How to Make and File an Effective Appeal

[kutorei]

My question involves traffic court in the State of: California!

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Went to Trial de Novo on December 14th and was handed down a guilty verdict for VC 22350 despite evidence(and law) showing otherwise. This entire case is turning into a three-ring circus. But I'll just share the relevant points.

During trial, officer admitted that at no time did I pose a danger to people or property, and that driving conditions were excellent. (45 in a 30) The judge put forth his own opinion of driving conditions on that particular stretch of highway regardless of evidence presented, and he refused to consider the possibility that said ticket is the product of a speed trap. Informal discovery yielded a engineering report, but it turns out at trial that I didn't get the full file there either.

Ticket data:
Posted: 30
Critical Speed: 38
Accident rate: higher than normal.
Reason to lower: none stated directly on survey, but crosswalks, fire station, etc. are drawn onto map. Addendum attached has a stated accident rate for going below the standard 55mph limit, but I'm not sure if it's admissible. HELP!

So now I'm trying to file an appeal. My problems:

1. Court reporter is refusing to grant me a transcript of my own trial. Says only appellate court can do that/I can't have a copy and be in the process of filing an appeal. I called the appellate court to straighten it out, but I'm not sure its going to go through. Also, if I receiving a copy-will it automatically be certified? I'm assuming that when I send it in it does need to be certified correct.

2. Writing the proposed statement. There's a section at the end of Reasons For Your Appeal where it asks how a trial error harmed you. I don't quite know what to put there. For example, deliberately ignoring the written law-it sort of speaks for itself.

[quirkyquark]

The judge put forth his own opinion of driving conditions on that particular stretch of highway regardless of evidence presented, and he refused to consider the possibility that said ticket is the product of a speed trap.

Please see my very similar appeal thread and the associated documents page. Those should answer most of the questions might have through the entire process.

Court reporter is refusing to grant me a transcript of my own trial. Says only appellate court can do that/I can't have a copy and be in the process of filing an appeal.

What county & court are we talking about? Was the trial electronically recorded? Ask trial court clerks that. If so, they MUST make a transcript of that for you. The rub is, unless you're claiming you're indigent (broke), you'll have to pay for it, and it is usually at least $5-7 per page. If you get the transcript, you will get a copy and the appellate division will automatically be sent the original certified one -- in that case, you don't need to file the proposed statement, grounds of error, etc, and go straight to the opening brief.

The other option is to get the recording from them ($10-20), and transcribe it yourself and attach to your statement of appeal.

2. Writing the proposed statement. There's a section at the end of Reasons For Your Appeal where it asks how a trial error harmed you. I don't quite know what to put there. For example, deliberately ignoring the written law-it sort of speaks for itself.

See sections 8a and 8b of my proposed statement.

This is likely grounds for a civil suit against the court reporter. Write her and demand.

Yeah, well, civil suits cost $$$ (at least $350 to start off). If you are eligible for a transcript as discussed above AND you are refused by the clerk, the correct solution is to file a motion to compel OR a petition for writ of mandate in the appellate division. The writ is easier because you can use a special form (APP-151) instead of having to research and comply with the formatting and other legal requirements of a motion.

[kutorei]

Please see my very similar appeal thread and the associated documents page. Those should answer most of the questions might have through the entire process.

Wow =O I thought my case was bad, but yours is definitely worst. Would you object if I copy some of the wording/format etc. you used?

What county & court are we talking about? Was the trial electronically recorded? Ask trial court clerks that. If so, they MUST make a transcript of that for you. The rub is, unless you're claiming you're indigent (broke), you'll have to pay for it, and it is usually at least $5-7 per page. If you get the transcript, you will get a copy and the appellate division will automatically be sent the original certified one -- in that case, you don't need to file the proposed statement, grounds of error, etc, and go straight to the opening brief.

Trial was recorded by a stenographer. Asked traffic division clerks and they gave me a Deer in Headlights look. And all other clerks/people I've been referred to simply refer me back to traffic clerks. I do intend to file a indigent claim as well-as a student I need all the money I can save! I'm just not sure where to send the form. Here, it seems like all transcript requests are telephoned in-I'm not even sure my particular court recorder even has her own office! But ouch. $5-$7 a page. My trial was almost twenty minutes....which is probably in the realms of 12 pages or so.

Wait, I thought the opening brief IS the CR-143 form! What am I missing?

Yeah, well, civil suits cost $$$ (at least $350 to start off). If you are eligible for a transcript as discussed above AND you are refused by the clerk, the correct solution is to file a motion to compel OR a petition for writ of mandate in the appellate division. The writ is easier because you can use a special form (APP-151) instead of having to research and comply with the formatting and other legal requirements of a motion.

What is a Writ of Mandate and where do I get this APP-151? I have a sinking suspicion I'll need it. I've already contacted the appellate court to deal with the reporter, and also left a message about the legitimacy of my request but somehow I'm doubting it will work. This court here is nasty. Examples: judge says I can't object to a continuance he's pushing, all motions must be filed 10days before trial, and it's somehow my fault I don't know court procedure.

[quirkyquark]

Would you object if I copy some of the wording/format etc. you used?

No problem at all. If you need the original Word documents (to make copying/pasting easier), just PM me and I'll email them to you.

Trial was recorded by a stenographer. ... I do intend to file a indigent claim as well-as a student I need all the money I can save! I'm just not sure where to send the form.

So a court reporter was present? The right way to do this is to check the appropriate boxes in your notice of appeal (hint: choose court reporter's transcript, NOT PROPOSED STATEMENT!) But I'm guessing you've already filed your notice of appeal? The indigent form (MC-20, IIRC) can be submitted with the notice of appeal, or when the court sends you an estimate for the transcript.

Wait, I thought the opening brief IS the CR-143 form! What am I missing?

CR-143 is just the proposed statement. It must ONLY be used when a transcript is NOT available, because it operates as a "replacement" for the missing transcript.

The opening brief is always required, and is your main argument.

What is a Writ of Mandate and where do I get this APP-151? I have a sinking suspicion I'll need it. I've already contacted the appellate court to deal with the reporter, and also left a message about the legitimacy of my request but somehow I'm doubting it will work.

Let's figure out the preliminary stuff first. All that may be needed is filing an amended notice of appeal.

Examples: judge says I can't object to a continuance he's pushing, all motions must be filed 10days before trial, and it's somehow my fault I don't know court procedure.

Well, judges can't make continuances on their own (except in very limited circumstances). Otherwise, court rules DO require motions to be filed 10 days before trial, and just because someone is not an attorney doesn't mean that they have the freedom to ignore court procedure.

[kutorei]

So a court reporter was present? The right way to do this is to check the appropriate boxes in your notice of appeal (hint: choose court reporter's transcript, NOT PROPOSED STATEMENT!) But I'm guessing you've already filed your notice of appeal? The indigent form (MC-20, IIRC) can be submitted with the notice of appeal, or when the court sends you an estimate for the transcript.

Haven't filed it yet since the court reporter was giving me the run-around. I eventually got the reporter on the phone, but all she would say is that she'll "send me an estimate" and that it(the transcript) would be ready "in about twenty days(no speeding it up)" so I figured delaying filing the Notice would give me a few days to work with the transcript. All of this happened a few days ago, and I haven't heard from the reporter since. I'm not happy, and I'm not even sure she'll come through since there's no confirmation of any sort at this court sooo.....here's to crossing fingers.

CR-143 is just the proposed statement. It must ONLY be used when a transcript is NOT available, because it operates as a "replacement" for the missing transcript.

Okay now that makes sense =)

The opening brief is always required, and is your main argument.

I was looking at your B038 appeal(unbelievably great stuff!) and now I'm wondering-did you attach your opening brief to CR-143 or am I blind and it's somewhere else on the site? It looks like your opening brief is the 8a and 8b attachment?

Well, judges can't make continuances on their own (except in very limited circumstances). Otherwise, court rules DO require motions to be filed 10 days before trial, and just because someone is not an attorney doesn't mean that they have the freedom to ignore court procedure.

I forgot to mention in the previous post: it wasn't so much that I didn't know that bothered me, but more that he was yelling at me. It basically went something like "Can I not have a continuance and finish the trial today?" and he responded "NO! I have decided to grant a continuance for the officer and that's that!" Forget rules of court/court procedure, how about some simple manners? The shouting literally came out of nowhere. I don't know if the continuance is justified, but all of my interactions with this judge had him yelling at me. So within the sum of my limited experience, this court is nasty. Or I should say, the judge is nasty.

Thanks for the help so far by the way =)

[quirkyquark]

Re word docs, PM me your email address and I'll send them on.

Haven't filed it yet since the court reporter was giving me the run-around.

Well, then file CR-142 (Notice of Appeal) with the proper options checked. (this MUST be done within 30 days of your trial). Specifically, you check boxes 3(b), 4(d) and 4(d)(2). Attach form MC-210.

did you attach your opening brief to CR-143 or am I blind and it's somewhere else on the site? It looks like your opening brief is the 8a and 8b attachment?

What happens is that the "record" (documents from the court, including transcript OR statement on appeal) must first be filed in the appellate division. Then they will send out a notice saying "opening brief is due in 30 days". I don't have one yey because I'm still stuck in the filing stage

...something like "Can I not have a continuance and finish the trial today?" and he responded "NO! I have decided to grant a continuance for the officer and that's that!"

You should have posted then because it's possible you could have taken advantage of that continuance, if it was improperly granted.

[kutorei]

You should have posted then because it's possible you could have taken advantage of that continuance, if it was improperly granted.

Yes, well you know what they say about hindsight being 20/20....

In the interest of academics, what could have been done? Is the continuance improper? Judge granted continuance for the officer having 'good cause'(the officer's wife was in the hospital, because of a complication of pregnancy....he gave me the whole darn story). What little I know says 'good cause' can only be motioned by the prosecution when events/emergencies actually affect the witness himself.

Latest update: so I filed the Notice of Appeal, and two(or is it three?) days later, I get a mail from the court reporter saying the Clerk's office has lost my file. They're apparently looking for it and will attempt to get me my transcript by Friday. No mention of whether the appellate courts have At this point, I'm just glad I demanded copies made of my filed Notice of Appeal.

[quirkyquark]

In the interest of academics, what could have been done? Is the continuance improper?

Well, see Penal Code section 1050. Usually, you must be given advance notice of the continuance (at least 2 days). If you're not given such notice, there has to be good cause for that, in addition to good cause for the continuance itself. All of this must usually be in writing...only attorneys (or people representing themselves) can make oral motions.

Without looking at case law, a pregnant wife who had to be rushed to hospital actually sounds like both kinds of good cause within the spirit of the law...

Latest update: so I filed the Notice of Appeal, and two(or is it three?) days later, I get a mail from the court reporter saying the Clerk's office has lost my file. They're apparently looking for it and will attempt to get me my transcript by Friday. No mention of whether the appellate courts have At this point, I'm just glad I demanded copies made of my filed Notice of Appeal.

Good, so filing the notice got them on the ball, only to lose it again. If the "file" (recording/notes) or whatever is lost and cannot be found, it is automatically grounds for a new trial

[kutorei]

Well, see Penal Code section 1050. Usually, you must be given advance notice of the continuance (at least 2 days). If you're not given such notice, there has to be good cause for that, in addition to good cause for the continuance itself. All of this must usually be in writing...only attorneys (or people representing themselves) can make oral motions.

Without looking at case law, a pregnant wife who had to be rushed to hospital actually sounds like both kinds of good cause within the spirit of the law...

I didn't get notified till the day of the trial, and I have no idea if the officer put in a written request(but he's supposed to be a witness right?) for the continuance. I can definitely see the spirit, but not so much for the word of the law. Ah well, it's not relevant any more, but interesting to know for next time!

Good, so filing the notice got them on the ball, only to lose it again. If the "file" (recording/notes) or whatever is lost and cannot be found, it is automatically grounds for a new trial

After reading my transcript, I really hope they've lost it. The transcript shows exactly what I am-an inexperienced, lost kid bumbling in the courts. I think I even self-incriminated myself a few times. In addition to forgetting a number of case law/laws.

Here it is (on Box.com); if any one can help me find more Points and Authorities, I'd be very, very grateful! So far, my only points are:

-Survey("memorandum") was not in informal discovery; literally presented during trial
-"memorandum" Survey incorrect/improper-doesn't have critical speeds, or any actual gathered data-just recommended speeds and justification. I originally thought it was an addition to the actual survey, but the memorandum reads that it should be considered a new survey. Bit confusing, but I'll re-read and post document later.
-Actual survey I received in OP post: crit @ 38, etc. Speed trap if memorandum is indeed a new "survey"
-Officer/Court did not prove 22350, so 22351 applies
-Judge put forth his own opinion, acting as prosecution?

I'll upload more of the relevant documents later. But oh, this transcript really shows how all over the place I was. *sigh*

[quirkyquark]

After reading my transcript, I really hope they've lost it. The transcript shows exactly what I am-an inexperienced, lost kid bumbling in the courts. I think I even self-incriminated myself a few times. In addition to forgetting a number of case law/laws.

Here it is (on Box.com); if any one can help me find more Points and Authorities, I'd be very, very grateful! So far, my only points are

Glad to! Just be sure to update us when you get the "notice of due dates for opening brief"...

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ETA1: Upon first look, WOW! What a fair judge, at least procedure-wise --- did the right disclaimers, even had copies made for you.

You need to post the survey, memorandum AND that motion to dismiss, etc. asap because, in general, if you don't object to an error then you can't bring it up on appeal --- and there were a number of instances where that happened. Best bet may be to dismantle the survey.

ETA2: Other issues, just from the transcript:

• Memorandum problem 1 - admitted after close of case in chief, violation of 40802 "prima facie proof" requirement because survey may be incomplete without it
• Memorandum problem 2 (less than 55 justified does not mean 30, 20 or 10 are!)
• 22351 (although debatable) -- court made no finding that your speed was indeed unsafe or endangered persons or property. Arguably, you made a reasonable showing that speed was not unsafe in cross.

As for your original issues not mentioned above:

• Discovery is usually a non-starter, and it appears in this case you requested from Caltrans? Discovery rules do not apply to ANYONE but the prosecution.
• Judicial misconduct is usually hard to prove, and you didn't object anyway (I don't think there was any, BTW)

If the appellate division, for some unknown reason, still affirms the conviction, you can still move to get it from the trial court and they will have to give it to you based on the transcript. And traffic school is counted from the date of the violation, so it's not like you're going to be trading off your next eligibility windows for this one.