Stipulation to a Temporary Judge

My question involves traffic court in the State of: CALIFORNIA

According to 2014 California Rules of CourtRule 2.816. Stipulation to court-appointed temporary judge

(a) Application

This rule governs a stipulation for a matter to be heard by a temporary judge when the court has appointed and assigned an attorney to serve as a temporary judge in that court.

(Subd (a) adopted effective July 1, 2006.)

(b) Contents of notice

Before the swearing in of the first witness at a small claims hearing, before the entry of a plea by the defendant at a traffic arraignment, or before the commencement of any other proceeding, the court must give notice to each party that:

(1)A temporary judge will be hearing the matters for that calendar;

(2)The temporary judge is a qualified member of the State Bar and the name of the temporary judge is provided; and

(3)The party has a right to have the matter heard before a judge, commissioner, or referee of the court.

(Subd (b) amended and relettered effective July 1, 2006; adopted as subd (a) effective January 1, 2001.)

(c) Form of notice

The court may give the notice in (b) by either of the following methods:

(1)A conspicuous sign posted inside or just outside the courtroom, accompanied by oral notification or notification by videotape or audiotape by a court officer on the day of the hearing; or

(2)A written notice provided to each party.

(Subd (c) amended and relettered effective July 1, 2006; adopted as subd (b) effective January 1, 2001.)

(d) Methods of stipulation

After notice has been given under (a) and (b), a party stipulates to a court-appointed temporary judge by either of the following:

(1)The party is deemed to have stipulated to the attorney serving as a temporary judge if the party fails to object to the matter being heard by the temporary judge before the temporary judge begins the proceeding; or

(2)The party signs a written stipulation agreeing that the matter may be heard by the temporary judge.

(Subd (d) amended effective January 1, 2007; adopted effective July 1, 2006.)

(e) Application or motion to withdraw stipulation

An application or motion to withdraw a stipulation for the appointment of a temporary judge must be supported by a declaration of facts establishing good cause for permitting the party to withdraw the stipulation. In addition:

(1)The application or motion must be heard by the presiding judge or a judge designated by the presiding judge.

(2)A declaration that a ruling by a temporary judge is based on an error of fact or law does not establish good cause for withdrawing a stipulation.

(3)The application or motion must be served and filed, and the moving party must mail or deliver a copy to the presiding judge.

(4)If the application or motion for withdrawing the stipulation is based on grounds for the disqualification of, or limitation of the appearance by, the temporary judge first learned or arising after the temporary judge has made one or more rulings, but before the temporary judge has completed judicial action in the proceeding, the temporary judge, unless the disqualification or termination is waived, must disqualify himself or herself. But in the absence of good cause, the rulings the temporary judge has made up to that time must not be set aside by the judicial officer or temporary judge who replaces the temporary judge.

(Subd (e) amended effective January 1, 2007; adopted effective July 1, 2006.)

Rule 2.816 amended and renumbered effective January 1, 2007; adopted as rule 1727 effective January 1, 2001; previously amended and renumbered as rule 243.18 effective July 1, 2006.

I have filed 2 motions to dismiss (jurisdiction and officer practicing law without license) - since the traffic court is run by a commissioner, shouldn't the commissioner be required to give notice, even on pre-trial proceedings? If I knew that the commissioner would be receiving and hearing the motions, I would have not submitted them to her (because she is a horrible commissioner). I feel that the rules stated above clearly indicate that there must be notice on ALL proceedings - if she has not given notice to me, how shall I motion the court for dismissal for her failure to do such? If there is no such motion, how do I remedy her "foul"? And if I cannot prevail on that technicality - what is the remedy (besides peremptory challenge-rather save that one for another time). I look at this no different than the bailiff failing to herd all the folks in traffic court to listen to him explain that the Judge is a commissioner and that if you do not stipulate, you can opt out.

Please advise and thank you in advance.

What makes you think this commissioner is subject to this rule at all. A commissioner is not necessarily a "temporary judge" under that program and the above law.

What proceeding occurred? Did it occur already? Just because the motions were sent to the court does not constitute a proceeding.

Thank you for responding.

Well, that is a good question. I guess that is the sort of question that I offer the court - "What makes you think you have jurisdiction over me?" So I am only assuming that this applies to the commissioner, since in the quoted rule, it refers to Temporary Judges, Commissioners, etc and I just assumed that applies to traffic court commissioners.

I submitted my motions to the clerk of the court and received notification in the mail that my motions had been denied. I then noticed on the correspondence from the court that the "Judge" denying my motions was a commissioner - then I recalled not ever receiving notice that a commissioner would be hearing the motions or any other proceedings. My experience with commissioners is that the bailiff gives you a "song and dance" when you arrive for arraignment and at that point you can choose not to stipulate to have a commissioner hear the case. At that point they refer you to another Court/Judge. Since my motions are pre-trial proceedings, at what point does the commissioner say "Before we go any further, I'm a commissioner and your motions are being heard by me - do you stipulate to such?" and then you can opt out. Is the commissioner required to inform the defendant that pre-trial motions are being heard by a commissioner?

You don't get to ask the question "what makes you think you have jurisdiction over you." They have de facto jurisdiction by you being summonsed to appear there. It's up to you to submit evidence that shows that this court is not the proper jurisdiction or venue.

Again, the law you quoted applies only to "temporary judges" which is a specific thing. It doesn't apply to all commissioners. If it did it would be silly as it references commissioners as the alternative to the temporary judge.

Unless there's a hearing there's no "proceeding" even if this person was a temporary judge.

You're way outside of being able to understand simple legal concepts. If this matter is any more than a parking ticket, I suggest you obtain legal counsel.

I'm sorry flyingron, the question "what makes you think you have jurisdiction over me?" I posed was more of a "quip" as to what my motion contained.

Challenging jurisdiction with points and references is what I was doing in the motion.

I see that I must have been confused as to what a "temporary judge" is.

So to clarify, a temporary judge is just that - temporary. A commissioner may very well be a permanent judge when acting as a judge in their usual venue (traffic court or wherever they are hearing cases) - but may act as a temporary judge when not hearing cases as a judge in their usual venue OR if the temporary judge is a lawyer being assigned to be a temporary judge.

{example}

Judge Smith (a practicing attorney) may be assigned to cover for Judge Jones (a civil court commissioner) - and will be acting as temporary judge while Judge Jones is on vacation. When this happens, Court Rule 2.816 that I cited would apply.

I think my confusion is coming because the last 2 times I attended court in a traffic commissioners courtroom, there was a temporary judge and I just assumed that whether the temporary judge was there OR the commissioner was there, notification and stipulation was necessary - and I assumed wrong. So in clarification - having my case heard before a commissioner does not require any notification or stipulation UNLESS and only if it is a temporary judge.

More of my confusion comes from my not considering a commissioner a duly elected "Judge". I've always expected there to be some sort of disclaimer to the defendant that the person hearing their case is not a "duly elected by the people" Judge and is most likely a lawyer or retired Judge on assignment.

Thank you for your patience. I don't feel that I am way outside the understanding of simple legal concepts - I just think that my experiences in courtrooms have been confusing because of the circumstances I walk into (i.e. Judges or Commissioners on Vacation, Judges on assignment, Retired Judges on assignment) - My personal feeling is that because the title or term "Judge" can have many different meanings, I just thought anything besides a Judge that is an "elected official by the people", is a temporary judge (and I presume that I am wrong thinking that).

My case is along the lines of a parking ticket - CVC 4000 (a)(1) - I am using this opportunity to explore (or exploit) all my options afforded (or diminished) in the legal process. In other words - I can afford to lose this case and while I learn more about the processes of the legal system, I hope to answer some questions that I have had for years. So if I lose, no big deal. I might piss off a commissioner in the process and if I get the CHP officer on the stand, I will really have fun asking as many questions as I can and hopefully make him feel as uncomfortable as he made me feel when he issued me his citation.

Thanks again flyingron, I appreciate your answer and please correct me where I am wrong.

In my most recent case, I made a 170.6 challenge to the commissioner hearing the case. He said, "you don't have to waste a 170.6 here...I'm only a commissioner." I said, "OK, then I'm challenging because you're a commissioner." He said, "So, you won't stipulate." I said I would not. He asked whether I'd stipulate to have my case heard by Commissioner Redmond (this was in Ventura County) and I again said "no." He said "we're done here" and asked the Officer whether he could return on July 17. When the officer confirmed his availability, he said "You can return to Room 11 on July 17"

When I returned on July 17, I told the new judge I was making a 170.6 challenge to disqualify him. He referred to the docket notes and told me he could see that I already used my 170.6 challenge and that another such challenge was not correct. I told him the earlier challenge was because my case was originally called before a commissioner and that I had not used a 170.6. He then disqualified himself based on the 170.6 peremptory challenge.

My understanding is that the local court can assign commissioners. However, these are not elected or appointed by the Governor as judges are. I think there must be some ambiguity in the law on this subject.

Regarding commissioners generally, my understanding is that they must be agreed to by the parties. Regarding infractions, all matters of law not specifically excepted (like jury trials, right to counsel, etc.) apply as they do in felonies and misdemeanors.

Thanks donzoh1 - see, thats what I am talking about. That happened to me on more than one occasion and thats why I am posing in my question.

If a commissioner is subject to a stipulation between the court and the defendant for a case to be heard - does that also apply to pre-trial motions and hearings? If it applies to the trial, it must apply to the pre-trial and if one does not stipulate to a commissioner or is not informed that they do not have to have a commissioner - and the commissioner hears and denies motions without offering the option to the defendant, then what is the recourse for the defendant?

If anyone can further clarify, please do so. I'm not worried if I am out in left field on this - I just want to know :confused:

Thanks!

You two are perfect for each other.

@ flyingron - So was I accurate in my example listed above? Sure appreciate your input.

I'm just going to say that I have been to court as a defendant and prevailed many times (lost a few) - some on my own merits and some on technicalities. I know commissioners/judges are not perfect and I know that sometimes the court just wants to herd sheeple in traffic court, in and out as quickly as possible and I feel that sometimes the rules of court get brushed over, in the interest of time and money - but it is of my opinion if they (the legislature & executive) want to treat you like a criminal, then they should play by their own rules and the rules of the court and treat every case with equality and fairness. Its almost like they want you to think you are a criminal and treat you like a criminal for some "quasi-crime" infraction and then want you to play by non-criminal rules that give them the upper hand by denying you certain rights that are afforded to "real" criminals.

Anyway, yes we are perfect for each other - maybe we can figure this one out with more constructive input.

Thanks!

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Quoting flyingron

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You two are perfect for each other.

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Thanks for your very insightful comment. As I've previously mentioned, I have successfully defended myself in four straight moving violations and one parking ticket. Secondly, I have helped several friends, relatives, and co-workers do the same in relating my experience to them. Much of what I've written here is based on those experiences. That doesn't mean I'm always right.

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Quoting scott747

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Thanks donzoh1 - see, thats what I am talking about. That happened to me on more than one occasion and thats why I am posing in my question.

If a commissioner is subject to a stipulation between the court and the defendant for a case to be heard - does that also apply to pre-trial motions and hearings? If it applies to the trial, it must apply to the pre-trial and if one does not stipulate to a commissioner or is not informed that they do not have to have a commissioner - and the commissioner hears and denies motions without offering the option to the defendant, then what is the recourse for the defendant?

If anyone can further clarify, please do so. I'm not worried if I am out in left field on this - I just want to know :confused:

Thanks!

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Anyway, where were we. You can find much information on commissioners in the California Rules of Court, any local rules in your own jurisdiction, and the California Constitution (I think it's Article VI) Even temporary judges have certain legitimate powers, including making rulings on motions, I believe. You also may have certain rights as established in case law or statute to challenge such rulings.

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Quoting scott747

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@ flyingron - So was I accurate in my example listed above? Sure appreciate your input.

I'm just going to say that I have been to court as a defendant and prevailed many times (lost a few) - some on my own merits and some on technicalities. I know commissioners/judges are not perfect and I know that sometimes the court just wants to herd sheeple in traffic court, in and out as quickly as possible and I feel that sometimes the rules of court get brushed over, in the interest of time and money - but it is of my opinion if they (the legislature & executive) want to treat you like a criminal, then they should play by their own rules and the rules of the court and treat every case with equality and fairness. Its almost like they want you to think you are a criminal and treat you like a criminal for some "quasi-crime" infraction and then want you to play by non-criminal rules that give them the upper hand by denying you certain rights that are afforded to "real" criminals.

Anyway, yes we are perfect for each other - maybe we can figure this one out with more constructive input.

Thanks!

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Couldn't have said it better myself.

In my last case, I could almost feel the judge's sympathy for the prosecution but he was extremely fair throughout. (And, I did mess up some and even almost said something incriminating.) After trial, I couldn't resist telling the City Attorney it was nice to meet him. He said "Yeah" and pulled out his cell phone.

I can understand Ron's frustration. There's an astounding amount of misinformation in this thread. First, 170.6 (a)(1) starts out like this, "A judge, court commissioner, or referee of a superior court of the State of California shall not ..." The law in 170.6 applies to commissioners as it does to judges. Although it may have been misapplied at one particular courthouse, it does not mean that you'll be entitled to two peremptory challenges in the same action elsewhere in the state.

The rules in CRC 2.816 apply to lawyers who are not judges, but who are serving as temporary judges because actual judges are unavailable. These are often known as pro tems, short for judge pro tempore. Scott, the example you gave isn't anywhere close to being accurate. Judges are judicial officers, and if one fills in for another no stipulation is required. Re-read all of Title 2 Division 6 Chapter 1 of those rules.

There are certain situations where assignment of a commissioner to hear a particular matter does require stipulation from the parties. However, infraction trials are not one of these situations. Government Code section 72190 specifically grants commissioners the same jurisdiction and powers as judges when it comes to infractions. This covers most traffic tickets. MCLE has an article that covers the constitutional, statutory, and case authority about the source of a commissioner's power. You can read that here.

One final point: be careful about accusations of bias in motions and briefs. You can be held in contempt of court for statements or writings that impugn the integrity of the court. This includes statements that the court is aware of the law but chooses not to follow it, and statements that allege that a judge is acting out of bias without supporting that assertion with facts in the record. See In re White (2004) 18 Cal.Rptr.3d 444.

So my question should be answered as no - the commissioner is the Judge over that traffic court and under normal circumstances, there should not be any stipulations UNLESS there is a temporary Judge for that day of arraignment. And I will accept that if the commissioner read my and denied my motions, it was totally legit for her to do so. I should have 170.6'd her from the get go. I will 170.6 her tomorrow, get a continuance and moved to another court/Judge - then I will file a demurrer aside from the other 2 motions that I filed and go from there.

Thanks for all the input

I didn't read the whole thread but if you knew or should have known the identity of the judge for more than 10 days, the 170.6 will not be timely. If, for example, you had been informed that the case had been assigned to her for all purposes at least that long ago, the motion will likely be denied.

What precisely are you hoping to accomplish with these tactics? What county is this trial being held in? The reason I ask is that many counties have multiple traffic commissioners. If you 170.6 one, they just assign you to another. The other reason I mention this is that many judges preside in a specific courtroom. If you know what department your trial is being held in, then you can work backwards to figure out which judges usually preside in that department. Then you can go observe how trials are conducted by the different judges. You may find that one commissioner appears more fair than another. If that's the case, you only want to use your 170.6 to escape from the one who think is less likely to be fair to defendants.

Second, why are you demurring to the charge? Have you already been arraigned and entered a plea? If so, the time for a demurrer has passed. See PC 1004.

Given the nature of some of his other threads, I suspect he is a Sovereign Citizen and is looking for ways to game the system by dazzling the court with BS.

Well, I have been in this commissioners courtroom before on a seatbelt ticket. To sum it up, she told me that her husband had the same truck that I was driving and the seatbelt (according to the officers testimony) was mounted from the top of the cab (2004 F150) and I testified that the seatbelt was integrated into the seat - hence the officer could not have seen it mounted from the hinge by the roof - and she found me guilty - I even brought pictures of the truck, the seat, the seatbelt, etc and she said "how do I know that was the truck you were driving" - even though it had pics of the plate. So I am disqualifying her for the obvious. It's Riverside County. She gives justice a nasty taste in my mouth.

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C'mon cdwjava - I have a DL - a Sovereign would not enter into such an agreement and sign his rights away! I'm just a simple man who questions why things are the way they are and you might be on the opposite end of that spectrum. It's all good. I just want to have all the rights (or lack thereof) to a fair crack at the obviously lopsided justice system in California. ;)

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Quoting scott747

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I just want to have all the rights (or lack thereof) to a fair crack at the obviously lopsided justice system in California. ;)

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Move to Idaho. You're outnumbered in California by alot.

Actually, there are judges in California that care about the correct application of the law. You just have to look for them.

If the judge said she had no idea what vehicle you were driving, you should have appealed that decision. You should at least have made the Appellate Division that she had no idea what the facts of the case were.

Furthermore, you should have made a pre-trial motion based on the fact that there was no probable cause for an arrest, assuming that an observer can't see whether or not a seat belt is in use. (That's what a traffic stop is, an arrest, usually followed by your promise to appear at a later date.)

I do like your propensity to question the legitimacy of the justice system. Just don't throw the baby out with the bath water.

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Quoting themadnorwegian

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One final point: be careful about accusations of bias in motions and briefs. You can be held in contempt of court for statements or writings that impugn the integrity of the court. This includes statements that the court is aware of the law but chooses not to follow it, and statements that allege that a judge is acting out of bias without supporting that assertion with facts in the record. See In re White (2004) 18 Cal.Rptr.3d 444.

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That is a crazy case to cite. Dangler was so OTT that the bar of CA needs to feel shame for waiting so long to discipline him. Really, not an appropriate case to cite for anything other than an attorney out of control and a state bar that does the right thing far too late.

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Quoting JulesJam

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Move to Idaho. You're outnumbered in California by alot.

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Amen. That might be the understatement of the century.

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Quoting donzoh1

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(That's what a traffic stop is, an arrest, usually followed by your promise to appear at a later date.)

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No, it is not. It is a detention. There is a legal difference, especially when it comes to the amount of evidence necessary for each. The arrest would be when a citation is issued.

What is the purpose for the detention? If it's to determine whether an offense has been committed, you're correct. If the fact of the offense is already known by the officer and the detention is to obtain the offender's promise to appear, then the offender has already been arrested, pending his promise to appear.

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Quoting donzoh1

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What is the purpose for the detention? If it's to determine whether an offense has been committed, you're correct. If the fact of the offense is already known by the officer and the detention is to obtain the offender's promise to appear, then the offender has already been arrested, pending his promise to appear.

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Care to show some caselaw on that? The current legal status of a traffic stop is that it is a like a Terry stop. A detention and NOT an arrest.

A traffic stop is a "detention." A detention is based upon "reasonable suspicion" which is a lesser standard than the "probable cause" required for an arrest (or, citation).

A temporary "detention" or vehicle "stop" is a "limited seizure" of the driver, that is, something less than a full arrest but more substantial than a simple "contact" or "consensual encounter." (Wilson (1983) 34 Cal.3d 777.) A detention exists (1) when you assert authority over a person in a way that a reasonable innocent person would feel compelled to submit to and (2) the person in fact submits. (Hodari D. (1991) 499 U.S. 621, 626; Turner (1994) 8 Cal.4th 137, 180.)

cdw: Thanks for the clarification on those points.

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Quoting scott747

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Well, I have been in this commissioners courtroom before on a seatbelt ticket. To sum it up, she told me that her husband had the same truck that I was driving and the seatbelt (according to the officers testimony) was mounted from the top of the cab (2004 F150) and I testified that the seatbelt was integrated into the seat - hence the officer could not have seen it mounted from the hinge by the roof - and she found me guilty - I even brought pictures of the truck, the seat, the seatbelt, etc and she said "how do I know that was the truck you were driving" - even though it had pics of the plate. So I am disqualifying her for the obvious. It's Riverside County. She gives justice a nasty taste in my mouth.

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Judicial assignments are here. Just be careful that you're not jumping out of the frying pan and into the fire.

You never answered my second question. On what grounds are you planning to file a demurrer?

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Quoting JulesJam

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That is a crazy case to cite. Dangler was so OTT that the bar of CA needs to feel shame for waiting so long to discipline him. Really, not an appropriate case to cite for anything other than an attorney out of control and a state bar that does the right thing far too late.

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This case is cited in multiple places as being the authority for contemptuous statements in moving papers constituting direct contempt. See FN 19 in White, or 463-464. Alternatively, you can look at the authority that White cites, In re Buckley (1973) 514 P. 2d 1201. You're not actually trying to argue that putting unsubstantiated accusations about a judge's bias in court papers is permissible conduct, are you?

@ themadnorwegian

No I would never accuse or purposely do that out of respect and relevance. If she asks me in an open court as to why I am 170.6 her (I doubt she would), then I would just tell her that I prefer someone else. I see her on the assignment and she's the only traffic commissioner assigned to the geographic area where the citation was issued.

My Demurrer - its a special appearance, DEMURRER TO COMPLAINT AND REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW - Jurisdiction challenge, no corpus delecti, it was written by a friend of mine. It's a shot in the dark to some and a silver bullet to others - but I am willing to find out for myself it is taken under consideration and if the judge actually fulfills the request for findings.

Go easy on me - don't go calling me a SC cooc!

Thanks

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Quoting scott747

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My Demurrer - its a special appearance, DEMURRER TO COMPLAINT AND REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW - Jurisdiction challenge, no corpus delecti, it was written by a friend of mine. It's a shot in the dark to some and a silver bullet to others - but I am willing to find out for myself it is taken under consideration and if the judge actually fulfills the request for findings.

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Have you had an arraignment yet? When you say jurisdictional challenge, what are you alleging is defective? Are you saying that the venue is improper, or something else? What crime have you been charged with? The corpus delecti rule merely acts as a bar to prosecution when the only evidence that a crime was committed is from the defendant's own extrajudicial statements. The only evidence that the prosecution has that you committed the crime they allege is your own out of court statement?

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Quoting themadnorwegian

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This case is cited in multiple places as being the authority for contemptuous statements in moving papers constituting direct contempt. See FN 19 in White, or 463-464. Alternatively, you can look at the authority that White cites, In re Buckley (1973) 514 P. 2d 1201. You're not actually trying to argue that putting unsubstantiated accusations about a judge's bias in court papers is permissible conduct, are you?

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After reading a good portion of the White transcript, I can say that I might have given the lawyer 10 days in jail rather than the 5 days. However, if a Defendant states in a 170.6 challenge that he doesn't believe the judge will be fair in his case, that's not on the level of contempt shown by the lawyer in White. There could be many reasons for such an opinion and, of course, the Defendant need not state the specific reason for the opinion.

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Quoting donzoh1

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However, if a Defendant states in a 170.6 challenge that he doesn't believe the judge will be fair in his case, that's not on the level of contempt shown by the lawyer in White. There could be many reasons for such an opinion and, of course, the Defendant need not state the specific reason for the opinion.

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I never said that a properly formed peremptory challenge would constitute contempt. If the defendant uses the template in 170.6(a)(6), or re-writes that as a declaration instead of an affidavit then that's sufficient. I would not state a specific reason, as 170.6 does not require one.

Instead, I'm suggesting you avoid statements like "the court does not want to apply the law in traffic cases" or "traffic defendants never receive a fair trial" in your court papers. If you're going to challenge a judge for cause under 170.1, an affidavit that contains false statements or false accusations of bias can turn into contempt. If you stick with the form for 170.6, you should be fine. If you color outside the lines, exercise good judgement.

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Quoting themadnorwegian

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I never said that a properly formed peremptory challenge would constitute contempt. If the defendant uses the template in 170.6(a)(6), or re-writes that as a declaration instead of an affidavit then that's sufficient. I would not state a specific reason, as 170.6 does not require one.

Instead, I'm suggesting you avoid statements like "the court does not want to apply the law in traffic cases" or "traffic defendants never receive a fair trial" in your court papers. If you're going to challenge a judge for cause under 170.1, an affidavit that contains false statements or false accusations of bias can turn into contempt. If you stick with the form for 170.6, you should be fine. If you color outside the lines, exercise good judgement.

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I agree with this 100%. The parties can't know what the court does or doesn't "want to do." I have heard judges misquote the statutory or case law but it's quite a jump from that to assert that the court is willfully trying to compromise the defendant's right to a fair trial. In fact, I've seen a number of judges who respect the fact that a defendant in pro per can prepare and present a good case and as long as the Defendant sticks to relevant points, most judges will give the defendant every opportunity.

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Quoting themadnorwegian

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Have you had an arraignment yet? When you say jurisdictional challenge, what are you alleging is defective? Are you saying that the venue is improper, or something else? What crime have you been charged with? The corpus delecti rule merely acts as a bar to prosecution when the only evidence that a crime was committed is from the defendant's own extrajudicial statements. The only evidence that the prosecution has that you committed the crime they allege is your own out of court statement?

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No arraignment yet. A few extensions while I ready my plan B and plan C if it actually goes to trial.

What crime? My exact question - what crime? Cited for cvc 4000 (a)(1)

Demurrer:

Conclusion

Whether this is a civil or criminal proceeding, the plaintiff has failed to allege the required elements of a cause of action/crime and there is no corpus delecti, the Court has no jurisdiction. The court should sustain this demurrer and either strike the complaint filed against alleged defendant or dismiss it.

Thanks for your input.

So what were you doing that they cited you for and what is your actual defense to it?

Nevermind, guessing it's related to your other thread.

If you were hauling that thing unregistered, you are toast unless you get a very generous/very stupid trier of fact.

Cited for CVC 4000 (a)(1) free9man and c'mon now - I'm not toast, because I was not hauling a trailer or a semi-trailer :cool:

OK so went to file some motions today. :wallbang:

Before I submitted my motions to the window clerk, I asked her - "So lets say I show up next week to an arraignment that I schedule, is there any stipulation to be heard by the commissioner?" "YES" she says. YES "you do not have to stipulate to a commissioner, you can have a Judge hear your case." "Do I have to file my 170.6 to do such?" I asked ….. "NO" she replied - "you don't have to use that, she will just transfer your case to another judge." Which leads to me believe that if the Judge I am transferred to will probably be a Judge on assignment or if I am lucky enough (or not) I will get a genuine duly elected Judge

So...as my hunch from the get-go indicated, there must be stipulation. And since I did not stipulate to a commissioner when I submitted my original motions, it makes sense that she would deny my motions - since she has not gotten stipulation from me to even have her hear anything as much as a motion for dismissal and my guess is, she probably does not have Judicial powers to dismiss under that sort of scenario….Cop doesn't show up? Commissioner can dismiss…..Accused submits motions to court commissioner? Commissioner can't do that, denied motion.

Any words from the peanut gallery?

It sounds to me like your court is using pro tems as commissioners. Otherwise you wouldn't be allowed to stipulate for an infraction.

As to your earlier post, you only answer half of the questions I ask each time. It's hard for me to formulate any kind of useful response.

Venue is proper if you're tried in the county where the crime was committed. (PC 777). Superior courts have original jurisdiction for anything that's not expressly delegated to another court either by the constitution. (Cal Const Art VI sec 10). CVC 4000(a)(1) states a chargeable offense as it specifically states something that you shall not do. (PC 15).

The notice to appear constitutes a valid complaint provided that it has been verified and is on a form approved by the Judicial Council. That's sufficient for the court to have jurisdiction and for you to enter a plea. (PC 853.9; CVC 40513; Heldt v. Municipal Court (1985) 163 Cal. App. 3d 532; Schmidlin v. City of Palo Alto (2007) 69 Cal. Rptr. 3d 365).

As for the corpus delicti argument, you still haven't answered my last set of questions. As far as I can tell, this would only apply if the prosecution's case rested solely on a confession that you made about your vehicle's registration.

To be honest, this entire strategy of filing multiple pre-trial motions about the complaint seems frivolous. The court allows the prosecution to re-file a complaint after a defect has been corrected, assuming that there was one there in the first place. A CVC 4000(a)(1) can be a correctable offense. While the officer may file the ticket as non-correctable, the final judgement rests with the court. Instead of aggravating the judge by submitting a mountain of paperwork with questionable relevance, why not get your registration current and provide the court with evidence of your correction? If you can prove that none of the conditions in CVC 40160(b) are present, then court should be willing to reclassify the offense as correctable. Then you're off with the minimal $25 fee associated with any correctable violation.

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Quoting scott747

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Cited for CVC 4000 (a)(1) free9man and c'mon now - I'm not toast, because I was not hauling a trailer or a semi-trailer :cool:

OK so went to file some motions today. :wallbang:

Before I submitted my motions to the window clerk, I asked her - "So lets say I show up next week to an arraignment that I schedule, is there any stipulation to be heard by the commissioner?" "YES" she says. YES "you do not have to stipulate to a commissioner, you can have a Judge hear your case." "Do I have to file my 170.6 to do such?" I asked ….. "NO" she replied - "you don't have to use that, she will just transfer your case to another judge." Which leads to me believe that if the Judge I am transferred to will probably be a Judge on assignment or if I am lucky enough (or not) I will get a genuine duly elected Judge

So...as my hunch from the get-go indicated, there must be stipulation. And since I did not stipulate to a commissioner when I submitted my original motions, it makes sense that she would deny my motions - since she has not gotten stipulation from me to even have her hear anything as much as a motion for dismissal and my guess is, she probably does not have Judicial powers to dismiss under that sort of scenario….Cop doesn't show up? Commissioner can dismiss…..Accused submits motions to court commissioner? Commissioner can't do that, denied motion.

Any words from the peanut gallery?

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In my most recent case, after disqualifying a commissioner (I think he may have been pro tem?), and disqualifying another judge with a 170.6, I wound up in a felony court room. The Judge said he hadn't heard a traffic case in years but that his cases were "high-level felonies." Comparing the statements he made and his demeanor to that of the several judges and commissioners I had seen in my two visits to court on this case, I determined that he would be fair, although I was stuck with him at that point anyway. He ruled in my favor, although, even if I had been convicted, I would have felt good about his (written) decision if he had articulated a good basis for it.

I'm sorry for not disclosing enough themadnorwegian - I will have to PM you the entire demurrer.

I would just like to explore every option available to me. If it means making motions that may seem frivolous to some, I don't see a problem with it, especially if my motions are legitimate and could possibly get a case tossed out. My understanding that in CA there is no prosecution to re-file. In fact, in an infraction I received about 6 years ago, I submitted a request to the DA for informal discovery and they wrote me back and said something to the effect that the DA's office does not prosecute infractions, as they are not criminal (something like that) I submitted one for this case and as soon as I get the response, I will post it. The citation is marked correctable....but I do not live in CA and I have no intention of registering. The state where I reside does not require my particular type of vehicle to be registered. So the only way around that is to buy a temporary out of state registration and I'm sure they would accept that. That's the easy way out. I may go that route, but I am trying to prove a point in this case and its sort of a litmus test. If I can successfully argue this case and get a not guilty on the merits of my case and my argument, I feel that this will be a milestone.

I will post more later on.

Thanks!

- - - Updated - - -

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Quoting donzoh1

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In my most recent case, after disqualifying a commissioner (I think he may have been pro tem?), and disqualifying another judge with a 170.6, I wound up in a felony court room. The Judge said he hadn't heard a traffic case in years but that his cases were "high-level felonies." Comparing the statements he made and his demeanor to that of the several judges and commissioners I had seen in my two visits to court on this case, I determined that he would be fair, although I was stuck with him at that point anyway. He ruled in my favor, although, even if I had been convicted, I would have felt good about his (written) decision if he had articulated a good basis for it.

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I think you and I feel the same about commissioners and pro tems - I think elected Judges are held to a higher standard and hence offer a higher level of knowledge and experience. Although, it could have backfired on you if you had caught him in a bad mood. Kudos to you.

Thanks!

You don't need to PM me a copy of your demurrer. If you're not comfortable discussing the details here, that's fine. You certainly don't owe me any kind of apology. It's your case. You can run it as you see fit.

You could also register your vehicle in your home state, and then show evidence of correction in CA. The Vehicle Code has an exception for out of state vehicles, provided that they have proper plates and registration from their home state. See CVC 6700.

You're right that the DA doesn't attend traffic court in California, but the police can still re-file a citation to correct a defect. The court may order a complaint amended, too. See PC 1007 and 1009.

OK so I may have found out why she denied my motions….

1005. The demurrer must be in writing, signed either by the
defendant or his counsel, and filed. It must distinctly specify the
grounds of objection to the accusatory pleading or it must be
disregarded.

I neglected to sign the copy that I submitted to the court. :eek: I signed my original copy, but neglected to sign the copy I submitted.

My bad.

OK a quick question with some background.

1) I submitted 2 pre-trial motions to the traffic court. (Motion to dismiss x 2)
2) The motions were denied.
3) Since I have submitted motions to the court, under Commissioner Jane Doe, do these proceedings give some sort of precedence to actions I want to take at a later time?

For instance - I submitted 2 motions to the court. The commissioner supposedly made a decision and denied the motions. When I went to the court clerk to file some additional papers, I inquired about disqualifying (170.6) this commissioner. I was informed that I did not have to stipulate to said commissioner by the clerk - in fact she told me that I didn't have to use my 170.6 - so they scheduled me to the traffic calendar as a REDUCED BAIL/NON STIP for today.

So I arrive at court and the commissioner tries to push me into a plea - an arraignment??? I asked to be put on the calendar for something besides an arraignment. I informed her that I had not appeared to make a plea, but to disqualify her. She denied my request. I then motioned the court for a continuance. DENIED. I motioned for a 170.6 - DENIED (untimely) and then she proceeded to push me into a plea. I again informed her that I was not appearing to plea, I was appearing to address the NON STIP and she told me there was no such thing (in fact, just steamrolls the arraignment hearing forward) and enters a plea of not guilty for me. She said because she had already made decisions on "this case" that the motion to disqualify her is untimely.

Is this the way it really works? Show up to court to address one item and have a commissioner do this? Talk about a bait and switch.

Any feedback would be appreciated.