How to Make and File an Effective Appeal

[kutorei]

Small update: I've learned a valuable lesson: always buy certified mail when you mail ANYTHING to the courts.

Up till now, I thought paying for certified mail/return receipt was a matter of paranoia on my part. I've now discovered it's more of a must-have. I sent in my Points as mentioned above, and then got a mail saying they(the court) hadn't received it. So I went over to the clerk's office, waved my Certified Mail Receipt in their faces until they found it.

They've now lost my file once and my correspondence twice.

They THINK they'll send in my appeal case to the appellate court next week. I'm not holding my breath.

[kutorei]

Opening brief due date is set for April 6th;

Currently, my points go as follows:
1. Failure to meet burden of proof per 22350
2. Due to failure of 22350, not guilty via 22351
3. Speed trap: survey did not justify posted 30
4. court seemed to take into account personal experience in ruling on traffic density(questionable argument I know. Holds weight at all?)
5. Court erred in not accepting CalTrans average daily traffic count as indication of traffic density(I don't think this holds much weight, but I feel I should throw it in anyway)

Does anyone have some kind of formatting example I can follow for writing the opening brief? I gather I'm supposed to have a cover page, list of cases cited, and my points in certain word format, but it would be much more helpful to work off an example somewhere via Rules of Court 8.204. Also, what do they mean by "State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from."? It's pretty clear I'm filing an appeal to reverse judgement, so do I stick a statement to that effect at the end of my brief?

Thanks for any and all help; I'm like a lamb to the slaughter but I just won't give up!

[themadnorwegian]

Currently, my points go as follows:
1. Failure to meet burden of proof per 22350
2. Due to failure of 22350, not guilty via 22351

These two points are essentially the same. You're trying to argue that the prosecution didn't present sufficient evidence to sustain your conviction. Have you read People v. Behjat and People v. Huffman?

3. Speed trap: survey did not justify posted 30

Be sure to cite Goulet and the CA-MUTCD for this one.

4. court seemed to take into account personal experience in ruling on traffic density(questionable argument I know. Holds weight at all?)

I would have objected when the judge took judicial notice of the traffic conditions on the street where you were cited. I thought that the traffic flow was a fact that was in dispute. You can try to argue that point, but you didn't object at trial. You can try to argue that the judge denied you due process by acting as a prosecutor, but I'm not sure that will fly. Carlucci could be cited for this, but I believe there are better cases. (I'm sorry; I don't have them handy at the moment.)

Does anyone have some kind of formatting example I can follow for writing the opening brief? I gather I'm supposed to have a cover page, list of cases cited, and my points in certain word format, but it would be much more helpful to work off an example somewhere via Rules of Court 8.204. Also, what do they mean by "State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from."? It's pretty clear I'm filing an appeal to reverse judgement, so do I stick a statement to that effect at the end of my brief?

You can use a format that's similar to Quirky's writ. If you're willing to take a trip to the Law Library, you can look at CEB's Appeals and Writs in Criminal cases. That explains matters of form and substance, and has some sample forms and letters. Fight Your Ticket and Win in California by David Brown also has an example of an appellant's opening brief. The highwayrobbery.net site has collected briefs from red light camera cases. The citations may not be appropriate for your case, but if your just concerned about form, it could be worth a look.

[themadnorwegian]

Just to follow up on what I wrote this morning, the additional citations for the judge acting as prosecutor are:

People v. Daggett, People ex rel. Kottmeier v. Municipal Court, People v. Handcock, and People v. Ferguson.

Make sure you read any case before citing it, and include just the relevant portions in your brief.

Evidence Code section 452(g) covers the judge taking judicial notice of facts that are common knowledge within their territorial jurisdiction, but they cannot reasonably be the subject of dispute.

452. Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:
<...>
(g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.

You could try to argue that the judicial notice of traffic conditions on the street where you were cited was an improper use of judicial notice, since the traffic conditions were part of the dispute in the trial. There aren't many great citations on this one, most simply re-quote Evid Code 452 (g), but Carleton v. Tortosa gives the most thorough treatment in its footnotes.

[That Guy]

Evidence Code section 452(g) covers the judge taking judicial notice of facts that are common knowledge within their territorial jurisdiction, but they cannot reasonably be the subject of dispute.

I'm curious why you brought this up TMN... Was it to enhance one of the OPs arguments, or are you explaining that one of his arguments isn't valid because of 452(g)?

In a previous discussion with Quirky, I wondered whether a calibration certificate and one which was completed by a private firm, maybe authenticated if this company happens to perform ALL calibrations for the LEA and the judge has become familiar with the firm, their certifications, the signatures attesting to their authenticity... Thereby making it a matter which cannot reasonably be the subject of dispute!

Agree?
Disagree?
Your opinion?

Thanks!

[kutorei]

Just to follow up on what I wrote this morning, the additional citations for the judge acting as prosecutor are:

People v. Daggett, People ex rel. Kottmeier v. Municipal Court, People v. Handcock, and People v. Ferguson.

Make sure you read any case before citing it, and include just the relevant portions in your brief.

Evidence Code section 452(g) covers the judge taking judicial notice of facts that are common knowledge within their territorial jurisdiction, but they cannot reasonably be the subject of dispute.



You could try to argue that the judicial notice of traffic conditions on the street where you were cited was an improper use of judicial notice, since the traffic conditions were part of the dispute in the trial. There aren't many great citations on this one, most simply re-quote Evid Code 452 (g), but Carleton v. Tortosa gives the most thorough treatment in its footnotes.

Thanks very much for the extensive help given so far =) How are you finding your case law? So far, any and all case law I've found has been via sites like highwayrobbery and helpigotaticket.

I'm curious why you brought this up TMN... Was it to enhance one of the OPs arguments, or are you explaining that one of his arguments isn't valid because of 452(g)?

In a previous discussion with Quirky, I wondered whether a calibration certificate and one which was completed by a private firm, maybe authenticated if this company happens to perform ALL calibrations for the LEA and the judge has become familiar with the firm, their certifications, the signatures attesting to their authenticity... Thereby making it a matter which cannot reasonably be the subject of dispute!

Agree?
Disagree?
Your opinion?

Actually, is there a possible way to discover if the course the officer completed was POST certified? Certificate just says 'CITY Police Dept.'

[That Guy]

Actually, is there a possible way to discover if the course the officer completed was POST certified? Certificate just says 'CITY Police Dept.'

If it doesn't say "P.O.S.T." on it then it is not a "P.O.S.T." certificate/course... etc!

I do believe it is TMN who has a document showing the criteria for what constitutes a P.O.S.T. certificate; may be he can be kind enough to post it!

[kutorei]

If it doesn't say "P.O.S.T." on it then it is not a "P.O.S.T." certificate/course... etc!

I do believe it is TMN who has a document showing the criteria for what constitutes a P.O.S.T. certificate; may be he can be kind enough to post it!

I was looking over the transcript again, and the officer testified that the course was P.O.S.T. certified, even though the certificate says nothing of the kind. Is there any possible way to verify the truth(or preferably the lie) of this?

[That Guy]

I was looking over the transcript again, and the officer testified that the course was P.O.S.T. certified, even though the certificate says nothing of the kind. Is there any possible way to verify the truth(or preferably the lie) of this?

I don't know of anyway to verify if he is P.O.S.T. certified or not... Other that checking his certificate to see if it states it is certified by POST!

What one can typically do, however is, and as soon as he mentioned his training and if he adds the P.O.S.T. bit, is (Courtesy of Quirky) to object on the grounds that it is hearsay for him to claim his training was P.O.S.T. compliant or P.O.S.T. approved and certified without some sort of written verification either from post or on his official certificate.... Barring an objection, this issue is moot on appeal.

Additionally, the major point to consider here is, P.O.S.T. certification is only a requirement for surveys that are 5 years or older under VC 40802. I glanced up quickly and was unable to find any reference to the age of or a link to your survey... So keep in mind that training and certification (or lack thereof) would present a lawful basis for an objection/grounds for appeal/a reason and an opportunity to butt heads with a judge if and only if your survey is 5+ years old. If it is not, you are simply wasting research time and are clouding whichever issues happen to be clear in your case (like the survey making an extra reduction of the speed limit).

You only need to succeed on one set of grounds to remand/reverse!

[themadnorwegian]

I'm curious why you brought this up TMN... Was it to enhance one of the OPs arguments, or are you explaining that one of his arguments isn't valid because of 452(g)?

One of Kutorei's points was that the judge seemed to take personal experience into account when ruling on the evidence in her trial. In fact, from the transcript, the judge said, "I think I can take judicial notice of the general traffic conditions in that area. It has been my experience, and I think it's common knowledge in the community that the road can actually have quite heavy traffic ..." My point is that it's only appropriate to take judicial notice if the fact isn't in dispute, and previously in the transcript Kutorei offered an opposing viewpoint. IMO, that makes is a questionable use of judicial notice.

In a previous discussion with Quirky, I wondered whether a calibration certificate and one which was completed by a private firm, maybe authenticated if this company happens to perform ALL calibrations for the LEA and the judge has become familiar with the firm, their certifications, the signatures attesting to their authenticity... Thereby making it a matter which cannot reasonably be the subject of dispute!

Agree?
Disagree?
Your opinion?

I think it would have to be common knowledge not just to the judge, but to other members of the community. I think the point of Evid Code 452(g), is to allow certain jurisdictions to take note of facts that are indisputable and common knowledge in a particular community. However, for a Laser certification, I wouldn't expect the average person in a particular county to have any familiarity.

Thanks very much for the extensive help given so far =) How are you finding your case law? So far, any and all case law I've found has bee
n via sites like highwayrobbery and helpigotaticket.

I got the citations for the judge acting as prosecutor out of David Brown's Fight Your Ticket and Win in California. The citations for judicial notice came from Jefferson's California Evidence Benchbook, which is published by CEB. Google Scholar is also really helpful, but it can be hard to find a particular cluster of relevant cases. For that, you have to go to the law library and look up citations in the annotated code. Westlaw publishes West's Annotated Code of California, and Lexis publishes Deering's Annotated Codes.

If it doesn't say "P.O.S.T." on it then it is not a "P.O.S.T." certificate/course... etc!I do believe it is TMN who has a document showing the criteria for what constitutes a P.O.S.T. certificate; may be he can be kind enough to post it!

Agreed; it should state that the officer is POST certified. Ideally, it should have a seal and signature of a government official. If it has neither, it may not be admissible under Evid Code. 1280, see also Evid Code 1452 and 1453.

The POST Administrative manual states what the required content is for a POST certificate. This is in Chapter 7 of the Post Administrative Manual, regulation 9076(d), on page 7-19 of the manual.

I'm not sure how successful this approach will ultimately be. In my trial, the judge accepted the officer's certifications on the weight of his testimony. However, I forgot to object about his statement that his certifications were hearsay.

What one can typically do, however is, and as soon as he mentioned his training and if he adds the P.O.S.T. bit, is (Courtesy of Quirky) to object on the grounds that it is hearsay for him to claim his training was P.O.S.T. compliant or P.O.S.T. approved and certified without some sort of written verification either from post or on his official certificate.... Barring an objection, this issue is moot on appeal.

I also discussed this with Quirky prior to my trial. He recommended citing People v. Dawkins, as the authority for this hearsay objection.