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  1. #1
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    Nov 2011
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    Default Writing an Appeal and Appealablity of My Arguments

    My question involves traffic court in the State of: California

    I'm looking to find some information on writing an appeal (format mostly), and if certain arguments I plan to use are workable.

    I lost a TBD and Trial De Novo in Lake County California.

    Here's the gist, I was cited for 51 in a 35 on a major arterial highway in Lake County. I wiped the floor with the officer's case using his own recollection of the facts to prove that I was not violating 22350 for which I was cited. The judge was very biased and found me guilty.

    Here are my issues:
    1: The Traffic Survey was "judicially noticed", the officer never attempted to introduce the survey, and was explaining where he was and the posted speed limit when the Judge cut him off with "Judicail notice is taken of the surveys on the bench and particularly one that is associated with that area of [City where citation was issued]" He they grabbed a binder full of surveys for the county, and pulled the one for that section out. Can the judge do this? The survey was never formally announced as introduced into evidence, and the officer made no mention of it.

    2. I asked to see the survey, we took a recess for me to look over the survey, when we came back from the recess, I immediately motioned for dismissal on grounds of an out of date survey, 6 years old. The judge said "There's also exceptions to that within the code section, as you read it further." At the time I was unfamiliar with the exact section (I know now that he is referring to 40802 subsection (c)). The judge had myself and the officer point out the survey, then he asked the officer what his response to the motion was, Isn't that asking the officer to act as prosecution? I didn't object because I did not know for sure if that is the case he responded, with where he was parked and so forth, the Judge pointed out that I was raising a speed trap defense related to the survey, not his parked position. He took my Motion under submission to get a response from the CHP.

    3. The Judge ordered a formal response from the CHP regarding subsection (c) from 40802 postmarked by 8/1/11 or it would be dismissed. They received a fax 8/16/11 from the CHP responding to the Traffic Minute Order issued by the Judge. Well after the date the judge ordered (The copies of all this are in the Clerk's Transcript on Appeal). The Judge ignored his own order when the trial resumed 8/18/11. Can I use this as an argument of Judicial error?

    4. When the trial resumed on 8/18/11. I raised the argument that the officer never presented into evidence his POST certified radar training, he said he did, I said the Calibration for the radar yes, but the cert. no. he said "You don't have to bring everything if you're testifying as to stuff. Okay."Without the physical POST Certificate, his testimony as to his training is Hearsay, correct? Then found me guilty.


    Can I use the arguments in bold, and does anyone have sample Opening Briefs or an outline of how I should write my Opening Brief? And does anyone have advice on where to find cites or specific cases pertaining to my arguments?

    Thanks in advance for your help,

    Gloff

  2. #2
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    Default Re: Writing an Appeal and Appealablity of My Arguments

    A lot depends on what kind of record you have of the proceedings. Were they electronically recorded? (check with the clerk) Have you filed a notice of appeal yet? I see you mention the clerk's transcript later --- please post your proposed statement or transcript here so we can better assist you.

    Quote Quoting Gloff
    View Post
    Can the judge do this? The survey was never formally announced as introduced into evidence, and the officer made no mention of it.
    Later appellate decisions (post-1990s) have held that the survey MUST be introduced into evidence; judicial notice MAY not be sufficient. Need the record here. Also, for judicial notice:

    Quote Quoting Evid. Code 455
    ...
    (a) If the trial court has been requested to take or has taken or proposes to take judicial notice of such matter, the court shall afford each party reasonable opportunity, before the jury is instructed or before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.
    ...
    Arguably, you had such an opportunity when you looked it over, over the recess.

    Quote Quoting Gloff
    View Post
    Isn't that asking the officer to act as prosecution? I didn't object because I did not know for sure if that is the case
    Maybe, but unless it was somehow prejudicial to you it isn't reversible upon appeal. Plus, you didn't object...

    Briefly, for a 5-7 year old survey you need proof of: (a) 3-year calibration (b) POST-certified training (c) proof that radar was tested before/after shift and (d) it becomes the prosecution's burden to prove your speed was unsafe for conditions at the time. We'll need the record to see how many of these were fulfilled -- if even one wasn't, it's reversible error.

    Quote Quoting Gloff
    View Post
    3. The Judge ordered a formal response from the CHP regarding subsection (c) from 40802 postmarked by 8/1/11 or it would be dismissed. They received a fax 8/16/11 from the CHP responding to the Traffic Minute Order issued by the Judge. Well after the date the judge ordered (The copies of all this are in the Clerk's Transcript on Appeal). The Judge ignored his own order when the trial resumed 8/18/11. Can I use this as an argument of Judicial error?
    Ideally, you should have checked soon after 8/1/11 and motioned for dismissal -- did you at any time? In any case, this is certainly judicial error if the minute order explicitly spells this out and is certainly appealable.

    Quote Quoting Gloff
    View Post
    Without the physical POST Certificate, his testimony as to his training is Hearsay, correct?
    Partly. He can testify as to his training, but not that it was certified by POST (that would be hearsay). Court has to judicially notice POST regulations if a certificate isn't presented:

    Quote Quoting People v. Dawkins, 10 Cal. App. 4th 565 - Cal: Court of Appeals, 1st Appellate Dist., 5th Div
    In any event, there is no question that the officer can testify he or she attended the course. Judicial notice of POST regulations can then establish that the course is POST-certified.

  3. #3
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    Default Re: Writing an Appeal and Appealablity of My Arguments

    It was recorded and transcribed for my appeal. I have it but it is quite long. I have the actual recording and a full transcript that was sent to the appellate division. Tonight I will scan and post the transcript for you to read through.

  4. #4
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    Default Re: Writing an Appeal and Appealablity of My Arguments

    Thanks, that will be very helpful to us and may also reveal additional grounds for appeal. May I ask approximately how much you had to pay to have a transcript prepared from the recording?

    I will post resources for research as well as guides on writing briefs, etc later tonight. If you haven't looked already, here's my ongoing saga of a similar 22350 appeal with a 7+ year old survey.

  5. #5
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    Default Re: Writing an Appeal and Appealablity of My Arguments

    It's too late for this one, but in case of any new tickets in the future, don't ever skip the TBD and take advantage of informal discovery. If you lose the TBD, preparing a defense to VC22350 is MUCH easier when you already know what the officer will testify to as well as the speed survey (since it's usually submitted with the officer's declaration).

  6. #6
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    Default Re: Writing an Appeal and Appealablity of My Arguments

    Sorry about the timeframe guys, busy with work and now my scanner is acting up...

    I should have those transcripts up tomorrow.

    I briefly read over it, but some of it is a bit over my head, I will be referencing it, however.
    Quote Quoting quirkyquark
    View Post
    Thanks, that will be very helpful to us and may also reveal additional grounds for appeal. May I ask approximately how much you had to pay to have a transcript prepared from the recording?

    I will post resources for research as well as guides on writing briefs, etc later tonight. If you haven't looked already, here's my ongoing saga of a similar 22350 appeal with a 7+ year old survey.
    They were supposed to send me a letter with required amount, but I ended up not paying anything.

  7. #7
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    Default Re: Writing an Appeal and Appealablity of My Arguments


  8. #8
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    Default Re: Writing an Appeal and Appealablity of My Arguments

    (you have a PM about your PDFs...please check)

    Here are the two issues that stand out to me; the third--judicial notice issue requires some research (see below)

    First, this is the big guaranteed reversible error: if the survey is more than 5 yrs old, proving the speed was unsafe becomes the prosecutions prima facie burden. Effectively, 22351 is turned on it's head. Prima facie means there is no need to object to it. Here, the officer failed to prove unsafe in his testimony; you even tried to help him out with your 30 questions cross, but he couldn't articulate anything unsafe there either.

    Second, there is the POST issue: the officer didn't testify to it, and court didn't take judicial notice. Appealable and technically reversible BUT the unsafe (and possibly survey/judicial notice) are much stronger in my opinion.

    Third, based on case law, judicial notice of survey is OK if three conditions are met:
    • Complies with Evidence Code 1530 - published by public entity, certified as true copy by public employee who is custodian (typically this means city clerk, or dept. of transportation/public works)
    • It is produced in open court
    • Per Evidence Code 455, parties are given notice and time to inspect it, object if necessary, etc.


    In your case, the only question is whether the 1st requirement was met. Please post the cover sheet of the survey if you have it.


    There are other minor issues but they have probably been forfeited for lack of objection.

    When is your opening brief due?

  9. #9
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    Default Re: Writing an Appeal and Appealablity of My Arguments

    As an aside, I'll also note that CHP seems to be the ONLY agency getting their radar/LIDAR units recertified at the IACP-authorized Lab at San Diego State Univ (I have one from my previous cases that's signed by the Chairman of the Electrical Engineering Dept. there --- that's unimpeachable!). The only other IACP facility is at U. of Florida.

    This matters because it looks like all the "local" PDs are getting their units recertified at small shops, or in the case of one recent thread, some guy with a PO Box. All of those are INADMISSIBLE as official records or by judicial notice, and must be introduced as a business record. Without someone from the company that did the recalibration OR a sword, signed affidavit from them, that's not gonna happen.

  10. #10
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    Default Re: Writing an Appeal and Appealablity of My Arguments

    Ok, the judicial notice of the survey is out, the survey they had on the bench was the physical survey with the inked signature of the Engineer(Small County, only one formal courthouse for traffic infractions)

    As for the prosecution's burden, I understand, any case cites that will be particularly helpful?

    As for the POST issue, can I not use both the POST issue and Burden in my appeal as arguments to make a stronger case? Additionally wouldn't the lack of any certificate or Judicial Notice of the POST Certification make the Survey inadmissible anyway, thus making it a speed trap?

    As such, these would be headlined as Insufficent evidence, correct?

    Opening Brief is due Nov. 16th

    Any info on the Minute Order? I have it handy if you want me to post it.

    To your aside: His radar was certified at SDSU within the last year. And I will keep that in mind should I get a cite from a local officer.

    As my own aside: Should I use the 30?'s cross? As I'm reading it, you're saying his testimony was enough to get a dismissal without my cross-examination? The other stuff was procedural for me, I was relying heavily on my 30 questions cross as the conditions dictated 51mph was a safe speed, and I figured if I couldn't get a dismissal with a procedural/certification/speed trap, I'd have that to bank on because of the extremely favorable conditions.

    For Reference, as you requested, mediafire have been deleted

    https://sites.google.com/site/catick...edirects=0&d=0
    https://sites.google.com/site/catick...edirects=0&d=0

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