. All right. And so you never had occasion to
7 send them money; is that correct?
8 A. No.
9 Q. And he did not ask you for money; is that
10 right?
11 A. No, no one asked me for money.
12 MR. ZONEN: Thank you. I have no further
13 questions.
14 THE WITNESS: Okay.
15
16 REDIRECT EXAMINATION
17 BY MR. MESEREAU:
18 Q. Mr. Leno, when the police called you --
19 A. Uh-huh.
20 Q. -- did they call you at the studio?
21 A. Called me at the studio, yeah.
22 Q. Did you know you were being secretly
23 recorded?
24 A. No.
25 Q. Did you ever learn that?
26 A. Yeah, I did learn that actually.
27 Q. Do you remember when the police asked you if
28 they were looking for money, you said, “I think so”? 11712
1 A. Yeah, I probably did say that. But they
2 never asked me for any money. But at the time when
3 I got the phone calls, originally, it sounded -- as
4 I said, it sounded suspicious. When a young person
5 that overly effusive, and, “Oh, Mr. Leno, you’re the
6 greatest. And you’re” --
7 I thought, really? Why would -- it just
8 didn’t quite click for me, you know.
9 Q. And you thought they were looking for money,
10 right?
11 MR. ZONEN: I’m going to object as asked and
12 answered and improper opinion.
13 THE COURT: Sustained.
14 MR. MESEREAU: No further questions.
15
16 RECROSS-EXAMINATION
17 BY MR. ZONEN:
18 Q. Does the degree of effusiveness, is that
19 explained by his affection that you now understand
20 for comedians?
21 MR. MESEREAU: Objection; calls for
22 speculation.
23 THE COURT: Sustained.
24 MR. ZONEN: All right.
25 Q. You did not know at the time of those voice
26 messages that this is a child who had been a
27 graduate of The Laugh Factory, laugh academy; is
28 that correct? 11713
1 A. No, I didn’t know, because, as I said, it
2 was unusual to have a 12-year-old child leave you a
3 long voice message. In the kind of business I’m in,
4 you hear from a lot of crazy people, you know. And
5 things -- and you’re reluctant sometimes to follow
6 up. But whenever it’s a child, I always do follow
7 up. You kind of drop all your guard, and go, okay,
8 let me just -- because this might be real, you know.
9 So that’s what I did here.
10 Q. When you actually had the conversation with
11 Gavin, was he gracious on the telephone?
12 A. Again, that recollection is not clear to me.
13 Because having spoken to a number of children in the
14 hospital, you know, four or five a week sometimes,
15 sometimes it kind of -- especially when children are
16 sick, you tend to have a very general conversation
17 along the lines of, you know, “Our prayers are with
18 you.” And, you know, “Your parents love you.” And,
19 you know, “When you get out,” you know, “maybe
20 you’ll be able to do this,” or “Come to our show,
21 and we’ll give you a VIP seat,” and -- you know, so
22 you tend to talk in very general terms, so I can’t
23 be real specific about that.
24 Q. Could you have been speaking with a nurse
25 when you were talking with Gavin at the hospital?
26 MR. MESEREAU: Objection; calls for
27 speculation.
28 THE COURT: Sustained. 11714
1 Q. BY MR. ZONEN: Well, you got on the
2 telephone with a female; is that correct?
3 A. Yes. It -- at the time I believe it was the
4 mother.
5 Q. Okay. There was no advance notice from you
6 that you would be placing that call; is that right?
7 A. No, I just -- I tend to be -- I like to take
8 care of things as they happen. You get a call, you
9 get a letter.
10 “Okay. Give me that number. Let me call
11 them right now,” because if I put it down, there
12 will be three more, and, you know, you don’t want to
13 leave a kid hanging. So, yeah, you take care of it
14 right away.
15 Q. And there had been a series of phone calls
16 over a period of time; is that correct?
17 A. Yes.
18 Q. And a vacation?
19 A. I believe so.
20 Q. Okay. And then a conversation with Louise
21 Palanker?
22 A. Right. Right.
23 Q. And then you called back?
24 A. Uh-huh.
25 Q. Okay. And there were no other calls after
26 that conversation; is that correct?
27 A. No.
28 MR. MESEREAU: Objection; misstates the 11715
1 evidence.
2 THE WITNESS: Oh.
3 THE COURT: Overruled.
4 You may answer.
5 Q. BY MR. ZONEN: Is that true?
6 A. I’m --
7 Q. That there were no other calls from Gavin to
8 your voice message after your conversation?
9 A. Right. After my conversation with Louise
10 Palanker, she said, you know, “He gets real excited.
11 I’ll take care of it.”
12 And I said, “Okay.”
13 Q. Then you called Gavin at the hospital
14 afterward, after your conversation with Louise
15 Palanker?
16 A. No, I think it was before. You know, again,
17 I -- I can’t say for sure. Because it all tends to
18 blend together.
19 I remember I called -- I believe I called
20 the hospital. And then after that, there were -- I
21 think the messages came after that, but I would not
22 swear to it.
23 Q. And nobody from your office arranged that
24 telephone call in advance? In other words --
25 A. No, no. I just pick up the call and -- I
26 just pick up the phone and I make the call.
27 MR. ZONEN: Thank you. No further
28 questions. 11716
1 FURTHER REDIRECT EXAMINATION
2 BY MR. MESEREAU:
3 Q. Mr. Leno, when you spoke to Gavin and his
4 mother --
5 A. Uh-huh.
6 Q. -- did you know the family was trying to get
7 money from various celebrities?
8 MR. ZONEN: I’m going to object as assuming
9 facts not in evidence, beyond the scope of
10 cross-examination.
11 THE COURT: Sustained.
12 Q. BY MR. MESEREAU: Did you know anything
13 about any fund-raisers at The Laugh Factory?
14 MR. ZONEN: Objection; irrelevant.
15 THE WITNESS: Oh.
16 THE COURT: Sustained.
17 MR. MESEREAU: No further questions.
18 MR. ZONEN: No further questions.
19 THE COURT: Thank you. You may step down.
20 THE WITNESS: We have Renee Zellweger on the
21 show tonight.
22 (Laughter.)
23 THE COURT: Call your next witness.
24 MR. SANGER: Could I have just a second to
25 make sure the next witness is there? Because I
26 believe he is.
27 Your Honor, with the Court’s permission,
28 we’ll call Suli McCullough. He’s on our list, but 11717
1 he’s farther down the list.
2 THE COURT: That’s fine, Counsel.
3 Come to the front of the courtroom, please.
4 When you get to the witness stand, I’d like you to
5 remain standing up there.
6 Face the clerk over here and raise your
7 right hand.
8
9 SULI MCCULLOUGH
10 Having been sworn, testified as follows:
11
12 THE WITNESS: Yes.
13 THE CLERK: Please be seated. State and
14 spell your name for the record.
15 THE WITNESS: My name is Suli McCullough.
16 S-u-l-i. Last name, M-c-C-u-l-l-o-u-g-h.
17 THE CLERK: Thank you.
18
19 DIRECT EXAMINATION
20 BY MR. SANGER:
21 Q. Mr. McCullough, how are you?
22 A. Oh, good. How are you?
23 Q. I’m doing pretty well so far.
24 Now, you need to talk into the right -- the
25 other one. That one, yeah. It’s kind of hard to
26 get close enough to it.
27 All right. First of all, what is your
28 occupation? 11718
1 A. I’m a stand-up comedian, a writer and an
2 actor.
3 Q. There you go. And do you have any
4 connection from time to time with The Laugh Factory?
5 A. Yes, I perform there regularly. I’ve been a
6 regular there since 1989.
7 Q. All right. And do you know Jamie Masada?
8 A. Yes, I do.
9 Q. Okay. Now, have you ever met Michael
10 Jackson?
11 A. No, I have not.
12 Q. All right. At The Laugh Factory, did you
13 have occasion to meet a child by the name of Gavin
14 Arvizo?
15 A. Yes, I did.
16 Q. And did you have occasion to actually visit
17 him at the hospital from time to time?
18 A. Yes, I did.
19 Q. About how many times?
20 A. I would say about three or four times.
21 Q. All right. Did you have extensive dealings
22 with Gavin, or how would you describe it?
23 A. I would say, yeah, I did have extensive
24 dealings with Gavin. He was in my comedy camp.
25 Comedy camp is something we do for underprivileged
26 kids, and we teach them the fundamentals of
27 stand-up.
28 Q. All right. And have you -- for instance, 11719
1 have you ever been to his house?
2 A. No, I have not.
3 Q. Has he ever been to your house?
4 A. No. They did call my house often. And I
5 invited the family -- I was on The Jamie Fox Show
6 for a couple seasons, and I invited the family to a
7 taping.
8 Q. Did they go?
9 A. Yes, they did.
10 Q. So at some point, you understood that Gavin
11 Arvizo became sick; is that right?
12 A. Yes, I did.
13 Q. Was there a fund-raiser that was organized
14 by Jamie Masada at The Laugh Factory?
15 A. Yes, there was. We actually did two
16 fund-raisers.
17 Q. I was going to ask you how many.
18 A. We did two, yes.
19 Q. Were you there at the fund-raisers?
20 A. I was there for both fund-raisers.
21 Q. Did you see how they were put on? In other
22 words, what happened?
23 A. Yes, I did see how they were put on. I also
24 participated in both of them.
25 Q. So you participated as a comedian on the
26 stage --
27 A. That’s correct.
28 Q. -- is that correct? 11720
1 And did you see the actual fund-raising, the
2 collecting of the money?
3 A. No, I did not.
4 Q. All right. Now, in the course of this
5 fund-raising, were you told by Jamie Masada what the
6 purpose of the fund-raisers were?
7 A. Yes, I was.
8 Q. And what did he tell you the purpose was?
9 A. He told me the purpose --
10 MR. AUCHINCLOSS: Objection; hearsay.
11 MR. SANGER: It’s impeachment.
12 THE COURT: All right. Overruled.
13 THE WITNESS: Jamie told me that the purpose
14 of the fund-raisers were to raise money to help pay
15 for the medical expenses.
16 MR. AUCHINCLOSS: I’ll object as irrelevant.
17 THE COURT: Overruled.
18 Q. BY MR. SANGER: And did you have occasion to
19 be at a press conference held by Jamie Masada on
20 January 5th, 2005? I think that was the date.
21 A. Yes, I was.
22 Q. All right. And did Mr. Masada at that press
23 conference indicate that the fund-raiser for Gavin
24 Arvizo was put on --
25 MR. AUCHINCLOSS: I’m going to object as
26 leading and hearsay.
27 THE COURT: Sus -- I didn’t hear the whole
28 question. Do you want to -- 11721
1 MR. SANGER: It may be leading. Rather than
2 just blurt it out, let me rephrase it.
3 THE COURT: Okay.
4 Q. BY MR. SANGER: Did Mr. Masada speak at that
5 press conference?
6 A. Yes, he did.
7 Q. And did he state the purpose of the
8 fund-raiser for Gavin Arvizo at that press
9 conference?
10 A. I don’t remember if he did or not.
11 Q. And did you?
12 A. Did I state that? Yes, I did.
13 Q. And you stated at that time that it was for
14 raising money for medical bills, right?
15 A. That’s correct.
16 MR. AUCHINCLOSS: Objection. Leading and
17 hearsay.
18 THE COURT: Sustained.
19 Q. BY MR. SANGER: All right. Did you state
20 the purpose of the fund-raiser at that time?
21 A. Yes, I did.
22 Q. All right. And what did you say it was?
23 A. I said --
24 MR. AUCHINCLOSS: Objection; hearsay.
25 THE COURT: Sustained.
26 THE WITNESS: Can I continue?
27 Q. BY MR. SANGER: Was Mr. Masada present at
28 the press conference when you spoke? 11722
1 A. Mr. Masada was present, yes.
2 Q. And you stated the purpose of the
3 fund-raiser as you understood it, correct?
4 A. That’s correct.
5 MR. SANGER: Okay. I have no further
6 questions.
7 THE COURT: Cross-examine?
8
9 CROSS-EXAMINATION
10 BY MR. AUCHINCLOSS:
11 Q. Good morning, Mr. McCullough. How are you?
12 A. I’m good, how are you?
13 Q. I’m just fine.
14 You had a conversation with Mr. Masada where
15 he told you that Gavin’s fund-raiser was going to
16 help raise money for medical expenses?
17 A. Jamie asked me to participate in the
18 fund-raiser and he said that the money would be used
19 to go -- to help cover the medical expenses. That’s
20 correct.
21 Q. Okay. Were you aware whether or not Gavin
22 was going to have any medical expenses after he got
23 out of the hospital?
24 A. From visiting him in the hospital, and
25 knowing that -- where the family came from, it was
26 pretty common knowledge that medical expenses are
27 expensive.
28 Q. Uh-huh. 11723
1 A. And yes, they were going to incur some
2 costs.
3 Q. Okay. Did you know that they were going to
4 have to prepare a safe room or a room that would be
5 germ-free for Gavin after he got out of the
6 hospital?
7 A. I was aware of that, yes.
8 Q. Would you consider that a medical expense?
9 A. I would, yes.
10 MR. AUCHINCLOSS: All right. Thank you. No
11 further questions.
12
13 REDIRECT EXAMINATION
14 BY MR. SANGER:
15 Q. Were you aware that the germ-free room was
16 paid for by Louise Palanker?
17 MR. AUCHINCLOSS: Objection. Hearsay,
18 foundation, and vague as to time, I would say.
19 THE COURT: The objection’s sustained.
20 Q. BY MR. SANGER: Were you aware that -- as of
21 the time that you made this last statement in
22 January of 2005 about the fund-raiser being for
23 medical expenses, were you aware that Gavin Arvizo
24 had full medical coverage through Kaiser Permanente
25 as a result of his father’s long-time employment at
26 Von’s?
27 A. No, I was not aware of that.
28 MR. AUCHINCLOSS: Objection. Hearsay; 11724
1 irrelevant.
2 THE COURT: Overruled. The answer is in.
3 MR. SANGER: Okay. Thank you. I have no
4 further questions.
5 MR. AUCHINCLOSS: No further questions.
6 THE COURT: All right. Thank you very much.
7 THE WITNESS: All right. Thank you.
8 THE COURT: Call your next witness, please.
9 BAILIFF CORTEZ: Judge, I’m sorry, one of
10 the jurors needs to go to the back room.
11 THE COURT: She had to step out for a second.
12 Can counsel approach? We can take up that issue
13 that we were going to have to take up.
14 MR. MESEREAU: Do you mean the motions?
15 THE COURT: Yeah.
16 MR. MESEREAU: Okay.
17 THE COURT: On your motion.
18 (Discussion held off the record at sidebar.)
19 THE COURT: (To Juror No. 5) Just so you
20 know, I used that time very effectively.
21 JUROR NO. 5: Thank you.
22 THE COURT: All right. Call your next
23 witness.
24 MR. SANGER: May I proceed?
25 THE COURT: Yes.
26 MR. SANGER: Okay. Monica Wakefield,
27 please.
28 THE COURT: Come to the witness stand, 11725
1 please. When you get to the witness stand, please
2 remain standing.
3 Face the clerk over here and raise your
4 right hand.
5
6 MONICA DE LA SANTOS WAKEFIELD
7 Having been sworn, testified as follows:
8
9 THE WITNESS: Yes.
10 THE CLERK: Please be seated. State and
11 spell your name for the record.
12 THE WITNESS: I’m Monica De La Santos
13 Wakefield. Shall I spell my last name?
14 THE CLERK: Yes, please.
15 THE WITNESS: W-a-k-e-f-i-e-l-d.
16 THE CLERK: Thank you.
17
18 DIRECT EXAMINATION
19 BY MR. SANGER:
20 Q. All right. Miss Wakefield, the first thing
21 we tell everybody is to lean into that right
22 microphone, the one on the right. It’s a little
23 hard to do so --
24 A. Sorry.
25 Q. No, that’s okay.
26 How are you employed?
27 A. I work for Kaiser Permanente Regional
28 Reference Laboratory. 11726
1 Q. And where is that located?
2 A. North Hollywood.
3 Q. All right. Now, at some point, you were
4 contacted by the Santa Barbara Sheriff’s Department
5 to look into some medical records; is that correct?
6 A. That is correct.
7 Q. And you did that for them; is that correct?
8 A. Yes, sir.
9 Q. And you reported back your findings?
10 A. Yes.
11 Q. Okay. I’d like to refer to that same
12 incident. Before I do that, do you recall roughly
13 when it was that you talked to the sheriff’s
14 department?
15 A. Yes.
16 Q. When was that?
17 A. I think that was a year ago, May or March.
18 One of the “M” months --
19 Q. Okay.
20 A. -- for sure.
21 Q. March or May. But sometime sort of the
22 spring of 2004; is that right?
23 A. Yes.
24 Q. And were you asked to look into your records
25 to see if a creatinine clearance test had been
26 conducted with regard to a patient, Gavin Arvizo?
27 A. Yes.
28 Q. Did you determine whether or not that had 11727
1 occurred?
2 A. I don’t understand what you mean. If that
3 had -- the test was taken?
4 Q. Whether or not the test was taken, yes. Did
5 you look into the records to determine what had
6 happened?
7 A. Yes.
8 Q. All right. Do you recall when the
9 procedure, the medical procedure, occurred; that is,
10 the sample was brought in?
11 A. I don’t remember the date of collection,
12 because it was on microfiche when I received the
13 photocopy from microfiche.
14 Q. All right.
15 A. And so I don’t remember the date of
16 collection. But I do remember that I think there
17 was - it’s been a year, so I apologize - not enough
18 specimen for the test to be completed, I think.
19 Q. All right. Let me --
20 May I approach with --
21 Or let me ask you if it would refresh your
22 recollection to take a look at a police report that
23 was --
24 A. Certainly.
25 MR. SANGER: May I approach?
26 THE COURT: Yes.
27 Q. BY MR. SANGER: I’m going to leave this up
28 here. I have another copy. You can look at the 11728
1 whole thing. And I think you might want to look
2 right around that area of the report.
3 Take a moment, read that over, and see if
4 that helps refresh your recollection as to what it
5 was that you reviewed when you looked at the
6 records, and then I’ll ask the specific questions.
7 A. May I ask a question?
8 Q. Yeah.
9 A. Do you know who may have the microfiche copy
10 that I had sent? May I look at that if it’s
11 available?
12 Q. If -- you sent it to the --
13 A. To Sergeant Robel.
14 Q. To Sergeant Robel. Well, you can ask that
15 question and I can’t answer it.
16 A. Okay. Okay.
17 Q. Sergeant Robel happens to be in the
18 courtroom, but let’s go on with what we’ve got here
19 as best you can.
20 A. Okay.
21 Q. If you need to look at the underlying
22 records, we’ll take a break, call another witness,
23 and we can try to find those records.
24 Let’s see how far we can get.
25 A. Sure.
26 Q. If this helps you refresh your recollection.
27 Does it at all?
28 A. Yes, it does. 11729
1 Q. Okay. So do you recall when the -- the
2 original report for medical services was? In other
3 words, somebody came to Kaiser Permanente with
4 regard to this creatinine clearance on a particular
5 date. Do you recall what that date was?
6 A. I don’t remember the date of collection. I
7 just remember the phone call.
8 Q. All right.
9 A. I think it was --
10 Q. Reviewing the report does not refresh your
11 recollection as to the date?
12 A. The date of collection where the specimen
13 could have been taken, is that what you mean?
14 Q. The outpatient summary report, the date that
15 something occurred at Kaiser Permanente.
16 A. Like on Tuesday, May 11th, right? Talking
17 about that one, when I received the fax?
18 Q. Yes. There’s --
19 A. I do remember that, uh-huh.
20 Q. Okay. Now, there’s a date of the actual
21 report that’s in this report. Does that refresh
22 your recollection as to that date? If it does,
23 fine. And if it doesn’t, that’s okay.
24 A. Yes.
25 Q. What was the date that the actual summary
26 report occurred?
27 A. It was the 10th.
28 Q. March 10th of what year? 11730
1 A. Of -- no, wait, last year, so it was 2004.
2 Last year. May. I think it was May 9th or 10th.
3 I’m looking back into my memory bank here, and -- of
4 the phone call, and of the date of the phone call
5 originally. And then when I had faxed it to
6 Sergeant Robel, I think it was May 11th.
7 Q. All right. It was May 11th, 2004, when you
8 faxed the report to Sergeant Robel?
9 A. Okay.
10 Q. So the question is, what was the date of the
11 original report?
12 A. The date of collection?
13 Q. You’re saying date of report --
14 A. What I mean is when a patient comes in and
15 has their specimen drawn. Is that what you mean?
16 Q. Okay. All right.
17 A. That I don’t recall.
18 Q. Okay. And looking at that paragraph doesn’t
19 refresh --
20 A. It does not ring a bell.
21 Q. Okay. So you would be able to --
22 MR. SNEDDON: I may be able to help speed
23 this up a little bit. You may want to show her
24 this.
25 MR. SANGER: Okay. Thank you.
26 May I -- yes, okay. May I approach with
27 this document?
28 THE COURT: Yes. 11731
1 Q. BY MR. SANGER: Let’s see if that helps.
2 A. Oh, yeah.
3 Q. There you go.
4 MR. SNEDDON: I’m glad to help.
5 MR. SANGER: Thank you, Mr. Sneddon.
6 Q. Okay. All right. Now, take a look at that
7 and then see -- first of all, as soon as you’re
8 finished looking at it, let me know and I’ll ask you
9 a question.
10 A. Okay.
11 I do have a memo of that, uh-huh.
12 Q. All right. Now, was that a record that is
13 kept in the ordinary course of business at Kaiser
14 Permanente?
15 A. Not in our department, but it is on
16 microfiche. When it’s in the system, there’s a
17 certain amount of days that it’s kept in the system
18 and then it’s purged and then we have to request for
19 microfiche.
20 Q. And you are a client service advocate for
21 Kaiser Permanente; is that correct?
22 A. Yes.
23 Q. And so your job is to field issues and
24 problems that relate to services that are provided
25 for patients of Kaiser Permanente; is that correct?
26 A. Yes.
27 Q. And it’s your job to routinely look into the
28 records of Kaiser Permanente to determine what 11732
1 procedures were performed and report that to other
2 people; is that correct?
3 MR. SNEDDON: Your Honor --
4 THE WITNESS: Only to --
5 MR. SNEDDON: Excuse me.
6 Maybe I can speed this up, too. If counsel
7 is trying to establish the business records
8 exception, I’ll stipulate that the exhibit can be
9 admitted into evidence.
10 MR. SANGER: I think I’ll accept that.
11 May I take one more look at it, just to see?
12 THE WITNESS: We only speak to medical
13 staff.
14 MR. SANGER: Hold on one second.
15 All right. Before I accept that
16 stipulation, can I ask a few more questions?
17 THE COURT: Absolutely.
18 MR. SANGER: Thank you.
19 Q. When you look at that particular document --
20 THE COURT: Counsel, I’m sorry to interrupt
21 you. Would you mind -- let’s put a number on it
22 right now.
23 MR. SANGER: I realized that just as I
24 started to talk. Defense next in order, please.
25 THE COURT: All right. What is that?
26 THE CLERK: That would be 5107.
27 THE COURT: That will be 5107.
28 Yes. Go ahead. 11733
1 Q. BY MR. SANGER: All right. Now, looking at
2 Exhibit 5107, does that indicate when the patient
3 came to Kaiser Permanente?
4 A. Yes. It says, “Date of collection.”
5 Q. Was that March 10, 2003?
6 A. Yes.
7 Q. All right. And the patient in that case was
8 Gavin Arvizo; is that right?
9 A. It does say so.
10 Q. Okay. Now, it does not say on that report
11 that there is not an adequate specimen, does it?
12 A. It says, “No specimen received.” So
13 according to this, the technologist who tested in
14 the chemistry department did not have a specimen to
15 test.
16 Q. Okay. Now, does it tell you whether or
17 not -- which specimen we’re talking about, a urine
18 or a blood specimen?
19 A. Doesn’t indicate to me.
20 Q. Does it show that there is a urine specimen
21 of 90 milliliters?
22 A. I think with that indication of “90 ML,” I
23 think that means that they need at least that, or
24 they need that to complete the test.
25 But it says -- the “TV” is total volume. So
26 if it says “90 ML” and -- for the specimen container
27 to be in, and there’s nothing in there, it’s going
28 to say, “No specimen received.” They will result it 11734
1 out as “No specimen received” if it’s an empty --
2 Q. Do you remember telling the Santa Barbara
3 sheriffs that it was noted in the results that
4 the -- that the urine sample contained 90
5 milliliters? So the question is whether or not you
6 recall telling the sheriff that?
7 A. I don’t remember.
8 Q. Do you recall telling the sheriff -- let me
9 withdraw that. Do you recall, after faxing the
10 report to the sheriff’s department, that you were
11 recontacted by telephone by the sheriff’s officer?
12 A. Uh-huh. Uh-huh. I do remember that.
13 Q. And that was Sergeant Robel; is that
14 correct?
15 A. Yeah, uh-huh.
16 Q. And Sergeant Robel asked you why the
17 creatinine test was incomplete. Do you recall him
18 asking you that?
19 A. Yes.
20 Q. Okay. And do you recall telling him because
21 the lab technician failed to take blood from the
22 victim?
23 A. Not so much that they failed. I don’t
24 remember saying that. But for a creatinine
25 clearance, I belive they need a serum and a urine,
26 and it looks like that it may be one or both
27 specimens. According to this report, as I look at
28 it, there was no specimen received for either. 11735
1 Q. Okay. Now, again, do you recall telling
2 Sergeant Robel at that time that you need both the
3 blood and the urine to complete the test?
4 MR. SNEDDON: Object as asked and answered,
5 Your Honor.
6 THE COURT: Overruled.
7 You may answer.
8 THE WITNESS: I think, yeah, it rings a bell.
9 Q. BY MR. SANGER: And do you recall telling
10 them that you only needed 10 milliliters of urine to
11 conduct the test?
12 A. Yes, at least 10 ML. Yes, I do remember
13 that.
14 Q. I’m going to ask you to look at the report
15 that’s in front of you, not the exhibit, but the
16 police report --
17 A. Okay.
18 Q. -- and look at the last three lines there
19 on page three, which I think is the one that you’re
20 turned to. Just read it to yourself.
21 A. Uh-huh.
22 Q. And you can turn to page four and read the
23 rest of it if you want.
24 A. Okay. I do recall this, yes.
25 Q. Does that refresh your recollection that you
26 told Sergeant Robel that there was 90 milliliters of
27 urine that was brought in?
28 A. I still wouldn’t remember. And the reason 11736
1 why I say -- if I may say so, when --
2 Q. Well, the question, first of all, is --
3 A. Okay.
4 Q. -- does that refresh your recollection --
5 A. No.
6 Q. -- as to whether or not that’s what you
7 told --
8 A. No, it still doesn’t. It still doesn’t.
9 But there’s a reason why, though, that I would think
10 that’s why. But I won’t state it if it’s not
11 necessary.
12 Q. All right. Let me ask another question. I
13 don’t mean to keep you from talking, but let me ask
14 another question here.
15 A. Okay.
16 Q. And then just to be clear, if you look at
17 the paragraph before that -- and this may have been
18 asked and answered, and I will apologize in advance,
19 but I’m bit unsure at the moment.
20 Look at line 23 and 24 on that page three.
21 The sentence there.
22 A. Uh-huh. Uh-huh.
23 Q. Does that refresh your recollection that you
24 told Sergeant Robel that the reason the creatinine
25 test was incomplete was due to the lab technician
26 failing to take blood from the victim?
27 A. Rings a bell.
28 Q. So does that refresh your recollection that 11737
1 that’s what you told Sergeant Robel after reviewing
2 the records?
3 A. Yes.
4 Q. Okay.
5 A. But there’s also an explanation with that,
6 too. But I won’t add to it unless you want me to.
7 Q. Okay. Well, my question, is that what you
8 told Sergeant Robel?
9 MR. SNEDDON: Your Honor, asked and
10 answered. Object.
11 THE WITNESS: Yes.
12 THE COURT: Just a moment, I’m sorry.
13 Overruled. And the answer was, “Yes.”
14 MR. SANGER: Okay. I have no further
15 questions.
16 THE COURT: Cross-examine?
17
18 CROSS-EXAMINATION
19 BY MR. SNEDDON:
20 Q. Would you like to tell the jury what it is
21 that you’d like to tell them about the explanation?
22 A. Yes, I would.
23 MR. SANGER: Objection. Calls for a
24 narrative.
25 THE WITNESS: If they want me to.
26 THE COURT: Overruled.
27 You may answer.
28 THE WITNESS: I’m sorry. 11738
1 Q. BY MR. SNEDDON: That means you can go ahead
2 and tell the jury.
3 A. Okay. When we do research, you know, a
4 medical staff person, we do not speak to patients at
5 the regional reference lab. We only have their
6 specimens.
7 But in this particular one, when we receive
8 a phone call, as Sergeant Robel had called, what I
9 know I did was that I looked up in our reference
10 manual for the information of what a creatinine
11 clearance would require for a certain specimen.
12 There are hundreds of specimen tests that we
13 reference every day. You know, we’ll get a phone
14 call, “What does the hepatitis surface antibody
15 need, or a surface antigen need? Virgin 2 or not
16 Virgin 2?” Things like that.
17 So if I remember in my mind back a year
18 ago - and I do apologize for the incomplete
19 explanation - but I do know that if -- when I
20 received the phone call, I looked up creatinine
21 clearance in one of our reference manuals. And it
22 spec -- it just gave an explanation of it needed
23 such and such specimen.
24 And I don’t even know it now, you know, even
25 though we do creatinines every day. But it would
26 just say something and then we’d have to give it --
27 THE COURT: Just a moment.
28 Q. BY MR. SNEDDON: Okay. I’ll ask you another 11739
1 question.
2 A. Okay.
3 THE COURT: Go ahead.
4 Q. BY MR. SNEDDON: Let me just ask you this.
5 A. Okay.
6 Q. Looking at the document, 5107, --
7 A. Uh-huh.
8 Q. -- is it your -- as I understand, it is your
9 opinion, in reviewing that document, that from that
10 document, it indicates that neither one of the
11 specimens were sufficient to do the test, correct?
12 A. That is correct.
13 Q. Both the urine and the blood?
14 A. Uh-huh.
15 MR. SNEDDON: No further questions.
16 THE WITNESS: Yes.
17 THE COURT: Counsel?
18
19 REDIRECT EXAMINATION
20 BY MR. SANGER:
21 Q. All right. Now, you said you talked to
22 Sergeant Robel from the sheriff’s department?
23 A. Yes.
24 Q. Last year, correct?
25 A. Yes.
26 Q. And then you talked to an investigator,
27 Scott Ross, on the 20th of this month, four days
28 ago, right? 11740
1 A. Yes, Friday.
2 Q. And he went over what you had told Sergeant
3 Robel; is that correct?
4 A. Uh-huh. Yes. This is the same page.
5 Q. And you told him that you were -- you had
6 been in communication with Sergeant Robel, correct?
7 A. Yes.
8 Q. A year ago?
9 A. Yes.
10 Q. And you told him that --
11 A. Back in February, too. February.
12 Q. And you told him you received a subpoena in
13 February of this year from the prosecution; is that
14 right?
15 A. Yes.
16 MR. SNEDDON: I’m going to object as
17 immaterial and irrelevant. It’s beyond the scope.
18 THE COURT: Overruled. Go ahead. The answer
19 was, “Yes.” Next question.
20 MR. SANGER: Thank you.
21 Q. And when you talked to Mr. Ross four days
22 ago, you told him that your recollection was
23 correct -- I’m sorry, your recollection was
24 consistent with the police report; is that right?
25 A. Yes.
26 Q. And you told him that the specimen collected
27 was 90 milliliters; is that correct?
28 A. Yes. 11741
1 Q. And you told Scott Ross that the amount
2 needed for the test was 10 milliliters, correct?
3 A. Yes.
4 Q. And you told him that the test was not
5 performed as a result of lab personnel’s failure to
6 obtain blood; is that correct?
7 A. Yes, but that’s with the explanation that I
8 was giving to the other gentleman there.
9 Q. That’s -- you didn’t give Scott Ross that
10 further explanation, did you?
11 A. No, it’s all coming back to me, you know,
12 after a year.
13 Q. So you told Scott Ross that the test was not
14 performed as a result of lab personnel’s failure to
15 obtain blood; right?
16 A. Yes, I did.
17 MR. SANGER: Okay. Thank you. No further
18 questions.
19
20 RECROSS-EXAMINATION
21 BY MR. SNEDDON:
22 Q. Thank you, by the way, for calling me a
23 gentleman.
24 When Mr. Ross interviewed you, he didn’t
25 show you that report that’s been marked for
26 identification?
27 A. This one?
28 Q. No, no, the lab report. 11742
1 A. No. He didn’t have it.
2 Q. He didn’t show it to you?
3 A. No. But I asked him if you had it, I’d be
4 able to remember better, you know. Because I know
5 in line 22 or 23, or -- no, up here --
6 MR. SANGER: Objection; nonresponsive.
7 THE WITNESS: I’m sorry.
8 Q. BY MR. SNEDDON: That’s okay. During the
9 interview you were not shown a copy of that, of the
10 lab --
11 A. No.
12 Q. -- of the report that you now have?
13 A. Huh-uh. No.
14 MR. SNEDDON: I have no further questions.
15 And I move that be admitted into evidence.
16 THE COURT: All right. Do you have any other
17 questions?
18 MR. SANGER: I have no further questions.
19 THE COURT: As to the motion?
20 MR. SANGER: I’ll submit it, Your Honor.
21 THE COURT: And I’ll admit the document.
22 You may step down. Thank you.
23 Call your next witness.
24 MR. MESEREAU: Thank you, Your Honor. The
25 defense will call Miss Mary Holzer.
26 THE COURT: Come forward, please. When you
27 get to the witness stand, remain standing.
28 Face the clerk here and raise your right 11743
1 hand.
2
3 MARY ELIZABETH HOLZER
4 Having been sworn, testified as follows:
5
6 THE WITNESS: I do.
7 THE CLERK: Please be seated. State and
8 spell your name for the record.
9 THE WITNESS: Marry Elizabeth Holzer.
10 H-o-l-z-e-r.
11 THE CLERK: Thank you.
12
13 DIRECT EXAMINATION
14 BY MR. MESEREAU:
15 Q. Good morning, Miss Holzer.
16 A. Good morning.
17 Q. Miss Holzer, what kind of work do you do?
18 A. I am an office manager/paralegal for a law
19 firm.
20 Q. And which law firm is that?
21 A. Law Offices of Feldman & Rothstein.
22 Q. Is that in Los Angeles?
23 A. Pasadena.
24 Q. Okay. And where is your home, without
25 giving the address? Do you live in Los Angeles?
26 A. I live in Encino.
27 Q. Okay. Do you know someone -- actually,
28 before I go into that, please give a brief history 11744
1 of your responsibilities at the firm.
2 A. I handle cases, clients.
3 Q. All right. Let me start a little better
4 than that.
5 A. Okay.
6 Q. When did you first start work at that law
7 firm?
8 A. I believe it was 1985 or ‘86. I’m not sure.
9 Q. And when you started work at the firm, what
10 were you doing?
11 A. I was originally hired as a personal
12 secretary to Mr. Rothstein.
13 Q. And Mr. Rothstein is a partner at the firm?
14 A. Yes, sir.
15 Q. Okay. And did you have any other
16 responsibilities at that firm from time to time?
17 A. Yes, I do the banking. I do supply
18 ordering. I handle clients that need assistance.
19 Occasionally, you know, I work the files.
20 Q. And have your job responsibilities changed
21 through the years?
22 A. I’ve gotten more responsibilities, yes, over
23 the years, of course.
24 Q. And what do you mean by that?
25 A. Well, when I first started out, I was just
26 as secretarial, and then it proceeded to -- I was
27 promoted to office manager, as our firm got larger.
28 And then I took on more responsibilities. 11745
1 Q. Did you ever meet someone named Janet
2 Arvizo?
3 A. Yes.
4 Q. And do you know approximately when you met
5 Janet Arvizo?
6 A. I can’t give you the year, I’m sorry.
7 Q. Do you know approximately when it may have
8 been?
9 A. Maybe 1999.
10 Q. Do you recall the circumstances under which
11 you met Janet Arvizo?
12 A. The family came to our office to retain us
13 to represent them in a case.
14 Q. And what case was that?
15 A. It was a case, assault and battery, against
16 J.C. Penney’s.
17 Q. And did your firm represent the Arvizo
18 family in that case?
19 A. Yes.
20 Q. And do you know who in the Arvizo family you
21 represented?
22 A. David Arvizo, Janet Arvizo, Gavin Arvizo and
23 Star Arvizo.
24 Q. After your firm agreed to represent the
25 Arvizo family in the lawsuit against J.C. Penney,
26 did you have a lot of involvement with the Arvizos?
27 A. Yes.
28 Q. Would you please explain what you mean. 11746
1 A. I was in charge of -- I don’t want to call
2 it hand-holding, but pretty much -- they didn’t have
3 a car, so I drove them to appearances. I sometimes
4 helped out when they didn’t have child care, when
5 they needed -- if David or Janet needed to go
6 somewhere for the case. Not personal.
7 Q. And did you talk to Janet Arvizo from time
8 to time?
9 A. Daily.
10 Q. And what do you mean by that?
11 A. She would pretty much call several times a
12 day, yes.
13 Q. That was almost every day?
14 A. Close, yes.
15 Q. Would she call for you?
16 A. Yes.
17 Q. And did you develop a friendship with Janet
18 Arvizo?
19 A. That’s kind of hard to explain. “A friendship”
20 as in did I like her and were we buddies?
21 Q. Yes.
22 A. She was a client.
23 Q. Was she a friend?
24 A. No.
25 Q. Did you talk to her children from time to
26 time?
27 A. Yes.
28 Q. And typically how would that happen? 11747
Subject: May 24, 2005 
Sun Mar 11, 2012 12:07 pm
