Should You Request a Change of Venue Before Requesting a Trial

[ackpacket]

My question involves traffic court in the State of: California

Hi all,

I received a ticket two days ago in the city of Buena Park, in Orange County. The county seat for Orange County is Santa Ana. When the officer handed me the ticket, I noticed the address to appear at said Fullerton. There wasn't even an option for the officer to select another location. Before signing I said I'd like to request the county seat. His response was that I "have to do that through the court". I signed the ticket "under protest 40502b, MyName"


So I have two things on my plate, and I wanted to know what any of you think is the proper order for proceeding. I want to begin the process of a written trial, and I also want to request a change of venue so that if I lose the written trial, I can have a trial de novo in Santa Ana.

The reason it's such a sticky situation is sometimes courts deny you certain rights after you've requested a written trial. For example the speedy trial bit goes right out the window once you're on the written trial path. Even after requesting a trial de novo you still can't get a speedy trial, and can't get a case thrown out because of any date violating that.

So when should I request the change of venue? When should I request the written trial? Should I wait to do any of these things until after the courtesy notice arrives?

I'm aware I can ask the clerk many of these questions, but clerks make mistakes sometimes and I can't leave anything to chance. Half the time they don't even know about 40502b.

Thanks for any help you can offer

[That Guy]

My question involves traffic court in the State of: California

Hi all,

I received a ticket two days ago in the city of Buena Park, in Orange County. The county seat for Orange County is Santa Ana. When the officer handed me the ticket, I noticed the address to appear at said Fullerton. There wasn't even an option for the officer to select another location. Before signing I said I'd like to request the county seat. His response was that I "have to do that through the court". I signed the ticket "under protest 40502b, MyName"


So I have two things on my plate, and I wanted to know what any of you think is the proper order for proceeding. I want to begin the process of a written trial, and I also want to request a change of venue so that if I lose the written trial, I can have a trial de novo in Santa Ana.

OK, so you know the drill then... What city do you reside in? And what city do you work in?

The reason it's such a sticky situation is sometimes courts deny you certain rights after you've requested a written trial. For example the speedy trial bit goes right out the window once you're on the written trial path. Even after requesting a trial de novo you still can't get a speedy trial, and can't get a case thrown out because of any date violating that.

It appears that you are simply and obviously misunderstanding that laws/rules/procedures are not designed to maximize your exposure to the possibility of a dismissal. That was never the intent of the state or federal constitutions. So when everything you try and do is geared towards getting a chance so that you can say "dismiss" you're bound to face some conflict.

[ackpacket]

I live in Buena Park and work in Orange, which is right next to Santa Ana

[That Guy]

I live in Buena Park and work in Orange, which is right next to Santa Ana

I'll be honest with you, I am not aware of a single change of venue request that was approved for what might be years now. And I think you're pushing your luck on this one.

We have Buena Park, Fullerton, Orange and Sana Ana... The last being the farthest south from the other three points.

You live in Buena Park and you work in Orange, neither of which is Santa Ana.

Santa Ana happens to be the busiest courthouse in the county, and yet in spite of potential delays (^^^which you've already started complaining about^^^) you would like a change of venue to Santa Ana.

Assuming your Buena Park home address is on your driver's license my gut feeling is telling me you will not get a transfer anywhere out of Fullerton. But you're free to try.

[ackpacket]

But in the law, the prerequisite for a transfer to the county seat is that my home or place of employment has to be closer to the county seat than the assigned court. If the law intended for BOTH my home and work to be closer, the wording would be home and place of employment, right?

[That Guy]

But in the law, the prerequisite for a transfer to the county seat is that my home or place of employment has to be closer to the county seat than the assigned court. If the law intended for BOTH my home and work to be closer, the wording would be home and place of employment, right?

I think you may have misunderstood this part of my reply:

You live in Buena Park and you work in Orange, neither of which is Santa Ana.

I realize that there is no requirement that BOTH must be closed... I should have added in an "independently" or something similar... Rest assured this is not the first time I've discussed this code section nor are you the first to come and ask about a "change of venue".... There are plenty of other people who simply have no defense and come here in an attempt to make a request for a change of venue materialize when in reality, there is no requirement to approve one! And as I have stated before, it is rare that this type of request gets approved.

But since you want to discuss statutory construction and legislative intent, here is why the neither the officer nor the court are mandated to oblige your request:

VC 40502.

The place specified in the notice to appear shall be any of the following:

(a) Before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made.

(b) Upon demand of the person arrested, before a judge or other magistrate having jurisdiction of the offense at the county seat of the county in which the offense is alleged to have been committed. This subdivision applies only if the person arrested resides, or the person's principal place of employment is located, closer to the county seat than to the magistrate nearest or most accessible to the place where the arrest is made.

(c) Before a person authorized to receive a deposit of bail. The clerk and deputy clerks of the superior court are persons authorized to receive bail in accordance with a schedule of bail approved by the judges of that court.

(d) Before the juvenile court, a juvenile court referee, or a juvenile hearing officer within the county in which the offense charged is alleged to have been committed, if the person arrested appears to be under the age of 18 years. The juvenile court shall by order designate the proper person before whom the appearance is to be made.

In a county that has implemented the provisions of Section 603.5 of the Welfare and Institutions Code, if the offense alleged to have been committed by a minor is classified as an infraction under this code, or is a violation of a local ordinance involving the driving, parking, or operation of a motor vehicle, the citation shall be issued as provided in subdivision (a), (b), or (c); provided, however, that if the citation combines an infraction and a misdemeanor, the place specified shall be as provided in subdivision (d).

If the place specified in the notice to appear is within a county where a department of the superior court is to hold a night session within a period of not more than 10 days after the arrest, the notice to appear shall contain, in addition to the above, a statement notifying the person arrested that the person may appear before a night session of the court.

The code section states the following: "The place specified in the notice to appear shall be any of the following"... Which means: as long as the notice to appear shows one of the following as the place to appear, then the notice to appear is compliant with such provisions and is therefore valid and everything is good in the world. The options that follow are simply that, options... no more and no less.

You'll also note that subsection (b) clearly states: "Upon demand of the person arrested, before a judge or other magistrate having jurisdiction of the offense at the county seat of the county in which the offense is alleged to have been committed";

Well that is indicative of is that if the legislature had intended for this option to become mandatory upon the officer and/or the court upon the defendant's request, then the likelihood is that the legislature would have simply worded the code section as follows:

"The place specified in the notice to appear:

Shall be (as described in (a) or as described in (c));

EXCEPT Upon demand of the person arrested, IT SHALL BE before a judge or other magistrate having jurisdiction of the offense at the county seat of the county in which the offense is alleged to have been committed. This subdivision applies only if the person arrested resides, or the person's principal place of employment is located, closer to the county seat than to the magistrate nearest or most accessible to the place where the arrest is made.

Furthermore, in the case of a juvenile.... etc.""

But it does not say that!

And for finality, one last point that people simply do not consider or think about.. To some, the slightest little wrinkle that happens, the first thing they think of is "can I get a dismissal? My rights were violated!"

Huh???

1) You have no statutory right to a change of venue; not under federal law and certainly not under California law; And while you do have a right to a fair trial, the people do as well, and to transfer the case to a court that is convenient for you but inconvenient for the people's witness, again, not fair to them. To avoid subjecting yourself to such unfair treatment, refrain from committing infractions in areas outside of the jurisdiction of your court of preference!

2) If the legislature had intended for an incident where a provision of law was not complied with to result in a dismissal, then you can rest assured that the legislature would have made that clear... They did so for violations of speedy trial provisions, (although those aren't as simple as most people think); they also did so for non compliance with speed trap laws... And for two counter examples which have been misinterpreted several times, to give you two examples where some courts have actually dismissed cases in the past based on these two instances of non compliance with provisions of related laws, where as now they are finally awaken to the concept that they were not required to::

1) When a city contract with a red light camera vendor fails to meet the provisions that the vendor shall not be compensated on a "per citation basis", and...

2) Failure to post a warning to motorists either at specific intersections or at major entrances to the city that the city may equip some intersections with automated red light camera systems.

There are no requirement to dismiss the alleged offender's citation under either of those instances simply because the law does not make that a requirement. Same thing applies here in your case, you can complain to the court that the officer did not complyu with your request; the response will likely be (or should be): "OK, thank you for sharing, are you ready to proceed?".

[ackpacket]

I disagree. I think that when it says "any of the following", it defaults to section b given that prerequisite "upon demand" is met. And you know what? Disagreements like this one between you and me are exactly why case law exists. It has already been determined in two significant cases, by judges rather than two people scratching their heads on this forum, that once I demand the county seat my case must be transferred if the law applies to my living/working situation.

I have no doubt in my mind that I'm entitled to this change of venue and neither did the judges I mentioned. If the judge I come before has his doubts, I will kindly refer him to the applicable cases. If that doesn't work, I will appeal.

For us to begin judging whether or not what I'm doing is right or wrong, we'd have to begin a discussion on the meaning of "fair", intentions, and a host of other things that this forum isn't suited for. I'm just on here trying to get informed, politely asking for advice. Please don't assume the worst of me, and lump me in with a class of people who want nothing more than a free pass.

Also for your information, I do have several defenses prepared and I intend to make sure that if I am convicted it will be because of the officer performing his duty diligently and accurately while I receive every right I am afforded.

[quirkyquark]

IMO, "upon demand" means exactly that -- it's not "upon request". Given that you "demanded" it and were misinformed/denied, file a motion with the Fullerton court ASAP, outlining the circumstances. Any CoV post-arraignment (which means post-TBD, too) will be entirely at the discretion of the judge/court.

[That Guy]

Any CoV post-arraignment (which means post-TBD, too) will be entirely at the discretion of the judge/court.

And since you simplified it that much, I'll throw in my opinion which would go as follows:

Any CoV pre-arraignment will be entirely at the discretion of the judge/court.

Back to the OP:

.... while I receive every right I am afforded.

There is no "right" to a CoV... Not by any measure or standard. And the officer writing up a citation ordering the defendant to appear at Fullerton without any "pre" request from the defendant is not an error by the officer nor is it in any way a guarantee that a CoV request in court will be granted.

And you were partially right about one thing... There is no right to a speedy trial one you opt for a TBD... And there is nothing "sticky' about that!

And still:

I disagree. I think that when it says "any of the following", it defaults to section b given that prerequisite "upon demand" is met.

You can disagree all you want... The "default" by definition, is the location your case is assigned to, Fullerton. Now, you want to get smart and add a "prerequisite"? Well, by definition, a "prerequisite" is defined as something required beforehand... Ooops, you didn't provide one beforehand. According to your own post, you were given the NTA to sign and you found out you're going to Fullerton. And so the Notice to Appear is in full compliance with 40502(b) in that it lists the place to appear as being before a magistrate at the Fullerton courthouse... etc.

Now, to continue your scheme of customized definitions, the officer tells you request it from the court... OK, but again, a reading of the code section clearly states "the place specified in the notice to appear shall be" as described thereupon then you're done. Simply because the court, even if it agrees with your reasoning, could not change the "...place specified in the notice to appear...". So what are you arguing here? Oh, yeah you're asking if you should file for a change of venue first or as TBD first... Clearly, you would try a change of venue before you would try a TBD. But this can only magnify the devious nature of your request.

As for a CoV and its relevancy to a TBD request? Why would anyone request a CoV only to follow it up with a TBD? Let's examine that for a minute:

Scenario "A": So you appear in Fullerton, request a CoV, assuming it is approved, you submit a request for a TBD by mail to Santa Ana and assuming you lost, you can now avoid having to appear in Fullerton for your TDN... Come the date for your TDN, you clearly have to appear in Santa Ana, and as a side note: Santa Ana is four miles out of your way as you drive work to home or home to work!

Net appearances in Fullerton: One
Net appearances in Santa Ana: One
Total court appearances: TWO

In the alternative:

Scenario "B": You simply submit your request for a TBD to Fullerton. Assuming you lost, you request a TDN from Fullerton by mail and appear for a TDN in Fullerton.

Net appearances in Fullerton: One
Net appearances in Santa Ana: NONE
Total court Appearances: ONE

Any attempt to suggest that you would be better off getting Scenario "A" and only based on the premise of total miles travelled is clearly indicative that you're full of crap!

And your claim of having any case law that supports your "right to a change of venue", or that the default is what you choose it to be, that point is worthless without any actual support. My guess is if you had found any case law, you would have posted it!

I am not sure what you're doing here asking legal question if you feel that this forum is "not suited" for discussions of "fair", "intent/intentions", or whatever other topics that you can come up with or more like attempt to avoid... We can even discuss topics such as "entitlement to perceived rights that do not exist"... try us and you'll see!

I also am not sure what it was I posted that gave you the impression that I was scratching my head; I am by no means or description unsure of my opinion, nor was it a random spur of the moment line that I gave at the time. If you would read more of my posts, or researched this particular topic on this forum you'd see that I offer consistent opinions, not random -how I feel that day- opinions!

While you can claim entitlement to a right of receiving a change of venue, fact is, there is no such right. Not by rule, nor law or statute, not federal constitution nor the of the state. While you can claim default options and prerequisites, while you can turn a blind eye to the other factors that must be considered, I'll tell you that judicial discretion, convenience for ALL parties involved, including but not limited to the people of the state of California, as plaintiff and plaintiff's witnesses including the citing officer, as well as a consideration of the reasonableness of the request versus the burden it may place on the court and its resources, and so much more... All those are factors that will weigh in on how it will work out. Whereas to you, it is as simple as having to decide if it should be change of venue then TBD or the other way around. Is that really that complicated a question?

If in your opinion you either get your way or you appeal then by all means, I hope your request gets denied just so you could learn a bit more about appeals. You should really keep in mind that simply wanting to appeal does not mean you have sufficient grounds nor is it in any way a guarantee you'll prevail. Simply put, in this case and even if you think an error was made in denying your request for a CoV, the error could not have impacted the administration of justice in your case, meaning, regardless of which court your case was heard on, your ultimate guilt or innocence would have been the same, and the CoV would have had zero effect on the evidence in the case, or the the elements of the offense. So you would not have any justification to request a dismissal of the action upon appeal, nor would you be justified in requesting a remand of your case back to Santa Ana for a retrial. So what possible benefit could you get out of appealing? None!

So you see, a threat of an appeal each and every time your requests are denied becomes a laughable proposition at some point. And in this case, it clearly is likely to get a few chuckles from the get go....

Please don't assume the worst of me, and lump me in with a class of people who want nothing more than a free pass.

Please don't patronize me or assume I am as ignorant to buy into your pretentious claims... I didn't lump you with anyone... While you can attempt to distance yourself from those whom you describe as (and I quote) "a class of people who want nothing more than a free pass", I didn't assume the worse, it wasn't me who lumped you along with them... You came on here voluntarily; you provided zero information about your case; you did state the information relevant to a change of venue and more but only to describe methods often utilized by the same group you're attempting to distance yourself from.

Regarding this point in particular, those who are not aware of this loophole being a possible option, are not likely to know anything about a purported need to signing the citation with "signed under protest 40502(b)" or however you signed it. You clearly had looked into this all along and planned on using the “trick” the next time, and well, here we are... Fact is, by your own interpretation of the code section, you know this bit will not impact the possibility of your request one little bit. However, if you've researched this type of request, you've read that some people do suggest you sign in that manner "as further proof that they made a timely request"... All while the facts here, and by your own admission that you never mentioned anything about a CoV until after the citation was written, anyone can clearly see that you did not make a timely request and as such, that sort of signature is proving nothing!

So you can deny it all you want... I've been here long enough to know that anyone who wishes not to be lumped with all those hoping for a free pass would have provided at least some information about the circumstances under which they were cited and even if fully prepared for his defense, would be looking for some sort of input as to the validity of their defense plan. In this case, you're asking about nothing... Only the validity or lack thereof of your request for a CoV before or after a TBD...

Also for your information, I do have several defenses prepared and I intend to make sure that if I am convicted it will be because of the officer performing his duty diligently and accurately while I receive every right I am afforded.

Right... "several defenses"... One was the Cov, two, then becomes the TBD and hoping the officer will not submit a declaration. But why would that be your concern if you have a legit defense? You're the one who stated in your original post that you're requesting a CoV to avoid having to appear in Fullerton for a TDN. Yet now you're suggesting that you have several defenses that are sure to prove your innocence? And yet you'd expect to lose the TBD? And you'd have no confidence in those defense so you'd rather try and make it more inconvenient for the officer to appear at a TDN by switching courthouses?

The hypocrisy behind this part is a glaring indication that you're looking for a free pass in spite of your denials. That is clearly where the potential benefit of a CoV is maximized. You hope to realize maximum benefit if/when you lose the TBD (but if you'd had a legitimate defense, there is no logical reason as to why you would lose a TBD, is there?), at which point you anticipate and hope that the officer will simply choose not to appear due to the fact that Santa Ana is not the court he normally appears at, instead, he usually appears in Fullerton.

And so to bring this story full circle, your question only revolves around the step after which you lose your TBD and are ready to request a TDN, and whether you should have made the request previously or is it possible to make it at that point!

So you see, it was not me who lumped you with those looking for free passes and/or a way to escape their responsibility... Your own words which you posted not only helped align you with those types, but made you look like you're one of the top executives in charge of research and development in whatever organization they belong to. And while you can make any and every attempt to pretend your so righteous, don't forget that your previous post is still there for all to see, and your intentions are made so clear.

But before I leave you to wallow in all of this... Let me ask you... Have you ever considered that your citing officer might possibly live in Santa Ana, and so that court might be more convenient for him to appear in? What if he lives west of, east of or south of that court and again, it is much closer to him than Fullerton? Or how about this, lets disregard where he lives but only look into the possibility that his drive to Santa Ana might result in him earning an hour or two of additional overtime; is that a reason to motivate him to appear? I seriously could go on and on although discussing more of these hypotheticals might lead you to hone your own request in a way that will benefit you more, all while overtaxing an already heavily burdened system, and that, I refuse to help anyone with, I don't care what your perceived rights are!!!

[quirkyquark]

There is no "right" to a CoV... Not by any measure or standard. And the officer writing up a citation ordering the defendant to appear at Fullerton without any "pre" request from the defendant is not an error by the officer nor is it in any way a guarantee that a CoV request in court will be granted.

Huh? Of course there is a right to CoV, and if demanded but refused by the citing officer, the right remains. See Smith v. Municipal Court (1959) 167 Cal. App. 2d 534, which held (in summary) that:

Where party was charged with a violation of Motor Vehicle Code and demanded the municipal court at the county seat to be his place of trial but arresting officer refused and inserted as place of appearance the nearest most accessible magistrate, arrested party, unless he resisted arrest, had no means of asserting his right to appear before municipal court judge at county seat except by immediately demanding that hearing on charge against him be transferred to the county seat in accordance with his demand, and fact that party was taken into custody and did not sign a promise to appear could not prevent application of statute giving him right to demand county seat as place of appearance for trial.

Note the interpretation of "demand" (not a request):

Inasmuch as paragraph (c)(2) of the section provides for a demand on the part of the person arrested, we must assume that the Legislature intended the word ‘demand’ to have its ordinary meaning and the import which that meaning gives to the statute. ‘Demand’ is defined as: ‘An asking with authority, claiming or challenging as due.’ The clear import of the statute is therefore to give the right to the arrested person to specify the place of his appearance and trial. If he has a right to demand that as something due him, that right cannot be denied him at the discretion of the arresting officer.

Let's try to head off any other arguments:

• The opinion is still good law and binding on all trial courts/appellate divisions statewide.
• The court explicitly notes that whether or not the notice to appear was signed or not is immaterial.
• And yes, the holding and PC 1462.2 still apply to infractions via PC 19.7. Note the citation of Smith in footnote 4 of People v. Beltran (1981) 124 Cal. App. 3d 335