How to Make and File an Effective Appeal

[That Guy]

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

Indeed he was!

[*]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.

Highly debatable... Even the "survey older than 7 years" wouldn't apply (even though that usually is a stretch).

In this case, officer fulfilled the requirement simply by presenting training certs, calibration certs and a survey (albeit a questionable one) as well as (the clincher) a speed reading in excess of the posted limit!

He even went above and beyond by stating the following:

3 So the 45 lock occurred in the 1000 block of Martin Luther
4 King, and her speed is unsafe in that area, due to cross
5 walks at 12th Street, 11th Street, and then 8th Street is
6 actually south of my location. And there is two food/mini
7 marts, one at 12th and one at 11th, with pedestrian foot
8 traffic in the area.

That there would meet the more stringent conditions for a 7+ year old survey!

ETA: I haven't read the entire transcript as of yet so I reserve the ability to return with comments about the defendant's cross examination.

[quirkyquark]

Highly debatable...

I wouldn't say "highly"....that argument is based hierarchically on:

1. Behjat ("No conviction can be sustained unless the record contains substantial evidence supporting each element of the charged offense. In a prosecution under Vehicle Code section 22350, the record must contain substantial evidence from which a fact finder could conclude either that the defendant drove at a speed that endangered people or property or that she drove at a speed that was unreasonable for the driving conditions.")
2. That 22351 merely establishes a prima facie violation that can be rebutted... (gentle reminder re 22351)
3. Finally, that cross satisfied statutory 22351(b) requirement.

[kutorei]

Sorry for the delay-holidays and finals and all that. Haven't gotten anything from Appellate courts, so all's well for now.

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

---

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.

Yep, the judge was amazingly forthcoming this round. It's a far cry from the shouting I got at the first appearance. No one else received such a disclaimer(unfortunately). It's really amazing the change that comes on the second they know you're getting a record of the proceedings....

I also think the survey is my best bet. As anyone can see from the transcript, law is clearly not the career for me. Upon re-reading the memo, it appears to be part of the survey itself, and not a new survey as I thought earlier. Everything is uploaded now by the way. Here's the link =). The relevant part of the survey is 'Survey1'. I don't know how much pertinent info to edit, so I basically removed all the specific info.

By the way, did I PM you my email address? I think I did, but I'm not sure.

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.

Tough luck, but thanks. When you say "get it" are you referring to traffic school? If so, thanks for the tip =) I guess there was some use of raising a fuss for a transcript after all!

[quirkyquark]

By the way, did I PM you my email address? I think I did, but I'm not sure.

You did. Please let me know which Word documents you'd like, because I'll have to redact personal info from them.

When you say "get it" are you referring to traffic school? If so thanks for the tip =)

Yes.

Please post your motion to dismiss....that may be important to override your lack of explicit objections.

Have you received a notice of due date for your opening brief yet?

[kutorei]

No word from Appellate yet.

The Trial court has sent me a request for my points of appeal before granting/rejecting my indigent request for free/low cost transcript. I was wondering-how verbose should I be? And in what format? (really need info soon, the document is stamped the 1/19 but I barely received it today. I have till the 29th).

Quirky, I'd be very happy if you could send me anything related to writing an opening brief. I really have no clue what I'm doing, so anything would help =)

Will upload my motion tomorrow: it was something a friend gave me to use, so it's definitely not as procedural as you may expect.

[themadnorwegian]

The Trial court has sent me a request for my points of appeal before granting/rejecting my indigent request for free/low cost transcript. I was wondering-how verbose should I be? And in what format? (really need info soon, the document is stamped the 1/19 but I barely received it today. I have till the 29th).

N.B. that I've never done this before, but I'd imagine that if they didn't send you specific instructions, you could use a format similar to that in CR-143 section 8. In particular, you want to describe what the error was, and how it prejudiced your case. What grounds were you thinking of using for your appeal? I saw the following issues after looking at your transcript. (BTW, I love that you re-named the officer Cartman.)

1. That there wasn't sufficient evidence to sustain your conviction, because the arresting officer was maintaining an illegal speed trap.
2. That the judge erred in admitting a speed survey that didn't justify the speed limit. This is a jurisdictional error, since the court is without jurisdiction to render a judgement of conviction if the testimony presented in the case was obtained from an illegal speed trap.
3. The judge acted as a prosecutor by taking judicial notice, by his own motion, of traffic conditions on the street where you were cited, even though those conditions were neither described by the survey, nor presented in the officer's testimony. This helped the People make their case, and may be contrary to established case law.

[quirkyquark]

The Trial court has sent me a request for my points of appeal before granting/rejecting my indigent request for free/low cost transcript. I was wondering-how verbose should I be? And in what format?

My first thought is...where did the transcript you posted come from?

Per case law, the court may require indigent misdemeanor (& infraction) defendants to show a "colorable" need for a transcript. Colorable meaning some reason (claimed ground of appeal) that requires the transcript to support. i.e., just the paperwork (including exhibits) is not enough. Your reply can be quite informal, and it will have NO bearing on anything except the grant/denial of your request. There's no need to show prejudice, and you don't need to include all of your grounds of appeal either.

TMN gave you a pretty good start, but for the purposes of this request only, let's begin with a point that should be enough on its own :

• The record contains no substantial evidence to support the finding that Vehicle Code section 22350 was violated, i.e. that "from which a fact finder could conclude either that the defendant drove at a speed that endangered people or property or that she drove at a speed that was unreasonable for the driving conditions." (People v. Behjat (2000) 84 Cal.App.4th Supp. 1, 3.)
• The court abused its discretion in granting the witness's motion to re-open the case to allow the introduction of additional evidence to rebut the speed-trap presumption.
• The speed survey did not justify the posted prima facie limit; consequently, the speed trap presumption was not rebuttable and the court was without jurisdiction to convict the defendant.
• The court abused its discretion in taking judicial notice, on its own motion, of traffic conditions in the area while not allowing the defendant "reasonable opportunity, ... 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." (Evid. Code, sec. 455(a).

[kutorei]

Hey, thanks for responding so quickly =)

(BTW, I love that you re-named the officer Cartman.)

Thanks for the pointers =). I'm afraid the cue for the South Park reference goes to That Guy. I'm planning my appeal based on the failure to sustain the requirements of proving 22350(via 22351) and the illegal speed trap. I'm thinking of trying to make 22358.5 apply, which states that:

It is the intent of the Legislature that physical conditions such as width, curvature, grade and surface conditions, or any other condition readily apparent to a driver, in the absence of other factors, would not require special downward speed zoning, as the basic rule of section 22350 is sufficient regulation as to such conditions.

The road in question is straight as an arrow with excellent visibility, so hopefully I can pull down the survey memo with this too. What do you guys think?

My first thought is...where did the transcript you posted come from?

Per case law, the court may require indigent misdemeanor (& infraction) defendants to show a "colorable" need for a transcript. Colorable meaning some reason (claimed ground of appeal) that requires the transcript to support. i.e., just the paperwork (including exhibits) is not enough. Your reply can be quite informal, and it will have NO bearing on anything except the grant/denial of your request. There's no need to show prejudice, and you don't need to include all of your grounds of appeal either.

Quirky, my motion for dismissal is posted now. Obviously it was written with only the survey map given and not the memo, so now it's a bit incorrect. Otherwise I'd say it still stands, improper format and wording aside.

The transcript I got was paid for by me(directly to the Court Reporter; apparently you have to go to these guys directly in this county.) Otherwise, only the appellate would receive a copy and I'd be more or less be writing my appeal in the dark. The court want me to pay for the appellate copy, sight unseen which is why I had to go about getting a transcript this way(meaning I'd have to pay TWICE!). If I can, I'd like to ask the court to reimburse me, but I don't think it'll work. Ah well, wishful thinking! I actually don't know why they're making me pay for another when the court reporter certified my copy....

Thanks for the points I can stick for this request guys. I'm going to go with the first two points(Quirky's list) for now, so as to not give the City Attorney too much info ahead of time =)

[quirkyquark]

I'm thinking of trying to make 22358.5 apply, which states that:

22358.5 is pretty subjective, and as TG likes to remind folks, it does say "in the absence of other factors"...

Otherwise, only the appellate would receive a copy and I'd be more or less be writing my appeal in the dark. The court want me to pay for the appellate copy, sight unseen which is why I had to go about getting a transcript this way(meaning I'd have to pay TWICE!).

The general rule is that a paid CR should give you at least TWO certified copies. I think there's some miscommunication going on here. Now that you do have the one transcript "original", maybe you can keep a copy for yourself, and just have that original sent to appellate? You'd have to talk to the clerk handling the preparation of your record on appeal in the trial court.

Thanks for the points I can stick for this request guys.

Just a friendly reminder that those points are ONLY suited for that request, and may not be good general grounds of appeal.

Although you have LOTS of possible issues, using them to appeal is complicated because of the relative lack of objections. I'll have to see which ones are good and post suggestions one of these days....

[kutorei]

The general rule is that a paid CR should give you at least TWO certified copies. I think there's some miscommunication going on here. Now that you do have the one transcript "original", maybe you can keep a copy for yourself, and just have that original sent to appellate? You'd have to talk to the clerk handling the preparation of your record on appeal in the trial court.

I'm actually pretty confused, because at the end of the transcript, it says "Any court, party, or person who has purchased a transcript may, without paying a further fee to the reporter, reproduce a copy or portion thereof as an exhibit pursuant to court order or rule, or for internal use, but shall not otherwise provide or sell a copy/copies to any other party or person." So why would the court have to request ANOTHER copy for me to pay for?

I'll call the appellate court tomorrow on this.

Although you have LOTS of possible issues, using them to appeal is complicated because of the relative lack of objections. I'll have to see which ones are good and post suggestions one of these days....

Thanks! Next time I get a ticket, I'll be sure to learn what to object so as to make this easier. Hope your own case works out-perhaps you can petition the appellate court noting that there has been no correction and even defiance....?