Speedy Trial for Trial De Novo

[rhm25]

My question involves traffic court in the State of: California

I received a traffic ticket in California for an alleged red light violation when turning I was turning right. I requested a trial by written declaration in person at the submitted the trial by written declaration and posted bail in person. I was found guilty on the trial by written declaration and the judge ordered that I receive $200 of my bail back (which I still have not received after 2 months).

I went to the court in person again and submitted the form requesting a Trial de Novo to the court within 20 days of the mailing of the decision on the trial by written declaration and received a copy from the clerk. The court originally sent a letter denying my request because they claimed that I did not file on time (a week later than the actual time) but when I called and told them that I submitted my request in person and had a copy, they asked me to fax them the copy. I faxed them a statement that I submitted the request for Trial de Novo in person and a copy of my copy from the court. They then scheduled my Trial de Novo for this week, a little more than 40 days after submittal of my request for a Trial de Novo. However, I just received a letter stating that the judge has postponed my trial more than a month because the officer was unavailable. Do I need to fax or send a letter specifically objecting to this delay to preserve my right to a speedy trial? Can I file a motion a motion to dismiss based on my right to a speedy trial? How do I do it?

Thanks

[That Guy]

I was found guilty on the trial by written declaration and the judge ordered that I receive $200 of my bail back (which I still have not received after 2 months).

Well, if you subsequently filed for a Trial De Novo, then you basically said "you were dissatisfied with the decision of the court, and as such, you are requesting that the TBD verdict and subsequent sentence be set aside (as in voided out or deleted), and that a "NEW TRIAL" be scheduled for your case... Meaning "no $200 refund is forthcoming"!

I just received a letter stating that the judge has postponed my trial more than a month because the officer was unavailable. Do I need to fax or send a letter specifically objecting to this delay to preserve my right to a speedy trial? Can I file a motion a motion to dismiss based on my right to a speedy trial? How do I do it?

The 45 day time limit within CRC 4.210 is not a statutory limit nor is it related to the time limits set by PC1382, or by the state or federal constitution. Furthermore, CRC 4.210 offers no remedy if/when such a delay were to occur. That added to the fact that there is good reason for the delay (a witness not available) rules out a possible dismissal due to a perceived violation of your right under CRC 4.210 or under PC 1382.

That leaves you either having to argue a violation of your right to a speedy trial under the federal guarantee but you're not likely to pass the test that would qualify such claim as being valid; OR, having to argue a violation of you right to a speedy trial as guaranteed by the state constitution, but that places the burden on you to show how your case was prejudiced by the delay. And you simply have not posted enough information to suggest any sort of prejudice.

So it is not as simple as your post seems to imply. If any of that is not clear enough, you can read People v. Benhoor, 177 Cal. App. 4th 1308 - Cal: Court of Appeals, 2nd Appellate Dist., 7th Div. 2009

[quirkyquark]

TG is right about both the good cause and the lack of statutory remedy for scheduling a TDN beyond 45 days. Let me expand on those though:

Good cause:

• The extension must be for "good cause"; typically that means officer had mandatory training, relative passed away etc; not just scheduled vacation or he didn't feel like coming.
• The cause should be stated, at least by the officer/agency to the judge.
• You must be given sufficient notice of the continuance -- this is usually 10 days (standard notice time for a motion); this way you can cancel any leaves from work, etc. "Fair" notice in TDNs is the same amount of time you have to ask for a continuance, e.g. in LA County it's 10 business days.
• The notice must be properly served upon you -- a proof of service should be attached to the letter you got.

Re dismissal under CRC 4.210(b)(7) for violating the 45-day deadline, the remedy (if any) is entirely up to the discretion of the judge (after Benhoor). I've personally seen (full-fledged) judges in two CA counties grant motions for dismissal where the clerk scheduled the TDN beyond 45 days. In your case, the clerk made no mistake so 4.210(b)(7) was not violated.

Since a continuance for good cause under PC 1382 seems to have been granted, you can make an argument that PC 1382 now applies. If any of the "good cause" conditions were not fulfilled, you can ask for a dismissal. If asked, the standard "prejudicial" reason is that you've already taken time off work, etc.

Unfortunately, the only guaranteed way to make such a motion (if applicable) is in person at the original scheduled time. That also gives you an opportunity to ask about the "good cause" if you're not sure.