Submission of Evidence "For Reference Only"

[themadnorwegian]

Thanks for reposting the transcript and the orders from the appellate division. I wouldn't sweat this too much. It sounds like the judges are saying that you followed the correct procedure, but you made your request too soon. 8.921(b)(1) says that:

Within 10 days after the last respondent's brief is filed or could be filed under rule 8.927, if the appellant wants the appellate division to consider any original exhibits that were admitted in evidence, refused, or lodged, the appellant must serve and file a notice in the trial court designating such exhibits.

If you take a quick look at 8.927, it reads:

(a) Time to file briefs

(1)The appellant must serve and file an appellant's opening brief within 30 days after the record is filed in the appellate division.

(2)Any respondent's brief must be served and filed within 30 days after the appellant files its opening brief.

(3)Any appellant's reply brief must be served and filed within 20 days after the respondent files its brief.

(4)No other brief may be filed except with the permission of the presiding judge.

(5)Instead of filing a brief, or as part of its brief, a party may join in a brief or adopt by reference all or part of a brief in the same or a related appeal.

In infraction appeal, the appellant, you, gets to file an opening brief and a rebuttal which is the reply brief. The respondent, who is the prosecutor, only gets to file a single brief. Any further rebuttal will have to wait until oral argument, if the court chooses to hold one. This means that the time to file your request to include the exhibits would be as soon as you receive a copy of the respondent's brief, or 30 days after you file your opening brief, whichever comes first.

In addition to the speed survey, I would request that the laser/radar calibration records be transmitted to the appellate division. You objected to the this evidence, and in my opinion, these were inadmissible business records. Since you want the court to evaluate this objection, and overrule the trial court, it would make sense to ask that this information be transmitted too.

[jefsanger]

Thanks for reposting the transcript and the orders from the appellate division. I wouldn't sweat this too much. It sounds like the judges are saying that you followed the correct procedure, but you made your request too soon. 8.921(b)(1) says that:

Within 10 days after the last respondent's brief is filed or could be filed under rule 8.927, if the appellant wants the appellate division to consider any original exhibits that were admitted in evidence, refused, or lodged, the appellant must serve and file a notice in the trial court designating such exhibits.

If you take a quick look at 8.927, it reads:

(a) Time to file briefs

(1)The appellant must serve and file an appellant's opening brief within 30 days after the record is filed in the appellate division.

(2)Any respondent's brief must be served and filed within 30 days after the appellant files its opening brief.

(3)Any appellant's reply brief must be served and filed within 20 days after the respondent files its brief.

(4)No other brief may be filed except with the permission of the presiding judge.

(5)Instead of filing a brief, or as part of its brief, a party may join in a brief or adopt by reference all or part of a brief in the same or a related appeal.

\



In infraction appeal, the appellant, you, gets to file an opening brief and a rebuttal which is the reply brief. The respondent, who is the prosecutor, only gets to file a single brief. Any further rebuttal will have to wait until oral argument, if the court chooses to hold one. This means that the time to file your request to include the exhibits would be as soon as you receive a copy of the respondent's brief, or 30 days after you file your opening brief, whichever comes first.

In addition to the speed survey, I would request that the laser/radar calibration records be transmitted to the appellate division. You objected to the this evidence, and in my opinion, these were inadmissible business records. Since you want the court to evaluate this objection, and overrule the trial court, it would make sense to ask that this information be transmitted too.

I will ask to have that included. Right now I have the basic outline of what I want in my brief but not sure how to do the points and authorites page. Any suggestions?

[themadnorwegian]

David Brown's book Fight Your Ticket and Win in California has a section on appeals that includes a appellant's opening brief. You can probably find a copy at your local library, or law library. Remember to read all of the authorities that you cite. Highwayrobbery.net keeps an archive of briefs filed in red-light camera appeals. Obviously, you won't be making the exact same arguments, but if you're interested in looking at them for matters of form, their archive might be helpful too.

[jefsanger]

Hi TMN,

The appeal drags on. I had submitted a motion to augment the record 10 days after the final day respondent could send his brief as per rule of court 8.921(b).
Now it seems the court has rejected my motion because I did not send a copy of that motion and request to augment to the lower court. In fact, I did send that, have evidence of that and even a letter from the appeals clerk at that lower court in which she mentions the request to augment and the date recieved. So it appears I did comply with the rule of court. Date for the oral arguements is 9/9. I am sending all this evidence of compliance to the appeals clerk but not sure if they will accept it.
Do I have any other recourse? All this is to get the speed survey used at trial into the appeals record. The clerk at the lower court says she doesnt have that exhibit in the file.

[themadnorwegian]

I don't understand why you haven't read the Rules of Court more carefully. 8.921(b) says that you're supposed to serve and file the notice for the document with the trial court, and serve a copy on the appellate division. This whole "serve a copy" business means that you need to actually go through the process of getting somebody else to send the documents and attach a proof of service to both the originals and the copies. 8.923 refers us to 8.841 for a request for Augmentation or Correction in the Appellate division. 8.841(c) says that if the clerk fails to comply with a notice to correct an omission or include an exhibit, then it's appropriate to file a motion to Augment the record under 8.841(a). In this case, the motion would have to be served on the opposing party and filed with the appellate division. The rules of court require motions in the appellate division to have a memorandum.

It seems that you've made the following errors, which were preventable:

1. Failed to follow the procedure in 8.921(b) for the third time
2. Sent the notice to the appellate division instead of the trial court
3. Failed to include proof of service
4. Filed a motion to augment before using the procedure in 8.921(b)

It's inconceivable to me that you would continue on this way. The last thing that I would want to do is annoy the judges who are going to hear my appeal before I ever show up to present my case. You also have the problem that the exhibits that need to be transmitted in accordance with 8.921(d)(2) aren't in the possession of a party to the appeal. The assumption here is that the respondent would be the prosecutor and he or she would have these exhibits. In your case, the prosecutor didn't attend the trial and the exhibits are in the possession of the police department. I don't really know what suggestions to offer you, since it seems like you are unwilling or unable to follow the rules of court. 9/9 is a Sunday, and since you only have 4 days until the 10th, you may be out of luck.

[Mr. Knowitall]

This whole "serve a copy" business means that you need to actually go through the process of getting somebody else to send the documents and attach a proof of service....

Once the original action is commenced, which in a traffic case is by the issuing jurisdiction, there is no need for a pro se litigant to use a third party process server. They can serve their own documents and execute and file proofs of service indicating that they did so.

Beyond that, appellate courts tend to be very picky about compliance with their rules.

[themadnorwegian]

Once the original action is commenced, which in a traffic case is by the issuing jurisdiction, there is no need for a pro se litigant to use a third party process server. They can serve their own documents and execute and file proofs of service indicating that they did so.

That's news to me. Would you please cite the section of the California Code of Civil Procedure that exempts pro se litigants from these requirements?

[Mr. Knowitall]

That's the rule for everybody. There's no special, extra burden on pro se litigants.

[jefsanger]

The service can be done by mail its one of the options on form APP109 proof of service appellate.
Point is, I DID serve the trial court within the time frame indicated. That was around the 13th of august, well within the 10 day period, and served a copy on the appellate court (its indicated on the APP109 as one of the persons served) The trials court finally sent me a letter on august 29 (recieved on the 31st) to say they didnt have the document in question. I hope that I have not annoyed the appellate judges by pointing out what must be a clerical error somewhere.

[That Guy]

Here is what I think... I think that if you were to retrace your steps through this thread, you'd realize that the opinion you received as to the legitimacy of an appeal in your case, was based upon statements that you made, but statements that you either retracted, replaced, covered up, hid or claimed did not exist.

I believe it was Quirky who first suggested you may have grounds for an appeal in post #9:

To get back to the OP, if the officer had the physical survey in his hand and showed it to you and the judge, and the judge said "may be received by reference", that is the kind of judicial notice Ellis allows. All kosher there. It does mean that the court won't store the survey as an exhibit.

However, if you appeal, the appellate court will go strictly by what the record shows. If it does not show that the survey was physically produced, or that it was produced but the judge did not explicitly rule that it justified the speed limit, there's a good chance you could win.

But you'll also note that in that same post, he told you that the court will not store exhibits and even if it did in this particular case, the officer did not submit the survey into evidence. That was what you stated, was it not? So why are you now surprised that the clerk is telling you there is no record of such document?

Quirky's claim is that if the record does not show that the survey was not physically produced, or that it was produced and the judge did not explicitly rule that it justified the speed limit, there's a good chance you could win.

I say there is yet another possibility that Quirky did not consider simply because he prematurely took your word, assumed you knew what you were talking about and took your word for granted.


He even confirms his opinion a bit later after you posted your version of the transcript:

I think you have a good chance upon appeal. Nothing in the record suggests that the survey was dated within five years of the date of the violation. In context, the "reference" bit may mean nothing much at all, since it appears to have been admitted as an exhibit.

All of ^that^ was based on what you posted in post 13. But if that "transcript" was manipulated, was inaccurate, incomplete, or if the description of the survey was lacking, then clearly, his opinion was not correct but not because he was wrong, simply because he was mislead by you.

I think it is possible that you manipulated that page.... I mean if when you were asked about the court/judge's name by Quirky:

May I ask which court/commissioner this was?

... You provided this answer:

Location was chatsworth court..commissioner Brand. Familiar with him?

And yet you later post a transcript showing:



.... If you would intentionally lie about something as immaterial as the judge's name and the court you were in, do you expect me, or anyone else to believe anything else you posted?

So is it possible you manipulated the transcript and that is why you didn't post page 2 when you posted it? Hell yeah! Question is, how are you going to manipulate the record that was submitted to the appellate division?

How are you going to remove any references to a school zone which would otherwise make the speed trap laws inapplicable, which would also imply that a speed survey is not required and all the officer have to do is testify that it is a school zone and therefore, him submitting it as a piece of evidence by reference was indeed all that was requireed of him simply because he cited you in what was a school zone, which would make your conviction a legitimate judgement and would make your appeal a waste of the court's time?

OK, so lets assume the officer did not mention a school zone on page 2 of the transcript... Why did you post all seven pages of transcript with the exception of page 2? Would you not be hiding the same information that you were hiding by keeping the survey away from everybody?

And why is it that you objected to the survey (as shown on page 2) -which you posted your own version of in post 13-? Was it because the survey was not certified? Was it because it was not a governmental record? Or was it for some other reason? Was it because as you later asked, the critical speed was 48 instead of 47? But you claimed you were not shown the survey nor did you have your copy at trial? So how did you know what the critical speed was?

Speaking of that, you claimed for a couple of weeks after your trial was over that you could not post the survey simply because you did not have a copy of it and that you were not shown it by the officer at trial... So how did you come up with your list of objections which you made as part of your 1118 motion? You can refer to... Well, here:



You made a long list of reasons why the survey was not valid... None of which were directed at the speed limit as testified to by the officer, why is that?

What is the likelihood that the officer testified to a survey that reported the posted speed at 40mph, without any mention of a 25mph speed limit or any mention of a school zone, only to have him testify to both a school zone and a 25mph speed limit later on in his testimony? I say the chances of that are zilch. What do you say?

In other words and in trying to guess what is in fact on page 2 of the transcript, what are the chances that we will find some mention of a school zone and of a 25mph speed limit as part of the officer's testimony? I say the chances of that are pretty high. What do you say?

So here is page 4 of the transcript... Oh shucks... You missed this part, didn't you? In your haste to come up with a million reasons why you couldn't post the survey and try and find ways to hide page 2, you missed this part:



Specifically:

That is well within the school zone.The posted speed limit within a school zone is 25-miles-an-hour.

I observed the defendant travelling eastbound number two lane at an estimated speed of 55-miles-an-hour.

And your appeal just went in the crapper.

Question is... You manipulated the transcript to try and convince us that your case is appeal worthy.... How are you going to do that to the court? You're going to lie to the at your oral arguments? Are you going to tell them "the transcript is not accurate but here is your version of events"?

Also, you've made several meaningless objections and, while you claimed a posted 40mph zone and that you were cited for 40mph, the opfficer testifies he clocked you in a 25mph zone and you keep quiet? Seriously?

Because with or without the survey, they will simply review the record "in a light most favorable to the judgement" (and no, I'm not posting citations, you can look for that on your own), once they see a reference to a school zone, with no objection from the defendant, the requirement for a survey goes out the window, radar calibration follows that and radar training flies out next... You're concerned about them being upset because you could not figure out a simple rule of court? Wait until you find out how pissed off they are about the fact that the rejection letters and more was all a waste of their time.

And before you come back claiming it was 10:35am and children were in class, it appears that Taft High School isn't fenced and that makes it a school zone for the entire day while school is open.

In fact, you confirm this in post # 30, which with the exception of "traffic school" that was the first time you mentioned the word "school" in reference to a "school zone":

Quirky or anyone,

I noticed something in the traffic survey raw data sheet that I had not noticed at or before trial.
The street in question borders a school. Posted speed 40 during non school zone hours. The raw data study for this side of the street was conducted on a school day at 15:00-15:15hrs. The school ends their day at 15:12. It appears part of the study was being conducted in a school zone 22352(2)(b)
Is that legal to collect raw data on traffic flow during school hours? Sadly I didnt notice this before trial but can I bring it up on appeal? I did object to the survey but not for this particular thing.

If it isn't/wasn't an all school hours school zone, then you need to make an objection in court and offer affirmative proof of the contrary. You didn't! You clearly knew that and hence, the answer to my question as to why you did not object at that time!

Oh and by the way, that was proof that you had your survey at the time... So before you claim you didn't know it was a school zone... That comment proves you had a survey and should have concluded that accordingly!

And yet, same day 02/15/2012, TMN calls you on it and posted:

I also don't think that you posted a copy of the engineering survey.

Next day 02/16/2012, you make further comment to the contents of the survey:

Thanks for the reply. Seems like a bad idea to look for free flowing traffic when the area is a school zone which was my thinking.
Quirky had some great ideas ive checked the disproportionate # of drivers...33 out of 50 were made violators. Also survey lacks
accident info. Has the number of cars involved in injury, fatalites, property damage but no statistics, or historic ranges. Seems lacking.

Wow... You knew the survey was lacking all that info but you did not have it nor had you seen it?

Four or so hours later, you realize you've given too much info about the survey and you might have to pull back again... So you post:

Ill try to get the survey posted soon I do have it here. The survey was introduced as evidence by reference and the raw data page was part of that.

Which makes absolutely no sense at all if you read it... But I think you're trying to say that you only saw/received the raw data pages and that the raw data pages was part of what was introduced but you still claimed you did not see it!

Then again, the next day, and in asking Quirky for confirmation of your strategy, you posted:

So far I have:

No POST certification presented in court only testified to hours of training.
no registered engineer's seal on the addendum for extention to 10 years
independent lab did the certification of his laser. Some place called Kustom Signals inc

So now you've covered all sections of a survey from raw data all the way to the extension it receives seven years after it was conducted... And yet you did not see it, not did you have it... You're so full of shit, you'd make a cow's ass blush in embarrassment!

There is so much bullcrap in your thread I am truly embarrassed that I had not noticed it before. I could in fact go on and on and on and there is so much more. But I think I made my point... You know I am not one to stay quiet in a thread where similar matters are being discussed... And you'll notice that though I posted early in this thread, it went for a while at least with minimal comment from me... Reason... I despise liars and I must have had a feeling about you!

Of course you could come back and deny it all, but see, it wasn't just me... In fact, perfect proof of this is in the other thread you started... You hadn't said much yet and jk called you on your attempt to deceit and bullshit, and I quote:

Your statement:

Was not using a cell phone and there was no cell phone near me or in my car when the officer pulled me over.

is a bit cryptic and suggests you are attempting to hide some pertinent facts.

And later in that same thread, you had no problem confirming that you had made up the story about scratching your ear:

Ok TG the scratch defense is out

... and that leaves no doubt that you'd lie under oath! Even more PATHETIC!

Oh, and good luck next Sunday 9/9/2012 when you appear for your oral arguments!