No Right Turn on Red Ticket, VC 22101(D)

[California student]

Oh, I definitely plan on requesting a new set of documents. Heck... it's not like the ticket will even be in the system for at least 3 weeks. Obviously I don't have to wait for that, but time is something I've got.

I also look forward to your eviscerat... err... critique.

[groove502]

eviscerat... err... critique.

Lol.

Like TG and I said, no harm in asking for the latest docs. IIRC, she didn't even charge me the copying fee at all. They just showed up in the mail one day.

edit: Sorry about the 4shared crap. I didn't even realize multiupload was down forever. I need to find another public host thing that doesn't require logins.

[themadnorwegian]

If you've read any of Quirky's MUTCD arguments, you've read my counter arguments which briefly stated, go as follows: The one single lawful requirement that ANY court (even on appeal) will be interested in (under MOST circumstances -including this one-) is that the vehicle code requires that ONE sign be posted. I firmly believe that unless you can prove otherwise, even the sign posted at the light-post across on the far sidewalk, is sufficient to establish a prohibited act. But please, as I tell everybody it is your case, run it your way! For your sake, I hope your night court stint works for you again and that way you would not have to get ^this^ desperate...

I have a feeling that this post won't be appreciated by the pro MUTCD crowd, but I stumbled across this argument while researching something entirely different. Since I'd always prefer to know thy enemy, I'm posting it for general interest. It confirms a lot of what TG has been arguing, and provides some additional case law.

The argument is essentially that statutory (or regulatory) noncompliance doesn't automatically render evidence inadmissible, unless the statute specifically provides that failure to comply shall result in exclusion. An example of a statute that specifies explicit exclusion would be the speed trap portion of the vehicle code. In People v. Sangani, the court ruled that evidence about toxic waste wasn't inadmissible simply because the company that performed the tests didn't follow all of the regulatory requirements. The court said, essentially, that statutory compliance merely goes to the weight of the evidence. As an aside, this neatly explains why the judge in my trial ruled that POST certificates that didn't meet all of the regulations were still admissible. Sangani cites People v. Adams and People v. Rawlings as additional prior authorities. Both Adams and Rawlings dealt with whether blood alcohol tests could be excluded if the testing procedures didn't meet the regulations. In both cases, the courts ruled that noncompliance affected the weight of the evidence, but not its admissibility. All of these cases were quick to observe that Evidence Code 351 says that, "[e]xcept as otherwise provided by statute, all relevant evidence is admissible."

In his California ticket book, David Brown suggests that Penal Code section 20 require that the prosecution provide some showing that the defendant had a joint operation of act and intent, or criminal negligence. Penal Code section 26 lists people who are considered incapable of committing crimes. Some examples are those who committed the act, but did so unconsciously; through ignorance or mistake of fact; through misfortune or accident, with no evil intent; etc. Brown alludes to the fact that a defendant who can bring one of these defenses might be treated favorably by a judge, but he doesn't back these assertions with any case law. I had wondered if this might provide a reasonable defense for not being able to see a sign that's posted in an unexpected location. Unfortunately, the reason that Brown cites no case law is because there's a rather large body of case law that contradicts this approach.

It turns out that for felonies, or other common law crimes, these sections of the Penal Code are very much in play. However, for infractions and other crimes of a statutory nature, the only thing that the prosecution must prove is that the defendant committed the alleged act. Wrongful intent isn't a bar to criminal sanctions if the statutes are enacted for public health and safety. In Re Jennings: legislative history showed compelling intent that the crime should be a regulatory offense; criminal intent not an essential element of the crime. People v. Vogel: evidence of wrongful intent isn't required in interests of enforcement. Delfino v. Sloan: ordinances designed to protect the public health and safety may impose a positive duty, and strict criminal liability for failure to perform that duty, as a substitute for the mens rea of the common law. In re Jorge M: A statute should not be read as containing any mental state requirement that the prosecution would foreseeably and routinely have special difficulty proving. People v. Simon: Section 20 is applicable except where the purpose is to protect public health and safety and the penalties are relatively light.

Apologies for being a bearer of bad news. I do hope the night court demurrer works as well, or better, than it did last time.

[Edit: there's some leeway in the statutory non-compliance argument. I ran across this in a respondent's brief for an unpublished red light camera appeal. The appellant won and the judgement was reversed. There might still some scenarios where it's possible to show that failure to comply with statutes or regulations makes a law unenforceable. Extra credit points for someone who can find case law to illustrate this point. I haven't had any luck yet.]

[California student]

I just checked and the ticket has been filed with the court (I'm actually surprised that it was done so quickly given past experiences). I've also sent an email to CalTrans requesting records for the sign to their Public Records Officer (link). My current due date is 7/10/12.


Since the first action is the demurrer regardless of anything else, how exactly do I go about filing it? Just walk up to the clerk with a copy of it asking the clerk to file it for my case? Do I need to serve it on the DA as well, or is it just file and argue at arraignment? I know my first go at this wasn't necessarily done appropriately and the judge in that case didn't rule on the merits of the argument one way or another.

[themadnorwegian]

There's some ambiguity about this, even in practice manuals. The portion of the penal code that covers demurrers is 1002-1005. Pen C 1002 defines a demurrer as a pleading, but it's not clear whether or not Rule of Court 4.111 applies. It looks like you have to put the demurrer in writing, and file it, and then state in open court that you demur to the charges. The written demurrer must be signed by the defendant, and should distinctly specify the grounds of objection. Since it is a pleading, be sure to attach a memorandum of points and authorities to the demurrer.

CEB's criminal practice manual recommends that counsel contact the court to obtain information about local rules that pertain to demurrers. Based upon those rules, and Rule 4.111, it sounds like different jurisdictions have different requirements for how file a demurrer, and whether or not service is required upon the opposing party. Just to be safe, take the original and 3 copies to court. File the original, and then get the 3 copies stamped by the clerk. When you have to demur in open court, if the judge doesn't yet have your demurrer, you can give him (or her) one of the stamped copies.

[That Guy]

There's some ambiguity about this, even in practice manuals. The portion of the penal code that covers demurrers is 1002-1005. Pen C 1002 defines a demurrer as a pleading, but it's not clear whether or not Rule of Court 4.111 applies. It looks like you have to put the demurrer in writing, and file it, and then state in open court that you demur to the charges. The written demurrer must be signed by the defendant, and should distinctly specify the grounds of objection. Since it is a pleading, be sure to attach a memorandum of points and authorities to the demurrer.

I'd simply follow Quirky's format. His demurrer is posted under his Google Docs link in his appeal thread.

CEB's criminal practice manual recommends that counsel contact the court to obtain information about local rules that pertain to demurrers. Based upon those rules, and Rule 4.111, it sounds like different jurisdictions have different requirements for how file a demurrer, and whether or not service is required upon the opposing party. Just to be safe, take the original and 3 copies to court. File the original, and then get the 3 copies stamped by the clerk. When you have to demur in open court, if the judge doesn't yet have your demurrer, you can give him (or her) one of the stamped copies.

PC 1006 states that "Upon the demurrer being filed, the argument upon the objections presented thereby must be heard immediately, unless for exceptional cause shown, the court shall grant a continuance". Which leads me to believe that it need not be filed in advance. Which would also suggest that it need not be served and PC 1007 further supports that in that it offers 10 days for then to amend or refile:

Pc 1007 ..... If the demurrer is sustained, the court must, if the defect can be remedied by amendment, permit the indictment or information to be amended, either forthwith or within such time, not exceeding 10 days, as it may fix, or, if the defect or insufficiency therein cannot be remedied by amendment, the court may direct the filing of a new information or the submission of the case to the same or another grand jury.....

Still, I would serve a copy of the D.A and/or C.A.... Speaking of Quirky, his demurrer was denied by the court on the grounds that it was not served 35 days in advance -which later turned out to be a requirement for a demurrer in a civil matter not a criminal case-. I think if you serve it with 10 days in advance of the hearing date (typically the arraignment) you should be safe in those regards!

And to reiterate what TMN stated, you MUST check local rules and best answers you're going to get under this topic will have to be via the criminal court clerk versus traffic!

[California student]

I already figured that I'd have to go have a chat with the criminal court clerk. On the bright side, I doubt that it's going to be an hour to 2 hour wait like there is for the traffic clerks.

Also, how best would it be to find out if it was the DA or CA? If it's a CHP ticket, would it be safe to assume that it's the DA prosecuting me?

[themadnorwegian]

Also, how best would it be to find out if it was the DA or CA? If it's a CHP ticket, would it be safe to assume that it's the DA prosecuting me?

That's probably a safe assumption. It also depends your goals. When I filed my IDR, I sent it to the CA, DA, PD, and filed the originals with proof of service with the court. In this situation, since you're not super interested in getting a response, it's probably sufficient to send it to just the DA. I couldn't find anything on the city of Claremont's website that indicates that the City Attorney is responsible for prosecuting traffic violations. In fact, he doesn't even get his own webpage. The City Attorney also didn't show up in the index of the Municipal Code, so he may simply be a legal advisor to the City Manager. Government code 26500 says that except as otherwise provided by law, the DA is the prosecutor. Unless there's a law in your county or city that makes somebody else the prosecutor, it's probably the DA. You could try asking the court clerks, in case they have a rule, but who knows if you'll get a helpful response. The LASC posts their rules here, but most of the stuff that pertained to demurrers and law and motion was for civil matters. The criminal department may have a different procedure. (Sorry if this wasn't a very helpful answer.)

[That Guy]

For L./ A. County, the LA County D.A. has a list on their website.

TMN, your explanation is sound though it might be a bit time consuming. Usually, if a city is incorporated, it has or can provide its own police/fire and other services but that also means the it has a city attorney handling matters in court and prosecuting people who commit crimes within the city.

The "police/fire" qualifier gets confusing at times simply because some cities contract out with the County Sheriff to provide law enforcement or with the County Fire Dept ro provide Fire/Emergency services. So just like every rule, there are always exceptions.

I guess an argument can be made that by default the county prosecutor can perform that duty even if there is a city attornery.

As for the CHP... They have law enforcement jurisdiction over the entire state, at least for traffic enforcement. Clearly they would rather not engage in a domestic violence dispute but if that resulted say in a kidnapping of a child (and assuming that an Amber Alert was put out) , you can be sure that they will make an enforcement stop on any vehicle that resembles the suspect vehicle.

This could also mean that they can cite for traffic matters within city limits as well as in unincorporated areas of any county in the entire state, and prosecuting each individual case would depend NOT on the fact that it was issued by the CHP but more so on whether it was committed in a city and that city has a city attorney or if not then it defaults to the county D.A.

[California student]

This could also mean that they can cite for traffic matters within city limits as well as in unincorporated areas of any county in the entire state, and prosecuting each individual case would depend NOT on the fact that it was issued by the CHP but more so on whether it was committed in a city and that city has a city attorney or if not then it defaults to the county D.A.

Technically speaking, couldn't any police officer cite for traffic violations committed in the officer's presence at any location in the state under CPC 830.1 (a)(3)?

"The authority of these peace officers extends to any place in the state, as follows:
...
(3) As to any public offense committed or which there is probable cause to believe has been committed in the peace officer's presence, and with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of the offense."

http://www.leginfo.ca.gov/cgi-bin/di...ile=830-832.17

Non-collision traffic violations, especially the normal infraction tickets (e.g. speeding, stop signs, failure to obey signs, etc. Basically everything except red light cameras and people calling in drunk drivers), are always cited because they are committed in the officer's presence and, since most people are driving at the time, there is immediate danger of the escape of the perpetrator of the offense. Granted, I imagine that there are both jurisdictional politics and procedural road blocks (i.e. filing citations in a different court system) that prevents LA PD from sitting in San Francisco writing traffic tickets, but legally it appears to be acceptable.