Going to Court for CVC 22349 (B)

My question involves a speeding ticket from the State of: California

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Hello, and thanks for being here. I have gotten good advice regarding my citation from this site, but now it's "crunch time," and time to get nervous.

I was cited on August 2 for going 70 mph in a 55 zone. I was the third in a line of three cars when the officer passed us going the other direction. He turned around and pulled me over, saying I was gaining on the other two cars. Ridiculous. I asked the officer how fast the two cars in front of me were going, and he replied, "I don't know."

On August 14, I submitted an informal request for discovery to the district attorney's office requesting the officer's notes, radar calibration records, highway engineering reports, etc, etc. I received nothing.

On October 13, I requested a trial by written declaration. In my declaration, I requested that the citation be dismissed because I had not received discovery, and because there was reasonable doubt as to which car the officer clocked on his radar. At the end of November, I received the judge's decision, stating that I was guilty. No details regarding the decision were given.

On December 11, I requested a Trial de Novo, which has been granted for the morning of January 25 -- next Monday. I think it will be with the same judge that previously found me guilty.

Can I still ask the judge to compel the D.A. to comply with the request for discovery? Can the officer refer to notes in the trial, if I requested them but didn't receive them? What is my best strategy here? As a side note, I do, of course, have all of the signed certified mail receipts for everything that I've sent to the D.A.'s office.

Thanks so much, in advance!!!

You should have filed/served a motion to compel long before now (and no, a motion to dismiss, is not the first step in terms of relief that the court can offer you for their failure to provide you with discovery (see Penal Code Section 1054.5)). You should have done that shortly after the 15 day period AFTER you submitted the request (on or shorlty after August 29th (or so). Considering the fact that you have waited until a week before your trial when in fact, you have had over 4 months to do so, my guess is that the judge will not feel as obligated to offer you any relief. I could be wrong.

Furthermore, if you were to file such a motion now, and in light of the fact that your trial date is under 10 days from now, it would be safe to assume that the judge may not even allow you to argue your motion. (According to the California Rules of Court, motions must be filed 10 days in advance of the hearing date).

Lastly, "IF" the judge wants to be nice (and that's a big "IF"), he may request that the officer provide you with copies of whatever documents he plans on using in trial... If so, he (judge) will either allow you to review the documents that the officer will present as evidence beofre the hearing or he may offer you to return the next day/few days.

In other words, I wouldn't count on a dismissal based on their failure to provide you with discovery (simply because you waited too long to request relief from the court).

Edited to Add: You should contact the court and request a copy of the officer's declaration (his TBD declaration). That may (or may not) offer you some clues in preparing a defense. However, keep in mind that a 22349(b) charges you with exceeding the MAXIMUM statutory speed limit on a 2 lane highway... So even with a Radar speed measurement, (and in light of the 15mph over the limit speed you were charged with) there is not much wiggle room for "reasonable doubt"...

Good luck.

Wow. I guess I missed the mandatory step about filing a motion to compel. I was going by PC 1054.5(b), which says that the court may "... prohibit the testimony of a witness or the presentation of real evidence..." if I complied with the informal discovery procedure. It says that I "may seek a court order" if counsel hasn't provided discovery within 15 days, but it doesn't say that I have to, in order to comply with the procedure.

If this step is in fact mandatory, why would the D.A. ever respond to the first request? Seems kind of bogus to me. But then, it's my butt in the sling.

Oh, and another thing: there's still the matter that I was the third in a line of three cars (although the cop said I was gaining on them). If I need to fall back on this defense, what's the best way?

The purpose of 1054.5 is to offer you the chance to request relief from the court if discovery is not provided ... NOT to get your case dismissed if the failed to provide the information (in fact a "dismissal" is specifically excluded in subsection (c)). And by you failing to make a TIMELY motion to the court requesting such relief, does not by any means suggest that the case should be dismissed.

California Penal Code Section 1054.5.

(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.
(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.
(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.

So 1054.5 simply states:
If within 15 days the opposing counsel fails to provide the materials and information requested, the party (YOU) may seek a court order.

YOU did not do that. Instead, you filed your TBD (without a motion to compel and a request for an extension) and instead, went for (overkill) in the way of a request for a dismissal which is:

1. Not included in: subsection (b) in: "immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order...." And,
2. It is specifically EXCLUDED as per subsection (c): "The court shall not dismiss a charge pursuant to subdivision (b)"

Give it a try though... You might get a judge who will by into it...

Well, requesting the dismissal was something of a closing argument. The last two pertinent paragraphs in my declaration went thusly:

"I would like to draw the Court’s attention to California Penal Code 1054.5(b), which states that “… upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” As per this code, I ask that any notes or other evidence used by the Officer in his response to this case be deemed inadmissible, until compliance with the Informal Request for Discovery has been met."

"Inasmuch as I have not been given the opportunity to adequately defend myself in this case, along with the reasonable doubts surrounding the merits of the charge presented, I would hereby call upon the Court's fairness and ask that my citation be dismissed in the interest of justice."

I appreciate your continued information.

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Quoting CzekM8

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If this step is in fact mandatory, why would the D.A. ever respond to the first request?

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Well, fact is, most DAs will often ignore most, if not all, discovery request in a traffic infraction cases. And more often than not, the court will simply order the officer to provide the items he/she intends on using in that case to the defendant at the time of the appearance; after which, the court will order the defendant to return to court to present his/her case either the same day, or within a few days thereafter. That works well in cases where you have an in court trial. When it comes to a TBD, I have never heard of any judge offering an extension for the TBD due date based upon a delay to provide discovery by the DA.

This is why I often advise people to serve a copy of the discovery request on the law enforcement agency that issued the citation in addition to the copy served upon the DA. Some people on here will argue that PC 1054 strictly places the burden to provide discovery upon the DA. I disagree; if you read 1054.5(a) you will see the part which says:

This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.

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Quoting CzekM8

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Oh, and another thing: there's still the matter that I was the third in a line of three cars (although the cop said I was gaining on them). If I need to fall back on this defense, what's the best way?

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OK... Here is how Radar works... It normally tracks the fastest object in its path. So the reading that the officer gets on his Radar unit shows him that the fastest vehicle in his Radar's path happened to be doing 70mph (in this case). It is not that difficult for him to look up and see which of those three vehicles is “gaining on them” (them, being the other 2 vehicle).

From a factual standpoint, and the way the officer will typically testify, is as follows: he sees a pack of 3 vehicles approaching him... Considering the fact that he is also trained in visually estimating speed (part of his Radar/Laser training), he estimates the speed of the fastest vehicle in that pack (that being yours in this case). He simply glances at his Radar (and since that will usually track the fastest moving object in its path), he can now confirm (or more accurately determine) your vehicle speed. He pulls you over, cites you for that speed and will later either state the same in his declaration or testify accordingly in court.

So for one, you being behind the pack does not necessarily prove that you were the slowest vehicle. And two, simply because they were ahead of you and were traveling higher than the limit does not obligate the officer to pull all 3 vehicles over.. he decides to pull over the fastest which, I can only assume was yours.

Like I said before, and based on what you posted, there is not much wiggle room for you to argue or raise reasonable doubt. Again, your best bet is to request a copy of his declaration and you might see a similar synopsis to what I have stated above. Get it, read it (or even post it here) and work on developing a defense from there. Going into court for your Trial De Novo without the slightest idea on how he may testify, is not going to work to your advantage. More likely than not, it will get you the same result you received in your TBD.

In fact his declaration, is without question, a better way to prepare your case as opposed to simply requesting (and receiving) discovery. Even if you have copies of ALL the evidence that he will present, without knowing what he will say under oath... You are not even close to being prepared. Then again, it depends on how strong a case he might present.

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Quoting CzekM8

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Well, requesting the dismissal was something of a closing argument. The last two pertinent paragraphs in my declaration went thusly:

"I would like to draw the Court’s attention to California Penal Code 1054.5(b), which states that “… upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” As per this code, I ask that any notes or other evidence used by the Officer in his response to this case be deemed inadmissible, until compliance with the Informal Request for Discovery has been met."

"Inasmuch as I have not been given the opportunity to adequately defend myself in this case, along with the reasonable doubts surrounding the merits of the charge presented, I would hereby call upon the Court's fairness and ask that my citation be dismissed in the interest of justice."

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Sounds like a properly worded argument and one that would have afforded you some sort of relief from the court had it been in a real trial and more importantly, had you filed your motions in a timely manner and in the manner outlined in that penal Code Section.

However, you must keep in mind that this is an inherent defect in the TBD process. Once you submit your declaration and assuming the officer submitted his, you are requesting that the court make a decision as to your guilt or lack thereof based upon the evidence presented by both, you and the officer. So again, your request to the court for a exclusion of evidence... etc, and while it conforms to part of what is stated in PC 1054.5, you did in fact miss the step of requesting that the court offer you the simplest remedy of all, that being an “order to compel”.

Okay, thanks again. It does seem bizarre that it's my responsibility to request the same information twice. I think I will try the defense that the code says I "may" compel discovery, but not that I am required to do so. We'll see...

I called the court to request the officer's declaration, and realized as I was listening to the recording that it's a holiday. I'll try again tomorrow. Hopefully they can fax it to me.

Czek,

I disagree with That Guy. You are NOT required to seek a court order. It says you MAY seek a court order... but it doesn't say that you have to do so ahead of time. My advice is to do as follows:

1. Make a pretrial motion. That is, before the cop testifies (you have to do it before he testifies or before he is sworn... once he begins to testify, you trial has begun), show the judge that you have a small audio recording device and ask the judge if he will allow you to record the procedings as per California Rules of Court 1.150(d):

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1.150(d) Personal recording devices

The judge may permit inconspicuous personal recording devices to be used by persons in a courtroom to make sound recordings as personal notes of the proceedings. A person proposing to use a recording device must obtain advance permission from the judge. The recordings must not be used for any purpose other than as personal notes.

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BE sure to tell him that you wish to make an audio recording for your personal notes should there arise a need to file an appeal.

2. Next make another pretrial motion. At that time you can ask the court to compel the prosecution to provide the discovery requested and for the judge to provide you a reasonable amount of time to review such information that you can prepare your defense. You should object if he tells you the same day. Also, tell the court that this motion should NOT be interpreted as your waiver of your right to a speedy trial. So, since you do this as a pre-trial motion, your trial hasn't started yet. Therefore, the speedy trial clock is still running. If you go beyond the 45 day mark, you win. If the judge refuses to compel your discovery, then you have an appealable issue.

As that Guy said, failure to provide discovery is NOT grounds for dismissal. However, it can be used as grounds for a continuance that may push you beyond the 45 day point. Further, it may give you grounds to ask for the exclusion of evidence you asked for in advance.

I also disagree with That Guy's interpretation of the penal code suggesting that the ticket issuing agency is compelled to provide you discovery. See PC 1054.1:

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1054.1. The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

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It is crystal clear... the prosecuting attorney has the obligation of producing discovery. Period.

Next, you need to go to the court to get a copy of the cop's declaration. The court ain't gonna fax it to you.

You have a good argument that the cop was getting the speed of the cars in front of you. You should use your own judgement to thoroughly question the cop concerning that matter. You should ask things like "how far behind the other cars was I? What kind of cars were the other cars? How long did you observe my speed? At what point did you recieve radar lock? How fast were the cars in front of you going? What was your relative speed to them? etc. It shouldn't be hard to show that your relative speed would have put you on top of the cars in front before the cop could have gotten radar lock. Or, it shouldn't be hard to show that he doesn't have good memory of the cars in front and can't offer reasonable/credible testimony that they didn't provide the radar return relative to the display he saw. By the way, I disagree with That Guy's understanding of how radar works. It does not necessarily lock onto the fastest object. It locks onto the most obvious object. If you were on a motorcycle and an 18 wheeler was beside you, the signal returned from the 18 wheeler would be much more significant than that returned form you... therefore the displayed speed would likely be from the 18 wheeler.

Also, be sure to examine every document he presents (i.e. calibration/maintenance records). If any of them are not certified true copies, you should object to them coming into evidence as they are considered hearsay.

Remember, object alot! You MUST object to an issue to preserve your right to appeal. If the judge does something stupid and you don't object, then you condoned it.

Thank you, EWYLTJ -- that's some great information!

I didn't know that it's possible to appeal the trial de novo decision, but from what you're saying, it is. And as for the 45-day thing, I think they'll be real close to it with a rescheduling of the trial. I'm a lot more excited that I was after reading That Guy's responses! :)

cz

Of course you can appeal. A Trial de Novo is a "New Trial". It is as if the TBWD never occurred. However, in order to appeal, you must raise objections so as to preserve your right to appeal. Make sure you object... alot!