Writing an Appeal and Appealablity of My Arguments

[quirkyquark]

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)

Yes, but was the survey done ("published") by a private company, or the city?

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

I will have to do some research over the weekend and get back. The problem is that since the 7/10-year extension was introduced in 1998 (effective 2001, though), there have been no published appellate opinions dealing with what happens when a survey is more than 5 years old. Here are two that might help; one is a speed-trap case:

Speeding under section 22350 is driving "at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway"; speeding also occurs "at a speed which endangers the safety of persons or property." While these definitions are not terribly technical, they do supply the jury with legal standards to apply to specific considerations. Was the speed reasonable in light of the enumerated considerations, such as the traffic on the road? Was defendant's speed dangerous to other persons or property?

In a prosecution under Vehicle Code section 22350, the record must contain substantial evidence from which a fact finder could conclude that the defendant drove at a speed that either endangered people or property or was unreasonable for the driving conditions. (People v. Ellis (1999) 69 Cal.App.4th 1334, 1339, 82
Cal.Rptr.2d 409 [discussing statutory elements of basic speed law violation].) If the section 22350 charge rests on an allegation that defendant exceeded a posted or prima facie speed limit, the People must introduce into evidence or permanently lodge *4 with the court a certified copy of a traffic and engineering survey, made within the past five years, justifying that speed limit. (People v. DiFiore (1987) 243 Cal.Rptr. 359, 197 Cal.App.3d Supp. 26, 28–29.) If the court finds the survey does justify the speed limit, then the burden shifts to the defendant to prove his speed was nevertheless safe under the circumstances.

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?

Of course! You throw in all the appealable issues, going from strong to...less strong

The way the law is written, not fulfilling any of the additional factors for 5+ year surveys (POST, unsafe speed, etc.) simply leaves the five-year requirement intact; the survey is admissible, but since it's 5+ years old, it's still a speed trap.

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

You wouldn't put it that way in a brief. See here for the court rules on infraction AOBs (Appellant's Opening Brief). The following references (all on this page) talk about writing briefs for real criminal cases for the Courts of Appeal, but the advice applies in general, I've found:

• Everything You Need to Know About Preparing Statements of Appealability, the Case and the Facts in Criminal Cases
• The Art of Structuring a Well-Written Appellate Argument
• Sample AOB: Sample criminal case AOB with briefing analysis and notations interjected by CCAP.

Chapter 4 and 5 of this reference may be helpful; it's more "by-the-numbers" than the above I think.

Opening Brief is due Nov. 16th

OK, my case involves the POST and unsafe speed burden too; I may take a shot at writing something and put it up for critique before your deadline.

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

Yeah, forgot about that! Please post it, it should certainly be appealable, but I'd need to do some research to see how you can show it was prejudicial to you.

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?

Yes, you would motion for dismissal under PC 1118 after confirming the "prosecution's" testimony was over; technically you don't even have to provide any grounds - the judge has to figure out for himself. In this case, it would have been trickier (like mine) if the officer didn't play ball during the 30Q stage.

[quirkyquark]

Gloff's documents had personal info visible if printed out, so I redacted them for him and posted here:

1. Transcript (7/21/11)
2. Transcript (8/18/11)
3. Minute Order (and CHP communications with court)

I still need to find case law if the minute order matters (i.e., establish prejudice).

[Gloff]

As an amateur lawyer looking from the outside of my own case wouldn't it be prejudicial on the fact that the case would have been dismissed if the chp didn't respond in the proper time?
additionally couldn't I argue without a cite?

[quirkyquark]

wouldn't it be prejudicial on the fact that the case would have been dismissed if the chp didn't respond in the proper time?

The problem is there is no law about ^this^ specific situation. e.g. if it were about not having a speed trial, etc., there's statutes on that. Additionally, this is about the court itself not heeding its own order!

additionally couldn't I argue without a cite?

You could, but with no cites to law or caselaw and just an "argument from the heart," I really doubt they would take it seriously.

I'm looking into this for similar situations; one of the possible ways of looking at it is that the court issued an "Order to Show Cause" to the CHP as to why the matter should not be dismissed, with a response due on 8/1/11. You may want to see if that yields anything since such orders are REALLY common in civil and criminal caselaw.

Edit: Did you ask the court to dismiss since the deadline was not met at the hearing on 8/18? If not, why? (just curious)
Edit 2: You said you received your copy from the CHP. What was the postmark on that?

---

Here's a problem. The transcript only says the the matter will be dismissed if there is no letter from the CHP; it doesn't explicitly say "by 8/1/11".

THE COURT: Okay? And that they send you that, postmark
it no later than August 1st and, you know, we get the original,
you get a copy. And if -- if there's going to be any other
testimony, it would be at three o'clock on the 18th of -- 18 th of
August. If neither of you show, then it's under submission on
what I have. Okay.
THE DEFENDANT: Okay.
THE COURT: If there's no letter from CHP, I'll assume
his objection is good and it will be dismissed. If there's a
letter that agrees with him, same thing. If there's a letter that
disagree...

Legally, the transcript controls over the minute order if there's a dispute. The court wasn't terribly clear in the transcript, in any case.

Anyway, it's certainly appealable, but I couldn't find any case law that talks about what to do when a court won't enforce it's own sanction on its own motion. Typically, one party or the other will ask the court to enforce it, and the court may give reasons why it won't.

I recommend you make this the last point in your appeal.

Do you have the survey? Please post it if you do because that may become another point on the propriety of taking judicial notice.

---

Here's a dump that may or may not be useful for the minute order:

People v. Superior Court (Brent)
2 Cal.App.4th 675, 3 Cal.Rptr.2d 375

Where a court orders a clerk to enter a minute order, no formal writing signed by the court is necessary. ( Simmons v. Superior Court (1959) 52 Cal.2d 373, 378–379, 341 P.2d 13.) Unless the trial court orders the preparation of a formal written order, it is well settled that the minute order is final and that all legal consequences ensue therefrom. ( McHale v. State of California (1981) 125 Cal.App.3d 396, 399, 178 Cal.Rptr. 83.)


Silverado Modjeska Recreation and Parks Dist. v. County of Orange
197 Cal.App.4th 282, 128 Cal.Rptr.3d 772

“[A] judge's comments in oral argument may never be used to impeach the final order, however valuable to illustrate the court's theory they might be under some circumstances.” ( Jespersen v. Zubiate–Beauchamp (2003) 114 Cal.App.4th 624, 633, 7 Cal.Rptr.3d 715.) Similarly, a trial court's tentative ruling is not binding on the court; the court's final order supersedes the tentative ruling. ( Ibid.; Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1238, 104 Cal.Rptr.3d 145, 223 P.3d 15.) A trial court's final order on a motion is “made a matter of record in order to avoid any uncertainty as to what its action has been. [Citation.] The record may be made by a written order signed by the judge and filed with the court [citation] or it may be set forth in detail in the court's minutes [citations]. But either way, a writing is essential to avoid the uncertainty that can arise when attempting to enforce an oral ruling. Indeed, an ‘order’ is defined by statute as the ‘direction of a court or judge, made or entered in writing....’ (Code Civ. Proc., § 1003, italics added.) [¶] ... An oral ruling is subject to varying memories and may not be clear or specific. Nor is an oral [or tentative] ruling necessarily the unequivocal decision of the court. A court may change its ruling until such time as the ruling is reduced to writing and becomes the [final] order of the court.” ( In re Marcus (2006) 138 Cal.App.4th 1009, 1015–1016, 41 Cal.Rptr.3d 861.)

[Gloff]

I didn't object because they sent me the vehicle code and I thought it was the response from the chp I didn't get the chp FAX until I appealed.
As for the survey I only have a copy of it that I received from the engineering dot I will email it to you

[quirkyquark]

Here's the survey in question, conducted by Caltrans.

It's missing pages 3 and 5, but I see one BIG problem -- the data was collected October 2001, but the survey was only "approved" in January 2005!! That violates the "contemporaneous" hearsay requirement, i.e. "The writing was made at or near the time of the act, condition, or event." 3 years plus is not "near."

I think even without an objection on your part, just this problem should make it reviewable as an "abuse of discretion." (for taking judicial notice).

There are also a number of other problems, assuming that the court survey was the same. Please review this post, part 1 and part 2 to see what applies to your situation.

[Gloff]

I'm still quite intimidated on writing the actual appeal, do you have any actual 22350 appeals I can look at?

[quirkyquark]

I emailed you some stuff that might help.

[Gloff]

Is there a cite on this or an evidence code or what? How can I incorporate this into my argument.

[quirkyquark]

Is there a cite on this or an evidence code or what? How can I incorporate this into my argument.

this is...what?