"Speed Trap" Appeals Under VC 22350

[quirkyquark]

My question involves traffic court in the State of: California

(For reference: here's the base page from which all documents are/will be available)

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I recently lost a VC 22350 (basic speed law) trial in LA Metro where the road involved was clearly a speed trap, and the survey was over 7 years old. The location was San Vicente@Curson in West LA. The highlight of the trial was this priceless quote:

THE COURT: The speed laws apply outside of the city limits. They don’t apply within the City of Los Angeles.

Anyway, I'm now appealing to the LASC Appellate Division. It was a pro-tem judge, so the session was electronically recorded and I eventually received a copy. Although I was told otherwise and checked off the transcript box on the notice of appeal, apparently these official recordings are for "quality assurance" (under GC 69957(b)) and cannot be used for any other purpose. So, I'm now back to the "statement on appeal". I transcribed the recording tonight and will pretty much be shoe-horning it in as an attachment to minimize any conflicts with the judge while settling AND (more importantly) to NOT foreclose any appealable issues that may come to light after the SoA has been filed.

Here's the transcript (PDF). The main page also contains other relevant documents: the officer's TBD and the full traffic survey.

I'd like to put the whole process here to both get feedback and have a sort of reference for future visitors. Please look at the transcript, etc. and see if you can find additional grounds for appeal than the ones I list below. I know I made quite a few mistakes at the trial, so critiques of that are welcome too. References to page/line numbers are appreciated.

We didn't get to the speed-trap issue until the beginning of the closing argument (about 60% of the way through) because I (wrongly) assumed that the judge was certainly not going to question that fundamental point.

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On objections/forfeiting issues:
I know I explicitly raised only two objections at trial. But the judge said "I'm giving you grounds for appeal" at three different points . From this excellent article, here are a few brief arguments to not consider any issue waived for lack of an objection (see the article for details and cites):

• Form or phrasing doesn't matter as long as court understands what the issue is
• Repeating objections is not required once adversely ruled against
• Objections need not be made if they would be "futile" (based on trial court's conduct, i.e. "shut up and move on)
• An issue purely about a matter of law is reviewed "de novo", objection irrelevant
• Court's assurance that issue can be raised on appeal is enough even if court was wrong to give such an assurance

I'll list the ones I'm arguing in detail once I make a draft of the "errors summary" for the statement on appeal.

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Grounds for appeal:
"prejudice" in pretty much all of these is that they are required by VC 40802 and non-compliance automatically results in an "incompetent" witness and revokes the court's jurisdiction to render judgment.

1. The court erred in ruling that speed-trap laws (VC 40802, et seq.) are inapplicable within the limits of the City of Los Angeles in general, and specifically on the section of San Vicente Blvd at and around Curson Ave.
2. The court erred in admitting, over defendant's hearsay objection, a photocopy of the purported LIDAR calibration certificate from a private facility under the business records exception.
3. The court erred in admitting the officer's visual estimate of speed (witness incompetent if speed trap exists)
4. The court erred in considering the officer's testimony sufficient to meet the training requirements of VC 40802(c)(1)(A-B) (He testified about the hours and type of training, but not that it was POST-certified. In any case, case law says that the officer cannot testify that the course was POST-certified (hearsay)...either POST regulations have to be judicially noticed or a paper certificate has to be produced.)
5. The court erred in considering the officer's testimony, where he could not state the before/after days/times when he tested the unit, sufficient to satisfy VC 40802(c)(1)(C)(i):
   

   The prosecution proved that, prior to the officer issuing the notice to appear, the arresting officer established that the radar, laser, or other electronic device conformed to the requirements of subparagraph (D). (i.e., meets NHTSA standards)

6. The court erred in considering the officer's speculative testimony about "possible" pedestrians and "possible" potholes or oil slicks sufficient to speed was unsafe for the conditions (required by VC 40802(c)(1)(C)(ii))

These are about the survey but I was cut off at trial before I could state them:

• Memorandum of 3-year extension was hearsay/confrontation clause violation because it just said "a registered engineer" --- did not identify him/her; additionally did not state any of the two engineers signing it were "registered" --- no professional engineer seal or license # present as required by Business & Professions Code.
• Survey report justifying 5 mph reduction insufficient because (a) used conditions "readily apparent to driver" in violation of VC 22358.5 and (b) stated an accident rate without any comparison to show if it was higher than normal; alternately, if no reduction is claimed, survey incorrectly "averaged" various critical speeds to less than 40 mph
• Extra "informal" markups on left and right edges of survey sheets were not accounted for by "prosecution", violating Evidence Code 1402.

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The Penal Code 1473.6 Motion to Vacate Judgment:

PC 1473.6 was introduced in 2003 in response to the LAPD "Rampart" scandal where officers perjured and falsified evidence, etc. It allows people no longer in custody to effectively file a habeas corpus-like motion within one year of the discovery of fraud, perjury or misconduct by a government official in their case which was prejudicial to them. In pertinent part, it states:

(a) Any person no longer unlawfully imprisoned or restrained may prosecute a motion to vacate a judgment for any of the following reasons:
...
(2) Newly discovered evidence that a government official testified falsely at the trial that resulted in the conviction and that the testimony of the government official was substantially probative on the issue of guilt or punishment.
...
(b) For purposes of this section, "newly discovered evidence" is evidence that could not have been discovered with reasonable diligence prior to judgment.
(c) The procedure for bringing and adjudicating a motion under this section, including the burden of producing evidence and the burden of proof, shall be the same as for prosecuting a writ of habeas corpus.
(d) A motion pursuant to this section must be filed within one year of the later of the following:
(1) The date the moving party discovered, or could have discovered with the exercise of due diligence, additional evidence of the
misconduct or fraud by a government official beyond the moving party's personal knowledge.
(2) The effective date of this section.

Note that the "false testimony" does NOT have to be knowing. Here, the officer "testified" in the TBD that he had personal knowledge that

• The LIDAR was last calibrated on 11-25-08 (certificate at trial said 9-20-10)
• The survey was between 5 and 7 years old (actually was more than seven; this means 3-year extension was not checked off in TBD either)
• Left the "Equipment accuracy check conducted on date/time: ____ and again on date/time: _____" blank (just as he tried to weasel his way out at trial)

This motion would be collateral to the appeal. The problem here is that the judgment of the TBD is vacated once you request a TDN, so it somehow has to be justified with case law instead of just common sense (TBD should have been won, then no TDN would have resulted). A number of states (KY/MA) had/have such a two-tier trial system for petty offenses -- the first one has no jury, and you have an absolute right to get a new jury trial if you lose the first one. The Supreme Court ruled in the late '70s-early 80's that such systems are constitutional in that it's all technically one big trial -- double jeopardy is not involved. Anyway, I'll think more about this once the SoA is sent off.

[That Guy]

Tough loss, Quirk... And a tough judge to have dealt with, I am sure.

If anything can be taken from all of this, I think its the fact that we can sit here and pretend we know a lot, research, study, prepare as much as we can (or think we need to), and then prepare some more, and when it comes down to it, it NEVER goes as planned. And a hard-nosed, old time of a judge isn't going to help. So as soon as we stumble that one step, it seems that recovery is so far fetched...

I'll agree that the judge screwed up, big time, on a number of different occasions. And there is quite a bit to learn and quite a bit to say... I've read the transcript, and browsed though the other documents... But there is so much that I'm going to have to let it settle before I "MAY" decide to comment further on the appeals part.

I think the step you stumbled on here was your decision to start with the discovery issue, and it seems as though the judge was ready for it; and even for a moderate judge, it still would not have made much of a difference IMO. Unfortunately, that really set you off on the wrong foot and it went from there. The question I have about that is it sounded as if the officer did approach you before the trial? Am I correct? And if so, did he voluntarily offer some documents for you to review or did you bring that up?

Instead, and knowing that the survey was older than 7yrs (I assume you obtained a copy on your own, did you not?), I would have started with the requirement under 40802(c)(1) and taken it from there... Step by step and one question at a time as I cross examine the officer.

Do you think case law citations, printed in triplicates would have helped getting some of your points regarding the speed trap arguments across to the judge?

The one question that popped in my head as soon as I started reading your post was, and the one that resonated throughout my reading of the transcript was, is how the heck did you end up in Metro... I would have assumed that this citation would go to the West L.A. courthouse, and my first though was "tell me he didn't change venue only to end up with this nameless maroon?" As it turns out, Metro is the proper court for that location.

There is one note I should make with regards to the grounds for appeal you posted.... I had somehow simply read those just prior to reading the transcript, and it wasn't long before I got to the point where the officer started with "What’s real critical about this area..." Page 2 - Line 27 through the end of the paragraph on Page 3 - Line 6 where he states "Traffic was moderate that day, that time".

In your opinion, ad with this being "evidence that is on the record" and in as far as an appeal is concerrned, is that not sufficient to meet the requirement under VC 40802(c)(1)(C)(ii) establishing that your speed which was in excess of the P.F. limit is unsafe?

ETA: BTW, did I miss the calibration certificate somehow or was it not listed/posted on that web-page?

ETA 2: Also, if you ARE appealing, and since you did bring up the discovery issue and in spite of getting shut down completely, why not bring it up on appeal? It might end up being dismissed as a "non-issue" but then again we might get some sort of commentary or direction either way.

[quirkyquark]

And a hard-nosed, old time of a judge isn't going to help. So as soon as we stumble that one step, it seems that recovery is so far fetched...

I think the lesson is to NEVER stipulate to a pro-tem judge unless you've seen him/her before and believe that he/she will be fair...the regular (i.e., elected) judge in LA Metro trials is scrupulously fair and, if anything, takes it upon himself to play as much of a "defense attorney" as a "prosecutor!"

I think the step you stumbled on here was your decision to start with the discovery issue, and it seems as though the judge was ready for it; and even for a moderate judge, it still would not have made much of a difference IMO. Unfortunately, that really set you off on the wrong foot and it went from there.

Agreed. I only brought it up because, when I went to check things out earlier, I let the trial court clerk know about how I'd gotten nothing in discovery. He tried his best to get someone in the city attorney's office (right next door) to talk to me, but it was around 4:30 so no one was available. He told me to definitely bring in the certified receipts, etc. at trial and raise that issue; he believed the (regular) judge would be receptive to it.

All that said, you will note that I'm not bringing the discovery issue up on appeal Although I doubt I would have prevailed on the speed-trap issue even if it had been raised earlier in the trial...

The question I have about that is it sounded as if the officer did approach you before the trial? Am I correct? And if so, did he voluntarily offer some documents for you to review or did you bring that up?

Yes, I believe that's the usual policy of the (regular) judge and therefore the courtroom - mutual discovery before the trial. He voluntarily offered the survey and the calibration certificate, which is all he had. Also offered to "plea" to traffic school... (this judge's blanket denial policy would be appealable but that isn't the result I'm looking for.) I offered up the satellite view blowup, which is the mysterious exhibit that was rejected because I wouldn't agree to testify in my own defense (and it seemed a losing cause at that point).

Instead, and knowing that the survey was older than 7yrs (I assume you obtained a copy on your own, did you not?), I would have started with the requirement under 40802(c)(1) and taken it from there... Step by step and one question at a time as I cross examine the officer.

Yes, I did get the survey from LADOT (very pleasant folks and quick service, by the way). I agree a step-by-step would be the way to go BUT I would definitely prove/confirm first that the judge agreed the speed trap laws applied. The reason is that if you try to have the officer confirm that, you risk a (real) judge ruling that you can't ask the officer about the law (e.g. "Do you agree a registered engineer needs...", etc.); this judge would probably just have cut in and said a visual estimate was okay (like he did - p 6 line 22). Although it began as discovery, you'll notice that it effectively turned into whether the calibration could be admitted into evidence or not.

Do you think case law citations, printed in triplicates would have helped getting some of your points regarding the speed trap arguments across to the judge?

With this judge, probably not; even otherwise, I don't think any judge is going to read through opinions while having the trial unless you give him a specific one for a specific point. However, the Brown book (Fight your Ticket...) suggests handing in a brief on speed trap laws before the trial begins, and includes a pretty good sample (summary of case law, etc.). THAT may have been helpful, if only because it makes the issue much more digestible AND having it entered into evidence as an exhibit couldn't hurt.

I'm guessing the judge may be surprised that a recording even existed. Also, apparently the LASC fee list has a $89 fee for "Electronic Recording (half-day)". I don't know if they would record it for free (or heck, even with a fee) if you file a motion beforehand. I think it's a good idea to take your own little voice recorder and use it with the judge's permission -- both to have a record available instantly if you need to appeal and also put the judge on a little bit of notice to not be too arbitrary.

As it turns out, Metro is the proper court for that location.

It certainly is. No one in their right mind would want to change TO Metro, would they?

In your opinion, ad with this being "evidence that is on the record" and in as far as an appeal is concerrned, is that not sufficient to meet the requirement under VC 40802(c)(1)(C)(ii) establishing that your speed which was in excess of the P.F. limit is unsafe?

I'm quoting the section referred to here for the benefit of others:

What’s real critical about this area is it’s just divided by a raised concrete median, some trees are in the median. There’s vehicles parked on the right side and they’re separated by a concrete median. <inaudible> past Curson, there’s a hospital there and always pedestrians in and out in that area. There’s bicycles that frequent San Vicente road, they use that road. Traffic was moderate that day, that time.

I don't think it's sufficient to prove unsafe speed because I think the standard has always been that either the conditions have to be bad somehow OR persons/property actually endangered at that time. In fact, that part of 40802 says "The prosecution proved the speed of the accused was unsafe for the conditions present at the time of alleged violation."

Now, most of the case law on 22350 is civil and uses the preponderance/negligence standard; I'll probably find something more appropriate when it comes to the brief, but here's two cites for now:

The record, however, contains no evidence supporting a finding that this speed violated the basic speed law. First, it contains no facts suggesting anything or anyone was endangered. Nor does it contain information from which any particular speed could be found to be reasonable or unreasonable. That is, the record does not contain evidence on the weather, visibility, traffic volume, or road conditions when appellant was stopped.

Here's another, and although it's old, it's main goal was ruling on the constitutionality of then VC 510 (worded exactly as current 22350). In the below quote, it talks about why the complaint in question was insufficient to charge a violation of VC 22350. It distinguishes between "speed" and "manner of operation" (which can include more than just speed): it effectively says that if you really 'could have endangered', the correct charge is reckless, not 22350:

The additional words of the complaint "and so as to endanger the life, limb and property of other persons" are descriptive, again, of the manner of operation; they do not charge a violation of the provision of section 510 that "in no event" shall one drive "at a speed which endangers the safety of persons or property."

It's not a difficult standard to meet if the officer knows how to correctly testify to it -- "could have...hit a hypothetical pedestrian, or a hypothetical pothole" doesn't cut it; then again, explicitly proving unsafe speed only becomes the prosecution's burden in this fairly specific situation (radar/lidar used, survey more than 5 years old).

The "hospital" referred to is the black-windowed multistory building on the upper left, past the intersection cited at. Traveling west, the roadway is separated from the curb by a median AND about a 20-foot wide "parking" lane. Anyway, I probably spent too much time trying to pin the officer down on this point when I already knew the calibration cert. and lack of POST-certification were winnable-on-appeal issues. I now think this sort of cross is only desirable if the burden is on you to prove the speed was safe. In my inexperience, I almost ended up spoon-feeding the necessary evidence to the "prosecution" via cross; better to let a sleeping record lie silent rather than bring it up in cross.

I'm not placing too much hope on this point for appeal, because it's question of fact and goes to the weight of the evidence. I think there's a good chance it may not even be reviewed on its merits (hopefully because one of the stronger points decides the case first!)

ETA: BTW, did I miss the calibration certificate somehow or was it not listed/posted on that web-page?

No, I don't have a copy; the officer brought his to court and I didn't have the presence of mind to get a copy after the case was decided. I did send in a CPRA request to that "West Traffic Division Coordinator", but haven't heard anything so far. It WILL augment the record at some point, via a subpoena/motion if necessary.

ETA 2: Also, if you ARE appealing, and since you did bring up the discovery issue and in spite of getting shut down completely, why not bring it up on appeal? It might end up being dismissed as a "non-issue" but then again we might get some sort of commentary or direction either way.

The general advice I've read on appellate practice seems to suggest you should limit to the strong issues, and then go in descending order. I don't know yet if this will make it into the brief, but you're right - I will add it to the grounds for appeal on the notice. I wouldn't have too much hope for getting any direction since typical practice in the appellate division seems to be that if they find one point to reverse, they'll just ignore the rest.

[quirkyquark]

Updated home page with proposed Statement on Appeal, including the form (CR-143), cleaned-up transcript and most importantly, grounds for appeal.

[Gloff]

First court date 7-21-11 http://www.mediafire.com/?75a0c7reikzd47z
second court date 8-18-11 http://www.mediafire.com/?fubf4wnaw8f073m

Mediafire hosting, cause it's free lol

[quirkyquark]

Apparently my proposed statement was certified by the pro tem judge within a (world?) record 4 days of being received by the court, incorporated into the clerk's transcript, and transmitted to the appellate division as the complete record on appeal on Nov. 8. What's the problem, you ask? It's this portion right here, on the certification order:





Before coming to the content, unilaterally adding "corrections" and certifying the statement as final (without giving a chance to respond/object) violates all kinds of subsections of Court Rule 8.916.

The first two "corrections" are conclusionary and clearly inappropriate:

A conclusionary statement of what the evidence showed as to a disputed issue or the sufficiency of the evidence to establish guilt does not comply with the responsibility of the trial judge under rule 187 to set forth the evidence "fairly and truly." It is of no value to this court to include the trial court's conclusions as to the merits of the appellant's grounds of appeal. Such conclusions tend to cast doubt on the impartiality of the trier of fact.

The last one is also fascinating if its goal is to eliminate the transcript, which is the only record of the trial upon appeal. The judge apparently found the "inaccuracies" to be too trifling to specify, or to give the defendant a chance to correct them. The "inaudable" (sic) parts are of a word or two at most, expressly disclaimed in the preface to the transcript and again, apparently not important enough to specify. As for not being an official court record, sure, I stated that upfront and the idea was to settle any "inaccuracies" in the hearing (with CD/player in hand).

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The usual way to deal with this per case law is to get the Appellate Div. to vacate the filed statement and issue a writ of mandate directing the judge to settle the statement (and possibly not include any conclusions, etc.). For tactical reasons including the additional work involved in a writ, decent support in case law and the fact that I want to give my PC 1476 motion a chance, I think a better option is to file a motion to strike the judge's corrections and consider the proposed statement (as submitted) certified.

The full order and certificate of transmission are on the main page.

[That Guy]

I thought it was electronically recorded -BY THEM- so where is he going with "not an official court record"?

And he obviously still hasn't take the time to at least read 40802 to at least begin to understand what it means and how it works, he's still claiming "local road speed trap inapplicable"!!! Are you freaking kidding me???

Why would you want to strike his corrections though? Isn't the fact that he sounds like an idiot AND that he's trying to eliminate the only verifiable record (the recording which puts him to shame) work in your favor?

Lastly, I am STILL not seeing how a 1476 motion fits in here! But I suspect I'm going to eventually find out!

[quirkyquark]

I thought it was electronically recorded -BY THEM- so where is he going with "not an official court record"?

It wasn't transcribed by a court reporter.

Why would you want to strike his corrections though? Isn't the fact that he sounds like an idiot AND that he's trying to eliminate the only verifiable record (the recording which puts him to shame) work in your favor?

It's the "inaccuracies" comment which bothers me; it could be a problem if the App. Div. gives any weight to that and consequently gives less weight to the transcript. I wouldn't want to wait until the tentative ruling to find that out!

Lastly, I am STILL not seeing how a 1476 motion fits in here! But I suspect I'm going to eventually find out!

Sorry, it's PC 1473.6, and based on "false statements" (doesn't have to rise to the level of perjury) in the TBD that led to this TDN/appeal.

[That Guy]

It's the "inaccuracies" comment which bothers me; it could be a problem if the App. Div. gives any weight to that and consequently gives less weight to the transcript. I wouldn't want to wait until the tentative ruling to find that out!

Well, if ^that^ has even a remote chance of happening, I would think that your "motion to strike the judge's corrections and consider the proposed statement (as submitted) certified" would in my opinion be the worst thing you could do simply because it could be viewed as validation of his claim and an attempt to avert (cover up) any examination of the issue of accuracy; that, as I see it, could work against you.

I honestly would think leaving it in there, helps your case in a number of different ways...

For one, his first comment suggesting that you should have attempted to "contest the speed measurement" (specifically "his uncontested speed of 55mph...") when in fact your measured speed is irrelevant if you were able to prove a "speed trap", is idiotic for a judge to make because it proves he has no clue what he is talking about. -At this point, he's lost a chink of credibility in their eyes-... Then, he digs himself even deeper in that hole deal by making his "local - no speed trap"... That there, in and of itself, and coming from him -in his own words- should be sufficient for them to determine that the reasoning for his "guilty" verdict has no basis under the law!

So by the time they get to point (3), the focus is on him and his credibility... And even if it is not centered around that, then it is around the question of "if you think it is inaccurate, then why did you submit it instead of taking the next step to getting a settled statement???"

That is just my view from the outside... I could be way off!

[quirkyquark]

I would think that your "motion to strike the judge's corrections and consider the proposed statement (as submitted) certified" would in my opinion be the worst thing you could do simply because it could be viewed as validation of his claim and an attempt to avert (cover up) any examination of the issue of accuracy; that, as I see it, could work against you.

Thanks -- your outsider's perspective helped a lot. I agree entirely. It seems like a lot of time for something that could go either way!

For one, his first comment suggesting that you should have attempted to "contest the speed measurement" (specifically "his uncontested speed of 55mph...") when in fact your measured speed is irrelevant if you were able to prove a "speed trap", is idiotic for a judge to make because it proves he has no clue what he is talking about. -At this point, he's lost a chink of credibility in their eyes-... Then, he digs himself even deeper in that hole deal by making his "local - no speed trap"... That there, in and of itself, and coming from him -in his own words- should be sufficient for them to determine that the reasoning for his "guilty" verdict has no basis under the law!

Fantastic! I think I'll address the "corrections" within the brief, when it comes to that. Re the "uncontested" and the in-quotes-"defense" part, he is otherwise on a very slippery slope too. During the trial, I tried to make it clear a number of times that I didn't want to testify yet, which was followed by comments like:

THE COURT: Yeah, you’re up. Please proceed. Well, you’re the smart person, you can’t testify to it.
...
THE COURT: What was your estimated speed, by yourself? What [inaudible] speed were you going at, at the time, by your own best estimate? 9
THE DEFENDANT: Umm, Your Honor, like I said, I’m still--
THE COURT: You don’t wish to answer but I’m asking you a question. I can ask questions whenever I wish. And this may speed things along.
What is your estimated speed at which you were going at the time you were—for the cited speed—your maximum speed at that time?
THE DEFENDANT: Your Honor, I wish to exercise my right to, uh, not self-incriminate myself.

Comments by the prosecution on a defendant's failure to testify have been held as Chapman constitutional errors, which are reversible unless the prosecution shows that there was no prejudice beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18). I can't find the cite at this time, but comments by a judge that try to belittle the defense counsel are also prejudicial (like referring to defense in quotes )

Of course, a lot of this is academic because, as I mentioned earlier, it's overkill for an infraction appeal. Still, here's another recent fun cite I just found which says that if the judge committed persistent misconduct, it is not waived by a failure to object and is reversible.

Nonetheless, a defendant's failure to object does not preclude review "when an objection and an admonition could not cure the prejudice caused by" such misconduct.
...
We further conclude the record reflects that the trial judge was intemperate in his examination of appellant during the presentation of his defense and that in four specific instances, the judge prejudicially interfered with such defense and conducted himself as though he sided with the People. As we shall now demonstrate, such misconduct necessitates reversal of the judgment and remand for a new trial.

So by the time they get to point (3), the focus is on him and his credibility... And even if it is not centered around that, then it is around the question of "if you think it is inaccurate, then why did you submit it instead of taking the next step to getting a settled statement???"

Absolutely. You know, stuff like this is what we'll all miss and be the poorer for if you go all "pro-defendant" on us!