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  1. #1

    Default Do You Restart Discovery After Requesting a Trial De Novo

    My question involves a traffic ticket from the state of: CA

    So filled out my Trial De Novo request, am now waiting for a court date to be set. Do I need to re-submit another Discovery request to the DA and to the Court Clerk? What about requesting the Officer's statement from the TBD? Or does my initial Discovery request still stand?

    FYI, the DA refused to comply with my original Discovery request before the TBD.

  2. #2
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    Default Re: TBD Guilty. Going to De Novo. Resubmit Discovery

    Quote Quoting surfer349
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    My question involves a traffic ticket from the state of: CA

    So filled out my Trial De Novo request, am now waiting for a court date to be set. Do I need to re-submit another Discovery request to the DA and to the Court Clerk? What about requesting the Officer's statement from the TBD? Or does my initial Discovery request still stand?

    FYI, the DA refused to comply with my original Discovery request before the TBD.
    That's a pretty short post considering you had a bunch of templates and legal precedents to reference and would like to discuss motions and court strategy..

    And you left out the part about you not serving a copy of the request on the police agency and the court, or was it the D.A. suggesting you do that one thing if you expect compliance.

    So why would your initial request "stand" when in reality, it was already rejected?

    If you want the officer's statement, you can request it from the court... And in fact, if you walk in to court complaining about not receiving discovery, all while you have a stack of papers consisting of the entire set of evidence that the officer will resubmit as part of your TDN (<--- there is your discovery), you really are shooting yourself in the foot. So like I suggested in the other thread, get off the idea that you will even be in the same neighborhood as a dismissal by pulling the "discovery card"! It simply won't work.

    But hey, if you have something up your sleeve... I'd expect you would have shared it by now!

    - - - Updated - - -

    EDITED TO ADD:

    You also need to provide the code section number you were cited for. Thanks!

  3. #3

    Default Re: TBD Guilty. Going to De Novo. Resubmit Discovery

    Ok, "That guy," you're referencing another [older] thread. take your own advice?

    Anyway, I don't really understand what you're getting at.

    1. I DID serve a discovery to the DA and the court before the TBD. I'm sure you're aware of PC 1054, right? The police officer/agency is not the one that gets served with the Discovery request. Discovery is between the parties (Plaintiff/defendant) and the officer is simply a witness.

    2. The whole point of Discovery is to get the officer's statement and notes from the traffic stop. I requested that and both the court and the DA refused to comply (before the TBD). I don't know what you're talking about with "a stack of papers consisting of the entire set of evidence that the officer...." What is shooting myself in the foot?

    3. My question is whether I need to treat this De Novo as a completely different trial or a "continuance" of the entire case? Do I need to send a Discovery request AGAIN or does my previous Discovery still stand? Again, they refused to comply so I can make a motion to dismiss any evidence (officer's statement) due to lack of discovery.

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    Default Re: TBD Guilty. Going to De Novo. Resubmit Discovery

    Quote Quoting surfer349
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    Ok, "That guy," you're referencing another [older] thread. take your own advice?

    Anyway, I don't really understand what you're getting at.
    Are y trying to be a smart ass, or are you really this obtuse? I never said you couldn't reference older threads. I said do no post in/revive older threads. BIG difference!


    Quote Quoting surfer349
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    I'm sure you're aware of PC 1054, right?
    Apparently, I can teach you a thing or two about PC 1054. Just in case you don't really understand what I'm getting at, let me clarify...

    Quote Quoting surfer349
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    2. The whole point of Discovery is to get the officer's statement and notes from the traffic stop. I requested that and both the court and the DA refused to comply (before the TBD).
    The court has ZERO obligation to comply with your request for discovery. And if you really don't understand THAT part, then you really have no business preparing and serving discovery requests or motions to dismiss... You should consider hiring an attorney instead.

    But even then, your chances of getting a dismissal for this citation based on a failure to provide discovery are slim to none.

    Incidentally, I'm sure you're aware of PC 1054.5(c), right?

    1054.5(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.


    What other sanctions? From 1054.5(b):

    ... immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.


    In this case, this dilemma will end right at that first step... When the court orders the officer to provide you with copies of items your requested, in your case, copies of his notes, assuming he even has any! Officer will comply, and your trial will restart 5 or 10 minutes later.

    So there, no other sanctions need to be tried, no violation of the constitution can be articulated, no dismissal of the citation is warranted.

    Quote Quoting surfer349
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    3. My question is whether I need to treat this De Novo as a completely different trial or a "continuance" of the entire case? Do I need to send a Discovery request AGAIN or does my previous Discovery still stand? Again, they refused to comply so I can make a motion to dismiss any evidence (officer's statement) due to lack of discovery.
    I've already answered your question... You no longer need discovery, instead, you can request a copy of the officer's declaration... But that does not fit within your plan. As such, your motion to dismiss will be denied!and your plan will fail. Miserably!

    And to answer my own question, you were probably cited for a maximum speed citation, probably a 22349(a) or similar. And you clearly have no other defense, so you're hanging your hat on a dismissal for failure to provide discovery. Just a wild guess...

  5. #5

    Default Re: TBD Guilty. Going to De Novo. Resubmit Discovery

    uhh, I don't really know what you're arguing here. Everything you wrote supports grounds for dismissal.
    1054

    1. Discovery is between the parties. 1054.b
    2. The parties are the plaintiff and the defendant.
    3. The citing officer/agency is NOT a party, merely a witness. People v. Marcroft (1992) 6 Cal.App.4th Supp. 1 , 8 Cal.Rptr.2d 544.
    4. The officer can not act as the prosecuting attorney unless he's a member in good standing with the CA Bar. Professions Code 6125.
    5. The District Attorney is the public prosecutor, opposing counsel. Government Code 26500
    6. The party shall make an informal request. 1054.5.b
    7. The Prosecuting SHALL DISCLOSE... 1054.1
    8. A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence... Kyles v. Whitley, supra, 514 U.S. at p. 437 [115 S.Ct. at p. 1567]
    9. Evidence may be prohibited if a party does not comply. 1054.5.c

    To sum up. Either the DA writes back saying they don't do traffic tiickets (=no prosecution) or they don't answer at all (=all evidence is not allowed, i.e. officer notes, ticket, etc).

    So:
    Whereas we will give opposing counsel benefit of the doubt and argue they would not disobey the law by denying Defendant a right guaranteed in the Constitution; and
    Whereas opposing counsel does have the right to elect to not prosecute the case; and
    Whereas a decision not to prosecute is the only explanation other than denying Defendant’s right that explains opposing counsel’s refusal to comply with the discovery request; and
    Whereas, prosecution being an act of the executive, not the judicial, the court may not initiate or reinstate on its own any prosecution; and
    Whereas the case, per this argument has failed per lack of prosecution; and
    Whereas the only other alternative is that Defendant has been denied a right guaranteed by the Constitution, which is grounds for dismissal per Penal Code § 1054.5(c);
    Therefore, Defendant respectfully requests an immediate dismissal of this case.

    -AM I MISSING SOMETHING HERE? Where is the grounds for denying a motion to dismiss?

    ===========
    As for my question about discovery and the Trial De Novo...still a bit confused. So my initial Discovery request (and lack of response) still stands? Isn't requesting the officer's declaration a Discovery Request?
    ==============
    Regarding your last point: Are we here looking for (moral) judgement from you? I certainly am not. I'm here to discuss the LAW and how it is applied. Not to get your opinion on whether I was speeding. For all you know, it could be a parking ticket or a broken tail lite or an HOV lane violation. I may have a defense that can make the witness/officer incompetent to testify or perhaps ask for calibration records or source code for any electronics used or perhaps dismissing based on jurisdiction or proving guilt on all elements of a valid claim...point is: it doesn't really matter about the violation.

  6. #6
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    Default Re: TBD Guilty. Going to De Novo. Resubmit Discovery

    Quote Quoting surfer349
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    uhh, I don't really know what you're arguing here. Everything you wrote supports grounds for dismissal.
    uhh really?

    Quote Quoting surfer349
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    1054

    1. Discovery is between the parties. 1054.b
    2. The parties are the plaintiff and the defendant.
    3. The citing officer/agency is NOT a party, merely a witness. People v. Marcroft (1992) 6 Cal.App.4th Supp. 1 , 8 Cal.Rptr.2d 544.
    4. The officer can not act as the prosecuting attorney unless he's a member in good standing with the CA Bar. Professions Code 6125.
    5. The District Attorney is the public prosecutor, opposing counsel. Government Code 26500
    6. The party shall make an informal request. 1054.5.b
    7. The Prosecuting SHALL DISCLOSE... 1054.1
    8. A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence... Kyles v. Whitley, supra, 514 U.S. at p. 437 [115 S.Ct. at p. 1567]
    9. Evidence may be prohibited if a party does not comply. 1054.5.c

    To sum up. Either the DA writes back saying they don't do traffic tiickets (=no prosecution) or they don't answer at all (=all evidence is not allowed, i.e. officer notes, ticket, etc).

    So:
    Whereas we will give opposing counsel benefit of the doubt and argue they would not disobey the law by denying Defendant a right guaranteed in the Constitution; and
    Whereas opposing counsel does have the right to elect to not prosecute the case; and
    Whereas a decision not to prosecute is the only explanation other than denying Defendant’s right that explains opposing counsel’s refusal to comply with the discovery request; and
    Whereas, prosecution being an act of the executive, not the judicial, the court may not initiate or reinstate on its own any prosecution; and
    Whereas the case, per this argument has failed per lack of prosecution; and
    Whereas the only other alternative is that Defendant has been denied a right guaranteed by the Constitution, which is grounds for dismissal per Penal Code § 1054.5(c);
    Therefore, Defendant respectfully requests an immediate dismissal of this case.

    -AM I MISSING SOMETHING HERE? Where is the grounds for denying a motion to dismiss?
    Yeah, you're missing the fact that you're not the first (nor will you be the last) to deny that this has been the process since the early 1980s. Sorry, but you don't sound like you would be the legal prodigy to provide a new discovery that will change how traffic infractions are handled.

    It really is not that difficult to understand: A dismissal, is the last remedy anyone could possibly receive. Since "immediate disclosure" is a viable option, then upon your presenting your motion to dismiss, your motion will be denied, and instead, the court will order the officer to immediately disclose any items you requested for your review. You will be given a recess and your trial will begin immediately thereafter.

    Quote Quoting surfer349
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    As for my question about discovery and the Trial De Novo...still a bit confused. So my initial Discovery request (and lack of response) still stands? Isn't requesting the officer's declaration a Discovery Request?
    Quit the act... Really, seriously. In this case, you were specifically advised BY THE COURT to serve you request on the law enforcement agency. Claiming ignorance and lack of understanding, you refuse to do so. So what do you expect the court's reaction will be when you go in and you argue "I have not received my requested discovery"???

    Let me spell it out for you since you're too slow to understand it otherwise; You have two options: (a) you can serve your request on the LEA and hope they respond. If they do you've got your discovery and you have no reason to motion to dismiss, if they don't you will be provided with the items in your request on your trial day and hence you have no reason to motion to dismiss; (b) you can request and receive a copy of the officer's declaration, no that won't have a copy of his notes but even better, it will have his full testimony, the same testimony he is likely to recite at your TDN. If you do, then you really have no need for the items you requested in discovery unless the officer plans on offering additional items in discovery but that is doubtful. Whether you do follow this option or not, a motion to dismiss on your trial date will receive the same fate as above: motion denied, the court will order the officer to disclose copies of your requested items forthwith.

    Now, I realize that none of those options will benefit you the way you want, but rest assured the benefit you're looking for is not viable. And yes, this is in spite of the fact that you have no defense whatsoever, you've made that clear already. The end result, you will be convicted of whatever you were charged with.

    Quote Quoting surfer349
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    Regarding your last point: Are we here looking for (moral) judgement from you?
    You've had several opportunities to disclose which code section you were cited for. Its a known requirement that anyone starting a new thread should disclose the state where they were cited and the code section they were cited for. And you are no exception. If my asking for that information makes my request an attempt at morally judging you, then so be it. If you're dissatisfied with my replies, you can request a refund on your way out of here!

    Quote Quoting surfer349
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    I'm here to discuss the LAW and how it is applied.
    No you're not. What you've discussed thus far is what the LAW is NOT! You should keep in mind that this is an infraction case. Not a murder trial. You'll get 10 minutes on your trial date, and it will get to a point during that 10 minutes that discovery and a resulting dismissal will cease to be the topic of discussion whether you like it or not. So you better have something prepared to discuss otherwise, you're making it glaringly clear that you have no defense whatsoever.

    Quote Quoting surfer349
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    Not to get your opinion on whether I was speeding.
    I did NOT offer my opinion as to whether you were speeding. I simply suggested that you were "probably cited for a maximum speed citation, probably a 22349(a) or similar"... BIG difference, you know!

    Quote Quoting surfer349
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    For all you know, it could be a parking ticket or a broken tail lite or an HOV lane violation.
    But its not... At least not a parking ticket... And you must mean a broken tail LIGHT, or an HOV lane violation but again, it is neither.

    Quote Quoting surfer349
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    I may have a defense that can make the witness/officer incompetent to testify or perhaps ask for calibration records or source code for any electronics used or perhaps dismissing based on jurisdiction or proving guilt on all elements of a valid claim...point is: it doesn't really matter about the violation.
    Calibration records are not a statutory requirement for a maximum speed citation.

    Source code? Really.... Acceptable methods for speed measurement have already been established,. Unless your officer was using something unheard of, you have no claim there either.

    Jurisdiction? CHP has jurisdiction over any and all highways in this state. As for court jurisdiction, discovery surely is NOT the correct method to refute court jurisdiction. But you already know that.

    And lastly, element (yes, only 1 element) of a speed related citation committed in a maximum speed zone is simple, you were observed driving in excess of a maximum statutory limit.
    The record time for a conviction from trials that I have witnessed for similar charge?
    The officer testified for 47 seconds.
    The entire trial lasted 1 minute, 32 seconds.
    Do you think your officer can beat that time? Won't make a difference... because your trial will last longer than that, simply because you seem to think you're special!

    Quote Quoting surfer349
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    point is: it doesn't really matter about the violation.
    That can only show that you clearly know nothing about the law! Beginning with the difference in violations and how that will impact what you request via discovery and from whom is it produced, and ending with the difference between inculpatory evidence and exculpatory evidence and how either may impact discovery and/or a subsequent dismissal!

    But I've wasted enough of my time in this thread. The likelihood that I will convince you to stop wasting yours? NONE!

    I would ask you for an update but I have been around long enough to know the sort of update we are bound to get here. It always end up with "case dismissed"... So you might as well post that too.

    Good luck

  7. #7

    Default Re: TBD Guilty. Going to De Novo. Resubmit Discovery

    Ok, THAT GUY. I guess it’s clear that this [expertlaw] forum isn’t about the law and more about YOUR opinions based on emotion. I am asking about facts and the legal understanding regarding the LAW, not whether you feel you are the “legal prodigy” or how you feel that the judge/system is always right. I am quoting DIRECTLY from the state code and legal references.

    My original question is whether discovery is required on a TDN, and also referencing how Discovery works as a foundation for my understanding. The fact is that the prosecutor failed to provide discovery within the time window, so the evidence can be motioned for dismissal.

    As for “the act,” again, I am quoting directly from the law. The law enforcement agency is NOT a party. Discovery is between the parties. Are you that dense? I don’t see how this is up to any other interpretation. Do you not understand PC 1054? How am I ignorant of the law when the law says EXPLICITLY that the prosecuting attorney is legally bound to provide that evidence to the defendant party. I expect that the court is bound by its own law.

    So to reiterate, your two options are NOT BASED IN REALITY. The LEA is not a party, so is not required to provide discovery (see above referenced legal codes). But hey, I guess I’m “too slow to understand” the explicit statement in the legal code.

    And I guess you are again taking it upon yourself to judge and decide what evidence is needed to prepare an adequate defense. I guess oath of office, calibration records, training certificates should not be considered to prepare a defense. If I am cited for a speeding violation based on RADAR evidence, all of this is certainly pertinent to a good defense. Again, you are taking it upon yourself to emotionally decide what is relevant in any trial.

    And no defense whatsoever? Where are you getting this from? This post is explicitly regarding DISCOVERY, nothing else.
    And can you read? The very first line describes this as a CALIFORNIA question. To repeat myself, it doesn’t matter what the alleged infraction is. I’m asking about the procedure of fighting a case.

    How am I discussing “what the law is not?” I am quoting what the law IS. Again, did you not read my direct references to CA law? Again, you are inputing your own opinions. It doesn’t matter that this is an infraction vs a murder trial.

    Quoting THAT GUY
    ________________________________________
    I did NOT offer my opinion as to whether you were speeding. I simply suggested that you were "probably cited for a maximum speed citation, probably a 22349(a) or similar"... BIG difference, you know!
    But its not... At least not a parking ticket... And you must mean a broken tail LIGHT, or an HOV lane violation but again, it is neither.

    --Uhhh, that certainly looks like an opinion to me. You think I am cited for maximum speed. Perhaps buying a dictionary will help your vocabulary.


    As for a valid claim, elements and jurisdiction: Perhaps you need to educate yourself. There is more than one element to a valid claim. To save you the time, allow me. If you are genuinely interested in discussing more, please PM. I have a lot to discuss and bounce of another interested individual.
    1. “In every prosecution for crime it is necessary to establish the “corpus delecti”, i.e., the body or elements of the crime.” People v. Lopez, 62 Ca.Rptr. 47, 254 C.A.2d 185.
    2. Where is the violation of a right?
    3. W/O a violation of a legal right, there is no subject matter jurisdiction.
    4. The three elements of a valid claim:
    a. Violation of a legal right
    b. A damage or injury
    c. Redress ability by the court.

    REMEMBER, the defendant is presumed innocent of the crime and every element of the crime. The burden of proof is on the plaintiff. Again, the plaintiff has refused to enter into record any evidence, as documented through an informal discovery request (PC 1054).


    So THAT GUY. Lay off with your self-righteous and uninformed opinions. I am trying to discuss LAW on a law forum.

    Please show me I’m wrong. I’d like to prepare a well-informed defense.

    “Good luck”

  8. #8
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    Default Re: TBD Guilty. Going to De Novo. Resubmit Discovery

    Didn't read all that nonsense.. But I did glance at the bottom of your post, which is usually where the "pearls of wisdom" (yes, I'm being sarcastic) are, and saw the following"

    Quote Quoting surfer349
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    So THAT GUY. Lay off with your self-righteous and uninformed opinions.
    ROFLMAO about self righteous and uninformed... Funny how in your last post you questioned my ability to judge you and now, in the next post, all of a sudden, you're qualified to judge me? You're wrong on both accounts but I feel no need to prove anything to you!

    Quote Quoting surfer349
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    I am trying to discuss LAW on a law forum.
    The problem with that is that you went way out of your way to insult and offend the one person who is likely to want to discuss those matters with you. None of the members in the thread you chose to first post in are still around. Besides, your ignorance of the law and the process in California courts clearly shows. And you're bound to frustrate and upset anyone you might have such a discussion with.

    Quote Quoting surfer349
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    Please show me I’m wrong.
    You know... I truly believe that for some people and whether its because they're stubborn, hard-headed, stupid or ignorant and know nothing else, will only learn by making mistakes on their own... This, I believe to be one of those times. I've already explained it to you in as easy a format as can be. You refuse to understand. Whether its by your choice or due to your inability, there is only so much time I can dedicate to each thread!!

    Quote Quoting surfer349
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    I’d like to prepare a well-informed defense.
    And at that , you FAIL! BIG TIME!

    Are you even reading what you're posting??? You have provided ZERO basis for anyone to offer you or help you prepare a well-informed defense.
    Anyone in their right mind, who knows anything about that law, would know that you don't start from the desired end result -a dismissal- and work your way backwards. That is what you're doing! And you'll fail!!!

    The first step to a good defense is to know what the violation is! Hell, you won't even disclose the code section you were cited for, so are you really that obtuse, or are you simply here to troll?

  9. #9

    Default Re: TBD Guilty. Going to De Novo. Resubmit Discovery

    Look THAT GUY. Again, you've failed to contribute anything. I don't see any counter points or references to laws or codes or anything (either in your latest post or ANY of your previous). You keep talking up your stance and how you are righteously trying to help...So where is your actual information? I'd love for a third party to comment on this and evaluate this thread.

    See post #5. I have a detailed and referenced outline of the discovery process. What do you have in your posts? Name calling and opinions.

    Where have you explained anything to me? Show me your quotes, please.

    And again, it doesn't matter what the citation is for. In CA, the legal process for going through a TBD is all the same. Again, it could be speeding, HOV, lane change, stop sign, right turn, whatever. Am I wrong? Nope. I'm asking about how Discovery works, not how to beat an XYZ ticket offense. Learn2read?

    So THAT GUY, please, if you don't actually have anything to contribute, take your "troll"ing elsewhere. I'd love for another user to read through this and get their view on your posts...

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    Default Re: TBD Guilty. Going to De Novo. Resubmit Discovery

    I think TG's point was that YOU do not understand how the process works in real life. Given his knowledge of the CA traffic court system, you would do well to consider what he has to say. He is simply trying to tell you that you need to have a defense beyond "getting dismissal because they didn't answer discovery." He is telling you that, absent an incredibly nice court, it isn't going to happen because the law says it does not HAVE to happen. What that defense can/should be has a lot to do with what you are cited for and the circumstances around the stop and citation.

    To your original question, I would say do both a new discovery request and request the officer's statement. I think I know where you are going with your defense from your responses...it ain't gonna work unless you draw a real stupid judge.

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