Trial De Novo Denied

My question involves traffic court in the State of: California

I lost my Trial by Written Declaration. I then filed form TR-220 ( http://www.courtinfo.ca.gov/forms/documents/tr220.pdf ).

I just got a denial in the mail and the reason the request was denied "otherwise not in compliance with law or rules (explain): THERE WAS NO REASON STATED".

However form TR-220 which I signed says as #3 that "I am dissatisfied with the courts decision." As far as I understand a Trail De Novo is not an appeal it is a totally new trial and I don't need a good reason. Not to mention the form doesn't even say anywhere I need to give a reason. I called the traffic court and the lady that answered talked to the clerk and said I need to give a reason. I left a message with the clerk and I'm expecting a call back since they had just gone into court.

What is the law and what are my rights? I want to make sure I am armed with the proper information when I talk with the clerk.

Were you within the 20 days of the mailing of the TBW decision?

Yes I was within the 20 days. On form TR-225 for why the request was denied the box is NOT checked that says it was not received on time. Here is a scan of the pertinent section of what I received.

http://ctwow.net/sladeimages/tr225.png

After some research I found the following:

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V C Section 40902 ( http://dmv.ca.gov/pubs/vctop/d17/vc40902.htm )

(d) If the defendant is dissatisfied with a decision of the court in a proceeding pursuant to this section, the defendant shall be granted a trial de novo.

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Quote:

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2010 California Rules of Court - Title Four Rules ( http://www.courtinfo.ca.gov/rules/in...nkid=rule4_210 )

Rule 4.210. Traffic court-trial by written declaration
(b) Procedure
(7)Trial de novo

If the defendant files a Request for New Trial (Trial de Novo) (form TR-220) within 20 calendar days after the date of delivery or mailing of the Decision and Notice of Decision (form TR-215), the clerk must set a trial date within 45 calendar days of receipt of the defendant's written request for a new trial. The clerk must deliver or mail to the defendant and to the arresting officer's agency the Order and Notice to Defendant of New Trial (Trial de Novo) (form TR-225). If the defendant's request is not timely received, no new trial may be held and the case must be closed.

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I have looked over form TR-220 ( http://www.courtinfo.ca.gov/forms/documents/tr220.pdf ). Nowhere does it say I need to have a reason for a Trial de Novo. Furthermore #3 on TR-220 which I signed says "I am dissatisfied with the courts decision". Which for everything I have found is exactly on point for what I need to get a Trial de Novo.

I guess now I'm wondering where do I go from here? It seems like I was improperly denied a Trial de Novo.

Oh I misunderstood you...it literally says "THERE WAS NO REASON STATED." I thought you meant they didn't give you a reason.

I agree, not only is a reason not required, there's no place to provide one on the form. All question #3 wants is the charges you are contesting.
Usually you can get by with just writing the violation number like: 22530 or whatever.

Did the clerk call back?

There have been very few times I have been speechless in my life and this is one them. I just came back from the courthouse here is what transpired:

I went to get a copy of the officers statement for my TBWD in which I was found guilty. The clerk at the counter went in the back and after about 5-10 minutes came out and I was told that they don't give those out. They also consider the case closed. Flabbergasted I had them write a note to include in my file and then I requested a copy of said note (the lady looked at me strangely when I requested my own copy). Aren't they supposed to give me this on request and charge a nominal copy fee?

http://ctwow.net/sladeimages/denied.png

However they would give me a copy of TR-220 that I filed. Here is the copy with the identifying information blacked out:

TR-220 on file with the court

By this time the Sherriff on duty had gotten up from his chair and was standing behind her. I then calmly explained that I had left a message and it wasn't returned and showed them copies of VC 40902, the 2010 California Court Rules, and then showed them my completed TR-220 form they had just copied. I stated that none of them said I needed a reason for a Trial de Novo. She said the judge had ruled and that I did in fact need a reason as this was an appeal.

She stated that she had already talked to the judge the first time. I asked then if my only recourse was to file an appeal even though I had clearly explained how this didn't make sense and she said yes she would not talk to the judge again.

I also noticed that the same judge that denied my Trial de Novo is the EXACT same judge that found me guilty in my TBWD. I'm not a lawyer and I don't really know where to go from here but to me this seems really scary.

which county and court was it?

El Dorado Superior Court in El Dorado County.

Was it the Placerville court by chance? Well, that's no surprise. While this kind of judicial abuse would be unheard of anywhere else, they are counting on the fact that most people are just passing through the area on the way to Tahoe/Reno and wouldn't have the motivation or the legal know-how to put up a fight when their rights are being trampled in broad daylight. /rant

As far as your TDN request is concerned, there is nothing wrong with it from what I can tell: It was timely filed, and it states the charges you wish to have tried de novo. A trial de novo is not a real appeal. An appeal is when your case is adjudicated by the trial court and you request a higher court to review the case based on legal errors committed by the original trial court. A TDN is the legal right you have under CA law to have your case retried in-person with no questions asked if you are not happy with the outcome of the TBD. Not that anyone would expect the bumpkins working in the hick country to understand such basic concepts.

That being said, you do have a tough fight ahead of you if you wish to contest it further. The mere fact that the judge who denied your TDN request is the same one who adjudicated your TBD creates a huge prejudice issue i.e. the judge was convinced of your guilt before even looking at your TDN request. The other major problem is the utterly bogus reason for denying your TDN request despite a properly filed TDN request form. Also, the conversation between the clerk and the judge was ex-parte, which may or may not be a problem (i'm no lawyer, either).

Trouble is, you have to go through the appelate courts to fight this case further, and that's not an easy job. The first steps would be to file a notice of appeal ASAP and find out if a court reporter was present at any hearings of your case. Even then, your case didn't involve any personal appearances and the court file should be good enough for the record on appeal. The reasons for appeal stated above should be good enough, IMO, to give you a re-trial but you would do well to argue for an outright dismissal per Kriss as relief due to gross errors commited by the lower court.

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Quoting HonkingAntelope

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Also, the conversation between the clerk and the judge was ex-parte, which may or may not be a problem

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HA, the clerk is NOT by any means or description a party to the action (neither the prosecution, nor the defendant) and as such, one communicating with the judge is NOT by any stretch considered "ex-parte"...

rrborg, other than writing a letter to the presiding judge explaining the situation, I'm not sure what to offer you here.... I'm not even sure whether your case would qualify for the standard "appeal" in that you are stuck between a "guilty TBD decision" and yet no Trial De Novo.

Not that it should make much of a difference, I am curious as to what you were cited for and found guilty of in your TBD.

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Quoting That Guy

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rrborg, other than writing a letter to the presiding judge explaining the situation, I'm not sure what to offer you here.... I'm not even sure whether your case would qualify for the standard "appeal" in that you are stuck between a "guilty TBD decision" and yet no Trial De Novo.

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Now that the TDN request has been officially denied and the case has been closed, OP can go ahead with the standard appeal. There is a case law out there that requires defendants to seek trial de novo instead of going straight from TBD to appeals, but that doesn't apply in this case.

I highly doubt that writing letters will fix this mess, but it's critical to file the notice of appeal within 30 days of the case being closed. Otherwise, you won't be able to appeal.

Can you file a motion for reconsideration? Then you can outline the law that allows for your right to a new trial. It would stay the appeal time until ruled upon. If you wish to file an appeal it would be the lowest cost appeal out there & I think a pro se filing is within the ability of some non-attnys

Wow... this is the second El Dorado ruling that is absolutely contrary to law. This is the stupidest thing I have ever seen. I am sure you will find no case law on point as there isn't another judge out there stupid enough to deny a trial de novo. The TDN is not an option for the court... it is a requirement. You were screwed. My bet is that if you file an appeal, it won't get half way through the process before your TDN is granted.

As a parallel approach, I would find out who is and write a letter to the senior judicial official in the jurisdiction. This case is such a blatant abuse, it is undeniable. Also, if you are given your TDN and then you get the same judge, I'd ask the judge to recuse himself and assign the case to a different judge. When he denies your motion and finds you guilty (and you can bet he will), you can use that as another ground for appeal.

Ya this is the Placerville court and yes I'm sure they get a ton of people that are heading to Tahoe and Reno. It makes me wonder how long this has been going on. I can't be the first person that has requested a Trial de Novo after a TBWD.

I went back to the court to try again to get a copy of the officers statement. It took a while for them to actually make a copy since she said the clerk needed to update the minutes. I had to laugh because the officer actually checked "The offense(s) were not committed in my presence" on form TR-235 that he submitted for the TBWD.

Right now I'm weighing my options. From everything I've researched I haven't found any case law on the matter. Although in David Browns book he does state counties used to try and trick people into giving up their right to a Trial de Novo. However 40902(a)(2) was amended so that state laws supersede any local rules. Given that 40902 was last amended in 1999 I imagine that happened a while ago. I haven't found a single case or even heard of anyone being denied a Trial de Novo like this. It seems like a slam dunk on appeal and then I could cite People v. Kriss and since form TR-200 (Instructions to defendant TBWD) states that I not only have a right to new trial but that at this new trial I have a right to a speedy trial among other things I'm wondering if I could argue those rights were violated too in arguing for a dismissal.

My question is do I really want a Trial de Novo at this point. It seems like I have a good chance at getting a dismissal through the appellant court. It seems like the worst case would be them just requiring a Trial de Novo. So if I go through the appellant division I have 2 chances at a dismissal vs one via a Trial de Novo.

Furthermore as I mentioned above I highly doubt I'm the only person this has happened to. Wouldn't going through the appellant division and getting a decision bolster complaints I could file against the judge as well as having an official record of what happened. I'm worried that this may end up getting swept under the rug and they are going to keep doing this to people who simply don't know better or don't want to go through the hassle of fighting it. Somebody at some point has to stand up and say this isn't right. What are people's thoughts on this?

Speed Trap

I'm also pretty sure that the road is a speed trap. It has a posted speed of 50MPH. The 85th percentile speed is 56MPH. The 10MPH Pace is 48-57. 56% of people are above the posted speed limit of 50MPH. The report also states that the Accident per Million Vehicles Miles is lower than the countywide average rate normally experienced along similar roads. The reason they state for lowering it 5MPH below what should be 55MPH as the nearest 85th percentile is:

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In light of the roads alignment, numerous intersections and driveway encroachments, and multiple fatalities, a reduction in the indicated speed limit is clearly warranted.

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This seems like a clear violation of VC section 22358.5 since none of the reasons listed fall under things not readily apparent to the driver. Further more the fatalities have no mention if they were speed related (it was 4 deaths over a 3 year period). The report lists 7 DUI accidents and the fatalities could easily be related to that. The report says that the accident rate is lower than the county average. From what I understand from reading People v. Goulet this seems like insufficient reasoning to lower the speed an addition 5MPH from the 85th percentile and as such this area is a speed trap.

Since the statute you are charged with is pretty much exempt from speed trap laws, I would not touch speedtrap issues in your opening brief. The bottom line is, the officer offered ZERO testimony with regard to the highway being a two-lane undivided road when he wrote his declaration or when the TDN took place. Your strongest argument is that there was insufficient evidence to convict under VC22349(b) since there was no conflicting testimony in regard to the highway being a two-lane road. You also have to keep in mind that appelate courts tend to deal with matters anywhere between dodgy jury instruction issues in a murder case and obscure maritime navigation law statutes. They will not know the ins and outs of traffic law. Keeping your opening brief relatively brief and straight to the point is better than making them read an unfocused 30+ page paper.

When it comes to arguing for dismissal rather than TDN as relief, I would argue based on the sentiments presented in the Goulet decision such as "Traffic rules account for most of the contact by average citizens with law enforcement and the courts. Enforcement of laws which are widely perceived as unreasonable and unfair generates disrespect and even contempt toward those who make and enforce those laws." The process of appeals is not easy for a non-attorney. No defendant should be forced to go through the appelate courts to right a capricious and arbitrary court decision to convict. If a defendant does go throught the motions and gets it overturned, a dismissal of the charge is the only appropriate remedy to provide relief to the defendant and sanction the trial court.

Disclaimer: I am not a lawyer. The advice above should be taken with a grain of salt and at your own peril :)

Hey, this isn't my thread, hehe =)

rrborg got a 22350, and I got the 22349b

I will heed your advice in regards to the speed trap stuff though

My bad. I've let the mod know to either move that reply or delete it (so I can repost it to your thread). Good catch, though.