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  • 09-24-2018, 10:06 PM
    bigappealsbro
    What Should You Say in a Traffic Court Appeal
    My question involves a traffic ticket from the state of: California.

    Please critique part of my appeal of a speeding ticket.

    Only (1), (2), (3) & (4) appear below. Other parts are "under construction."


    Overview:
    (1) Summary of Facts
    (2) Questions Presented
    (3) Summary of Arguments
    (4) Argument: Lack of Substantial Evidence
    (5) Argument: Prejudicial Error {Citing Officer’s Training}
    (6) Argument: Prejudicial Error {Informal Discovery Request}
    (7) Argument: Prejudicial Error {Denial of Continuance}
    (8) Argument: Prejudicial Error {Leading Question about RADAR}

    SUMMARY OF FACTS

    Preliminary Issues
    Before trial, Appellant served an Informal Discovery Request on XX District Attorney. But it failed to respond. Thereafter, Appellant served Citing Officer’s agency. Most documents were mailed to Appellant. But some were not, including CO’s certifications in RADAR or visual-estimation of speed. Shortly before trial, however, CO presented Appellant with the missing documents. Appellant then requested a one-week continuance for document review. But the Court denied the request. Instead of a continuance, Appellant (in Pro Per) received a short recess, not only to examine multiple pages of new information, but also to synthesize them for cross-examination questions.

    Thereafter, the Court reviewed Appellant’s Informal Discovery Request. One request sought “Names & addresses of prosecution witnesses likely to testify at trial.” CO’s agency’s responded in writing with “none." After reading “none” aloud, the Court pointed at the CO, saying, “That’s him.”

    Citation
    Citation Date: XXX
    Citing Agency: XXX
    Citing Officer: XXX (“CO")
    Appellant’s Vehicle: Silver, Nissan Sentra
    Trial Date: XXX

    Trial
    Hiding behind a mountain-like structure on (freeway), Citing Officer (“CO”) sat in a stationary patrol unit, using his driver’s side mirror to watch northbound traffic. From a substantial distance, CO saw a northbound “Subject Vehicle” (of unknown characteristics), not only traveling fast in a #3 lane, but also passing several vehicles. CO visually estimated the Subject Vehicle’s speed at 110 m.p.h. Thereafter, he activated rear RADAR, obtaining speeds of 109 m.p.h and 110 m.p.h. Much later, CO stopped a silver, Nissan Sentra, issuing a citation for an infraction violation of Vehicle Code 22348(b): Driving a vehicle at greater than 100 m.p.h. on a Highway.

    Under cross examination, CO testified that, although his notes mentioned “1000 ft.,” he had obtained speed measurements of the Subject Vehicle at “probably much greater than 1000 ft.”

    CO also admitted a couple of weaknesses. First, his most recent visual-estimation-of-speed training had occurred more than (14) fourteen years before citation date. Second, he lacked training in visual estimation of speed at a distance greater than 900 ft. The Court subsequently trivialized those deficiencies, asserting that the CO had performed many visual estimations of speed as a CHP officer.

    CO went on to admit that, before obtaining any speed measurements (whether visual or electronic), he had not identified the Subject Vehicle by its characteristics (color, size, class, etc.).

    Appellant then informed the Court that, in obtaining electronic speed readings (of both 109 m.p.h. and 110 m.p.h), CO had used RADAR at least 1000 ft. away. At that distance, the RADAR’s beam covered all lanes of I-15N. Neither the CO nor the Court contested Appellant’s information.

    Thereafter, CO admitted he had not testified that (a) the Subject Vehicle had left the #3 lane, (b) had ever spent time in a #4 lane, or (c) had ever moved from the #4 lane to the #3 lane. Finally, CO admitted that Exit #138 was available to the Subject Vehicle.

    Appellant went on to present video, showing his silver, Nissan Sentra’s traveling in the #4 lane. The video also showed Appellant’s vehicle’s traveling in the #3 lane (after switching from the #4 lane), without passing any vehicles.

    Thereafter, the Court asked (while referring to Appellant’s video), “Is that white speck there you?" “Yes, or it could be from a different stop,” said the CO. The Court then asked, “Did you use RADAR there?" After CO said, “yes," the Court found Appellant guilty of CVC 22348(b).

    Questions Presented

    I. DID THE COURT CONVICT DEFENDANT OF VEHICLE CODE 22348(B), DESPITE A LACK OF SUBSTANTIAL EVIDENCE?

    II. DID A TRIVIALIZING OF CITING OFFICER’S TRAINING DEFICIENCIES CONSTITUTE PREJUDICIAL ERROR BY THE COURT?

    III. DID A CLAIM THAT “NONE” MEANT “THE CITING OFFICER” CONSTITUTE PREJUDICIAL ERROR BY THE COURT?

    IV. DID A DENIAL OF A CONTINUANCE FOR DOCUMENT REVIEW CONSTITUTE PREJUDICIAL ERROR BY THE COURT?


    V. DID A LEADING QUESTION ABOUT RADAR CONSTITUTE PREJUDICIAL ERROR BY THE COURT?


    Summary of Argument

    First, the Court erred in convicting defendant of CVC 22348(b), since no substantial evidence supported that finding. As a result, the conviction (and penalties) violated either due process or equal protection, under either California or federal law.

    Second, the Court committed prejudicial error in trivializing CO’s training deficiencies. This error harmed Appellant, since the Court assumed a role of prosecutor, showing favoritism toward the People. As a result, he suffered an unfair trial, violating either due process or equal protection, under either California or federal law.

    Third, the Court committed prejudicial error by intentionally misinterpreting a response to Appellant’s Informal Discovery Request. This error harmed Appellant, since the Court assumed a role of prosecutor, showing favoritism to the People. As a result, he suffered an unfair trial, violating either due process or equal protection, under either California or federal law.

    Fourth, the Court committed prejudicial error by denying Appellant a one-week continuance for document review, since his request constituted “good cause.” This error harmed Appellant’s preparation of his defense, violating either due process or equal protection, under either California or federal law.

    Lastly, the Court committed prejudicial error by asking CO a leading question about RADAR. This error harmed Appellant, since the Court assumed a role of prosecutor, showing favoritism toward the People. As a result, he suffered an unfair trial, violating either due process or equal protection, under either California or federal law.

    ARGUMENT: LACK OF SUBSTANTIAL EVIDENCE

    The appellate court can review this portion of Appellant’s appeal without deference to the lower court, since “the existence or nonexistence of substantial evidence is a question of law” {Mau v. Hollywood Commercial Buildings, Inc., 194 Cal. App. 2d 459, 466 (1961)}.

    I. THE COURT ERRED IN FINDING APPELLANT GUILTY OF VEHICLE CODE 22348(B), SINCE NO SUBSTANTIAL EVIDENCE SHOWED THAT HE HAD DRIVEN GREATER THAN 100 MPH ON A HIGHWAY

    A. A VISUAL ESTIMATE OF SPEED OF AN UNKNOWN VEHICLE FAILED TO SHOW THAT DEFENDANT HAD TRAVELED AT EITHER 110 MPH OR OTHERWISE

    The Court erred in finding Appellant guilty of Vehicle Code 22348(b), since no visual-estimate-of-speed evidence supported that finding.

    Citing Officer (“CO”) visually estimated speed of the Subject Vehicle (at a distance much greater than 1000 ft.), before he knew its characteristics (color, size, class, etc.). In fact, under cross examination, CO admitted to a visual estimate of (1) a Subject Vehicle, not a “silver vehicle,” (2) a Subject Vehicle, not a “silver sedan," and (3) a Subject Vehicle, not a “silver Nissan Sentra."

    By not tying the single, visual estimate of 110 m.p.h. to a silver, Nissan Sentra, CO failed to show that the visual estimate belonged to Appellant’s vehicle. CO’s testimony merely established that some vehicle, of unknown color, unknown size and unknown class, had driven approximately 110 m.p.h on a highway. That testimony failed to show that Appellant had violated VC 22348(b).

    B. THE CITING OFFICER’S VISUAL ESTIMATE LACKED SUPPORT FROM HIS TRAINING

    The Court erred in accepting the CO’s visual estimation of speed, since his training did not support such an estimate. Shortly before trial, Appellant received documents from the CO, detailing his visual-estimation-of-speed training. CO subsequently admitted, under cross examination, that he had visually estimated the unknown Subject Vehicle from a distance much greater than 1000 ft. Nevertheless, the CO also admitted, under cross examination, that his most recent visual-estimation-of-speed training, from more than (14) fourteen years earlier, involved no distance greater than 900 ft. Therefore, the CO’s visual estimate of 110 m.p.h. could not reasonably support a conviction of 22348(b), since the visual estimate occurred at a distance not supported by CO’s training.

    C. ELECTRONIC SPEED MEASUREMENTS OF AN UNKNOWN VEHICLE FAILED TO SHOW THAT DEFENDANT’S VEHICLE TRAVELED AT 109 MPH, AT 110 MPH OR OTHERWISE

    The Court erred in finding Appellant guilty of Vehicle Code 22348(b), since no electronic speed measurements supported that finding. According to both CO’s notes and testimony, RADAR readings captured an unidentified Subject Vehicle’s speeds from a distance of at least 1000 ft. Appellant subsequently informed the Court that, at that range, the RADAR beam covered all lanes of I-15N. Afterwards, neither the Court nor the CO contested Appellant’s information.

    Under cross examination, CO testified that, before obtaining either RADAR reading, he had not identified the Subject Vehicle by its characteristics (color, size, class, etc.). As a result, the CO failed to show that those RADAR readings belonged to Appellant’s silver, Nissan Sentra. Instead, the CO’s testimony merely established that, while in some lane, some vehicle, of unknown color, unknown size and unknown class, had driven either 109 m.p.h. or 110 m.p.h. That testimony failed to show that Appellant violated VC 22348(b).

    D. CITING OFFICER FAILED TO SHOW A CONSTANT VISUAL ON THE SUBJECT VEHICLE

    Before changing his story, CO testified that, while traveling in a #3 lane, the unidentified Subject Vehicle passed several vehicles. Thereafter, Appellant presented a video, showing his silver, Nissan Sentra’s traveling a significant distance in a #4 lane. The video also showed Appellant’s vehicle’s traveling in a #3 lane (after moving from the #4 lane), without any vehicles present on either side of his silver, Nissan Sentra. Therefore, CO had to have seen his Subject Vehicle’s traveling in a #3 lane earlier.

    If that vehicle were Appellant’s vehicle, and CO had kept a constant visual on it, he would have said so. His testimony would have looked something similar to:

    **Beginning of Hypothetical Testimony**

    “While traveling in a #3 lane, the Subject Vehicle traveled fast, while passing several vehicles. I visually estimated its speed at 110 m.p.h. Shortly thereafter, I activated my rear RADAR, obtaining speed readings of 109 m.p.h. and 110 m.p.h. The Subject Vehicle subsequently moved from the #3 lane to a #4 lane, traveling for some time therein. Afterwards, the Subject Vehicle moved from the #4 lane to the #3 lane, passing by my patrol unit shortly thereafter.”

    **End of Hypothetical Testimony**

    But CO provided no such testimony, at least not at first. After seeing defendant’s video, however, CO changed his story, claiming he had seen the Subject Vehicle in the #4 lane all along. Nevertheless, his original testimony provided a better indicator of truth, reflecting his personal recollection of events. (His revision should be ignored, since it emerged after an introduction of video evidence unfavorable to his initial story).

    Earlier, CO admitted to speed measurements (both visual and electronic) of an unknown Subject Vehicle, not of a vehicle identified by its characteristics (color, size, class, etc.). He had also admitted that, for sometime thereafter, the Subject Vehicle enjoyed access to Exit 138.

    Here, the CO failed to show a “constant visual” on the unknown Subject Vehicle. Therefore, the CO did not provide a seamless narrative that connected the Subject Vehicle to Appellant’s vehicle. Without providing an uninterrupted connection, the CO failed to show that Appellant had driven his silver, Nissan Sentra at greater than 100 m.p.h.

    E. A MERE “USAGE” OF RADAR FAILED TO ESTABLISH THAT DEFENDANT’S VEHICLE EXCEEDED 100 M.P.H. ON A HIGHWAY

    Given CO’s deficient testimony, the Court asked (while looking at Appellant’s video), “Is that white speck there you?" “Yes, or it could be from a different stop," said the CO. The Court then asked, “Did you use RADAR on Appellant’s vehicle there? “Yes,” said the CO.

    But the CO failed to follow up his “yes" with a speed reading. Therefore, his (coached) testimony established nothing legally significant.

    These facts still remained unchanged: The only RADAR readings on record (109 m.p.h. and 110 m.p.h). had come not only from a distance of at least 1000 ft., but also from an unidentified Subject Vehicle. No RADAR reading on record had come from a vehicle identified by its characteristics (color, size, class, etc.). Therefore, mere RADAR “usage” on Appellant’s vehicle (as it passed by the patrol unit) failed to show that he had exceeded 100 m.p.h. on a highway. All CO’s testimony showed was that, as Appellant’s vehicle had passed by, the RADAR unit displayed some speed.

    Of course, inferences may constitute substantial evidence. The Court’s apparent reasoning and inference in this case went something like this:

    **Beginning of Court’s Apparent Reasoning and Inference**

    RADAR was used on Appellant’s vehicle as it passed by the patrol unit, although the CO did not establish that his patrol vehicle even appeared in Appellant’s video. What’s more, the CO failed to state what speed reading was displayed on the RADAR unit at that moment. Therefore, Appellant drove greater than 100 m.p.h. on a highway.

    **End of Example of Court’s Apparent Reasoning and Inference**

    Such reasoning is absurd, since mere “usage” of RADAR could mean that the CO had obtained a speed measurement not greater than 100 m.p.h. For that reason, the court’s inference failed to pass tests of both logic and reasonableness {Roddenberry v. Roddenberry, 44 Cal. App. 4th 634, 651-52 (1996)} That inference was, therefore, not a reasonable basis for finding Appellant guilty of exceeding 100 m.p.h. on a highway.

    Conclusion
    The entire record shows that some vehicle, of unknown color, unknown size, and unknown class had exceeded 100 m.p.h. CO not only obtained all speed measurements from an unknown Subject Vehicle, but also from a distance not supported by his training. Even worse, he failed to connect any speed measurements to Appellant’s silver, Nissan Sentra (or to any specific vehicle).

    CO’s only “evidence” came after coaching by the Court. That “evidence” did not support an infraction violation, however, since CO merely established RADAR “usage." No speed measurement was provided, rendering the affirmation of “usage” useless for a conviction of VC 22348(b).

    Given that the horrendous quality of evidence against Appellant is clearly "...unacceptable to reasonable minds," no rational fact finder could have found Appellant guilty beyond a reasonable doubt (Kircher v. Atchison, T. & SF Railway Co., 32 Cal. 2d 176 - Cal: Supreme Court 1948).

    As a result, Appellant suffered a conviction, based on a lack of substantial evidence. That conviction violated either due process or equal protection, under either California or federal law {CA Constitution: Article 1, Section 7}, {People v. Johnson 26 Cal.3d 557, 578. (1980)}, {US Constitution: 14th Amendment}, {Jackson v. Virginia 443 U.S. 307. (1979)}. For those reasons, Appellant’s conviction demands a reversal.
  • 09-25-2018, 01:52 AM
    jk
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    You don’t have to know what color make a model a car is to determine its speed. Calling a subjects vehicle the subjects vehicle does not mean it wasn’t referring to the subjects silver Nissan Sentra. In fact calling it the subjects vehicle is more accurate since there could be more than one silver Nissan Sentra on the road so identifying the vehicle he uktimstely identified to be your vehicle is more accurate
  • 09-25-2018, 02:17 AM
    Taxing Matters
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    I can't tell you how to the write the brief for your specific appeal as that would be the practice of law and I'm not licensed in your state to do that. But I would strongly urge you to get an appellate lawyer to represent you in the appeal if you really want to succeed. Your brief is not great, if you want a frank assessment of it.

    For one example, the "hypothetical testimony" part of the brief is not proper. Your brief should only cite facts from the trial record and then make whatever legal arguments you have based on that record. The hypothetical testimony was not in the record and ought not be included. It is not helpful, either, since all kinds of testimony might be given that would have sufficed to meet the state's case; the officer need not have given the hypothetical recitation you provided. If you want to make the case that the officer never adequately identified the vehicle, you do that citing to the record where the questions were asked about the vehicle that he identified and point out that the officer never specifically mentioned your vehicle was the one he measured. I hope you asked specific questions on that in your cross exam so that it's clear he didn't pick out your car. You'll have a problem if it is not clear from the record. You cannot say that because the testimony lacked your hypothetical testimony that it wasn't good enough. Focus on what is in the trial record. Don't include things not in the record; the appeals court cannot consider that.

    That's just one of the problems that I see. There are other problems, too. But I can't go through them point by point for you. Get a lawyer to do it right. Of course that costs you money, and if this whole episode is just about saving the money from the fine then it may not be worth it. In that instance, though, you may find you are expending a lot of time on what may turn out to be a losing brief.
  • 09-25-2018, 10:57 AM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    @taxing matters

    (1) It's clear that he didn't pick my vehicle.

    Although I don't have a copy of "the record" yet, I asked him questions like these:

    QUESTION: Is it true that you referred to a Subject Vehicle, not a silver vehicle?

    ANSWER: YES

    QUESTION: Is it true that you referred to a Subject Vehicle, not a sedan ?

    ANSWER: YES

    QUESTION: Is it true that you referred to a Subject Vehicle, not a silver sedan?

    ANSWER: YES

    QUESTION: Is it true that you merely referred to a Subject Vehicle, not to a vehicle by its specific characteristics?

    ANSWER: YES

    QUESTION: Is it true that you had performed a visual estimate of speed of this unidentified Subject Vehicle from 1000 ft. or roughly 3 football fields away?

    ANSWER: YES, but I probably did that from much greater than 1000 ft.


    (2) Could you treat my brief as "academic" and play "law professor" in a hypothetical jurisdiction? That way, you wouldn't be giving me legal advice for my specific situation

    (3) I'll nix the "hypo" part. How does this look from an academic perspective?

    CO FAILED TO KEEP A CONSTANT VISUAL

    CO testified that, while traveling in a #3 lane, the unidentified Subject Vehicle passed several vehicles. Thereafter, Appellant presented a video, showing his silver, Nissan Sentra’s traveling a significant distance in a #4 lane. The video also showed Appellant’s vehicle’s traveling in a #3 lane (after moving from the #4 lane), without any vehicles present on either side of his silver, Nissan Sentra. Therefore, CO had to have seen his Subject Vehicle’s traveling in a #3 lane earlier.

    (After seeing defendant’s video, CO changed his story, claiming he had seen the Subject Vehicle in the #4 lane all along. Nevertheless, his original testimony provided a better indicator of truth, reflecting his personal recollection of events. His revision should be ignored, since it emerged after an introduction of video evidence unfavorable to his initial story).

    Earlier, CO admitted to speed measurements (both visual and electronic) of an unknown Subject Vehicle, not of a vehicle identified by its characteristics (color, size, class, etc.). He had also admitted that, for sometime thereafter, the Subject Vehicle enjoyed access to Exit 138.

    Here, the CO failed to testify that Appellant's vehicle had traveled in the #4 lane, before moving to #3 lane (where Appellant's vehicle did not pass any vehicles). Therefore, the CO did not provide a seamless narrative between the Subject Vehicle and Appellant’s vehicle. Without providing an uninterrupted connection, the CO failed to show that Appellant had driven his silver, Nissan Sentra at greater than 100 m.p.h.

    Quote:

    Quoting EJay
    View Post
    Have you obtained Brown's book?

    There's no brief in there for "lack of substantial evidence." Got a link to any examples?

    Quote:

    Quoting jk
    View Post
    You don’t have to know what color make a model a car is to determine its speed. Calling a subjects vehicle the subjects vehicle does not mean it wasn’t referring to the subjects silver Nissan Sentra. In fact calling it the subjects vehicle is more accurate since there could be more than one silver Nissan Sentra on the road so identifying the vehicle he uktimstely identified to be your vehicle is more accurate

    He admitted to having obtained speed measurements at a distance of both 1000 ft (in his notes) & "probably much greater than 1000 ft," (under cross examination)

    (Under cross, he also admitted that the Subject Vehicle enjoyed access to a freeway exit).

    So, given the great distance, a freeway exit & NO specific characteristics of the so-called Subject Vehicle, he could've measured one vehicle, but stopped a different one.

    As a result, he was about to lose. But the Court stepped in, asking (while looking at my video), "Is that white speck there you?" "Yes, or it could be from a different stop," said the CO. The Court then asked, "Did you use RADAR there?" "Yes," said the CO. Then I was found guilty. Note that the Court did NOT ask the CO for a speed measurement, since a "yes" answer would've been perjury. I went down on a mere insinuation.
  • 09-25-2018, 03:05 PM
    jk
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Just because he referred to your car as subject vehicle doesn’t mean he also wasn’t aware it was a silver Nissan Sentra. Presumably you did pass him at some time so even if he couldn’t determine what type and color your car was initially, that doesn’t mean he didn’t see your car speeding and maintained observation of your vehicle to some point where he obviously could determine it was a silver Nissan Sentra.

    Its like this; I look at a jet. I can’t telll who the carrier is from the ground but if I’m in a position to observe the jet until it is such that I can determine who the carrier is, then I have adequately identified that specific jet as the one I originally saw.

    A video is also not an accurate representation of what an observer saw first hand. objects are larger to the first hand observer than what you see on a video. Colors are also more apparent to a first hand observer. That’s just how video recording works.

    I also dont understand why you keep making an issue about measuring your speed at 1000 feet. That is well within the range of any smd I knkw of.


    But 1000 feet isn’t that far even for visual estimation. A quarter miles is 1320 feet. Its not impossible to identify the color and many characteristic of a car at that distance. I can identify the make and model in some cases as well. 1000 feet just isn’t that great of a distance that tossing it out as you are is going to win your case

    Also, since you are traveling faster than all other traffic, some smds specifically lock into the fastest traffic. Since you were the only vehicle gaining that quickly on The cop it makes it easy to state it was you car.

    Additionaly, if you did not attack the functional limits and accuracy of the smd in your trial, it’s too late to do that now. The units used are given judicial notice so to defeat them on functional issues you must show what specifically about the smd could have resulted in an invalid measurement of your vehicle in the specific situation at the time?
  • 09-25-2018, 04:48 PM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Just because he referred to your car as subject vehicle doesn’t mean he also wasn’t aware it was a silver Nissan Sentra.
    But we don't know what he was aware of, since we can't read his mind. In court, he began his testimony with "Subject Vehicle," not with "silver Nissan Sentra." He then visually estimated the Subject Vehicle's speed from much greater than 1000 ft. Soon thereafter, he activated RADAR, while still referring to a Subject Vehicle.


    Quote:

    Presumably you did pass him at some time so even if he couldn’t determine what type and color your car was initially, that doesn’t mean he didn’t see your car speeding and maintained observation of your vehicle to some point where he obviously could determine it was a silver Nissan Sentra.
    He identified a silver, Nissan Sentra WAY after having taken speed measurements of a Subject Vehicle. He didn't immediately tie speed measurements to a specific vehicle.

    Quote:

    Its like this; I look at a jet. I can’t telll who the carrier is from the ground but if I’m in a position to observe the jet until it is such that I can determine who the carrier is, then I have adequately identified that specific jet as the one I originally saw.
    He observed a Subject Vehicle through his driver's side mirror, while his patrol unit was hiding in front of a mountain-like structure that supports an overpass. And there were four lanes of traffic behind him, not a single car, in a single lane. There was also an exit. His testimony ALWAYS put his Subject Vehicle in a #3 lane. But my video showed my vehicle in a #4 lane. He was apparently unaware of was was going on in the #4 lane, since it was blocked by the mountain. There was also a large van in the #3 lane, creating another obstruction of his view. So it's possible that the Subject Vehicle quickly shot from the #3 lane to that exit.

    Quote:

    A video is also not an accurate representation of what an observer saw first hand. objects are larger to the first hand observer than what you see on a video. Colors are also more apparent to a first hand observer. That’s just how video recording works.
    Then he should've begun his testimony with "silver Nissan Sentra," since that was so obvious to him.

    Quote:

    I also dont understand why you keep making an issue about measuring your speed at 1000 feet. That is well within the range of any smd I knkw of.
    At that range, the beam covered all lanes. So his testimony let us know that some vehicle behind him was >100 mph. That was helpful.

    Quote:

    But 1000 feet isn’t that far even for visual estimation. A quarter miles is 1320 feet. Its not impossible to identify the color and many characteristic of a car at that distance. I can identify the make and model in some cases as well. 1000 feet just isn’t that great of a distance that tossing it out as you are is going to win your case
    The point is that his testimony didn't begin with specific characteristics of his Subject Vehicle. He did visual & electronic measurements of some vehicle behind him. And that was it. None of his testimony paired visual/electronic speed measurements of a vehicle identified by its characteristics. That's why the Court stepped in to save him.

    Quote:

    Also, since you are traveling faster than all other traffic, some smds specifically lock into the fastest traffic. Since you were the only vehicle gaining that quickly on The cop it makes it easy to state it was you car.
    I wasn't driving a Subject Vehicle. So what car was locked in @ 1000 ft.?

    Quote:

    Additionaly, if you did not attack the functional limits and accuracy of the smd in your trial, it’s too late to do that now. The units used are given judicial notice so to defeat them on functional issues you must show what specifically about the smd could have resulted in an invalid measurement of your vehicle in the specific situation at the time?
    I didn't argue that the RADAR was inaccurate, since documentation negated that game. Instead, I said that, at 1000 ft., the beam covered all four lanes. And, from the cop's testimony, all we knew was that the beam had picked up a Subject Vehicle. At that point, he was DOA. I had won. But then the Court played prosecutor, asking the cop whether he had used RADAR on my vehicle as it had passed by his patrol unit. Of course he said, "yes," although that's clearly BS. That guy's been a traffic cop for 15 yrs. If he had had evidence that good, it would've been in his original testimony.

    BTW, CHP doesn't even rely on RADAR as a vehicle passes by. At that point, a driver has almost always caught on, slowing considerably. A >110/70, would likely be a 95/70, or even lower. That's a MUCH lower fine. Uncle Ruckus is greedy.
  • 09-25-2018, 04:52 PM
    zeljo
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Your odds of prevailing on appeal are slim and none. It's the trial court's responsibility and prerogative to evaluate the evidence presented; as long as there is SOME evidence presented for each element of the charge, it is completely within the trial court's purview to accept or reject it. Appellate court will not weigh in on that.

    You may have some chance with argument IV (DID A DENIAL OF A CONTINUANCE FOR DOCUMENT REVIEW CONSTITUTE PREJUDICIAL ERROR BY THE COURT?), but you should present it as failure of prosecution to provide discovery and failure of court to enforce it. Brown's book should give you an idea on how to do it.
  • 09-25-2018, 05:10 PM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting zeljo
    View Post
    Your odds of prevailing on appeal are slim and none. It's the trial court's responsibility and prerogative to evaluate the evidence presented; as long as there is SOME evidence presented for each element of the charge, it is completely within the trial court's purview to accept or reject it. Appellate court will not weigh in on that.

    You may have some chance with argument IV (DID A DENIAL OF A CONTINUANCE FOR DOCUMENT REVIEW CONSTITUTE PREJUDICIAL ERROR BY THE COURT?), but you should present it as failure of prosecution to provide discovery and failure of court to enforce it. Brown's book should give you an idea on how to do it.

    There must be "reasonable" evidence, not "some" evidence.

    http://www.courts.ca.gov/documents/cr141info.pdf

    The Court appeared to convict me solely on a "yes" response to "Did you use RADAR when the vehicle passed by?" That doesn't seem reasonable, since "usage" could've been 1 m.p.h.
  • 09-25-2018, 05:38 PM
    LegalWriter
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    When proceeding pro per in a traffic appeal, you MUST use the court form for your statement on appeal found on the court's website-- www.courts.ca.gov . I suggest you also thoroughly review the instructions: http://www.courts.ca.gov/documents/cr141info.pdf . If what you posted is your proposed brief, I suggest you hire an attorney or forget about it. The appellate court will not reweigh facts and reviews the matter under the assumption that the correct verdict was reached. The facts are only those reflected in the transcript, not hypotheticals.
  • 09-25-2018, 05:43 PM
    Highwayman
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting bigappealsbro
    View Post
    BTW, CHP doesn't even rely on RADAR as a vehicle passes by...

    What does that mean exactly?

    Quote:

    Quoting bigappealsbro
    View Post
    The Court appeared to convict me solely on a "yes" response to "Did you use RADAR when the vehicle passed by?" That doesn't seem reasonable, since "usage" could've been 1 m.p.h.

    Sounds pretty reasonable to me. I am not getting your point.
  • 09-25-2018, 06:15 PM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting Highwayman
    View Post
    What does that mean exactly?

    Sounds pretty reasonable to me. I am not getting your point.

    In this context, CHP relies on RADAR that supports a ticket for highest possible speed. That's almost always going to occur when a driver doesn't know CHP is present. Before passing by CHP unit, a driver will almost always have slowed considerably, causing a much lower RADAR reading. much lower speed = much lower fine.

    He previously said that he had clocked a Subject Vehicle @ 1000 ft, obtaining speeds of 109/110. His testimony did not contain any further info. about additional RADAR activity. When my vehicle passed by his patrol unit, there's no way that we were 1000 ft. apart, or even 500 ft. apart. So he would've needed to provide a RADAR speed reading of my vehicle at that point. But he didn't do that.

    RADAR: 1000 ft away (of unidentified Subject Vehicle) = 109/110

    RADAR: (when my vehicle passed by patrol vehicle) = ??????

    Maybe this would confuse an appellate court, too. I'll clarify that point in my brief. Thanks.
  • 09-25-2018, 07:01 PM
    cdwjava
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    A couple of points. One, radar merely affirms the visual estimation of speed, it doesn't replace it. And, two, the speed you are cited for does not have to be the speed when you passed the officer, it can be the highest speed the officer observed you traveling.

    Also, the term "subject vehicle" or "suspect vehicle" is generic, boilerplate language akin to saying "suspect." I strongly suspect that the officer testified as to the color, make and model of the vehicle (YOUR vehicle) at some point during his testimony. It's easier to testify with generic terms than constantly repeating, "red 2004 Chevrolet Tahoe" or some such thing. The fact that he used a generic term does not invalidate his identification so long as his testimony identified your vehicle as the one he had observed.
  • 09-25-2018, 08:14 PM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting cdwjava
    View Post
    A couple of points. One, radar merely affirms the visual estimation of speed, it doesn't replace it. And, two, the speed you are cited for does not have to be the speed when you passed the officer, it can be the highest speed the officer observed you traveling.

    Also, the term "subject vehicle" or "suspect vehicle" is generic, boilerplate language akin to saying "suspect." I strongly suspect that the officer testified as to the color, make and model of the vehicle (YOUR vehicle) at some point during his testimony. It's easier to testify with generic terms than constantly repeating, "red 2004 Chevrolet Tahoe" or some such thing. The fact that he used a generic term does not invalidate his identification so long as his testimony identified your vehicle as the one he had observed.

    What did the RADAR affirm? That a Subject Vehicle had exceeded 100?

    What did RADAR affirm when it was supposedly used on my vehicle as it passed by the patrol unit?

    He should've started his testimony something like this:

    "I observed a silver, Nissan Sentra (hereinafter "Subject Vehicle"), traveling fast in a #3 lane, while passing several vehicles....."

    But he didn't do that.
  • 09-25-2018, 08:41 PM
    cdwjava
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting bigappealsbro
    View Post
    What did the RADAR affirm? That a Subject Vehicle had exceeded 100?

    The radar is used to affirm - or CONfirm, if you will - the visual estimation of speed made by the officer.

    Quote:

    What did RADAR affirm when it was supposedly used on my vehicle as it passed by the patrol unit?
    Your speed when you passed by is not necessarily the same speed that he observed you at prior to that time. As for what it affirms, it affirms his estimation of speed.

    Quote:

    He should've started his testimony something like this:

    "I observed a silver, Nissan Sentra (hereinafter "Subject Vehicle"), traveling fast in a #3 lane, while passing several vehicles....."

    But he didn't do that.
    So, at NO time in his testimony did he ever describe your vehicle? Even if he failed to do so, it is for the trial court to evaluate the evidence and weigh it. An Appellate court is not likely to evaluate the weight of the evidence presented, only determine if there was some error. I don't know that you have made your case ... though the format of your appeal seems unlike those I have read, so I assume that this is a rough draft and not a final version.
  • 09-25-2018, 09:12 PM
    jk
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting bigappealsbro
    View Post
    The point is that his testimony didn't begin with specific characteristics of his Subject Vehicle. He did visual & electronic measurements of some vehicle behind him. And that was it. None of his testimony paired visual/electronic speed measurements of a vehicle identified by its characteristics. That's why the Court stepped in to save him.

    depending on the model of smd that may be totally irrelevent. There is a model used that tracks multiple targets (don’t remember how many but it is surely more than one) and indicate s the speed of the fastest and locks onto it. That would end up being your car apparently.


    ��
    Quote:

    I wasn't driving a Subject Vehicle. So what car was locked in @ 1000 ft.?
    you apparently were driving THE subject vehicle that was described as a silver Nissan at some point.

    It is really irrelevent at this point since you already lost attempting to make these irrelevent argument.


    ��
    Quote:

    I didn't argue that the RADAR was inaccurate, since documentation negated that game. Instead, I said that, at 1000 ft., the beam covered all four lanes. And, from the cop's testimony, all we knew was that the beam had picked up a Subject Vehicle. At that point, he was DOA. I had won. But then the Court played prosecutor, asking the cop whether he had used RADAR on my vehicle as it had passed by his patrol unit. Of course he said, "yes," although that's clearly BS. That guy's been a traffic cop for 15 yrs. If he had had evidence that good, it would've been in his original testimony.
    what was the manufacturer and model of smd used? Does it track multiple targets? How many? Does it individually indicate the speed of Each? Does it lock on the fasted vehicle and continue to track it?

    arguing the beam at 1000 feet is only relevant if the smd used has a problem identifying the fastest vehicle at that range.

    Quote:

    BTW, CHP doesn't even rely on RADAR as a vehicle passes by. At that point, a driver has almost always caught on, slowing considerably. A >110/70, would likely be a 95/70, or even lower. That's a MUCH lower fine. Uncle Ruckus is greedy.
    they can depend on it if they wish. They can also depend on visual estimation. It doesn’t sound like you’ve adequately placed doubt on the ability of either accurately determining your speed.

    You
    Quote:

    Quoting bigappealsbro
    View Post
    What did the RADAR affirm? That a Subject Vehicle had exceeded 100?

    What did RADAR affirm when it was supposedly used on my vehicle as it passed by the patrol unit?

    He should've started his testimony something like this:

    "I observed a silver, Nissan Sentra (hereinafter "Subject Vehicle"), traveling fast in a #3 lane, while passing several vehicles....."

    But he didn't do that.

    sorry but you’re just plain wrong.. the cop properly started with “subject vehicle” because he is speaking of the subject vehicle. Silver, Nissan, and Sentra are merely descriptive terms used to later identify the subject vehicle.


    Havent you ever read a police report involving several people? Within it you will find the cop speaking f subject 1 and subject 2 and so on. Somewhere within his narrative he will describe subject 1 and subject 2 and so on.. He will then continue to use subject 1 etc to describe their actions in the incident. The description is only used to describe identifying aspects of subject 1 etc.. he did the same with your vehicle.

    Quote:

    Quoting bigappealsbro
    View Post
    In this context, CHP relies on RADAR that supports a ticket for highest possible speed. That's almost always going to occur when a driver doesn't know CHP is present. Before passing by CHP unit, a driver will almost always have slowed considerably, causing a much lower RADAR reading. much lower speed = much lower fine.

    and if he has already deternined your speed before the driver has slowed, none of that is relevant

    Quote:

    He previously said that he had clocked a Subject Vehicle @ 1000 ft, obtaining speeds of 109/110. His testimony did not contain any further info. about additional RADAR activity. When my vehicle passed by his patrol unit, there's no way that we were 1000 ft. apart, or even 500 ft. apart. So he would've needed to provide a RADAR speed reading of my vehicle at that point. But he didn't do that.
    and there ya go. It doesn’t matter how much you slowed before you went passed the cop. He already determined your speed.

    [UPTE]RADAR: 1000 ft away (of unidentified Subject Vehicle) = 109/110

    RADAR: (when my vehicle passed by patrol vehicle) = ??????

    Maybe this would confuse an appellate court, too. I'll clarify that point in my brief. Thanks.[/QUOTE] the only person it appears to confuse is you. Once he determined your speed to be >100mph, nothing else matters. You can slow to a crawl if you wish. It doesn’t matter since he already clocked you at over 100 mph at some point and that is what he can ticket you for.
  • 09-25-2018, 09:25 PM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    The radar is used to affirm - or CONfirm, if you will - the visual estimation of speed made by the officer.
    I get that. But now we just have a confirmation of a visual estimate of a vehicle identified solely as a Subject Vehicle.


    Quote:

    Your speed when you passed by is not necessarily the same speed that he observed you at prior to that time. As for what it affirms, it affirms his estimation of speed.
    He didn't provide a RADAR speed of my vehicle when it passed by. In his original testimony, he didn't mention ever using RADAR on my vehicle as it passed by. He magically recalled doing so, after a leading question from the Court.


    Quote:

    So, at NO time in his testimony did he ever describe your vehicle?
    He did, at the end of his testimony.

    His testimony went something like this:

    "While sitting in my patrol unit, I saw a fast Subject Vehicle coming up from the rear, in a #3 lane, at a high rate of speed. I visually estimated the Subject Vehicle's speed @ 110 mph. Thereafter, I activated RADAR, obtaining readings of 109 & 110 mph. Later, the Subject Vehicle passed by. I then pulled behind it, activating my emergency lights. Afterwards, I identified the Subject Vehicle as a silver Nissan Sentra."






    Quote:

    Even if he failed to do so, it is for the trial court to evaluate the evidence and weigh it.
    An Appellate court is not likely to evaluate the weight of the evidence presented, only determine if there was some error.
    I found this tonight:

    "The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation omitted.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt."

    https://scocal.stanford.edu/opinion/...-johnson-23195


    Quote:

    I don't know that you have made your case ... though the format of your appeal seems unlike those I have read, so I assume that this is a rough draft and not a final version.
    It's heavily formatted after an Appellate Brief featured in Fight Your Ticket: CA Ed.

    Yea, it's a very rough draft, one I'll end up changing multiple times.

    How were the briefs you read structured? Any links to examples?
  • 09-25-2018, 10:46 PM
    cdwjava
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting bigappealsbro
    View Post
    I get that. But now we just have a confirmation of a visual estimate of a vehicle identified solely as a Subject Vehicle.

    If he never once described the "subject vehicle" in his testimony, did you ask him about it?

    Of course, it's not entirely relevant if the officer stopped said "subject vehicle" and found you in it. Keep in mind that the make, model and color of the vehicle is not an element of the offense, only that you were operating said vehicle in violation of the statute cited.

    Quote:

    He didn't provide a RADAR speed of my vehicle when it passed by. In his original testimony, he didn't mention ever using RADAR on my vehicle as it passed by. He magically recalled doing so, after a leading question from the Court.
    What's with this "pass by" stuff? Who cares if he hit you with radar when you passed by? Didn't he have a visual estimation AND radar before you passed him? Visual estimation is also a valid form of speed measurement and the court can take into account his visual estimation and his earlier estimation affirmed by radar.

    Quote:

    He did, at the end of his testimony.

    His testimony went something like this:

    "While sitting in my patrol unit, I saw a fast Subject Vehicle coming up from the rear, in a #3 lane, at a high rate of speed. I visually estimated the Subject Vehicle's speed @ 110 mph. Thereafter, I activated RADAR, obtaining readings of 109 & 110 mph. Later, the Subject Vehicle passed by. I then pulled behind it, activating my emergency lights. Afterwards, I identified the Subject Vehicle as a silver Nissan Sentra."
    Well, then ... seems like the question is answered. Your silver Nissan Sentra was the "subject vehicle."

    You seem to be keying in on innocuous phrases and actions granting them much more significance than they merit.

    Quote:

    I found this tonight:

    "The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation omitted.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt."

    https://scocal.stanford.edu/opinion/...-johnson-23195
    Okay ... and ...?

    I'm not going to read the entire decision to determine the context of the statement, but you have to be careful taking small snippets of a decision and applying them to a situation that may not be entirely similar. Your appeal seems to be based upon the use of innocuous phrases that have general and commonly understood meanings and trying to impart far greater significance to them than they might deserve. "Subject vehicle" is so common as to be pretty much a universal phrase much as "Suspect" or "Victim" when used in testimony or police reports. And I still don't get why you place such import on your speed when you PASSED the officer when it seems clear that he observed your speed at more than 1,000 feet.

    Quote:

    It's heavily formatted after an Appellate Brief featured in Fight Your Ticket: CA Ed.

    Yea, it's a very rough draft, one I'll end up changing multiple times.

    How were the briefs you read structured? Any links to examples?
    I'd have to use Google much as you probably do. I do not often deal with appellate matters and peace officers are rarely ever notified if their cases are appealed up. I am aware of a few of mine that have been appealed, but largely because I came across them by accident or incidental to training courses where it was pointed out to me that I was mentioned in a couple. The others are cases that I had to research for work (police or as an educator) or in the process of grad school.
  • 09-26-2018, 12:07 AM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    If he never once described the "subject vehicle" in his testimony, did you ask him about it?
    I said above that he DID describe my vehicle at the end (or near the end of his testimony). But it was just "Subject Vehicle" for visual/electronic speed measurements.

    Yes, I asked him about it. I hit him with a bunch of questions on cross that made it look as if he didn't know what his Subject Vehicle looked like.

    Quote:

    Of course, it's not entirely relevant if the officer stopped said "subject vehicle" and found you in it. Keep in mind that the make, model and color of the vehicle is not an element of the offense, only that you were operating said vehicle in violation of the statute cited.
    A problem with targeting a Subject Vehicle at 1000+ ft. is that ANY vehicle that subsequently passed by him could be the Subject Vehicle. Say he had a different car in mind. Then you rolled by, looking both suspicious & Black. Now you could be his Subject Vehicle.


    Quote:

    What's with this "pass by" stuff? Who cares if he hit you with radar when you passed by? Didn't he have a visual estimation AND radar before you passed him? Visual estimation is also a valid form of speed measurement and the court can take into account his visual estimation and his earlier estimation affirmed by radar.

    He had visual & RADAR of a Subject Vehicle. Dude never specifically mentioned visual/RADAR of a silver Nissan Sentra. He just said that vehicle had rolled by him sometime later. My cross & video poked holes in his testimony. So the Court stepped in with "Did you hit him with RADAR when he passed by?" He said, "yes." Then I lost, despite his not furnishing a RADAR reading of my vehicle when it passed by.


    Quote:

    Well, then ... seems like the question is answered. Your silver Nissan Sentra was the "subject vehicle."
    It wasn't, and still isn't, since this all came down to that RADAR question by the Court. There's no RADAR reading tied specifically to my vehicle. So I will argue that I was not the Subject Vehicle.

    (As an aside, I thought that I had asked him a question that put ALL of his visual/electronic measurements @ 1000 ft+. But I took an old set of questions with me. If I had had my latest set, then the Court wouldn't have been able to ask that RADAR question. And I would've won).


    Quote:

    You seem to be keying in on innocuous phrases and actions granting them much more significance than they merit.
    The Court thought they were significant, since a Subject Vehicle is so vague as to be meaningless. What if I said I had seen a Subject Human doing X. Then you walked by and I nabbed you, saying you were the Subject Human? How the fuk would that testimony show that I had gotten the right guy? The Court acknowledged that problem in my case.


    Quote:

    Okay ... and ...?

    I'm not going to read the entire decision to determine the context of the statement, but you have to be careful taking small snippets of a decision and applying them to a situation that may not be entirely similar.
    It's a Cal Sup. Court case. So it applies to ALL appeals.

    Quote:

    Your appeal seems to be based upon the use of innocuous phrases that have general and commonly understood meanings and trying to impart far greater significance to them than they might deserve. "Subject vehicle" is so common as to be pretty much a universal phrase much as "Suspect" or "Victim" when used in testimony or police reports.
    A general & commonly understood meaning? Subject Vehicle can mean whatever a cop wants it to mean. It's not a valid term to use BEFORE using it as shorthand for something/someone first identified by SPECIFIC characteristics.

    Quote:

    And I still don't get why you place such import on your speed when you PASSED the officer when it seems clear that he observed your speed at more than 1,000 feet.
    Explained above. The Court made a big deal about RADAR as I passed by. That's because it was NOT clear that the cop had observed MY speed, since a Subject Vehicle does not ALWAYS mean a silver Nissan Sentra. Also recall that my video showed that the cop hadn't kept a constant visual. So that was another demerit for him.
  • 09-26-2018, 06:22 PM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting EJay
    View Post
    S.X.,

    I admittedly haven't had the chance to read much of this and I will spend some time on it hopefully tomorrow but I read zeljo's response and I agree with that. If it was my appeal I would only appeal the error about how the court allowed the officer to testify even though in their 1054 they said there would be no witnesses. This is the only legitimate error I see. The odds of prevailing the rest are slim to none and you are likely to bore the appellate judiciaries with multiple invalid appeals. They will consider the valid argument you do have less seriously since it is buried the way it is.

    If it was my brief, I would follow Gonzales and other surprise case law, claiming trial by surprise which resulted in prejudice since the court failed to grant a remedy such as continuance or preclusion. I would ask for dismissal based upon the case cited in the Damon brief on HR since it is an infraction and appealing alone is plenty of punishment for such. I would make my appeal, very logical, concise and to the point so that the material they are reading is relevant and easy to follow. I would use legal reasoning to establish my point.

    I don't have a brief as you requested on hand but I'll see what I can find.

    Is this how I'm supposed to do legal reasoning?

    I. AS A MATTER OF LAW, THE COURT ERRED IN FINDING APPELLANT GUILTY OF VEHICLE CODE 22348(B), SINCE NO SUBSTANTIAL EVIDENCE SHOWED THAT HE HAD EXCEEDED 100 MPH ON A HIGHWAY

    A. A VISUAL ESTIMATE OF SPEED OF AN UNKNOWN VEHICLE FAILED TO SHOW THAT DEFENDANT HAD TRAVELED AT EITHER 110 MPH OR ANOTHER SPEED

    The Court erred in finding Appellant guilty of Vehicle Code 22348(b), since no visual-estimate-of-speed evidence supported that finding.

    Citing Officer (“CO”) visually estimated speed of the Subject Vehicle (at a distance much greater than 1000 ft.), before he knew its characteristics (color, size, class, etc.). In fact, under cross examination, CO admitted to a visual estimate of (1) a Subject Vehicle, not a “silver vehicle,” (2) a Subject Vehicle, not a “silver sedan," and (3) a Subject Vehicle, not a “silver Nissan Sentra."

    By not tying the single, visual estimate of 110 m.p.h. to a silver, Nissan Sentra, CO failed to show that the visual estimate belonged to Appellant’s vehicle. CO’s testimony merely established that somebody in some vehicle, of unknown color, unknown size and unknown class, had driven approximately 110 m.p.h on a highway.

    RULE: "To be substantial, evidence must be of ponderable legal significance ... reasonable in nature, credible, and of solid value." {People v Johnson (1980) 26 Cal.3d 557}


    CO’s testimony failed to establish a legally significant element of VC 22348(b): That Appellant was the individual operating the Subject Vehicle.

    Additionally, CO’s testimony lacked either reasonableness or credibility, since “Subject Vehicle” did not reveal a specific vehicle.

    His testimony also lacks “solid value,” since it’s vague. According to the CO, Some unknown vehicle drove about 110 m.p.h. on a highway. But that testimony did nothing to show that Appellant had violated VC 22348(b).
  • 09-26-2018, 07:46 PM
    jk
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Ya, sure, go with that. You’re going to stick with the same old incorrect conclusions so it doesn’t really matter what you say.


    He tied the subject vehicle when he pulled over the “subject vehicle” and saw the registration that informed him the make and model width the color being evident as he stood there.

    It wasnt some unknown vehicle. He saw a vehicle (subject vehicle) and estimated that car (the subject vehicle) to be traveling in excess of 100 mph.

    To defeat this you would have argued he lost track of the subject vehicle and pulled over a car different than the one he determined was exceeding 100 mph. Your opportunity to do that was in the trial.
  • 09-26-2018, 09:05 PM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting jk
    View Post
    Ya, sure, go with that. You’re going to stick with the same old incorrect conclusions so it doesn’t really matter what you say.


    He tied the subject vehicle when he pulled over the “subject vehicle” and saw the registration that informed him the make and model width the color being evident as he stood there.

    It wasnt some unknown vehicle. He saw a vehicle (subject vehicle) and estimated that car (the subject vehicle) to be traveling in excess of 100 mph.

    To defeat this you would have argued he lost track of the subject vehicle and pulled over a car different than the one he determined was exceeding 100 mph. Your opportunity to do that was in the trial.

    I did do that. And it's on the trial-court record.

    D. CITING OFFICER FAILED TO SHOW A CONSTANT VISUAL ON THE SUBJECT VEHICLE

    Before changing his story, CO testified that, while traveling in a #3 lane, the unidentified Subject Vehicle passed several vehicles. Thereafter, Appellant presented a video, showing his silver, Nissan Sentra’s traveling a significant distance in a #4 lane. The video also showed Appellant’s vehicle’s traveling in a #3 lane (after moving from the #4 lane), without any vehicles present on either side of his silver, Nissan Sentra. Therefore, CO had to have seen his Subject Vehicle’s traveling in a #3 lane earlier.

    If that vehicle were Appellant’s vehicle, and CO had kept a constant visual on it, he would have said so. His testimony would have looked something similar to:

    **Beginning of Hypothetical Testimony**

    “While traveling in a #3 lane, the Subject Vehicle traveled fast, while passing several vehicles. I visually estimated its speed at 110 m.p.h. Shortly thereafter, I activated my rear RADAR, obtaining speed readings of 109 m.p.h. and 110 m.p.h. The Subject Vehicle subsequently moved from the #3 lane to a #4 lane, traveling for some time therein. Afterwards, the Subject Vehicle moved from the #4 lane to the #3 lane, passing by my patrol unit shortly thereafter.”

    **End of Hypothetical Testimony**

    But CO provided no such testimony, at least not at first. After seeing defendant’s video, however, CO changed his story, claiming he had seen the Subject Vehicle in the #4 lane all along. Nevertheless, his original testimony provided a better indicator of truth, reflecting his personal recollection of events. (His revision should be ignored, since it emerged after an introduction of video evidence unfavorable to his initial story).

    Earlier, CO admitted to speed measurements (both visual and electronic) of an unknown Subject Vehicle, not of a vehicle identified by its characteristics (color, size, class, etc.). He had also admitted that, for sometime thereafter, the Subject Vehicle enjoyed access to Exit 138.

    Here, the CO failed to show a “constant visual” on the unknown Subject Vehicle. Therefore, the CO did not provide a seamless narrative that connected the Subject Vehicle to Appellant’s vehicle. Without providing an uninterrupted connection, the CO failed to show that Appellant had driven his silver, Nissan Sentra at greater than 100 m.p.h.
  • 09-27-2018, 01:52 AM
    jk
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    A constant visual is not necessary. In fact it’s pretty much impossible. That doesn’t mean he lost track of the subject vehicle.
  • 09-27-2018, 03:26 AM
    Taxing Matters
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Best I can tell from what you have written is that you contend that the officer using the term "subject vehicle" means that the officer had not identified it as your vehicle. That's not a winner. You need to understand that appeals courts generally do not second guess the trial court's determination of the facts. The appellate judges did not see the trial. They could not see what the trial judge saw. They cannot assess what the demeanor of each witness was. If the trial record shows evidence that could support the judge's findings of facts, even if it is not very strong or not exactly what the appellate judges might have liked to see the appellate court is not going to disturb that. Whether the vehicle that the officer saw as he made his measurement of speed was in fact your vehicle is a determination of fact. So if there is anything in the record that one could point to that would support the judge's finding that it was the same car, your argument over semantics and saying that officer should haves testified differently to make it stronger (like the hypothetical testimony you seem to keep wanting to include) isn't going to help you. His testimony did not have to be perfect. It just had to be good enough that the judge something on which to base the finding of fact. If there is something, even if its not great, the appeals court won't disturb that factual finding.

    If you wanted to get the judge to believe the cop did not pick out your car or was truly confused about the matter, you needed to really pin that down in your cross-examination. You needed to essentially get him to explicitly say that he was not sure your car was the one he measured doing over 100 mph. If you did that, then all you would need to do is point to the record and quote from the transcript where the cop said that. Then make the argument, supported with case law, that no reasonable fact finder could have concluded that it was your car based on the evidence submitted. But my sense is that you didn't pin him down well enough on the cross-exam. Cross examination is an art; you have to go into it having a very clear idea of what you want to elicit from the witness and have already in mind exactly the sequence of questions you want to ask that will get you there. You cannot fix that failure to pin the cop down in appeal by proposing alternative hypothetical testimony arguments. The appeals court doesn't want hypothetical testimony. It wants to see what in the record supports your claims.

    Trying to argue an appeal on a challenge of the factual findings is exceedingly difficult to do unless the the factual finding is so bad that anyone looking at would say "that's absurd, I can't see how anyone could have possibly got that from what is in this record." This is why most successful appeals focus on legal and/or procedural error by the judge. The appeals courts do not give nearly the same weight to the trial judge's legal and procedural determination that they do to the fact determinations.
  • 09-27-2018, 03:37 AM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting Taxing Matters
    View Post
    Best I can tell from what you have written is that you contend that the officer using the term "subject vehicle" means that the officer had not identified it as your vehicle. That's not a winner. You need to understand that appeals courts generally do not second guess the trial court's determination of the facts. The appellate judges did not see the trial. They could not see what the trial judge saw. They cannot assess what the demeanor of each witness was. If the trial record shows evidence that could support the judge's findings of facts, even if it is not very strong or not exactly what the appellate judges might have liked to see the appellate court is not going to disturb that. Whether the vehicle that the officer saw as he made his measurement of speed was in fact your vehicle is a determination of fact. So if there is anything in the record that one could point to that would support the judge's finding that it was the same car, your argument over semantics and saying that officer should haves testified differently to make it stronger (like the hypothetical testimony you seem to keep wanting to include) isn't going to help you. His testimony did not have to be perfect. It just had to be good enough that the judge something on which to base the finding of fact. If there is something, even if its not great, the appeals court won't disturb that factual finding.

    If you wanted to get the judge to believe the cop did not pick out your car or was truly confused about the matter, you needed to really pin that down in your cross-examination. You needed to essentially get him to explicitly say that he was not sure your car was the one he measured doing over 100 mph. If you did that, then all you would need to do is point to the record and quote from the transcript where the cop said that. Then make the argument, supported with case law, that no reasonable fact finder could have concluded that it was your car based on the evidence submitted. But my sense is that you didn't pin him down well enough on the cross-exam. Cross examination is an art; you have to go into it having a very clear idea of what you want to elicit from the witness and have already in mind exactly the sequence of questions you want to ask that will get you there. You cannot fix that failure to pin the cop down in appeal by proposing alternative hypothetical testimony arguments. The appeals court doesn't want hypothetical testimony. It wants to see what in the record supports your claims.

    Trying to argue an appeal on a challenge of the factual findings is exceedingly difficult to do unless the the factual finding is so bad that anyone looking at would say "that's absurd, I can't see how anyone could have possibly got that from what is in this record." This is why most successful appeals focus on legal and/or procedural error by the judge. The appeals courts do not give nearly the same weight to the trial judge's legal and procedural determination that they do to the fact determinations.

    The Court said it found "probable cause" for the stop. So I've probably been barking up the wrong tree. What I should be doing is arguing that there wasn't "probable cause" for the stop. So the stop violated my 4th Amendment right. For that reason, the citation should be suppressed, and the case dismissed.

    What's weird is that the Court found "probable cause" for the stop, although only "reasonable suspicion" was necessary, at least according to CA case law. By saying "probable cause," did the Court set an even higher burden for the prosecution to meet? Or would "reasonable suspicion" still be the standard?

    Quote:

    We must realize that a traffic stop is a seizure subject to the protection of the Fourth Amendment of the United States Constitution. Berkemer v. McCarty (1984) 468 U.S. 420, 436. As such, to conduct a legal traffic stop, “reasonable suspicion” is required. This can be based on less than probable cause to believe a violation has occurred, but it cannot be based on mere speculation or a hunch.” People v. Rodriguez (2006) 143 Cal. App. 4th 1137, 1148, People v. Wells (2006) 38 Cal. 4th 1078, 1083.

    Reasonable suspicion “requires specific, articuable facts which, together with objective and reasonable inference, form a basis for suspecting that a particular person is engaged in criminal conduct.” People v. White (2003) 107 Cal. App. 4th 636, 641.
    I should win this, since the cop admitted to ignorance as to what vehicle he had visually estimated @ "much greater than 1000 ft" away. And his speed measurements came @ 1000 ft, a distance where the RADAR beam covered all lanes.

    The Court attempted to save him by asking "Did you use RADAR as the vehicle passed by?" But recall that NO speed reading was mentioned.

    Put all of those facts together, and there was NOT even "reasonable suspicion" from the stop.

    EDIT: There are apparently two standards at play here. (1) Reasonable suspicion for the stop, & (2) Probable cause for the arrest (citation). So even if there were reasonable suspicion for the stop, there wouldn't be probable cause for the ticket. The reasons are that (1) The cop didn't provide a RADAR reading of my vehicle when it passed by, & (2) I didn't confess to speeding.
  • 09-27-2018, 05:31 AM
    LegalWriter
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    You are going all over the place. First, the ONLY issue in a traffic court trial for speeding is were you exceeding the posted speed limit. The cop doesn't have to prove how far over the limit you were--just that you exceeded the limit. Second, if you want to challenge the stop itself, that requires a notice motion to suppress. It's not something you can argue for the first time on appeal. The appeal is based upon the record of the trial court--the testimony and the issues presented TO the court. Third, you knew you were pulled over by an officer and you knew that officer was the witness, arguing surprise is laughable. Also in order to have a witness not allowed to testify, you have to first ask the court to compel discovery via a formal motion. The informal request is only the first step to getting any sanctions for failure to comply.
  • 09-27-2018, 11:53 AM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting LegalWriter
    View Post
    You are going all over the place. First, the ONLY issue in a traffic court trial for speeding is were you exceeding the posted speed limit. The cop doesn't have to prove how far over the limit you were--just that you exceeded the limit. Second, if you want to challenge the stop itself, that requires a notice motion to suppress. It's not something you can argue for the first time on appeal. The appeal is based upon the record of the trial court--the testimony and the issues presented TO the court. Third, you knew you were pulled over by an officer and you knew that officer was the witness, arguing surprise is laughable. Also in order to have a witness not allowed to testify, you have to first ask the court to compel discovery via a formal motion. The informal request is only the first step to getting any sanctions for failure to comply.

    First, this is a 22348(b). So merely showing i was "over the limit" would not suffice. In this case, he must show that I had exceeded 100 mph.

    Second, I can claim "lack of substantial evidence." Under that umbrella, I will argue that the cop failed to show either (1) reasonable suspicion for the stop or (2) probable cause for the arrest. That's what I have to work with. If I lose, oh well.

    Third, yes, I suspect an appellate court won't find that argument compelling. But I'll include it anyway.
  • 09-27-2018, 12:25 PM
    LegalWriter
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    The court can find you guilty of any lesser included offense. Speeding is a lesser included of speeding at over 100 mph. You want to argue you weren't going 100 mph? If you argued that in the trial court, go for it. All you will get is a lesser fine, not an reversal. Challenging the stop itself will sink everything...
  • 09-27-2018, 01:12 PM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting LegalWriter
    View Post
    The court can find you guilty of any lesser included offense. Speeding is a lesser included of speeding at over 100 mph. You want to argue you weren't going 100 mph? If you argued that in the trial court, go for it. All you will get is a lesser fine, not an reversal. Challenging the stop itself will sink everything...

    I argued in court that "I was not the Subject Vehicle. So the cop stopped the wrong car."

    Would that comment be sufficient, under CA law, to challenge constitutionality of the stop on appeal, despite my NOT having motioned to suppress?

    Does any CA case law REQUIRE a motion to suppress at trial for a claim of unconstitutionality on appeal?
  • 09-27-2018, 01:21 PM
    PayrolGuy
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting bigappealsbro
    View Post
    I argued in court that "I was not the Subject Vehicle. So the cop stopped the wrong car."

    And the court didn't buy that argument. Nor should they have.
  • 09-27-2018, 01:33 PM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting PayrolGuy
    View Post
    And the court didn't buy that argument. Nor should they have.

    That argument was sound. But then the Court played prosecutor, asking "Did you use RADAR as the car passed by?" I want to argue that, since no speed reading was provided, the mere "usage" of RADAR on my vehicle did not constitute reasonable suspicion for a stop.

    Also, how could I have filed a motion to suppress, when I didn't know what would happen at trial?

    I might draft multiple arguments.


    1. Lack of Sufficient Evidence

    2. No Reasonable Suspicion for Traffic Stop

    3. No Probable Cause for Arrest
  • 09-27-2018, 01:41 PM
    free9man
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    The spaghetti and the wall approach is not likely to endear you to the Appellate Court.
  • 09-27-2018, 01:48 PM
    PayrolGuy
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    The judge is free to ask questions. So were you.
  • 09-27-2018, 01:52 PM
    bigappealsbro
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting free9man
    View Post
    The spaghetti and the wall approach is not likely to endear you to the Appellate Court.

    likely true. but, since appeals are a long shot, I'll throw spaghetti at the wall, hoping something sticks.

    BTW, does anybody know whether a Pro Per can argue "ineffective counsel" on appeal? Can I claim that, but for my failure to motion to suppress, the trial court would've found the traffic stop or arrest to be unconstitutional?
  • 09-27-2018, 03:02 PM
    jk
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting bigappealsbro
    View Post
    likely true. but, since appeals are a long shot, I'll throw spaghetti at the wall, hoping something sticks.

    BTW, does anybody know whether a Pro Per can argue "ineffective counsel" on appeal? Can I claim that, but for my failure to motion to suppress, the trial court would've found the traffic stop or arrest to be unconstitutional?

    no. Your incompetence is not a basis for an appeal. You had the right to seek legal counsel and refused to do so.


    And nothing at all has suggested your rights were violated by the stop.
  • 09-27-2018, 04:31 PM
    LegalWriter
    Re: My Bros: Critique Part of My Appeal of a Speeding Tickets
    Quote:

    Quoting bigappealsbro
    View Post
    Would that comment be sufficient, under CA law, to challenge constitutionality of the stop on appeal, despite my NOT having motioned to suppress?

    Does any CA case law REQUIRE a motion to suppress at trial for a claim of unconstitutionality on appeal?

    1538.5 itself requires a written motion, accompanied by a memorandum of points and authorities and proof of service. "The memorandum shall list the specific items of property or evidence sought to be returned or suppressed and shall set forth the factual basis and the legal authorities that demonstrate why the motion should be granted." In a misdemeanor or felony IF the opportunity for the motion did not exist "or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial." HOWEVER, you have to say the magic words and specify that you are moving to suppress the stop under 1538.5. Saying basically "it wasn't me," won't cut it. I should add that at that point, the court would recess, have a DA or city attorney appear to handle that issue and you'd go down in flames...
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