Writing an Appeal and Appealablity of My Arguments

[Gloff]

My mistake, I was quoting this:

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."

Also, you have email.

[That Guy]

For what its worth, I have a comment (or two) with regards to the survey extension past the 5 year period. It sounds to me like you've already stated the appeals process so this is not an opinion as to whether you should file it, or continue with it, but only as a side note as the process contunues.

For one, I am beyond shocked, way past disappointed, maybe even confused that an officer, ..., a CHP officer at that, with the primary duty of traffic enforcement, can stand there in court claiming to have been POST certified over 10 years ago, AND even re-certified within the last year, and yet the impression that I got of his understanding of what a "speed trap" is, (again, assuming I am correct in my understanding) is an embarrassment to agency he represents! If you were to put that alongside a personal experience I recently had with a CHP officer which was highlighted by the -laughable- answer he gave to my question as to how he obtained my speed, I seriously am at an impasse with my entire view of law enforcement.

Back on topic though...

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.

I agree wholeheartedly, and I'll add that the issue is compounded by the fact that some people aren't even aware that 22351(b) exists, others know of it and yet still ignore it simply because their of misunderstanding of it, and yet others realize its full impact and yet mix that along with the requirement that "The prosecution proved the speed of the accused was unsafe for the conditions present at the time of alleged violation unless the citation was for a violation of Section 22349, 22356, or 22406" in 40802(c)(1)(C)(ii).

The answer IMO, is quite clear maybe not by the language of the code section, but specifically, in the related case law citations. In other words, 22350, and while setting the "speed trap" issue aside for a second, requires a showing that the driver's speed was EITHER considered to be unreasonable or imprudent for the conditions existing thereupon at the time (that is one element)... OR that it endangered person or property at the time, ..., OR both! The qualifier for what is referred to in this thread as the primary/main grounds on appeal does not come by way of proving that the elements of 22350 occurred, and at least not as part of the legal requirement to prove your guilt pursuant to 22350, but INSTEAD, it comes in by way of the prosecution's burden to prove that a speed trap did not exist at the time, pursuant to VC 40802. Furthermore, the issue of safe/prudent/reasonable speed must be revisited again in the same trial, only that the second time, it is the defendant's burden to do so as is required by 22351...

Now if we shift to the speed trap analysis of the case, and since the survey is older than 5 years, that initiates the requirement that the prosecution MUST meet ALL 3 requirements (including, again, the "primary issue" brought up on appeal in this case), specifically, whether the officer's testimony fulfilled the requirement I cited above from VC 40802. the underlying issue to decide whether grounds for appeal can be established or not, is dependent on whether you interpret that requirement to fulfill VC 40802(c)(1)(C)(ii) by way of >(A)< the officer articulating the specific reasons why he thought the defendant's speed violated the basic speed law or >(B)< whether that is a conclusion that the trier of fact must come to based upon several elements of the officer's testimony?

Now, at this point in the case, and barring any objectionable methods by which the survey was authenticated and admitted into evidence, and assuming that there are no disputable issues relating to the manner the data was collected + there are no arguable matters regarding the manner by which the data was analyzed and subsequently utilized to justify the limit (pursuant to CVC 627)... Then the only question that remains is whether the prosecution can meet the burdens now required due to the age of the survey being over 5 years... With all that said, I think we can agree that it would be a fair and reasonable assumption to say that the 35mph speed limit is "THE" safe and prudent speed under "normal conditions".... That is what the survey says!

So, in the way I am reading and understanding the cited paragraph from Ellis, the question as to whether the prosecution has met the burden that the defendant's speed was in violation of the basic speed law, is more in line with option >(B)< above, meaning it is a decision that the trier of fact can come to based on whether he/she thinks that 50mph in 35mph is unreasonable.

Here are both citations from QQ's post above:

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.

Now, in the Ellis citation, the court began that paragraph by "enumerating the considerations" (i.e. the elements that must be proven) that may deem a specific speed as unreasonable/imprudent or unsafe. Then described those considerations as being sufficient to meet the legal standards (and for the recorrd, a jury WAS present during the Ellis case due to the fact that he was also charged with other misdemeanors -in addition to the speeding infraction-, so for our purposes let me refer to them/him/her as being "the trier of fact"...) then it went on to say that the question of guilt or innocence then becomes a matter for the trier of fact to decide...

This is even made clearer in the way Ellis was cited as part of the Huffman decision where in Huffman it was stated: "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".

So again, it is a decision that the fact finder must arrive at, and not necessarily a specific statement by the officer as to why, in his opinion, the defendant's speed was unsafe. This establishes one reason why I would not place the question of whether the burden of proving safe/prudent/reasonable speed as being a primary grounds for appeal as compared to the P.O.S.T. issue being secondary. If anything, I think they are both on equal grounds... But that's just me!

And as I have argued in another recent thread, the requirement that the prosecution prove unsafe/unreasonable under 40802 in cases where the survey is over 5 years old, is not even remotely related to the shifting of the burden to prove guilt of the defendant from the prosecution, to a requirement that the defendant show by competent evidence that his/her speed was not in violation of the basic speed law = VC 22351(b).

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.

Agreed again... And to further highlight my point, I don't know if I would put any more weight to the "officer proving/testifying to unsafe speed" condition under 40802, than I would give to his testimony regarding the "POST" training issue. I think they both sit on an equal footing when it comes to the viability of each as sufficient grounds for appeal.

With that being said, let me also add that if we were to look at the "conditional" requirements under which ANY speed survey is normally conducted, you will see the weather should be clear, the roadway surface should be dry and traffic should be light/medium (but certainly NOT heavy). So you cross examine the officer using the 30 question defense, and his answers confirm that the conditions are: Clear/Dry/Light to Medium...

What have you proven?

Nothing!

Why?

Simply because the survey indicates that the safe/prudent/reasonable speed under those "normal" conditions is 35mph, and yet you are using all that info to try and prove that 50mph in 35mph is still safe/reasonable/prudent?

I'm not convinced....

And this is only ONE reason why I'll never buy into the claim that the 30 question defense is of any value under those circumstances.

One other reason is simply my firm belief that once it can be established that a speed trap did not exist in the case, the legislature made it into a huge uphill climb for the defendant to come up with sufficient "competent evidence" to overcome the presumption of guilt; so much so that it becomes similar to maximum speed citations where if you're speed was in excess of the P.F. limit (or maximum limit), no matter what you say or do, and *EVEN IF* you can get the office to recite his testimony and the agree that he's competent, you're still up that same stinky creek.

Now, if you can go through the 30 questions as the foundation for question # 31, that being: "Officer after having given the answers you just gave me, that my speed was NOT unsafe/unreasonable/imprudent, why did you issue me a citation?"... And if you can get him to answer "because I screwed up", I think you've got it made!!!

[quirkyquark]

Just a very quick note: (I was confused at first too)

Ellis (1999) is different from Ellis (1995)! The first is manslaughter IIRC and the second is our 22350 appellate div case.

[That Guy]

I have read both transcripts. I saw issues with the lack of objections in respect to when the officer testified. There were basically none during his testimony ; this may doom any post training issues.

Actually, it doesn't doom anything, David. And it may have been part of the defendant's strategy. See, the nature of California's speed trap laws, and in a case where the E&T survey is 5 years or older, requires the prosecution to establish certain matters including the officer having been P.O.S.T. trained and certified in the use of Radar. Failing to do so means they failed to establish that a speed trap did not exist. That there, in and of itself, with or without an objection is an automatic dismissal.

The fact that is wasn't dismisses constitutes grounds to appeal the verdict based on "insufficiency of evidence argument".

So, yes... While the defendant could have objected so as to mark that point during the trial to where he can point back when he appeals, but doing so (objecting) during the officer's testimony gives the officer the opportunity to recover, go back, lay the foundation for his speed measurement using Radar + meet the element required of the prosecution by VC40802(c)(1)(C)(ii) by submitting training certificates, and you no longer have that one prosecution error to cite in an appeal.

Fact still remains that this particular officer had no clue, and he was in fact asked about a training certificate. To which, he responded that he did not have. At that point the defendant should have taken a big sigh of relief, and then continued with his pre planned defense.

I doubt it really would have made a difference had the defendant objected.... Simply because the judge would have prompted the officer which is exactly what happened IIRC.

Still, the officer had no training certificate with him to present in open court, no certificate = speed trap = officer is incompetent as a witness = all the evidence presented by him gets thrown out = no evidence means no case = court is without jurisdiction to render a judgment of conviction

Yes, the defendant stumbled on getting his point across to the judge towards the end, but how is it that the defendant can be blamed for the judge's lack of familiarity with the law? The judge, should have... Actually, the judge had no other option BUT TO dismiss....

The judge should have done so right then and there, instead, he gave the officer the opportunity to "check with his office" to see if they agree with the defendant. Saywha...... I said, say what???

But since that is not what happened, it will take some doing but defendant should prevail at the end.

And why did the defendant begin to ask for the judge to consider the motion to dismiss withdrawn

Good question... Though it would have made no difference anyway! In fact,and although the judge did not withdraw the motion, I don't think he ever ruled on it. He simply issued a guilty verdict and sent the defendant home.

Ihe judge did the defendant a big favor.

Same as above. The judge couldn't do a favor if he wanted to.... But, I will give credit when credit is due. He did give the defendant plenty of leeway which asking his 30 or so questions. In fact he did go through all of them, did he not? Though ideally, it should not have come to the point where the defendant needed any time or leeway.

As QQ stated recently in another thread, defendant Should have simply stood there and had things done for him.

IThe defendant should have prepared better for this defense by examining the possible evidence before trial so that a better, clearer, and more concise argument be made and should have objected to the recess as it was clear that the officer had no idea what a speed trap was. He was never even asked the question if he knew what he was talking about.

Again, no amount of preparation would have resulted in the correct verdict here.

[Gloff]

Gentlemen, I'm am by no means a seasoned fighter in court. This was actually my first in court trial, I've had 1 ticket dismissed at TBD, and another dismissed just before the trial due to the officer realizing he had no fight against my speed trap argument (P.F. Limit was 14mph below 85th percentile, and still didn't get dismissed at TBD!)

As such I'm still learning and thank you all for the help, I have a rough Opening Brief ready, and will be sending it out tomorrow.

[That Guy]

Gentlemen, I'm am by no means a seasoned fighter in court.

You'd be surprised at how some of us who talk the talk (and I'm only speaking of myself) can and have stumbled worse than you did in this case!

... and another dismissed just before the trial due to the officer realizing he had no fight against my speed trap argument (P.F. Limit was 14mph below 85th percentile, and still didn't get dismissed at TBD!)

Just out of curiosity... How did you come to be so sure that the officer knew that you had a speed trap argument, and that he had no fight against it BEFORE the trial even started?

[quirkyquark]

TG: I'll have a reply to your excellent posts re 22351 and the burden of proving (un)safe speed later in the week.

You'd be surprised at how some of us who talk the talk (and I'm only speaking of myself) can and have stumbled worse than you did in this case!

Yep, there's no substitute for real-world "experience" (although I'm sure all of us would prefer not to have to go through it, no matter how educational!)

[That Guy]

TG: I'll have a reply to your excellent posts re 22351 and the burden of proving (un)safe speed later in the week.

Not a problem... In fact here, you can have this to chew on in the meantime (just something I can across in one of my searches, was almost going to post it in another 22350 thread, this one seems appropriate as well):

Circa 1963 - 1964

Yep, there's no substitute for real-world "experience"

Even with its disappointments? I can certainly do without those!

(although I'm sure all of us would prefer not to have to go through it, no matter how educational!)

You can say that again... I must say that after a not so brief hiatus for me, I am back in the ranks of "defendants"... This one I just got is definitely one of the most interesting ones I've ever had, and I've had my share! May be I'll feel inclined to tell the story someday soon... If I ever get over how the CHP betrayed me!

[quirkyquark]

This one I just got is definitely one of the most interesting ones I've ever had, and I've had my share! May be I'll feel inclined to tell the story someday soon... If I ever get over how the CHP betrayed me!

Appeal or TDN? Should be a fascinating story, if/when you get to it...meanwhile, feel better!

[That Guy]

Appeal or TDN? Should be a fascinating story, if/when you get to it...meanwhile, feel better!

Oh, no... I just got written up, a couple of weeks ago... Haven't even received a courtesy notice yet...

And I'm cracking up @ "feel better!"


Thanks, I'm gonna try!