My question involves traffic court in the State of: California
Pertaining a 22349a speeding ticket. I sent discovery notices out about 35 days ago, (from a friend so that there is a witness that they were sent and by priority mail) to the CHP offices that the officer works at, the DA Steve Cooley, and thencourt and have only received a reply from the DA.
The DA stated that he is not the prosecuting attorney and thus does not have an obligation to give discovery. He quoted People v. Carlucci (1979) for the reason for the absence of the prosecutor.
My discovery asked for Pursuant to California Penal Code sections 1054 and 1054.1, and California Government Code section 26500, the defendant in the above entitled matter does hereby request under discovery the following:
A list of all witnesses for the prosecution.
A copy of all records regarding the maintenance and calibration of the speedometer used in this case;
A copy of all of Officer J. Bach’s notes on this case including copies of the front and back of the officer’s copy of the ticket.
This request is made on this the 11th day of August 2011.
I feel like I am in a jam here because my TBD is due in about a week and half and I still have not received discovery.
My last thread (which is now closed) had information of the ticket I am pasting the details from there hereafter, the thread is located at http://www.expertlaw.com/forums/show...ht=#post520003.
My question involves a speeding ticket from the State of: California
More precisely Souther California, and the ticket was issued by a CHP officer in San Dimas (Los Angeles County)
I was cited for 22349 (a) infraction, with posted speed 65 and approx speed 90.
1. First, the date of birth is wrong on the ticket, the officer sent in a Notice of Correction but again has the wrong year. I do understand that this is just a clerical error and does not dismiss the ticket, but does it warrant mentioning in court.
2. The officer did not use a radar, lidar, and did not mention which patrol vehicle he used on the citation. He did mention verbally that he "paced" me. Does this require a special certification in court?
Also how can he bring proof that the speedometer was calibrated if the does not mention the patrol car?
3. If he did pace me I had another car in front of me going 75. I had cruise control set at that speed and was keeping equal distance to the car in front of me. I moved out of the #3 lane to the #2 because the officer was moving quickly behind me (thought there was an emergency he was getting to), this may account for the high speed he used when pacing, should I mention this in court. The officer did not have his headlights on, and it was 9 pm?
4. I have 4 weeks, should I file a notice of Discovery or just request any information the Officer has in court?
I tried to make this post as organized as possible, I understand that the Officer was doing his job of keeping us safe, I would just like to exercise my right to a trial.
Thank You for your help and reading the post, it is much appreciated.
Have Not Received Discovery, Need to File TBD
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08-29-2011, 01:56 PM88sHave Not Received Discovery, Need to File TBD
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08-29-2011, 06:35 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBDDid your friend fill out a valid proof of service? Just that he mailed it or witnessed its mailing does not make it valid service. Remember that for the future, since you got a response anyway.Quote:
Quoting 88s
Let's get one thing clear first. You will have to submit your TBD before you can seek any kind of resolution -- motions must be filed at least 10 days before they're scheduled to be heard.Quote:
Quoting 88s
I believe this is the standard response from LA county. You can ignore it and get discovery on the day of your trial-de-novo (if you lose the TBD), or you can try to fight it now. Did you use the cover letter from helpigotaticket.com by any chance? Take a look at it anyway, and you may wish to send it and wait for a response before taking the step below (find out when the openings on the motion calendar are first though!)
What you can try is motion for dismissal based on lack of prosecution. Carlucci only absolves the prosecutor from personally appearing at the trial, not from his other responsibilities. If the letter states that Cooley is not the prosecuting attorney, who's representing the people? Formulate a motion based on that. Either in that motion, OR verbally at the motion hearing, if it isn't granted, you can motion to order the DA's office to comply with your request.
If you decide to go the motion route, post back and we can help you further. -
08-30-2011, 03:32 PM88sRe: Have Not Received Discovery, Need to File TBD
I used a valid proof of service form from, helpigotaticket.com as well as the cover letter.
I would like to go the motion route. The DA's letter stated that I should contact the issuing agency, (which I did). I have not heard back from CHP. I have to send my declaration in 5 days +/- 2 days for mailing time.
I am think that there is indeed a lack of prosecution because the DA is denying involvement as the prosecutor and the Officer is in no way a prosecutor but rather a witness.
Also should I send a TBD, in the mean time without the motion, should I only write details and not mention the prosecution? So that if I lose I can file a motion when undergoing a trial de novo. -
08-30-2011, 03:38 PMcdwjavaRe: Have Not Received Discovery, Need to File TBDA prosecutor is not required. See People v. Carlucci , 23 Cal.3d 249Quote:
Quoting 88s
http://scocal.stanford.edu/opinion/p...carlucci-23167 -
08-30-2011, 04:55 PM88sRe: Have Not Received Discovery, Need to File TBDI understand, but I should be able to view any information that the officer has, such as the back of the ticket, so that I will be able to address any problems or discrepancies.Quote:
Quoting cdwjava
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08-30-2011, 04:56 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBDCarl,Quote:
Quoting cdwjava
Carlucci says that the prosecutor need not be present at the trial. Do you also think it absolves the prosecutor of all other responsibilities including providing discovery?
I would recommend you send the TBD without mentioning anything about discovery or prosecution...the less the better. Then, wait for the decision. If you lose, then you can apply for a trial de novo, get a date and start making your motions.Quote:
Quoting 88s
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08-30-2011, 05:27 PM88sRe: Have Not Received Discovery, Need to File TBD
Thank you quirkyquark,
Now where can I find a form to file a motion? Will it be on the CA Superior Court website? And do I just motion to dismiss the case completely?Quote:
Quoting quirkyquark
I doubt prejudice is involved, correct me if I am wrong.
Thanks again. -
08-30-2011, 05:39 PMcdwjavaRe: Have Not Received Discovery, Need to File TBDDiscovery is not the same as whether or not a prosecutor is required. Since CA state law requires law enforcement to send the citation to the court - bypassing any city or county prosecutor - then it stands to reason that the prosecutor is not necessarily going to have any knowledge of discovery information with regards to most traffic citations. Some counties will forward the discovery request to the local law enforcement agency if the agency has been identified. Others merely send back a notice indicating they are out of the loop.Quote:
Quoting 88s
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08-30-2011, 05:47 PMcdwjavaRe: Have Not Received Discovery, Need to File TBDBecause of Carlucci and the state Penal Code. CA state law mandates the direct file of the citation with the court and not by way of a city or county prosecutor, and because PC 1054.1 requires the prosecuting attorney to provide discovery only "IF it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies." As such, it can be argued - indeed, HAS been argued - that the prosecutor does not have to turn over such information that it does not possess. I believe that Los Angeles County holds this policy as do many others. My county simply sends us the discovery request with a letter asking us to fill it. We do so, but whether we would face any penalty for not doing so is a question I could not answer. But, I'm in a small county so it is not all that hard to figure out who wrote the ticket. In a large county like L.A. it might be a time consuming and tedious process to track down the specific agency or precinct that wrote the citation, and it would not be unusual that a party might indicate the wrong agency (out of error) on their discovery request. If the CHP makes a stop in the city limits, it is possible that the defendant can mistakenly state that the citing agency was LAPD and thus the DA would send such a request to the wrong place. As such, I suspect they opt to stay out of traffic matters altogether.Quote:
Quoting quirkyquark
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09-11-2011, 01:31 AMThat GuyRe: Have Not Received Discovery, Need to File TBD^THERE^ it is folks! It is clear as day, and yet, people choose to simply ignore what is written in black and white only to hang their dreams on "dismissal" which not only has nolegal basis, it is clearly prohi ited in the same statutes you are all staring at!Quote:
Quoting cdwjava
Anyways... I may be a few days late to post in this thread, !_( :2)n better late than never. Actually, what I am posting is nothing new. It is posted alll over this forum so its nothing new.
88s, your other thread is NOT closed. Also, and while I did in fact receive your msgs, you may have noticed that I did not post for several days so just know that I was not ignoring your questions.
That said, I typically prefer to discuss any questions in a public thread because more often, the questions will eventually benefit someone else in the future, so it makes it easier on me; but equally, it puts my responses out there for others to check and verify. In spite of what my signature says, I too make mistakes at times.
Are you aware of how many years traffic cases have been prosecuted without the presence of a prosecutor?Quote:
Quoting quirkyquark
Are you aware of how many years traffic cases have been prosecuted without any particular entity accepting responsibility for providing any sort of discovery?
Side Note (intermission): Does a "rhetorical question" imply that the "question" is one which has no answer? Or does it indicate that it has been answered thousands of times and it would be a waste of time to have to have to bring it up and discuss it, yet again?
I have no idea which county you reside in or which you've experienced the tribulations of traffic court... Not asking you to reveal that if you would rather not, but what would happen to a written motion if you were to file one in a traffic case?Quote:
Quoting quirkyquark
Alternatively, does your county schedule and hear motions as part of its traffic court calendar?
Are you aware of ANY county in the entire state that does offer the benefit/privilege of a motion hearing for a traffic infraction case?
Have you ever filed a written motion in any traffic infraction case?
Or have you actually requested and were granted a hearing during which you were able to verbally argue a motion in a traffic infraction case?
And do you seriously think that you'll find one judge in the entire state who would go out on a limb and issue an order to compel a prosecutor to drop the stacks of misdemeanor and felony files only to spend time chasing after documents that (may be not for 88s) more often than not can be obtained by other means?
Lastly, as to the few recommendations you made above, can you cite the authority, code section or case law citation that would provide any basis that they are viable options?
If the answer to the above question is "no", then why send 88s on a wild goose chase that we already know will lead him nowhere?
Sorry for all the questions... And don't get me wrong, from a theoretical and procedural stand point, many of your ideas sound great... However, from a practical and realistic stance, they really are.... Shall we say, "pointless"...
If I'd heard that argument once, I'd heard it a thousand times. Which means that if a judge has heard it a thousand times, he'd heard it many multiples of that. And the answer is going to be the same: "the district attorney has no clue that you have a pending case, is unaware of what evidence if any exists, and will refer you to the citing agency. The citing agency might provide you with most items in your request, but if they don't, then based on your contention that the prosecutor is responsible, YOU are absolving the citing agency of any responsibility to provide you with anything, so moving for a dismissal on those ground will get you a bunch of documents fulfilling your request.Quote:
Quoting 88s
Seriously, I swear to you the you are not the first one to go trough this dilemma, nor are you the first one to come up with the solutions you've come up with or make the arguments you've made!!!
But you're free to try it and report back with your results and findings!
Again, you're free to choose whichever course you feel would bring you your desired results. But in the case of you losing your TBD, and if for some reason you still feel you have a chance by taking ot to a TDN, you can simply request a copy of the officer's declaration. That will undoubtedly include everything you've requested via discovery and more (more = the officer's actual testimony).Quote:
Quoting 88s
If on the other hand you're using the discovery issue as a means to a dismissal, then you could:
1) file motions, jump through hoops, go through obstacle courses and probably still end up getting your items from the officer on or shortly before your TDN date, or...
2) Simply appear in court on your TDN date, and verbally state to the judge that you requested discovery and nothing came, at which point the likely outcome is that he'll turn to the officer and ask him to provide you with copies of what he has. (Basically, same result as #1 above (which is ALSO THE SAME RESULT as if you were to simply request a copy of the officer's declaration)).
Good luck, and please keep us updated! -
09-11-2011, 07:15 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBDIt would be every DA's wet dream if the courts interpreted "possession" as narrowly as that...but they don't:Quote:
Quoting That Guy
If an informal request is ignored, it can certainly be argued that because this information is "reasonably accessible" or "readily available" to the prosecution and (at that point) not as accessible to the defense, it's in the prosecution's control and they have to provide it. Do you see a police station ignoring a request from the CA/DA's office to the defendant? They sure could (and do) if it came from the defendant.Quote:
Quoting In re Littlefield, 851 P. 2d 42 - Cal: Supreme Court 1993
Briefly, yes. I'll reserve a detailed answer for later until I can get my hands on a copy of the "Instructions for Filing a Traffic Motion" from said court.Quote:
Quoting That Guy
Meanwhile, you can feast on this VC 22350 case from Santa Clara County in 2000 which included multiple motions, hearings, continuances as well as a "prosecutor" in the form of law interns with the DA's office. I'm not claiming Santa Clara still does this a decade later, what with the budget crunch and all, but they certainly did in 2000 if you were persistent enough.
Frankly, this is hyperbole because (a) you have advocated a motion to compel innumerable times on this board as the legitimate option for failure to receive discovery and (b) the prosecutor doesn't have to chase anything -- I'm sure a simple call from someone in his office to the citing officer's station would make sure the documents get to the defendant [as I have mentioned before, I'm OK if the envelope comes from the citing agency as long as it contains the necessary information].Quote:
Quoting That Guy
The only recommendations I see are a hail-mary dismiss for failure to prosecute (which involves the judge's discretion per PC 1385), and the motion to comply per PC 1054.5(b).Quote:
Quoting That Guy
Well, as to the latter part, I'll take it "under advisement" :p . There's no need to apologize, and please keep on with the questions. I love to debate and am glad to have someone this smart to spar with.Quote:
Quoting That Guy
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09-11-2011, 07:22 PMcdwjavaRe: Have Not Received Discovery, Need to File TBD
But, we still have to return to the simple fact that the CVC requires citations be filed with the court. They never, ever, EVER go to a prosecutor unless for some strange reason the prosecutor retrieves them from the court, or they are sent by the agency to the prosecutor because the matter might be capable of being charged as a misdemeanor (such as with unlicensed or suspended driving cites).
Whether it is reasonable to assume that the prosecutor has access to this information or not is debatable and likely varies depending on the jurisdiction. Depending on the size of the county, this may or may not be reasonable for them to track down. But, as has been oft-repeated, even if the DA fails to respond to the discovery request the court can still compel the agency to provide the information.
Small counties as mine make it easy ... so long as the Discovery request at least indicates the agency. heck, here if we have the name, we can probably track it down ... unless it's an officer with the BLM, Forest Service, or Fish and Game. Large counties where you have thousands of officers, dozens of jurisdictions, and agencies that may be federal or state level, tracking down a cite by officer name or cite number might be far more difficult. -
09-11-2011, 07:36 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBD
^^^ I agree absolutely, and I'm OK with both CC'ing the request to the agency/station and the response coming in an envelope without the DA's return address on it. The request should include at least the cite number AND the agency. My county simply forwards the request along too.
Given a motion to compel, the court will probably decide who (agency/DA) will most effectively provide the requested info.
As for access, let's take the LA Superior Court. I assume the CA/DA's office has access to the same online system us regular folks do. A citation can be located given the courthouse, citation number and the citing agency. A proper IDR should have at least those three pieces of info.
Providing a citation number only is begging to be ignored or rejected. -
09-14-2011, 12:42 AMThat GuyRe: Have Not Received Discovery, Need to File TBDNice try... But let's keep things in proper perspective.Quote:
Quoting quirkyquark
We are discussing “discovery relative to a traffic infraction case”. The 5 cases you cited, and while they do indeed define the prosecutor's role and responsibility to provide a defendant with timely discovery, they relate to criminal matters of a more serious nature, AND more importantly, matters that are handled by the prosecutor... Therefore, the prosecutor's role is well defined and his/her responsibilities are derived therefrom. Not the case here.
It certainly can be argued that -insert any wild idea you may have-... That does not mean the argument is worth much! But before you can get arguing that because this information is "reasonably accessible" or "readily available" to the prosecution..., you should elaborate on your definition of "reasonably accessible" or "readily available". As far as I am concerned, and as soon as someone from the prosecutor's office sits at his/her desk to write a letter to the LEA requesting such info, it is NEITHER under their control, NOR is it in their possession. Why would you have to “REQUEST” something that is under YOUR CONTROL and IN YOUR POSSESSION????????????????Quote:
Quoting quirkyquark
Take your time... But when you do end up posting anything that is related, let me reitterate that the intent of my questions above is not how to file or argue your motion, but how to get the court to schedule such hearing on a different date/time than your arraignment or your trial! Better yet, get one for L.A. County and I'm sure the OP will greatly appreciate it!Quote:
Quoting quirkyquark
BTW, you said "Briefly, yes" but we never got the brief version!
You can call it a feast, I would rather refer to it as a famine for relevant or applicable information. The fact that the prosecutor's office was involved to some degree in that case, meant that they could not argue that the information is not in their possession or under their control... Compare that to this case where the prosecutor in not even aware of the existence of the citation, and I'll still stick to my opinions that a “lack of prosecution” argument is dead before it even starts!!! In other words, you go ahead and show up at trial, and you'll find out that you WILL BE PROSECUTED!!!Quote:
Quoting quirkyquark
Still regardless of whether the DA is or isn't involved, or whether that court allowed for separate hearings so the defendant can argue motions, that case would provide a good example (but not a citable reference) of “lack of prosecution because the officer did not show up at trial” BUT NOT because the DA refused to comply with a discovery request, which is the issue we are discussing here! In fact, that case was dismissed simply because the officer was unavailable to appear on the date of the trial.
But hey, since we're posting stories, here is one I was shocked by: I have a friend who -a few years back- had interned at several different DA offices in several counties, and one of his assignment was to go to traffic court to try and settle moving violations to non-movers... Something that is unheard of these days... Highly doubt this is of any help to the OP!!!
Not only innumerable times, but I have advocated a motion to compel EACH AND EVERY time someone came along asking about discovery versus dismissal. And along with that, I have often made reference to 1054(c) which bars the court from dismissing a case where the prosecutor failed to provide discovery. You, on the other hand, haven't mentioned a motion to compel... Instead, you are suggesting the OP should leap into a "motion to dismiss for lack of prosecution" (worse yet, in a TBD).Quote:
Quoting quirkyquark
You can call it a hyperbole or whatever... But I NEVER suggested that the prosecutor will comply (run out, request the items and provide them to the defendant); I NEVER implied that the prosecutor's failure to do so will result in a dismissal, and I NEVER hinted that the prosecutor's failure to provide discovery constitutes a “failure to prosecute”.
Instead, my recommending a motion to compel in each and every discovery thread, was merely to advise the OP that any “lack of discovery” argument will be best made if and only if the defendant were to follow the provisions of PC1054, thereby strengthening their position that by doing so, the defendant expects the judge to hold the other side to the same rules, requirements and procedures, thereby affording him/her the opportunity to review documents listed in their request prior to their case going to trial!
So in a typical discovery related thread which usually starts out with “I requested discovery, I haven't received anything, how do I get a dismissal”. In response, I would inform the OP that a dismissal is not an automatic outcome at that point, that the next step in the process is a motion to compel, and that by doing so, they are very likely to get the opportunity to review the evidence before their trial AND possibly have a legitimate reason for a continuance (another remedy under PC 1054.5) as a result.
So the hyperbolas that I see in this thread and elsewhere, are NOT coming from my side...
And from your response to Carl's post:
The information will be more effectively and efficiently provided by the LEA...Quote:
Quoting quirkyquark
So the DA now has a[n identical] copy of the citation that the defendant has in his possession. What about the other items that are in the possession of the LEA?Quote:
Quoting quirkyquark
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09-14-2011, 01:50 AMquirkyquarkRe: Have Not Received Discovery, Need to File TBDPlease enlighten me with statue or case law which, other than relief from attendance in court, defines the prosecutor's role in an infraction case to be any different than misdemeanors?Quote:
Quoting That Guy
You (and the DA) are free to define those phrases however you wish. If you read the case law above, the definitions as the COURTS construe them are pretty clear and cited authoritatively would certainly result in the granting of any motion to compel.Quote:
Quoting That Guy
IIRC, the process at the relevant Traffic Division is to ask the clerk for the first free space on the motion calendar, prepare a motion for on or after that date, serve it on the DA and then file it with the court with proof of service to the DA. If the first free date is AFTER your trial is scheduled, I was informed it will be heard ON the day of the trial. As for LA County, I will try to get authoritative info soon.Quote:
Quoting That Guy
You have your cases crossed...the officer DID show up at trial but it was dismissed because of a technicality in the definition of "local street" in 22350.Quote:
Quoting That Guy
It also looks like you have your posts crossed. Here's the portion of my reply to OP you're going on about:Quote:
Quoting That Guy
1. I clearly tell him any motions, etc. will happen AFTER the TBD.Quote:
Quoting quirkyquark
2. The "lack of prosecution" is based solely on the statement in the letter from the DA's office: the DA is not the prosecuting attorney. It has nothing to do with failure to provide discovery.
3. I tell the OP to have a motion to compel in his back pocket.
No arguments there; it's perfect. As I said, my "dismissal" idea was based on the DA's letter stating verbatim "The DA is NOT the prosecuting attorney [for your case]." -- not failure to provide discovery.Quote:
Quoting quirkyquark
So the hyperbolas that I see in this thread and elsewhere, are NOT coming from my side...
The DA is free to ignore an IDR for whatever reason. The courts have determined items in the possession of the LEA are within the DA's control for purposes of PC 1054, et seq. and the DA won't ignore an order to comply.Quote:
Quoting quirkyquark
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09-14-2011, 08:51 AMcdwjavaRe: Have Not Received Discovery, Need to File TBD
When I have seen these orders, they have been directed from the court to the agency holding the discovery material. In other words, the court orders the agency to provide the items in question, not the DA. Now, that may vary in some places, but since it makes sense to compel discovery from the agency that actually holds the items than from an office that is not part of the loop, then it would seem most expedient to order it from the agency. I have yet to ever see such an order come through the DA via the court. At least not in the counties where I have worked.
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09-14-2011, 03:37 PMThat GuyRe: Have Not Received Discovery, Need to File TBDI think you meant statute... :DQuote:
Quoting quirkyquark
Speaking of proof... case law or statutory or both, how about some sort of direction that shows how your recommendation for a motion to dismiss for "failure to prosecute" has any legal merit whatsoever!!
In response to your request regarding the role of the prosecutor in a traffic infraction case versus that in a misdemeanor, and though I am not about to go into the entire California legislative history, I can tell you that it all started on January 1, 1969 when laws were enacted where a new classification of a criminal act referred to as an “infraction” was introduced. While an infraction still maintained some aspects of a criminal charge ( PC 19.7. Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions including, but not limited to, powers of peace officers, jurisdiction of courts, periods for commencing action and for bringing a case to trial and burden of proof.), there were some aspects that were removed including but not limited to the right to a jury trial and the services of a public defender if/when needed (see PC 19.6). Some people claim that this was the state's attempt to circumvent the rights of the people, although I would guess that streamlining the process, thereby making it more cost efficient for the state and a lesser burden for the people (they don't have to face a DA in court and they do not face a criminal charge to deal with) played a major role in the decision to make that change.
So to a degree, the proof is plenty although none of it is specific enough to directly address the topic of who is responsible for discovery in a traffic infraction case or what role, if any, the prosecutor must play in a case involving a misdemeanor charge versus what he should play in an infraction charge. This is in spite of the fact that the PC sections relating to criminal discovery have indeed been amended since 1969 and yet no changes were made to specifically address the differences in the role the DA/CA must play between infractions and misdemeanors. Maybe the legislature left it up to the courts to more specifically define the prosecutor's role, and although it seems that this did happen with regards to misdemeanors (by virtue of the cases you cited as well as others), yet I am not aware of anyspecific definitions that relate to infraction matters. Don't ask me why!!!
Having said that, I offer the following citation(s):
From In re Dennis B., 557 P. 2d 514 - Cal: Supreme Court 1976:
My guess is that the last statement there (re: innovative procedures) is the basis for what Carl referred to up top when he described the filing procedure for a citation:Quote:
Quoting In re Dennis B.
Additionally, and in reference to my comment:Quote:
Quoting cdwjava
... I offer the following (also from In re Dennis B.):Quote:
Quoting That Guy
So you're not going to get very far suggesting that a court, when issuing an order to comply with a discovery request, will direct the same to the DA's office rather then to the LEA...Quote:
Quoting In re Dennis B.
Furthermore, and while you claim that Carlucci only referred to the prosecutor's presence at the trial but did not address his other responsibilities, I'll offer that the above two citations I posted from "In Re: Dennis B" were also cited in Carlucci by the court, after which then the court added:
Unless you're going to argue that "procedural intricacies" only refers to relieving the prosecutor from having to appear in court and not to the prosecutor's role in general, it would follow that a court is not likely to hold the prosecutor as the party responsible for providing items that are neither in their possession nor under their control.Quote:
Quoting People v. Carlucci
Again, the case law citations you offered are for criminal cases where the DA was involved in prosecuting the case, they had full knowledge, open access, and an active roll in every proceeding in each case... Fails in comparison to a traffic infraction case where the prosecutor's first knowledge of anything related to the case came through the defendant's request for discovery!Quote:
Quoting quirkyquark
OK, thanks for the brief version... I guess we'll wait to see how that plays out in today's world, and specifically, how it applies to this thread with it being in L.A. County!Quote:
Quoting quirkyquark
In all honesty, after reading that the guy mailed his IDR to the court and expected the court to forward his request to the DA, rather than him mailing it to the DA... And that he later handed a copy of his request to a DDA (while he was out by the dumpdsters smoking a cigar), and that this -as far as he was concerned- was proper service and this way "they couldn't weasel out"... I stopped reading the detailed links. Instead, I simply scrolled to the bottom of the main page, read something about the trial being scheduled for 11/7 and that he officer had a class to attend on that date!Quote:
Quoting quirkyquark
Even with that said, I still don't see any reference to a dismissal because of a definition of local street (which by the way, is not defined in 22350, instead, it is defined in 40802).
No, I don't have my posts crossed!Quote:
Quoting quirkyquark
And you can try and twist it however which way you want. At the end of the day, a few FACTS still remain:
1) The DA's response came as a result of a discovery request by the defendant;
2) The DA does not prosecute traffic infraction cases, so a statement that he is not the prosecuting attorney is not that big of a stretch;
3) Even with #2 above, a "failure to prosecute" argument has no legal basis or merit and is only likely to result in a waste of time for everyone involved. Instead, a motion to compel should be in the OP's front pocket, not back pocket.
Is there an echo in here!Quote:
Quoting quirkyquark
And again, in light of the citations I posted above, the court is not likely to issue an order to comply to the DA, it would make more sense, would be more in line with most orders I've seen/heard of and it would be in everyone's best interest (the state saves resources and the defendant gets his info faster) to issue such order directly to the LEA. Although at the end of the day, it makes no difference who it comes from, as long as it comes... But even then, I am not sure how big a factor it will be considering that this is a 22349 citation and discovery is not likely to reveal any big issues for the defendant to work with!Quote:
Quoting quirkyquark
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09-14-2011, 10:21 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBDThat makes perfect sense, thanks for clarifying. And the process certainly works, because I doubt the LEA would ignore the order (assuming they had blown off the letter from the defendant in the first place).Quote:
Quoting cdwjava
Thanks for history and related info, very informative. I don't think this will be settled either way until we have case law. As you explained (and Carl verifies above), any orders would most probably be to the LEA and as long as I got what I wanted, it wouldn't matter who it came from.Quote:
Quoting That Guy
Please note also that the my original post was from about two weeks ago...knowing what I know now, I wouldn't make "lack of prosecution" my first recommendation. :) I'd still love to know a court's thoughts, on the record, to that form letter from the LA DA. -
09-15-2011, 04:10 AMThat GuyRe: Have Not Received Discovery, Need to File TBDMy guess is that the judge will refrain from addressing the letter or any of its contents. What would be the point? If the officer has the requested documents, then he will order that copies are given to the defendant. Problem solved!Quote:
Quoting quirkyquark
And speaking of the "documents" requested by the defendant (copied and pasted from OPs post):
1) A list of all witnesses for the prosecution.
2) A copy of all records regarding the maintenance and calibration of the speedometer used in this case;
3) A copy of all of Officer J. Bach’s notes on this case including copies of the front and back of the officer’s copy of the ticket.
It is obvious by that point that the officer is the only witness, so item (1) is covered; a copy of item (3) will be provided, and hopefully, for the OP's sake, it is not written in code... As for the calibration certificate, OP should keep in mind that there is no statutory requirement for the officer to present one (see People v. Lowe, 130 Cal. Rptr. 2d 249 - Cal: Appellate Div., Superior 2002), though I suspect he will. -
10-25-2011, 12:03 AM88sRe: Have Not Received Discovery, Need to File TBD
Thanks for the ongoing debate, a lot of useful information and I respect everyone's opinions. I have kept tabs on the replies although I did not reply because I did not have anything useful to add till now.Here is the update:
1. I submitted the TBD.
2. The court found me guilty.
3. I have 20 days to file the TR220 form, 10 days are left (I do not know what to fill out in Section 3 where it states: "I am dissatisfied with the court’s decision. I request a new trial (trial de novo) for the following violations (specify):")
4. I received a Notice of Correction and Proof of Service form, The officer originally got my Date of birth wrong. But on the correction the Officer is again wrong with the Date of Birth. So the correction to the wrong date is still incorrect. He signed it with the general phrase "I declare under penalty of Perjury under the laws of the State of California that the foregoing is true and correct."
5. I received discovery from CHP a couple weeks ago (much longer than 20 days) and I received another letter from the DA last week.
It reads:
In a letter received by this Department, you requested discovery concerning a traffic infraction (10606LQ). Government Code section 26500 provides that "The district attorney is the public prosecutor, except as otherwise provided by law. The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses." That provision, however, has been construed to permit the District Attorney, as is the policy in Los Angeles County, not to appear on traffic infraction matters.
The issue first arose in the Supreme Court's unanimous decision in People v. Carlucci (1979) 23 Ca1.3d 249, 251-252, where two Los Angeles County traffic infraction defendants challenged trials that were conducted in the absence of a prosecutor. The Court found that a defendant's right to due process is not violated where a traffic infraction trial is conducted "without a prosecuting attorney in attendance if the conduct of the court, including its questioning of witnesses, is fair and properly limited in scope." (Id. at p. 255.) The Court said one reason for this, was that traffic infraction trials should be "simplified and expeditious procedures..." (Id. at p. 257.) In fact, the court noted that defendants might be disadvantaged by having to face a "professional adversary" if a prosecutor were required to participate. (Id. at p. 258, see Pen. Code, § 19.6 [prohibiting appointment of defense counsel for infraction proceedings].)
Following the decision in Carlucci, the issue arose as to whether or not the District Attorney could be compelled pursuant to Government Code section 26500, the section you cited, to pursue infraction matters. The issue was first considered by the Sacramento County Superior Court in People v. Daggett (1988) 206 Cal.App.3d Supp. 1, 6, which held that a prosecutor, under Government Code section 26500 has discretion not to appear on traffic infraction cases. This holding was subsequently adopted by the Court of Appeal in People ex rel. Kottmeier v. Municipal Court (1990) 220 Cal.App.3d 602, 610, which held a prosecutor's decision not to participate in infraction proceedings "is not forbidden by Government Code section 26500." (See also, 75 Ops.Cal.Atty.Gen. 51, 51 (1992) [concluding that then municipal court, now superior court, may not require a deputy district attorney to attend "arraignment proceedings, applications for bail, and hearings on diversion eligibility". Based on the decision in Carlucci, Daggett and Kottmeier, the Los Angeles County District Attorney adopted a policy of not appearing on traffic infraction matters. Consequently, we are not the proper party to process your discovery request. Instead, we suggest you send your request to the issuing agency.
My questions:
1. What do I fill out in section 3: "I am dissatisfied with the court’s decision. I request a new trial (trial de novo) for the following violations (specify):"
2. Should I go about a motion, I already know ThatGuy’s response will be no, but wondering what quirkyquark thinks.
3. What’s up with the constant mistake of the birthdate…any recourse (not trying to offend anyone) but to say that the cop was incompetent in reading a license and then did not run the license number again to find the correct date? -
10-25-2011, 03:29 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBD
Thanks for the update.
"VC 22349(a)". That's it!Quote:
Quoting 88s
OK, what discovery DID the CHP give you? Please scan/take pictures and post it up on imageshack so we can look at it. Also, remind me again which court are you dealing with?Quote:
Quoting 88s
No direct recourse as such, but there is a small chance it may be helpful at trial. Please scan/post the notice of correction and proof of service.Quote:
Quoting 88s
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10-25-2011, 04:09 PM88sRe: Have Not Received Discovery, Need to File TBD
Never mind question 1, I think it meant which violation I disagree with, which is a 22349A VC.
Thanks!
Edit: Just got QuirkyQuark's reply when I refresed the tab on my browser. Thanks! The Court I am dealing with is Los Angeles Superior Court: Pomona North Courthouse.
Here are the ImageShack URLs:
http://img231.imageshack.us/img231/2...1100000.th.jpg
http://img834.imageshack.us/img834/4...1100001.th.jpg
And here is the link to the notice of correction.
Thanks!
http://img845.imageshack.us/img845/8...5201100003.jpg
Uploaded with ImageShack.us -
10-25-2011, 04:12 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBD
Thanks, I'll look those over. Did you get a copy of the officer's declaration from the court? That's very important in determining how to set up your defense.
Also, the front of the citation is unclear, so what's the date you were cited? -
10-25-2011, 04:23 PM88sRe: Have Not Received Discovery, Need to File TBD
Oh, sorry I was just protecting the officer's and my identities. The date cited was 3/27/11. And for the officers declaration will the court be able to mail it to me or do I need to go in person? I either way I'll try to get it as soon as possible.
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10-25-2011, 04:27 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBDOK, the speedo calibration isn't your favor -- it's accurate and timely.Quote:
Quoting 88s
If you can visit the court in person, they will simply give you a copy right then and there. Mail may take longer. It may be a good idea to go in person 0-3 days or so before the TDN deadline and both submit the TDN request and get the declaration. Also take a copy of the TDN request, have it stamped by the clerk and keep it as proof of submission.
It's looking like your defense will be based mostly on aggressive cross-examination. The declaration will be very helpful.
Are you eligible for traffic school? If so, are you hoping to get it if you lose at trial?
How far are you from the courthouse (it's LA, so time-wise)?
The citation has the same wrong b'date as the notice of correction, right? -
10-25-2011, 05:14 PM88sRe: Have Not Received Discovery, Need to File TBD
I am about 30 minutes away from the court.
The citation said DOB was 9/17/2011.
The corrected DOB is 9/17/92.
Actual DOB is 9/17/91.
This is my first ticket so I believe I am eligible for traffic school and would prefer to receive it if I am found guilty.
Is submitting my TDN request in person preserve my right to a speedy trial? Or did I relinquish that right when I filed a TBD by mail?
So aggressive cross examination would consist of:
1. Asking many questions about the events of the day (such as weather, etc).
2. Asking where he pulled me over (to make a safer stop he made me drive to the exit and stop at a gas station parking lot)
3. Where were you located when you first saw my vehicle?
4. Was your car (or motorcycle) parked or moving at the time?
5. In which lane were you traveling?
6. Did you have a clear view of the traffic on the road when you claim you observed the violation?
7. Was there any other traffic on the road other than your vehicle and mine?
8. How fast was the flow of traffic?
9.Over what distance did you follow my vehicle at a steady rate of speed?
10. Was the distance between your car and mine always constant?
11. How far behind my vehicle were you while you were pacing it?
He stated he paced from 300 ft away so I could ask:
1. Do you agree that the ability to pace depends on good depth perception, so that you can follow at a constant distance?
2. Do you also agree that the farther away an object is, the more difficult it is to pace it?
3. Have you recently participated in controlled tests where you paced a vehicle a known speed from 300 ft?
4. Officer, you paced my vehicle at night, correct?
5. Would you agree it’s harder to keep a constant distance, in order to conduct an accurate pace, at night (or dusk) than in the daytime?
6. Isn’t it harder to accurately pace at night, when you can see only two taillights, as opposed to driving in the day when you can see the whole car body?
7. If you had such tires on your car, the odometer would erroneously read high, correct?
8. Were your tires’ pressures checked when your speedometer was calibrated?
9. Were they checked on the day you cited me?
10. Are you aware that a tire’s air pressure depends on its temperature?
11. Have the tires on your patrol car been rotated, or have any of them been changed since the last speedometer calibration?
I understand this is long and do not want the court to feel like I am wasting their's and the officer's time. So if there are any questions to remove please list the number. I listed all these so it may help someone else in the future.
Thanks for your help quirkquark let the record reflect you're awesome!!! -
10-25-2011, 10:52 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBDOnce you get the TDN notice telling you when and where (i.e., which courtroom) it's set, the first thing to do, when you have the time, is to sit in on a session or two before your trial. If possible, go the same day/time (e.g. a Tuesday at 1:30 PM) your trial is set on; otherwise ask the clerk what judge usually presides at that time, and what other times (that work for you) the judge does traffic trials.Quote:
Quoting 88s
This way you get to see both the judge's demeanor as well as his tendency to grant traffic school after a loss.
After a recent (2009) court decision, you relinquish that right as soon as you opt for a TBD, no matter how its filed. The court rules (4.210) say your TDN should be scheduled within 45 days of filing the request, but they DON'T say what the remedy is if that isn't done. On the rare chance the clerk makes such a mistake, there's no harm in making an oral motion as soon as you're in front of the judge to dismiss the case; any remedy is entirely up to the judge's discretion, but you might just get it!Quote:
Quoting 88s
Thanks for quoting the full list. It's not really worth your time (or ours) thinking about these until you have the cop's declaration. They will usually bring it to court and follow it VERY closely. I will note that some of the questions (tire pressure, etc.) don't matter here since the margin is 25 mph (above 65 mph). Depending on the judge you get, it's important to not make it look like you're wasting time and be on their good side if you want traffic school.Quote:
Quoting 88s
Edit: I looked this up since I was searching for something similar. Traffic trials take place in the Pomona Courthouse North, at 1:30 PM, in Dept. 1. Oddly, the LASC website and the weekly judge assignment show different judges. The weekly assignment should be considered more current and has Commissioner Peters, who used to be a deputy public defender until 1999. The website has Judge Fredricks, who is an ex-cop and was a criminal defense attorney until 1986. In my limited experience judges are typically "fairer" and more "patient" with traffic defendants than commissioners, but you have to go see for yourself. -
10-26-2011, 10:42 AM88sRe: Have Not Received Discovery, Need to File TBDWow, quirkyquark how do you know the resume of these people? Is there a list online or have you been acquainted with them, either way its really cool.Quote:
Quoting quirkyquark
Okay, I'll probably attend a session one of these Mondays (Maybe Oct 31 or Nov 7th to check on how they operate, is the public allowed to sit in the room without being asked why I am there?) I'll will also pick up the Officer's response.
Also you may find it interesting that V C Section 41501 was changed July 1st, 2011.
http://dmv.ca.gov/pubs/vctop/d17/vc41501.htm
And night court is or is not a good idea? (It's the first Monday of every month I am hoping the officer is a Fan of monday night football.:D) And how do you feel about continuances?
Thanks for your help I will update you as soon as I get more information! -
10-26-2011, 12:20 PMThat GuyRe: Have Not Received Discovery, Need to File TBD
I find it interesting that this whole thread was started simply because you didn't get your discovery material, and yet eventually when discovery arrived, it wasn't really that important anymore (in spite of a possible pending TDN) but the letter from the DA was...
Besides that, I know you don't like my opinion but that's never stopped me before so here it is anyway:
Check with the clerk to see if you can (or how) take traffic school and get it over with... CHiPper's got you square in a corner and you might not get that option after a TDN.Quote:
Quoting 88s
And yes, Quirky is awesome but this remains to be a "22349 citation for 25 over with a 'pace'"... The only thing that discovery issues add to a related case, is that they might make for an interesting discussion. At the end of the day, it still remains to be a "22349 citation for 25 over with a 'pace'". So don't judge the potential for a not guilty outcome by the size of this thread; its quite misleading!
Anyway, I'm hoping Quirky can elaborate some more on that earlier discussion we had in this thread re motions in traffic court. I really am curious to find out if those options are even remotely viable in other courts in this state.
Here is a reminder of the tail end of that discussion:
Quote:
Quoting quirkyquark
IIRC, the process at the relevant Traffic Division is to ask the clerk for the first free space on the motion calendar, prepare a motion for on or after that date, serve it on the DA and then file it with the court with proof of service to the DA. If the first free date is AFTER your trial is scheduled, I was informed it will be heard ON the day of the trial. As for LA County, I will try to get authoritative info soon.Quote:
Quoting That Guy
Take your time... But when you do end up posting anything that is related, let me reiterate that the intent of my questions above is not how to file or argue your motion, but how to get the court to schedule such hearing on a different date/time than your arraignment or your trial! Better yet, get one for L.A. County and I'm sure the OP will greatly appreciate it!Quote:
Quoting quirkyquark
Briefly, yes. I'll reserve a detailed answer for later until I can get my hands on a copy of the "Instructions for Filing a Traffic Motion" from said court.Quote:
Quoting That Guy
BTW, you said "Briefly, yes" but we never got the brief version!
You don't have the option to request a continuance on a TDN. And while you might be able to select a date, the officer has set days for when he appears in court and your date is set accordingly!Quote:
Quoting 88s
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10-26-2011, 01:40 PM88sRe: Have Not Received Discovery, Need to File TBD
Thanks That Guy for adding to the discussion.
On this forum I cannot dislike anyone's opinions, I have to respect what everyone says, because I cannot get advice like this anywhere else.Quote:
Quoting That Guy
Got it, I understand. At the court house I have to attend (Pomona North Courthouse) it is only Mondays after 1:30.Quote:
Quoting That Guy
This is a question for everybody: Is there a way to find the officers initial distance(not sure but I think he reports it as "Distance Observed" 1/2 mi), would he report it because the back of the ticket discovery revealed his car was rolling and the stop was rolling? (see line 8 on the discovery) Also in the notes he reported he was going 79 miles per hour at lane #1 is this initial speed? If it is correct please observe below.
This is for the equation:
Your speed= [Officer's speed when rolling]/ [1+(Distance the officer was initially behind you/Distance car traveled until the officer was on bumper)]
According to this [officer stated lane #1 @ 79 mph]/ [1+(officer reported distance "CHP VEH behind" 300ft or 0.056 of a mile/officer reported in notes that he paced me for 1/4 of a mile and observed me for 1/2 of a mile meaning it took 1/4 of a mile to catch up to my bumper)]
When you calculate it out it equals 64.542 mph ~65 mph. So when bearing down to catch up his speedometer gave a higher reading than mine. And he used this speed as the "Speed Approx." on the ticket.
Anyone have any objections please do reply, and I don't mind anyone telling me I am making a fool out of myself (I have a feeling That Guy will!:encouragement:). Also is this correct, I got it from nolo.com under "Pacing Formula." -
10-26-2011, 01:55 PMcdwjavaRe: Have Not Received Discovery, Need to File TBD
Understand that if the officer is CHP, it is almost certain that he is radar certified and that also means that he has been certified in visual estimation. As such, he may not be required to provide much detail to the court regarding any pace only that he outline his training and experience to support an estimate for speed.
So, while your calculation might help to raise reasonable doubt if you can get some sort of numbers for speed and distance and time out of the officer, it may be little more than his statement at court of his approximate distance from you and his estimate of your speed. -
10-26-2011, 02:16 PM88sRe: Have Not Received Discovery, Need to File TBDHe never reported any radar on the citation, is it possible that he did indeed use it and submit it into the court?Quote:
Quoting cdwjava
Also, it was night (9:15 PM) on the 210 fwy, no street lights on this section of the fwy. May I raise the fact that visual estimation would be hindered on a dark fwy and when the observed vehicle is a black car?
I would like to add, on the back on the ticket (discovery) it states the officer paced me in Lane #1. On my copy of the citation it states "22349(a)VC-Speed over 65 mph (#2 lane)." Is there any reason why the details are different?
Thanks! -
10-26-2011, 02:34 PMcdwjavaRe: Have Not Received Discovery, Need to File TBDIt's possible, but even if he did not use radar, his visual estimation can still be considered due to his training.Quote:
Quoting 88s
Unless you were blacked out, it may not buy you much. However, I am not sure if the CHP's radar training includes training in nighttime visual estimation so lighting might be an issue to be raised, but it's not likely to be too damning even if he lacks specific nighttime training as he likely has a good amount of experience running radar at night and thus verifying his visual estimations with radar confirmation.Quote:
Also, it was night (9:15 PM) on the 210 fwy, no street lights on this section of the fwy. May I raise the fact that visual estimation would be hindered on a dark fwy and when the observed vehicle is a black car?
Were you in the #2 lane?Quote:
I would like to add, on the back on the ticket (discovery) it states the officer paced me in Lane #1. On my copy of the citation it states "22349(a)VC-Speed over 65 mph (#2 lane)." Is there any reason why the details are different?
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10-26-2011, 02:53 PM88sRe: Have Not Received Discovery, Need to File TBDNot at the time his lights went on. I went to the #2 lane when I was instructed to pull to the shoulder. But this is probably not a big deal.Quote:
Quoting cdwjava
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10-26-2011, 02:55 PMcdwjavaRe: Have Not Received Discovery, Need to File TBDYou might have to ask him in your cross examination as to what was meant by it, but what is most important will be his testimony.Quote:
Quoting 88s
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10-26-2011, 03:53 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBDI was too lazy late at night to annotate with links, but all the info's online, at least for the LA Superior Court:Quote:
Quoting 88s
- Here's the courtroom directory for Pomona North. The second half of the page contains Courtroom Schedules and tells us that Traffic Trials happen Mon-Fri at 1:30 PM in Dept 1.
- The judge directory tells us that Dept 1 is handled by "FREDRICKS, JOSH M", "Assigned Judge". You'll see assigned judge often -- that means it's a retired CA judge who's been "assigned" because of the heavy caseload and because one or more vacancies have not been filled.
- The LA County Bar Association makes available the weekly assignments of judges though, and should be considered more current. It also tells you if a judge is not going to be there certain days this week, or if a temporary judge will be on certain days, etc. That document says that Dept 1 in your courthouse is being handled this week by "Comm'r Peters", which the judge directory above shows as "Commissioner Anthony Peters". This doesn't seem like a temporary assignment because the document usually makes that obvious.
- The "resume" info is just googling the names with "superior court" added on. Here's the info for Peters (search page for "peters"), and here for Judge Fredricks.
Good. If possible, still attend one session on the weekday/time your TDN is assigned to.Quote:
Quoting 88s
Of course anyone is allowed to sit in on a criminal trial (remember the Constitution, Sixth Amendment, "speedy public trial"? :)) The bailiff will probably ask you as you check in with all the defendants scheduled then, I just say "I'm here to watch." If you stay till the end, the judge may very well be curious (more so to be sure he didn't miss someone), just say the same thing. I've only ever seen judges be happy about it ("Good for you!", "It is supposed to be a public trial!", etc.). If they probe further, be honest and say "I may be in court in a few months, I just wanted to get an idea of how everything works."
Sorry, but no cigar. Night court everywhere in CA is only for arraignments (i.e. first appearances). They don't do trials at night -- it would become a giant loophole!Quote:
Quoting 88s
You most definitely do (the officer certainly can, as you might see in one of your courtroom visits!). LA Metro (the big courthouse downtown), for example, explicitly tells you on the TDN notice that you can reschedule it once, without apparently needing a reason (called "good cause" in legalese), if you let them know at least ten business days before. Other courts will also let you do this, sometimes just by asking the clerk, other times actually having proof, like plane tickets, etc. and they may want you to write up a letter to the judge.Quote:
Quoting That Guy
Some courts will say on their TDN notice "no continuances will be granted", etc. but it's just an obstacle. The rules of court require that a judge consider your request if you think you have "good cause". Ask the Pomona clerk when you go in what their policy is.
TG is right that you don't get to pick a date though. You CAN request a date before/after a specific date, though, within reason ("1 year from now" ain't gonna fly)
Not a bad idea to ask the clerk about this policy. You should also try asking the bailiff and/or the clerk in the courtroom when you visit (as long as you know it's 'your' judge). After everything is said and done, if you feel just before the TDN that you want to do traffic school (and have a better chance of getting it at that point), you can always ask the judge before trial begins (in some LA courts, the officers will call out your name and talk this over with you before the judge even enters).Quote:
Quoting That Guy
Also, did you know that a lot of CA Public/Law libraries ofter free access to NOLO, including all their books in chapter-by-chapter PDFs? The one relevant here is "Fight Your Ticket and Win in CA" (a lot of things it says work better in theory than practice though). Any CA resident can access via any state law library. For example, here's the link via the San Francisco Law Library. As the page tells you, the "password" is the county in all caps with no spaces.
Once in, click Rights & Disputes...Traffic Tickets...Fight Your Ticket. This material may duplicate what you saw on their free site, but see Chapter 12 for an overview of trial; parts of Chapter 11 on cross-examining, in particular p. 266 for the pacing questions.
There are some suggestions about possible angles of attack in your discussion with Carl (cdwjava), like nighttime, lane confusion, etc., but again, once we have the testimony (in the form of the declaration) we can really help you try to pin it down. The formula may be handy, but if you use it you need to boil it down into something simple. As TG mentioned, it's an uphill battle and doing things on the fly (or talking about a lot of math) is not recommended.
Thanks so much for the reminder in the original (resurrected!) thread. Here's the motion instructions for the court I was talking about:Quote:
Quoting That Guy
http://img51.imageshack.us/img51/632...cmotion640.png
I have since learned that (post-arraignment) pre-trial motions at LA Metro in Dept. 67 CAN be done by submitting them with proper proof of service, 10 days notice, etc. to the Criminal Clerk. -
10-26-2011, 05:58 PMThat GuyRe: Have Not Received Discovery, Need to File TBDThe back of his notes say nothing regarding his speed... Only that he is rolling as in "not stopped".Quote:
Quoting 88s
The "#1 Lane 78MPH" refers to YOUR speed NOT his... And at that speed, I might say he may have simply been watching you. What got you in trouble was the rest of the note: "Suspect Vehicle accelerated at a high rate of speed. Moved behind suspect vehicle Paced At 90MPH for 1/4 mile. Stopped For Speed. Drive ?SAYED? Doing 65 - 70"
Where have I seen that form before?Quote:
Quoting quirkyquark
That "(Effective 09/01/90)" would imply that this maybe VERY old... Then again, point (1) mentions CRC 4.111 and I know the CRCs were just recently reorganized and re-numbered, and that seems to fit the current order. Still without knowing which court this is, it would be hard to qualify how applicable it is... Also, am I undestanding the "(you must specify a date)" from #4 to mean that you must select the specific date YOU want your motion heard? Is that real?
Anyway, thank you very much... Especially for this:
Sort of leaves me wondering though if it has to be submitted to the criminal clerk and whether that means it'll be heard in criminal court!Quote:
Quoting quirkyquark
Thanks again! -
10-26-2011, 06:21 PMCalifornia studentRe: Have Not Received Discovery, Need to File TBDMy question reading that is, if the DA is not a party to the case (doesn't have to appear, doesn't have to give discovery (especially given the standard lines seen when people post the DA's reply to discovery requests) etc), then why would a defendant need to serve the DA with motions?Quote:
Quoting That Guy
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10-26-2011, 06:47 PMquirkyquarkRe: Have Not Received Discovery, Need to File TBDI can assure you it's quite current and very applicable (to that specific court ONLY -- not other (smaller) courts in the county). You've probably seen it before :) Please see your PM inbox for an unredacted image with identifying info.Quote:
Quoting That Guy
Yes, you can put any date on or after the earliest available on their calendar (OR your trial date, if that's the earliest). I believe the "must have return receipt" and the date issue can be circumvented with enough persistence, but it requires going beyond the clerk window (and it's best to keep the clerks happy!).Quote:
Quoting That Guy
You specify the courtroom, the judge and a proposed day/time on the motion -- it will be heard there. The impression I got is that as long as the 10-day requirement is met, they (the traffic dept, that is) are pretty flexible about scheduling it during one of the daily trial sessions. The other implication was that for complicated matters -- anything beyond the specifically enumerated things they do at the first floor windows -- you're better off going to the criminal clerk.Quote:
Quoting That Guy
Regardless of the reason, NO COURT should accept a motion without an original proof of service (or substitute - green return receipt like the example above). I say "should" because you could possibly convince the clerk to file it, but the judge will probably throw it out for lack of PoS -- for 44c, why take that risk?Quote:
Quoting California student