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How to Make and File an Effective Appeal

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  • 01-04-2012, 11:48 AM
    kutorei
    How to Make and File an Effective Appeal
    My question involves traffic court in the State of: California!

    ---------------

    Went to Trial de Novo on December 14th and was handed down a guilty verdict for VC 22350 despite evidence(and law) showing otherwise. This entire case is turning into a three-ring circus. But I'll just share the relevant points.

    During trial, officer admitted that at no time did I pose a danger to people or property, and that driving conditions were excellent. (45 in a 30) The judge put forth his own opinion of driving conditions on that particular stretch of highway regardless of evidence presented, and he refused to consider the possibility that said ticket is the product of a speed trap. Informal discovery yielded a engineering report, but it turns out at trial that I didn't get the full file there either.

    Ticket data:
    Posted: 30
    Critical Speed: 38
    Accident rate: higher than normal.
    Reason to lower: none stated directly on survey, but crosswalks, fire station, etc. are drawn onto map. Addendum attached has a stated accident rate for going below the standard 55mph limit, but I'm not sure if it's admissible. HELP!

    So now I'm trying to file an appeal. My problems:

    1. Court reporter is refusing to grant me a transcript of my own trial. Says only appellate court can do that/I can't have a copy and be in the process of filing an appeal. I called the appellate court to straighten it out, but I'm not sure its going to go through. Also, if I receiving a copy-will it automatically be certified? I'm assuming that when I send it in it does need to be certified correct.

    2. Writing the proposed statement. There's a section at the end of Reasons For Your Appeal where it asks how a trial error harmed you. I don't quite know what to put there. For example, deliberately ignoring the written law-it sort of speaks for itself.
  • 01-04-2012, 12:18 PM
    davidmcbeth3
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post

    1. Court reporter is refusing to grant me a transcript of my own trial. .

    This is likely grounds for a civil suit against the court reporter. Write her and demand.
  • 01-04-2012, 01:13 PM
    quirkyquark
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    The judge put forth his own opinion of driving conditions on that particular stretch of highway regardless of evidence presented, and he refused to consider the possibility that said ticket is the product of a speed trap.

    Please see my very similar appeal thread and the associated documents page. Those should answer most of the questions might have through the entire process.

    Quote:

    Quoting kutorei
    View Post
    Court reporter is refusing to grant me a transcript of my own trial. Says only appellate court can do that/I can't have a copy and be in the process of filing an appeal.

    What county & court are we talking about? Was the trial electronically recorded? Ask trial court clerks that. If so, they MUST make a transcript of that for you. The rub is, unless you're claiming you're indigent (broke), you'll have to pay for it, and it is usually at least $5-7 per page. If you get the transcript, you will get a copy and the appellate division will automatically be sent the original certified one -- in that case, you don't need to file the proposed statement, grounds of error, etc, and go straight to the opening brief.

    The other option is to get the recording from them ($10-20), and transcribe it yourself and attach to your statement of appeal.

    Quote:

    Quoting kutorei
    View Post
    2. Writing the proposed statement. There's a section at the end of Reasons For Your Appeal where it asks how a trial error harmed you. I don't quite know what to put there. For example, deliberately ignoring the written law-it sort of speaks for itself.

    See sections 8a and 8b of my proposed statement.

    Quote:

    Quoting davidmcbeth3
    View Post
    This is likely grounds for a civil suit against the court reporter. Write her and demand.

    Yeah, well, civil suits cost $$$ (at least $350 to start off). If you are eligible for a transcript as discussed above AND you are refused by the clerk, the correct solution is to file a motion to compel OR a petition for writ of mandate in the appellate division. The writ is easier because you can use a special form (APP-151) instead of having to research and comply with the formatting and other legal requirements of a motion.
  • 01-04-2012, 04:08 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting quirkyquark
    View Post
    Please see my very similar appeal thread and the associated documents page. Those should answer most of the questions might have through the entire process.

    Wow =O I thought my case was bad, but yours is definitely worst. Would you object if I copy some of the wording/format etc. you used?


    Quote:

    What county & court are we talking about? Was the trial electronically recorded? Ask trial court clerks that. If so, they MUST make a transcript of that for you. The rub is, unless you're claiming you're indigent (broke), you'll have to pay for it, and it is usually at least $5-7 per page. If you get the transcript, you will get a copy and the appellate division will automatically be sent the original certified one -- in that case, you don't need to file the proposed statement, grounds of error, etc, and go straight to the opening brief.
    Trial was recorded by a stenographer. Asked traffic division clerks and they gave me a Deer in Headlights look. And all other clerks/people I've been referred to simply refer me back to traffic clerks. I do intend to file a indigent claim as well-as a student I need all the money I can save! I'm just not sure where to send the form. Here, it seems like all transcript requests are telephoned in-I'm not even sure my particular court recorder even has her own office! But ouch. $5-$7 a page. My trial was almost twenty minutes....which is probably in the realms of 12 pages or so.

    Wait, I thought the opening brief IS the CR-143 form! What am I missing?

    Quote:

    Yeah, well, civil suits cost $$$ (at least $350 to start off). If you are eligible for a transcript as discussed above AND you are refused by the clerk, the correct solution is to file a motion to compel OR a petition for writ of mandate in the appellate division. The writ is easier because you can use a special form (APP-151) instead of having to research and comply with the formatting and other legal requirements of a motion.
    What is a Writ of Mandate and where do I get this APP-151? I have a sinking suspicion I'll need it. I've already contacted the appellate court to deal with the reporter, and also left a message about the legitimacy of my request but somehow I'm doubting it will work. This court here is nasty. Examples: judge says I can't object to a continuance he's pushing, all motions must be filed 10days before trial, and it's somehow my fault I don't know court procedure.
  • 01-05-2012, 11:05 PM
    quirkyquark
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    Would you object if I copy some of the wording/format etc. you used?

    No problem at all. If you need the original Word documents (to make copying/pasting easier), just PM me and I'll email them to you.

    Quote:

    Quoting kutorei
    View Post
    Trial was recorded by a stenographer. ... I do intend to file a indigent claim as well-as a student I need all the money I can save! I'm just not sure where to send the form.

    So a court reporter was present? The right way to do this is to check the appropriate boxes in your notice of appeal (hint: choose court reporter's transcript, NOT PROPOSED STATEMENT!) But I'm guessing you've already filed your notice of appeal? The indigent form (MC-20, IIRC) can be submitted with the notice of appeal, or when the court sends you an estimate for the transcript.

    Quote:

    Quoting kutorei
    View Post
    Wait, I thought the opening brief IS the CR-143 form! What am I missing?

    CR-143 is just the proposed statement. It must ONLY be used when a transcript is NOT available, because it operates as a "replacement" for the missing transcript.

    The opening brief is always required, and is your main argument.

    Quote:

    Quoting kutorei
    View Post
    What is a Writ of Mandate and where do I get this APP-151? I have a sinking suspicion I'll need it. I've already contacted the appellate court to deal with the reporter, and also left a message about the legitimacy of my request but somehow I'm doubting it will work.

    Let's figure out the preliminary stuff first. All that may be needed is filing an amended notice of appeal.

    Quote:

    Quoting kutorei
    View Post
    Examples: judge says I can't object to a continuance he's pushing, all motions must be filed 10days before trial, and it's somehow my fault I don't know court procedure.

    Well, judges can't make continuances on their own (except in very limited circumstances). Otherwise, court rules DO require motions to be filed 10 days before trial, and just because someone is not an attorney doesn't mean that they have the freedom to ignore court procedure.
  • 01-08-2012, 02:27 AM
    kutorei
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting quirkyquark
    View Post
    So a court reporter was present? The right way to do this is to check the appropriate boxes in your notice of appeal (hint: choose court reporter's transcript, NOT PROPOSED STATEMENT!) But I'm guessing you've already filed your notice of appeal? The indigent form (MC-20, IIRC) can be submitted with the notice of appeal, or when the court sends you an estimate for the transcript.

    Haven't filed it yet since the court reporter was giving me the run-around. I eventually got the reporter on the phone, but all she would say is that she'll "send me an estimate" and that it(the transcript) would be ready "in about twenty days(no speeding it up)" so I figured delaying filing the Notice would give me a few days to work with the transcript. All of this happened a few days ago, and I haven't heard from the reporter since. I'm not happy, and I'm not even sure she'll come through since there's no confirmation of any sort at this court sooo.....here's to crossing fingers.

    Quote:

    CR-143 is just the proposed statement. It must ONLY be used when a transcript is NOT available, because it operates as a "replacement" for the missing transcript.
    Okay now that makes sense =)

    Quote:

    The opening brief is always required, and is your main argument.
    I was looking at your B038 appeal(unbelievably great stuff!) and now I'm wondering-did you attach your opening brief to CR-143 or am I blind and it's somewhere else on the site? It looks like your opening brief is the 8a and 8b attachment?

    Quote:

    Well, judges can't make continuances on their own (except in very limited circumstances). Otherwise, court rules DO require motions to be filed 10 days before trial, and just because someone is not an attorney doesn't mean that they have the freedom to ignore court procedure.
    I forgot to mention in the previous post: it wasn't so much that I didn't know that bothered me, but more that he was yelling at me. It basically went something like "Can I not have a continuance and finish the trial today?" and he responded "NO! I have decided to grant a continuance for the officer and that's that!" Forget rules of court/court procedure, how about some simple manners? The shouting literally came out of nowhere. I don't know if the continuance is justified, but all of my interactions with this judge had him yelling at me. So within the sum of my limited experience, this court is nasty. Or I should say, the judge is nasty.

    Thanks for the help so far by the way =)
  • 01-08-2012, 03:25 PM
    quirkyquark
    Re: How to Make and File an Effective Appeal
    Re word docs, PM me your email address and I'll send them on.

    Quote:

    Quoting kutorei
    View Post
    Haven't filed it yet since the court reporter was giving me the run-around.

    Well, then file CR-142 (Notice of Appeal) with the proper options checked. (this MUST be done within 30 days of your trial). Specifically, you check boxes 3(b), 4(d) and 4(d)(2). Attach form MC-210.

    Quote:

    Quoting kutorei
    View Post
    did you attach your opening brief to CR-143 or am I blind and it's somewhere else on the site? It looks like your opening brief is the 8a and 8b attachment?

    What happens is that the "record" (documents from the court, including transcript OR statement on appeal) must first be filed in the appellate division. Then they will send out a notice saying "opening brief is due in 30 days". I don't have one yey because I'm still stuck in the filing stage :)

    Quote:

    Quoting kutorei
    View Post
    ...something like "Can I not have a continuance and finish the trial today?" and he responded "NO! I have decided to grant a continuance for the officer and that's that!"

    You should have posted then because it's possible you could have taken advantage of that continuance, if it was improperly granted.
  • 01-11-2012, 12:55 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting quirkyquark
    View Post
    You should have posted then because it's possible you could have taken advantage of that continuance, if it was improperly granted.

    Yes, well you know what they say about hindsight being 20/20....

    In the interest of academics, what could have been done? Is the continuance improper? Judge granted continuance for the officer having 'good cause'(the officer's wife was in the hospital, because of a complication of pregnancy....he gave me the whole darn story). What little I know says 'good cause' can only be motioned by the prosecution when events/emergencies actually affect the witness himself.

    Latest update: so I filed the Notice of Appeal, and two(or is it three?) days later, I get a mail from the court reporter saying the Clerk's office has lost my file. They're apparently looking for it and will attempt to get me my transcript by Friday. No mention of whether the appellate courts have At this point, I'm just glad I demanded copies made of my filed Notice of Appeal.
  • 01-11-2012, 01:31 PM
    quirkyquark
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    In the interest of academics, what could have been done? Is the continuance improper?

    Well, see Penal Code section 1050. Usually, you must be given advance notice of the continuance (at least 2 days). If you're not given such notice, there has to be good cause for that, in addition to good cause for the continuance itself. All of this must usually be in writing...only attorneys (or people representing themselves) can make oral motions.

    Without looking at case law, a pregnant wife who had to be rushed to hospital actually sounds like both kinds of good cause within the spirit of the law...

    Quote:

    Quoting kutorei
    View Post
    Latest update: so I filed the Notice of Appeal, and two(or is it three?) days later, I get a mail from the court reporter saying the Clerk's office has lost my file. They're apparently looking for it and will attempt to get me my transcript by Friday. No mention of whether the appellate courts have At this point, I'm just glad I demanded copies made of my filed Notice of Appeal.

    Good, so filing the notice got them on the ball, only to lose it again. If the "file" (recording/notes) or whatever is lost and cannot be found, it is automatically grounds for a new trial :)
  • 01-13-2012, 05:37 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting quirkyquark
    View Post
    Well, see Penal Code section 1050. Usually, you must be given advance notice of the continuance (at least 2 days). If you're not given such notice, there has to be good cause for that, in addition to good cause for the continuance itself. All of this must usually be in writing...only attorneys (or people representing themselves) can make oral motions.

    Without looking at case law, a pregnant wife who had to be rushed to hospital actually sounds like both kinds of good cause within the spirit of the law...

    I didn't get notified till the day of the trial, and I have no idea if the officer put in a written request(but he's supposed to be a witness right?) for the continuance. I can definitely see the spirit, but not so much for the word of the law. Ah well, it's not relevant any more, but interesting to know for next time!


    Quote:

    Good, so filing the notice got them on the ball, only to lose it again. If the "file" (recording/notes) or whatever is lost and cannot be found, it is automatically grounds for a new trial :)
    After reading my transcript, I really hope they've lost it. The transcript shows exactly what I am-an inexperienced, lost kid bumbling in the courts. I think I even self-incriminated myself a few times. In addition to forgetting a number of case law/laws.

    Here it is (on Box.com); if any one can help me find more Points and Authorities, I'd be very, very grateful! So far, my only points are:

    -Survey("memorandum") was not in informal discovery; literally presented during trial
    -"memorandum" Survey incorrect/improper-doesn't have critical speeds, or any actual gathered data-just recommended speeds and justification. I originally thought it was an addition to the actual survey, but the memorandum reads that it should be considered a new survey. Bit confusing, but I'll re-read and post document later.
    -Actual survey I received in OP post: crit @ 38, etc. Speed trap if memorandum is indeed a new "survey"
    -Officer/Court did not prove 22350, so 22351 applies
    -Judge put forth his own opinion, acting as prosecution?

    I'll upload more of the relevant documents later. But oh, this transcript really shows how all over the place I was. *sigh* :(
  • 01-13-2012, 05:59 PM
    quirkyquark
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    After reading my transcript, I really hope they've lost it. The transcript shows exactly what I am-an inexperienced, lost kid bumbling in the courts. I think I even self-incriminated myself a few times. In addition to forgetting a number of case law/laws.

    Here it is (on Box.com); if any one can help me find more Points and Authorities, I'd be very, very grateful! So far, my only points are

    Glad to! Just be sure to update us when you get the "notice of due dates for opening brief"...




    ETA1: Upon first look, WOW! What a fair judge, at least procedure-wise --- did the right disclaimers, even had copies made for you.

    You need to post the survey, memorandum AND that motion to dismiss, etc. asap because, in general, if you don't object to an error then you can't bring it up on appeal --- and there were a number of instances where that happened. Best bet may be to dismantle the survey.

    ETA2: Other issues, just from the transcript:
    • Memorandum problem 1 - admitted after close of case in chief, violation of 40802 "prima facie proof" requirement because survey may be incomplete without it
    • Memorandum problem 2 (less than 55 justified does not mean 30, 20 or 10 are!)
    • 22351 (although debatable) -- court made no finding that your speed was indeed unsafe or endangered persons or property. Arguably, you made a reasonable showing that speed was not unsafe in cross.


    As for your original issues not mentioned above:
    • Discovery is usually a non-starter, and it appears in this case you requested from Caltrans? Discovery rules do not apply to ANYONE but the prosecution.
    • Judicial misconduct is usually hard to prove, and you didn't object anyway (I don't think there was any, BTW)


    If the appellate division, for some unknown reason, still affirms the conviction, you can still move to get it from the trial court and they will have to give it to you based on the transcript. And traffic school is counted from the date of the violation, so it's not like you're going to be trading off your next eligibility windows for this one.
  • 01-13-2012, 08:50 PM
    That Guy
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting quirkyquark
    View Post
    ETA1: Upon first look, WOW! What a fair judge, at least procedure-wise --- did the right disclaimers, even had copies made for you.

    Indeed he was!

    Quote:

    Quoting quirkyquark
    View Post
    [*]22351 (although debatable) -- court made no finding that your speed was indeed unsafe or endangered persons or property. Arguably, you made a reasonable showing that speed was not unsafe in cross.

    Highly debatable... Even the "survey older than 7 years" wouldn't apply (even though that usually is a stretch).

    In this case, officer fulfilled the requirement simply by presenting training certs, calibration certs and a survey (albeit a questionable one) as well as (the clincher) a speed reading in excess of the posted limit!

    He even went above and beyond by stating the following:

    Quote:

    Quoting Officer Cartman :)
    3 So the 45 lock occurred in the 1000 block of Martin Luther
    4 King, and her speed is unsafe in that area, due to cross
    5 walks at 12th Street, 11th Street, and then 8th Street is
    6 actually south of my location. And there is two food/mini
    7 marts, one at 12th and one at 11th, with pedestrian foot
    8 traffic in the area.

    That there would meet the more stringent conditions for a 7+ year old survey!

    ETA: I haven't read the entire transcript as of yet so I reserve the ability to return with comments about the defendant's cross examination.
  • 01-13-2012, 09:53 PM
    quirkyquark
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting That Guy
    View Post
    Highly debatable...

    I wouldn't say "highly"....that argument is based hierarchically on:
    1. Behjat ("No conviction can be sustained unless the record contains substantial evidence supporting each element of the charged offense. In a prosecution under Vehicle Code section 22350, the record must contain substantial evidence from which a fact finder could conclude either that the defendant drove at a speed that endangered people or property or that she drove at a speed that was unreasonable for the driving conditions.")
    2. That 22351 merely establishes a prima facie violation that can be rebutted... (gentle reminder re 22351)
    3. Finally, that cross satisfied statutory 22351(b) requirement.
  • 01-21-2012, 05:19 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    Sorry for the delay-holidays and finals and all that. Haven't gotten anything from Appellate courts, so all's well for now.

    Quote:

    Quoting quirkyquark
    View Post
    Glad to! Just be sure to update us when you get the "notice of due dates for opening brief"...




    ETA1: Upon first look, WOW! What a fair judge, at least procedure-wise --- did the right disclaimers, even had copies made for you.

    You need to post the survey, memorandum AND that motion to dismiss, etc. asap because, in general, if you don't object to an error then you can't bring it up on appeal --- and there were a number of instances where that happened. Best bet may be to dismantle the survey. ETA2: Other issues, just from the transcript:
    • Memorandum problem 1 - admitted after close of case in chief, violation of 40802 "prima facie proof" requirement because survey may be incomplete without it
    • Memorandum problem 2 (less than 55 justified does not mean 30, 20 or 10 are!)
    • 22351 (although debatable) -- court made no finding that your speed was indeed unsafe or endangered persons or property. Arguably, you made a reasonable showing that speed was not unsafe in cross.

    Yep, the judge was amazingly forthcoming this round. It's a far cry from the shouting I got at the first appearance. No one else received such a disclaimer(unfortunately). It's really amazing the change that comes on the second they know you're getting a record of the proceedings....

    I also think the survey is my best bet. As anyone can see from the transcript, law is clearly not the career for me. Upon re-reading the memo, it appears to be part of the survey itself, and not a new survey as I thought earlier. Everything is uploaded now by the way. Here's the link =). The relevant part of the survey is 'Survey1'. I don't know how much pertinent info to edit, so I basically removed all the specific info.

    By the way, did I PM you my email address? I think I did, but I'm not sure.

    Quote:

    As for your original issues not mentioned above:
    • Discovery is usually a non-starter, and it appears in this case you requested from Caltrans? Discovery rules do not apply to ANYONE but the prosecution.
    • Judicial misconduct is usually hard to prove, and you didn't object anyway (I don't think there was any, BTW)


    If the appellate division, for some unknown reason, still affirms the conviction, you can still move to get it from the trial court and they will have to give it to you based on the transcript. And traffic school is counted from the date of the violation, so it's not like you're going to be trading off your next eligibility windows for this one.
    Tough luck, but thanks. When you say "get it" are you referring to traffic school? If so, thanks for the tip =) I guess there was some use of raising a fuss for a transcript after all!
  • 01-21-2012, 06:44 PM
    Disagreeable
    Re: How to Make and File an Effective Appeal
    Quote:

    As anyone can see from the transcript, law is clearly not the career for me.
    Possibly not as a vocation, however, I commend you for attempting to defend yourself. Now, if you ever receive another citation, you know what to expect and can prepare a more experienced defense. Good try.
  • 01-21-2012, 07:57 PM
    quirkyquark
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post


    By the way, did I PM you my email address? I think I did, but I'm not sure.

    You did. Please let me know which Word documents you'd like, because I'll have to redact personal info from them.

    Quote:

    Quoting kutorei
    View Post
    When you say "get it" are you referring to traffic school? If so thanks for the tip =)

    Yes.

    Please post your motion to dismiss....that may be important to override your lack of explicit objections.

    Have you received a notice of due date for your opening brief yet?
  • 01-23-2012, 10:37 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    No word from Appellate yet.

    The Trial court has sent me a request for my points of appeal before granting/rejecting my indigent request for free/low cost transcript. I was wondering-how verbose should I be? And in what format? (really need info soon, the document is stamped the 1/19 but I barely received it today. I have till the 29th).

    Quirky, I'd be very happy if you could send me anything related to writing an opening brief. I really have no clue what I'm doing, so anything would help =)

    Will upload my motion tomorrow: it was something a friend gave me to use, so it's definitely not as procedural as you may expect.
  • 01-24-2012, 09:14 PM
    themadnorwegian
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    The Trial court has sent me a request for my points of appeal before granting/rejecting my indigent request for free/low cost transcript. I was wondering-how verbose should I be? And in what format? (really need info soon, the document is stamped the 1/19 but I barely received it today. I have till the 29th).

    N.B. that I've never done this before, but I'd imagine that if they didn't send you specific instructions, you could use a format similar to that in CR-143 section 8. In particular, you want to describe what the error was, and how it prejudiced your case. What grounds were you thinking of using for your appeal? I saw the following issues after looking at your transcript. (BTW, I love that you re-named the officer Cartman.)

    1. That there wasn't sufficient evidence to sustain your conviction, because the arresting officer was maintaining an illegal speed trap.
    2. That the judge erred in admitting a speed survey that didn't justify the speed limit. This is a jurisdictional error, since the court is without jurisdiction to render a judgement of conviction if the testimony presented in the case was obtained from an illegal speed trap.
    3. The judge acted as a prosecutor by taking judicial notice, by his own motion, of traffic conditions on the street where you were cited, even though those conditions were neither described by the survey, nor presented in the officer's testimony. This helped the People make their case, and may be contrary to established case law.
  • 01-25-2012, 01:21 AM
    quirkyquark
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    The Trial court has sent me a request for my points of appeal before granting/rejecting my indigent request for free/low cost transcript. I was wondering-how verbose should I be? And in what format?

    My first thought is...where did the transcript you posted come from?

    Per case law, the court may require indigent misdemeanor (& infraction) defendants to show a "colorable" need for a transcript. Colorable meaning some reason (claimed ground of appeal) that requires the transcript to support. i.e., just the paperwork (including exhibits) is not enough. Your reply can be quite informal, and it will have NO bearing on anything except the grant/denial of your request. There's no need to show prejudice, and you don't need to include all of your grounds of appeal either.

    TMN gave you a pretty good start, but for the purposes of this request only, let's begin with a point that should be enough on its own :

    • The record contains no substantial evidence to support the finding that Vehicle Code section 22350 was violated, i.e. that "from which a fact finder could conclude either that the defendant drove at a speed that endangered people or property or that she drove at a speed that was unreasonable for the driving conditions." (People v. Behjat (2000) 84 Cal.App.4th Supp. 1, 3.)
    • The court abused its discretion in granting the witness's motion to re-open the case to allow the introduction of additional evidence to rebut the speed-trap presumption.
    • The speed survey did not justify the posted prima facie limit; consequently, the speed trap presumption was not rebuttable and the court was without jurisdiction to convict the defendant.
    • The court abused its discretion in taking judicial notice, on its own motion, of traffic conditions in the area while not allowing the defendant "reasonable opportunity, ... before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed." (Evid. Code, sec. 455(a).
  • 01-25-2012, 08:25 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    Hey, thanks for responding so quickly =)

    Quote:

    Quoting themadnorwegian
    (BTW, I love that you re-named the officer Cartman.)

    Thanks for the pointers =). I'm afraid the cue for the South Park reference goes to That Guy. :rolleyes: I'm planning my appeal based on the failure to sustain the requirements of proving 22350(via 22351) and the illegal speed trap. I'm thinking of trying to make 22358.5 apply, which states that:
    Quote:

    It is the intent of the Legislature that physical conditions such as width, curvature, grade and surface conditions, or any other condition readily apparent to a driver, in the absence of other factors, would not require special downward speed zoning, as the basic rule of section 22350 is sufficient regulation as to such conditions.
    The road in question is straight as an arrow with excellent visibility, so hopefully I can pull down the survey memo with this too. What do you guys think?

    Quote:

    Quoting quirkyquark
    My first thought is...where did the transcript you posted come from?

    Per case law, the court may require indigent misdemeanor (& infraction) defendants to show a "colorable" need for a transcript. Colorable meaning some reason (claimed ground of appeal) that requires the transcript to support. i.e., just the paperwork (including exhibits) is not enough. Your reply can be quite informal, and it will have NO bearing on anything except the grant/denial of your request. There's no need to show prejudice, and you don't need to include all of your grounds of appeal either.

    Quirky, my motion for dismissal is posted now. Obviously it was written with only the survey map given and not the memo, so now it's a bit incorrect. Otherwise I'd say it still stands, improper format and wording aside.

    The transcript I got was paid for by me(directly to the Court Reporter; apparently you have to go to these guys directly in this county.) Otherwise, only the appellate would receive a copy and I'd be more or less be writing my appeal in the dark. The court want me to pay for the appellate copy, sight unseen which is why I had to go about getting a transcript this way(meaning I'd have to pay TWICE!). If I can, I'd like to ask the court to reimburse me, but I don't think it'll work. Ah well, wishful thinking! I actually don't know why they're making me pay for another when the court reporter certified my copy....

    Thanks for the points I can stick for this request guys. I'm going to go with the first two points(Quirky's list) for now, so as to not give the City Attorney too much info ahead of time =)
  • 01-25-2012, 08:46 PM
    quirkyquark
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    I'm thinking of trying to make 22358.5 apply, which states that:

    22358.5 is pretty subjective, and as TG likes to remind folks, it does say "in the absence of other factors"...

    Quote:

    Quoting kutorei
    View Post
    Otherwise, only the appellate would receive a copy and I'd be more or less be writing my appeal in the dark. The court want me to pay for the appellate copy, sight unseen which is why I had to go about getting a transcript this way(meaning I'd have to pay TWICE!).

    The general rule is that a paid CR should give you at least TWO certified copies. I think there's some miscommunication going on here. Now that you do have the one transcript "original", maybe you can keep a copy for yourself, and just have that original sent to appellate? You'd have to talk to the clerk handling the preparation of your record on appeal in the trial court.

    Quote:

    Quoting kutorei
    View Post
    Thanks for the points I can stick for this request guys.

    Just a friendly reminder that those points are ONLY suited for that request, and may not be good general grounds of appeal.

    Although you have LOTS of possible issues, using them to appeal is complicated because of the relative lack of objections. I'll have to see which ones are good and post suggestions one of these days....
  • 01-25-2012, 09:38 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting quirkyquark
    The general rule is that a paid CR should give you at least TWO certified copies. I think there's some miscommunication going on here. Now that you do have the one transcript "original", maybe you can keep a copy for yourself, and just have that original sent to appellate? You'd have to talk to the clerk handling the preparation of your record on appeal in the trial court.

    I'm actually pretty confused, because at the end of the transcript, it says "Any court, party, or person who has purchased a transcript may, without paying a further fee to the reporter, reproduce a copy or portion thereof as an exhibit pursuant to court order or rule, or for internal use, but shall not otherwise provide or sell a copy/copies to any other party or person." So why would the court have to request ANOTHER copy for me to pay for?

    I'll call the appellate court tomorrow on this.

    Quote:

    Quoting quirkyquark
    Although you have LOTS of possible issues, using them to appeal is complicated because of the relative lack of objections. I'll have to see which ones are good and post suggestions one of these days....

    Thanks! Next time I get a ticket, I'll be sure to learn what to object so as to make this easier. Hope your own case works out-perhaps you can petition the appellate court noting that there has been no correction and even defiance....?
  • 02-03-2012, 03:32 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    Small update: I've learned a valuable lesson: always buy certified mail when you mail ANYTHING to the courts.

    Up till now, I thought paying for certified mail/return receipt was a matter of paranoia on my part. I've now discovered it's more of a must-have. I sent in my Points as mentioned above, and then got a mail saying they(the court) hadn't received it. So I went over to the clerk's office, waved my Certified Mail Receipt in their faces until they found it.

    They've now lost my file once and my correspondence twice.

    They THINK they'll send in my appeal case to the appellate court next week. I'm not holding my breath.
  • 03-17-2012, 01:53 AM
    kutorei
    Re: How to Make and File an Effective Appeal
    Opening brief due date is set for April 6th;

    Currently, my points go as follows:
    1. Failure to meet burden of proof per 22350
    2. Due to failure of 22350, not guilty via 22351
    3. Speed trap: survey did not justify posted 30
    4. court seemed to take into account personal experience in ruling on traffic density(questionable argument I know. Holds weight at all?)
    5. Court erred in not accepting CalTrans average daily traffic count as indication of traffic density(I don't think this holds much weight, but I feel I should throw it in anyway)

    Does anyone have some kind of formatting example I can follow for writing the opening brief? I gather I'm supposed to have a cover page, list of cases cited, and my points in certain word format, but it would be much more helpful to work off an example somewhere via Rules of Court 8.204. Also, what do they mean by "State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from."? It's pretty clear I'm filing an appeal to reverse judgement, so do I stick a statement to that effect at the end of my brief?

    Thanks for any and all help; I'm like a lamb to the slaughter but I just won't give up!
  • 03-21-2012, 09:02 AM
    themadnorwegian
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    Currently, my points go as follows:
    1. Failure to meet burden of proof per 22350
    2. Due to failure of 22350, not guilty via 22351

    These two points are essentially the same. You're trying to argue that the prosecution didn't present sufficient evidence to sustain your conviction. Have you read People v. Behjat and People v. Huffman?

    Quote:

    Quoting kutorei
    View Post
    3. Speed trap: survey did not justify posted 30

    Be sure to cite Goulet and the CA-MUTCD for this one.

    Quote:

    Quoting kutorei
    View Post
    4. court seemed to take into account personal experience in ruling on traffic density(questionable argument I know. Holds weight at all?)

    I would have objected when the judge took judicial notice of the traffic conditions on the street where you were cited. I thought that the traffic flow was a fact that was in dispute. You can try to argue that point, but you didn't object at trial. You can try to argue that the judge denied you due process by acting as a prosecutor, but I'm not sure that will fly. Carlucci could be cited for this, but I believe there are better cases. (I'm sorry; I don't have them handy at the moment.)

    Quote:

    Quoting kutorei
    View Post
    Does anyone have some kind of formatting example I can follow for writing the opening brief? I gather I'm supposed to have a cover page, list of cases cited, and my points in certain word format, but it would be much more helpful to work off an example somewhere via Rules of Court 8.204. Also, what do they mean by "State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from."? It's pretty clear I'm filing an appeal to reverse judgement, so do I stick a statement to that effect at the end of my brief?

    You can use a format that's similar to Quirky's writ. If you're willing to take a trip to the Law Library, you can look at CEB's Appeals and Writs in Criminal cases. That explains matters of form and substance, and has some sample forms and letters. Fight Your Ticket and Win in California by David Brown also has an example of an appellant's opening brief. The highwayrobbery.net site has collected briefs from red light camera cases. The citations may not be appropriate for your case, but if your just concerned about form, it could be worth a look.
  • 03-21-2012, 09:46 PM
    themadnorwegian
    Re: How to Make and File an Effective Appeal
    Just to follow up on what I wrote this morning, the additional citations for the judge acting as prosecutor are:

    People v. Daggett, People ex rel. Kottmeier v. Municipal Court, People v. Handcock, and People v. Ferguson.

    Make sure you read any case before citing it, and include just the relevant portions in your brief.

    Evidence Code section 452(g) covers the judge taking judicial notice of facts that are common knowledge within their territorial jurisdiction, but they cannot reasonably be the subject of dispute.

    Quote:

    Quoting Cal Evidence Code
    452. Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:
    <...>
    (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.

    You could try to argue that the judicial notice of traffic conditions on the street where you were cited was an improper use of judicial notice, since the traffic conditions were part of the dispute in the trial. There aren't many great citations on this one, most simply re-quote Evid Code 452 (g), but Carleton v. Tortosa gives the most thorough treatment in its footnotes.
  • 03-22-2012, 03:11 PM
    That Guy
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting themadnorwegian
    View Post
    Evidence Code section 452(g) covers the judge taking judicial notice of facts that are common knowledge within their territorial jurisdiction, but they cannot reasonably be the subject of dispute.

    I'm curious why you brought this up TMN... Was it to enhance one of the OPs arguments, or are you explaining that one of his arguments isn't valid because of 452(g)?

    In a previous discussion with Quirky, I wondered whether a calibration certificate and one which was completed by a private firm, maybe authenticated if this company happens to perform ALL calibrations for the LEA and the judge has become familiar with the firm, their certifications, the signatures attesting to their authenticity... Thereby making it a matter which cannot reasonably be the subject of dispute!

    Agree?
    Disagree?
    Your opinion?

    Thanks!
  • 03-22-2012, 04:08 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting themadnorwegian
    View Post
    Just to follow up on what I wrote this morning, the additional citations for the judge acting as prosecutor are:

    People v. Daggett, People ex rel. Kottmeier v. Municipal Court, People v. Handcock, and People v. Ferguson.

    Make sure you read any case before citing it, and include just the relevant portions in your brief.

    Evidence Code section 452(g) covers the judge taking judicial notice of facts that are common knowledge within their territorial jurisdiction, but they cannot reasonably be the subject of dispute.



    You could try to argue that the judicial notice of traffic conditions on the street where you were cited was an improper use of judicial notice, since the traffic conditions were part of the dispute in the trial. There aren't many great citations on this one, most simply re-quote Evid Code 452 (g), but Carleton v. Tortosa gives the most thorough treatment in its footnotes.

    Thanks very much for the extensive help given so far =) How are you finding your case law? So far, any and all case law I've found has been via sites like highwayrobbery and helpigotaticket.

    Quote:

    Quoting That Guy
    I'm curious why you brought this up TMN... Was it to enhance one of the OPs arguments, or are you explaining that one of his arguments isn't valid because of 452(g)?

    In a previous discussion with Quirky, I wondered whether a calibration certificate and one which was completed by a private firm, maybe authenticated if this company happens to perform ALL calibrations for the LEA and the judge has become familiar with the firm, their certifications, the signatures attesting to their authenticity... Thereby making it a matter which cannot reasonably be the subject of dispute!

    Agree?
    Disagree?
    Your opinion?

    Actually, is there a possible way to discover if the course the officer completed was POST certified? Certificate just says 'CITY Police Dept.'
  • 03-23-2012, 07:07 AM
    That Guy
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    Actually, is there a possible way to discover if the course the officer completed was POST certified? Certificate just says 'CITY Police Dept.'

    If it doesn't say "P.O.S.T." on it then it is not a "P.O.S.T." certificate/course... etc!

    I do believe it is TMN who has a document showing the criteria for what constitutes a P.O.S.T. certificate; may be he can be kind enough to post it!
  • 03-23-2012, 11:13 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting That Guy
    View Post
    If it doesn't say "P.O.S.T." on it then it is not a "P.O.S.T." certificate/course... etc!

    I do believe it is TMN who has a document showing the criteria for what constitutes a P.O.S.T. certificate; may be he can be kind enough to post it!

    I was looking over the transcript again, and the officer testified that the course was P.O.S.T. certified, even though the certificate says nothing of the kind. Is there any possible way to verify the truth(or preferably the lie) of this?
  • 03-24-2012, 12:15 AM
    That Guy
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    I was looking over the transcript again, and the officer testified that the course was P.O.S.T. certified, even though the certificate says nothing of the kind. Is there any possible way to verify the truth(or preferably the lie) of this?

    I don't know of anyway to verify if he is P.O.S.T. certified or not... Other that checking his certificate to see if it states it is certified by POST!

    What one can typically do, however is, and as soon as he mentioned his training and if he adds the P.O.S.T. bit, is (Courtesy of Quirky) to object on the grounds that it is hearsay for him to claim his training was P.O.S.T. compliant or P.O.S.T. approved and certified without some sort of written verification either from post or on his official certificate.... Barring an objection, this issue is moot on appeal.

    Additionally, the major point to consider here is, P.O.S.T. certification is only a requirement for surveys that are 5 years or older under VC 40802. I glanced up quickly and was unable to find any reference to the age of or a link to your survey... So keep in mind that training and certification (or lack thereof) would present a lawful basis for an objection/grounds for appeal/a reason and an opportunity to butt heads with a judge if and only if your survey is 5+ years old. If it is not, you are simply wasting research time and are clouding whichever issues happen to be clear in your case (like the survey making an extra reduction of the speed limit).

    You only need to succeed on one set of grounds to remand/reverse!
  • 03-24-2012, 10:40 AM
    themadnorwegian
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting That Guy
    View Post
    I'm curious why you brought this up TMN... Was it to enhance one of the OPs arguments, or are you explaining that one of his arguments isn't valid because of 452(g)?

    One of Kutorei's points was that the judge seemed to take personal experience into account when ruling on the evidence in her trial. In fact, from the transcript, the judge said, "I think I can take judicial notice of the general traffic conditions in that area. It has been my experience, and I think it's common knowledge in the community that the road can actually have quite heavy traffic ..." My point is that it's only appropriate to take judicial notice if the fact isn't in dispute, and previously in the transcript Kutorei offered an opposing viewpoint. IMO, that makes is a questionable use of judicial notice.

    Quote:

    Quoting That Guy
    View Post
    In a previous discussion with Quirky, I wondered whether a calibration certificate and one which was completed by a private firm, maybe authenticated if this company happens to perform ALL calibrations for the LEA and the judge has become familiar with the firm, their certifications, the signatures attesting to their authenticity... Thereby making it a matter which cannot reasonably be the subject of dispute!

    Agree?
    Disagree?
    Your opinion?

    I think it would have to be common knowledge not just to the judge, but to other members of the community. I think the point of Evid Code 452(g), is to allow certain jurisdictions to take note of facts that are indisputable and common knowledge in a particular community. However, for a Laser certification, I wouldn't expect the average person in a particular county to have any familiarity.

    Quote:

    Quoting kutorei
    View Post
    Thanks very much for the extensive help given so far =) How are you finding your case law? So far, any and all case law I've found has bee
    n via sites like highwayrobbery and helpigotaticket.

    I got the citations for the judge acting as prosecutor out of David Brown's Fight Your Ticket and Win in California. The citations for judicial notice came from Jefferson's California Evidence Benchbook, which is published by CEB. Google Scholar is also really helpful, but it can be hard to find a particular cluster of relevant cases. For that, you have to go to the law library and look up citations in the annotated code. Westlaw publishes West's Annotated Code of California, and Lexis publishes Deering's Annotated Codes.

    Quote:

    Quoting That Guy
    View Post
    If it doesn't say "P.O.S.T." on it then it is not a "P.O.S.T." certificate/course... etc!I do believe it is TMN who has a document showing the criteria for what constitutes a P.O.S.T. certificate; may be he can be kind enough to post it!

    Agreed; it should state that the officer is POST certified. Ideally, it should have a seal and signature of a government official. If it has neither, it may not be admissible under Evid Code. 1280, see also Evid Code 1452 and 1453.

    The POST Administrative manual states what the required content is for a POST certificate. This is in Chapter 7 of the Post Administrative Manual, regulation 9076(d), on page 7-19 of the manual.

    I'm not sure how successful this approach will ultimately be. In my trial, the judge accepted the officer's certifications on the weight of his testimony. However, I forgot to object about his statement that his certifications were hearsay.

    Quote:

    Quoting That Guy
    View Post
    What one can typically do, however is, and as soon as he mentioned his training and if he adds the P.O.S.T. bit, is (Courtesy of Quirky) to object on the grounds that it is hearsay for him to claim his training was P.O.S.T. compliant or P.O.S.T. approved and certified without some sort of written verification either from post or on his official certificate.... Barring an objection, this issue is moot on appeal.

    I also discussed this with Quirky prior to my trial. He recommended citing People v. Dawkins, as the authority for this hearsay objection.
  • 04-07-2012, 01:05 AM
    kutorei
    Re: How to Make and File an Effective Appeal
    TMN and That Guy, Thank you very very much for the info + case law. By POST standards, this guy is definitely not certified. Not sure it applies since you pointed to the 5year max necessity(survey is about two years old). I'm writing the Opening brief now, and it really helps not to have to work so hard to find relevant case law. At this point, I'm writing down anything and everything in the hopes that something will stick.

    Quote:

    Quoting That Guy
    View Post
    I
    You only need to succeed on one set of grounds to remand/reverse!

    Yep, but with my knowledge of law? Better to exceed that miss entirely!

    If you have any other suggestions, please do post. I'm turning this in on April 10th, so any additional advice would be wonderful.

    Thanks again!
  • 04-11-2012, 04:09 AM
    That Guy
    Re: How to Make and File an Effective Appeal
    Quote:

    Quoting kutorei
    View Post
    TMN and That Guy, Thank you very very much for the info + case law. By POST standards, this guy is definitely not certified. Not sure it applies since you pointed to the 5year max necessity(survey is about two years old). I'm writing the Opening brief now, and it really helps not to have to work so hard to find relevant case law. At this point, I'm writing down anything and everything in the hopes that something will stick.



    Yep, but with my knowledge of law? Better to exceed that miss entirely!

    If you have any other suggestions, please do post. I'm turning this in on April 10th, so any additional advice would be wonderful.

    Thanks again!

    Just wanted to wish you best of luck... And urge you and trust that you will continue to to update this thread at whatever steps you feel, until the final outcome!
  • 04-11-2012, 10:46 PM
    themadnorwegian
    Re: How to Make and File an Effective Appeal
    Seconded. Good luck!
  • 04-26-2012, 01:33 AM
    kutorei
    Re: How to Make and File an Effective Appeal
    OP sent in, now waiting for DA/Oral Arguments(late June).

    LINK TO EVERYTHING IN THIS CASE: https://www.box.com/s/uoaz0xpmozlvj1nqdunp
    LINK TO OPBRIEF: https://www.box.com/s/330c301f2a13ceca3479

    OP brief is a mess. I literally cobbled together everything I had and threw it in. Formatting was borrowed heavily from Quirky's, with messier results. Well, I tried right? Let's hope I don't sound cocky/arrogant so the DA's office will leave me alone.

    Also, I realised while writing this brief that the MUTCD has changed since the 2003 edition I referenced initially. It no longer specifies setting prima facie to nearest 5mph, or mentions other considerations in the matter to speed. It's no longer a good basis for a speed trap defence.
  • 06-25-2012, 04:38 PM
    kutorei
    Re: How to Make and File an Effective Appeal
    Okay, so my Oral Arguments: I'm not sure if it's because of where I am or if I just got them on a bad day or something, but the appellate division affirmed judgement. If they had defeated me on some point, I would just say "well, I did my best." But that didn't happen. It really doesn't make sense to me since they conceded pretty much all points on a) Judge being of questionable credibility(by taking judicial notice of his own experience, but somehow everything else is still valid?), b) the officer unknowingly perjuring himself, and that c) the prosecution did not present any evidence to sustain a conviction therefore proving existence of reasonable doubt.

    Essential presentation points I noticed:
    1. There is no standard procedure used for traffic appeals. For my appeal, you come forward and the Justice(s) simply asks "Do you have anything you'd like to add to your Opening brief?" And that's it unless you argue your case.
    2. The Justices try hard to get rid of you. After restating a few brief points from my brief, a Justice then went on a long spiel about how this seems to support this(when it doesn't) and therefore affirm conviction over a span of about two or three minutes.
    3. I really don't understand how you can refute all the objections made to your argument(and the Justices have nothing to say in response-not even a "well, that's your opinion") and still get an affirmed judgement. Whatever it is, it proves that having a solid case does not necessarily mean they're even going to consider it.
    4. Bring everything. Even if you ask for a transmission of evidence ahead of time like I did (per Rules of Court), the evidence might still not be transmitted. It will save your case.
    5. They REALLY want to get rid of you. Be prepared to put forth your case strongly.

    I'm really disappointed. However on a positive note, two of the Justices complimented my work and arguments on my way out. So I suppose all was not lost. Still down on my $250 though.
  • 06-25-2012, 06:22 PM
    themadnorwegian
    Re: How to Make and File an Effective Appeal
    I'm sorry to hear that. Can you give us some more details about what happened with your case? Did the DA ever submit a reply brief, and if so, did you file a rebuttal? Was the DA there to argue their side of the appeal at the oral arguments? Are you able to explain more about why the justices believed that the prosecution had proved the elements necessary to sustain the conviction? Do you know if they'll publish a written opinion, or is this all you get?
  • 06-27-2012, 01:54 AM
    kutorei
    Re: How to Make and File an Effective Appeal
    Hmm, where to start....first, DA did not show up nor did he send a reply brief for all 3 traffic cases heard that day. Mine was last-likely due to the sheer size of my brief. Perhaps it was the length that discouraged them, but seeing as how the defendant before me had the basic 22351 argument only and was shot down even faster than I was, I doubt it. Anyway, after giving a brief breakdown of my brief(basically points 1,2 and 4), the justices began a 3 minute long spiel essentially boiling down to two things:

    a) They did not read my brief. Either that, or they were testing me.
    b) Because there is a LIDAR reading saying I was speeding, nothing else basically matters(more on this in a bit)

    It really didn't matter what was in my brief. I swear to you now, my brief and oral argument was just a formality. It was clear they made their decision from the transcript and were going to stick with it. My brief may not have been formatted and worded well, but I thought it was at least good enough to get my points across. I received the impression they didn't even read my brief because my first point addresses their immediate spiel with the observation of the prosecution's failure to establish I was endangering people or property etc. with the appropriate citations of People v. Ellis and 22351. Furthermore, all their other objections to my case were actually addressed in my brief. Case law and arguments aside, they acted like they'd never heard of anything I brought up. In retrospect, their counterarguments border ridiculousness. Here's the break down(in order):

    1. The justices claimed that the burden of proof was shifted from the prosecution to myself upon immediately producing the survey with the requisite LIDAR certification. Upon hearing that, I cited case law(People v Ellis) and 22351 citing that speed not proven in violation of basic speed law is lawful. When I cited the transcript, they claimed with all flourish that since I couldn't prove I wasn't endangering people or property and regardless of the fact that the officer's testimony had no notations to that effect, it was not beyond a reasonable doubt. To top it off, they then claimed that since the Trial Judge and seen fit to judge me endangering people or property, and therefore they can only accept his judgement.

    2. At this, I then mentioned the Trial Judge's use of Judicial Notice where he took his own opinion a matter under dispute. The Justices said that they had duly "disregarded" his use of judicial notice, but otherwise everything else was otherwise admissible. I then countered that the frequent interruptions and the very existence of the questionable use of judicial notice brought his credibility and objective role into question. The response was (paraphrasing) "Well, all other parts of the court transcript seem fine." They then relaunched into the qualifications of the Officer, essentially saying since the officer claimed he was POST certified and the LIDAR was calibrated and the speed was high, that therefore there was no reasonable doubt.

    3. At this, I then brought up the fact that his certification is not POST and that he was not qualified per 40802. The Justices objected that according to testimony, his certification is indeed post certified and he submitted it to the court. I countered that it does not comply with the POST administrative manual(thanks TMN!) and that the officer had perjured himself unknowingly(Quirky's mention of 1473.6 was useful-thanks!). The Justice claimed it had to be knowingly. I then cited the Rampart scandal(per Quirky) and how it in no way states knowingly but just "false testimony".

    The justices then took another vote and affirmed judgement. As they left, two justices gave me a "good job", and no other comments. They did not oppose any points I had made except for the Trial Judge's credibility....and it was an opinion to agree to disagree. In all fairness, my oral argument was not nearly as detailed and precise as I'd have liked, but as I got my point across(and it seemed to make no difference) I suppose it didn't matter. I'd like to add that between each point (by either side) they tried to re-affirm judgement. If it weren't for sheer dogged persistence in presenting my points, I'd have been thrown out along with the first guy in a matter of a minute or so.

    At this point, I'm starting to wonder what their written opinion will say. Because unless they entirely disregard my arguments and oral argument transcript, this is going to look terrible. They said they'll mail me something but whether it'll have a opinion I have no idea.

    Hope this was informational TMN.
  • 06-27-2012, 05:24 PM
    That Guy
    Re: How to Make and File an Effective Appeal
    OK, I am going to make a few comments, and some of what I believe are corrections to what seems to be matters that you misstated... Some of these corrections are my own personal beliefs, others are factual and basic information that you clearly misunderstood!


    Also, please keep in mind that I don't remember all the details of your case... So I will probably ask some questins as my way of giving an answer.

    Quote:

    Quoting kutorei
    View Post
    the defendant before me had the basic 22351 argument only and was shot down even faster than I was,

    I'm not going to get into that simply because we don't know the details of his case...

    Quote:

    Quoting kutorei
    View Post
    It really didn't matter what was in my brief. I swear to you now, my brief and oral argument was just a formality. It was clear they made their decision from the transcript and were going to stick with it.

    Well, an appeal is really a review of the record of the case... And the record is NOT in your brief, not in the way you presented your case after the trial. If for some reason or another, an issue is not clear in the record, and a review of your written submissions does not add clarity to it, then you are called in for oral arguments! And so a decision follows based on the info in the transcript...

    Quote:

    Quoting kutorei
    View Post
    1. The justices claimed that the burden of proof was shifted from the prosecution to myself upon immediately producing the survey with the requisite LIDAR certification.

    OK, looked through the transcript, and with a survey conducted on August 10, 2010, you having been cited in December of 2011... You were cited for driving in excess of the PF limit.

    The survey is less that 5 years old. And with that, the burden that the prosecution has is to prove that the PF limit is justified.... Once that is done (no lidar certification is required (that is for surveys 5 years or older))... Then the burden shifts to you to prove that your speed which was in excess was safe for conditions at the time.

    Quote:

    Quoting kutorei
    View Post
    Upon hearing that, I cited case law(People v Ellis) and 22351 citing that speed not proven in violation of basic speed law is lawful.

    OK, IU can see how Ellis might fit here... As for 22351, you actually cited subsection (a) which is relevant for speeds UNDER the posted limit... Were you not caught at over the limit?

    Quote:

    Quoting kutorei
    View Post
    When I cited the transcript, they claimed with all flourish that since I couldn't prove I wasn't endangering people or property and regardless of the fact that the officer's testimony had no notations to that effect, it was not beyond a reasonable doubt.

    I personally agree... (meaning TMN might disagree)... But this is something that i tried to get across in a fairly involved discussion with Quirky... Then I slacked and it was never resolved ... Then had a similar discussion with TMN which, again was interesting but then it ended before it was resolved.

    Remember, if you read 40802 it says noting about the officer proving your speed was unsafe for violation in a speed zone where the E&T survey is undr 5 years old. It only has such a requirement for 5 year or older surveys. Additionally, the other controlling code section is 22351 and the subsection which applies to your case here is 22351(b):

    The speed of any vehicle upon a highway in excess of the prima facie speed limits in Section 22352 or established as authorized in this code is prima facie unlawful unless the defendant establishes by competent evidence that the speed in excess of said limits did not constitute a violation of the basic speed law at the time, place and under the conditions then existing.



    Quote:

    Quoting kutorei
    View Post
    To top it off, they then claimed that since the Trial Judge and seen fit to judge me endangering people or property, and therefore they can only accept his judgement.

    They won't second guess judicial decisions when it comes to credibility, believability, or factual information....

    Quote:

    Quoting kutorei
    View Post
    2. At this, I then mentioned the Trial Judge's use of Judicial Notice where he took his own opinion a matter under dispute. The Justices said that they had duly "disregarded" his use of judicial notice, but otherwise everything else was otherwise admissible. I then countered that the frequent interruptions and the very existence of the questionable use of judicial notice brought his credibility and objective role into question. The response was (paraphrasing) "Well, all other parts of the court transcript seem fine." They then relaunched into the qualifications of the Officer, essentially saying since the officer claimed he was POST certified and the LIDAR was calibrated and the speed was high, that therefore there was no reasonable doubt.

    OK, this part is all convoluted in the transcript possibly because it is a redacted version, but the part that the Judge took judicial notice of is "the City if the City and the County is the City... Let us pretend this was San Diego, he took judicial notice that the city of San Diego is the City of San Diego and the county of San Diego is the San Diego County... How is that a matter of dispute?

    And how much of an impact did it really have on the end result?

    And if he had not taken judicial notice of that thing -whatever it was- would it have impacted the final verdict?


    Quote:

    Quoting kutorei
    View Post
    3. At this, I then brought up the fact that his certification is not POST and that he was not qualified per 40802. The Justices objected that according to testimony, his certification is indeed post certified and he submitted it to the court. I countered that it does not comply with the POST administrative manual(thanks TMN!) and that the officer had perjured himself unknowingly(Quirky's mention of 1473.6 was useful-thanks!). The Justice claimed it had to be knowingly. I then cited the Rampart scandal(per Quirky) and how it in no way states knowingly but just "false testimony".

    This is one of the areas that caused you to lose focus, i think.... And while I agree that the POST certification is an issue, I think you had bigger fish to fry than a dispute as to whether he perjured himself knowingly or unknowingly.

    The part I see no one making mention of was the fact that the survey makes too big of a reduction of the speed limit from an 85th percentile speed of 38, which gets upped to 40, and assuming valid reasons can be dropped to 35 but not 30 which is what it was posted at!

    That, the way I see it, is where it all started and that is where it ends!

    I still would like to congratulate you though. Seriously... You made it to a stage that I have never been to. Actually, a stage that very few people have reached. That alone required enough focus, hard work and dedication that I am yet to test myself on. Sorry the outcome was not in your favor.
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