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  1. #21
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    Cool Re: "Speed Trap" Appeals Under VC 22350

    Well well well...

    Quote Quoting Documents Filed
    12/27/2011 Notice (notice of intent to issue perempty [sic] writ in the first instance. (Suggistive [sic] Palma Notice) )
    Filed by Court
    Quote Quoting Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1238
    A suggestive Palma notice—sometimes denominated a "coercive" or "speaking" Palma notice—typically contains the following: notice that the Court of Appeal intends to issue a peremptory writ in the first instance granting the relief requested by the petitioner; a discussion of the merits of the writ petition, with a suggestion that the trial court erred in the manner claimed by the petitioner; a specific grant to the trial court of "power and jurisdiction" to change the disputed interim order and enter in its place a new order consistent with the views of the appellate court, in which event the writ petition will be vacated as moot; and a solicitation of opposition to the issuance of a peremptory writ in the first instance, should the trial court elect not to follow the appellate court's recommendation.

  2. #22
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    Default Re: "Speed Trap" Appeals Under VC 22350

    "Liked", thumbs up!

  3. #23
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Quote Quoting quirkyquark
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    .... and the nastygram
    I am only curious to know if they ever cashed your $1.00 check!!!

    Quote Quoting quirkyquark
    View Post
    Well well well...
    "Well, well, well..." Indeed!

    Good job... This is the first step to a few more "Well, well, well's".

  4. #24
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    Default Re: "Speed Trap" Appeals Under VC 22350

    So from what I read, you indeed put the smackdown on said judge? Very nice. Very nice.

  5. #25
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Quote Quoting Speedy Gonzalez
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    So from what I read, you indeed put the smackdown on said judge? Very nice. Very nice.
    More or less. I just received my copy of the notice today. They strongly suggest that the judge vacate the certification order and correctly settle the statement, giving me a chance to object to any "corrections." As expected, they didn't address the secondary issue of how inappropriate the existing corrections were, yet. The judge has until Jan 9 to follow the suggestion, or until Jan 6 to let the Appellate Division know that he intends to "stay the course".

    Here's the important bits:

    Quote Quoting Notice of Intent to Issue a Peremptory Writ in the First Instance (Suggestive Palma Notice)
    To Respondent Los Angeles County Superior Court, Metropolitan Trial Court, and People of the State of California, Real Party in Interest:

    The above-named petitioner has filed a verified petition for writ of mandate, and it appears to this court that petitioner has no other plain, speedy, or adequate remedy at law, and that the relief requested should be granted.
    ...
    If respondent elects to vacate its certification of the appellate record and comply with the procedures set forth in California Rules of Court, rule 8.916, it shall give the parties notice of its intent to do so and provide them with an opportunity to be heard. [Citation] The hearing shall be held within 15 days of the date of this notice. If, after such hearing, respondent vacates the certification of the record, sends the modified statement to the parties, reviews any timely submissions, makes any necessary corrections, certifies the modified and corrected statement, and reorders certification of the record, the writ petition will be dismissed as moot. Petitioner shall immediately serve and file in this court notification of the action taken by respondent.

    If respondent elects not to take such action, it shall notify this court on or before January 6, 2012, via a minute order. In that event, any opposition by real party in interest to the issuance of a peremptory writ in the first instance shall be served and filed on or before February 6, 2012. Any reply by petitioner shall be served and filed within 10 days of the date real party's opposition is filed.
    Quote Quoting That Guy
    View Post
    I am only curious to know if they ever cashed your $1.00 check!!!
    They did! I saw a response from them somewhere on the web where they wanted a similarly small amount ($2-3) before they would send copies of the records, so I took this preemptive step.

  6. #26
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Latest twist: the judge has gone AWOL. The copy of the writ petition served on him at LA Metro was "returned to sender" on Dec. 30, with the reasons "Not Superior Court Judge" and "Addressee Retired"

    Considering that the deadline to hold a hearing is Jan 11, I should be receiving any possible notice of it before 5 days, or tomorrow (Jan 6). Jan 6 is also the deadline for the judge to inform the appellate division that he intends to ignore their suggestion.

    It's looking like this will become a full-fledged writ proceeding; the City Attorney has by Feb. 6 to submit any opposition. If it's going to drag on this way, I'm seriously considering doing the 1473.6 motion alluded to earlier.

  7. #27
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Quote Quoting quirkyquark
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    Updated home page with proposed Statement on Appeal, including the form (CR-143), cleaned-up transcript and most importantly, grounds for appeal.
    Reading the court transcript I see the judge entered the Cert. of Cal. in as a business record..improperly I should add. The officer did not lay a proper foundation for it to be considered a business record. And Yes, it can be admitted into the record as a business record ... unless you feel Melendez-Diaz attaches. Or a maintenance record (which also results in the court being able to refer to it). Yet I see no objection to the introduction of the LIDAR other than it was a copy.

    The thing about potholes? Should have asked to be stricken -- he was able to testify to this before during the state's presentation --- normally he cannot start re-testifying to add elements but you did open the door, hummm. Since he did not testify that you were going to lose control or that you were unsafe during the state's presentation then this line of questioning likely hurt your case...I like how you got the cop to say he didn't know about any oil spill.

    You could have motioned for acquittal after the state rested (after your line of questioning when the judge asked for your final statement). You could have decided to testify if you would have lost this motion. Otherwise, it did not matter. You could have testified to the road conditions..maybe.

    And the judge asked the officer a ? during your closing arguments? That's not right & he cannot fix his lack of testimony from earlier...because its against the rules -- clearly unfair.

    This transcript shows a good reason why objections should not wait until the end of the state's presentation of the case. Object to the introduction of the cert. of cal. for the 2 reasons , discovery & lack of foundation. And other objections are more easily accomplished before they get introduced as exhibits , one at a time, as they come up. I think you could have had better objections & arguments doing it piece-meal instead of one after another at once. And I don't allow the case to continue w/o the judge ruling upon an objection...and one objection was not ruled upon (objection to officer's fantasy potholes).

    The officer's visual speed estimate was not attacked at all; this is an issue. It makes the lack of the Cert. of Cal. discovery issue moot.

    The judge did offer you time to review the documents and you declined his offer; nor any motion to compel or any attempt to resolve the discovery was noted. I don't see winning based on discovery issues. And no objections were noted during the discovery being introduced into evidence.

    The best chance is the traffic survey ... I have not reviewed the case law in respect to this...

    I see that no background questions were asked of the officer (and I will ask as many as a judge will allow); you could have ? him about his education, etc..any background question. They did not provide you with a witness list so how could you do this before trial. This would have highlighted the officer's lack of being an expert on anything. And it pisses the cop off .. which is a good thing when you are crossing him; more mistakes on his part.


    Overall, the judge appeared to be fair. Better than most anyway.

    Quote Quoting quirkyquark
    View Post
    Latest twist: the judge has gone AWOL. The copy of the writ petition served on him at LA Metro was "returned to sender" on Dec. 30, with the reasons "Not Superior Court Judge" and "Addressee Retired"
    .
    I saw something that he was a temporary judge. Some are retired judges doing traffic etc... its a craps shoot as to getting a judge with his brain functioning.

  8. #28
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Thanks for the extensive analysis, David. I only wish you could be as thorough with other posters!

    Quote Quoting davidmcbeth3
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    And Yes, it can be admitted into the record as a business record ... Yet I see no objection to the introduction of the LIDAR other than it was a copy.
    It can be introduced as a business record, but not without testimony from the custodian of records of the "business". The LAPD is not the right sort of "business", and in any case, the officer is not the custodian.

    I'd made a hearsay objection to start with. And if you see earlier in the transcript, he already said he was overruling my objection regarding entry as an official record, and "accepting it into evidence." That's already wrong. So by the time he starts to second-guess himself, it's technically too late. Even if it were not, his questions establish that he was ruling on it as if an objection to entry as a business record had been made. And, there was no point in repeating the hearsay objection at that point since it would have been useless. Both of these scenarios, in CA case law, excuse the lack of a timely objection.

    Quote Quoting davidmcbeth3
    View Post
    The thing about potholes? Should have asked to be stricken -- he was able to testify to this before during the state's presentation --- normally he cannot start re-testifying to add elements but you did open the door, hummm. Since he did not testify that you were going to lose control or that you were unsafe during the state's presentation then this line of questioning likely hurt your case...I like how you got the cop to say he didn't know about any oil spill.
    See, you have to understand that the whole cross-examination was a half-hearted attempt at trying to get this dismissed at trial instead of having to appeal. I'd seen the survey before, and the cop showed me the LIDAR certificate before trial, so I knew that the prima facie elements of the prosecution's case-in-chief were defective and would be held so upon appeal. I didn't want to object when I knew it would be overruled, and just piss the judge off more.

    Quote Quoting davidmcbeth3
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    You could have motioned for acquittal after the state rested (after your line of questioning when the judge asked for your final statement). You could have decided to testify if you would have lost this motion. Otherwise, it did not matter. You could have testified to the road conditions..maybe.
    Dude, he had me guilty from the visual estimate alone. And he didn't believe the speed trap laws applied. Why bother with a PC 1118.1 motion (acquittal for insufficient evidence) at that point?

    Quote Quoting davidmcbeth3
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    And the judge asked the officer a ? during your closing arguments? That's not right & he cannot fix his lack of testimony from earlier...because its against the rules -- clearly unfair.
    The whole thing was bizarre, and sort of went in reverse to the usual speed-trap procedure.

    Quote Quoting davidmcbeth3
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    This transcript shows a good reason why objections should not wait until the end of the state's presentation of the case.
    That's why I explicitly asked at the beginning if objections should be reserved. And the judge's answer implied that they should. No problem then! Again, I knew this was in the bag, so I didn't want to piss the judge off by not heeding his preference.

    Quote Quoting davidmcbeth3
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    Object to the introduction of the cert. of cal. for the 2 reasons , discovery & lack of foundation.
    Agreed, but in this case there was a more straightforward way to get dismissal so I didn't push discovery.

    Quote Quoting davidmcbeth3
    View Post
    The officer's visual speed estimate was not attacked at all; this is an issue. It makes the lack of the Cert. of Cal. discovery issue moot.
    Under the CA speed trap laws and case law, all officer testimony (including visual speed) is inadmissible if the speed trap presumption is not rebutted first.

    Quote Quoting davidmcbeth3
    View Post
    I see that no background questions were asked of the officer (and I will ask as many as a judge will allow); you could have ? him about his education, etc..any background question. They did not provide you with a witness list so how could you do this before trial. This would have highlighted the officer's lack of being an expert on anything. And it pisses the cop off .. which is a good thing when you are crossing him; more mistakes on his part.
    The only thing I cared about, based on the prima facie elements the prosecution must prove in a speed trap case with a 5+ year old survey, was whether his courses were POST-certified and the appropriate number of hours. He didn't mention POST, and I didn't want to help him out by asking him that during cross.

    And, what makes you think the judge wouldn't have cut the education/background line of questioning off real quick?

    Quote Quoting davidmcbeth3
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    I saw something that he was a temporary judge. Some are retired judges doing traffic etc... its a craps shoot as to getting a judge with his brain functioning.
    Well, that doesn't matter as far as the writ goes. When a higher court tells you to jump, you typically limit any response to a question about height. Being a pro tem doesn't relieve you of any responsibilities. I'm sure the appellate division isn't going to be happy that the judge has disappeared, and this has now become a full-fledged proceeding which should result in a written opinion.

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

    The bottom line is, a number of the grounds of appeal are on the prima facie elements the prosecution failed to establish (or which the judge incorrectly accepted, as a matter of law), so no objections were necessary. When there wasn't an appropriate objection, excuses exist. See this excellent primer on where and why, if you have some free time.

  9. #29
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    Default Re: "Speed Trap" Appeals Under VC 22350

    For those still following the certification saga, turns out the judge DID reply by the deadline, but not in a way that will please the appellate court. He was supposed to either do what they strongly recommended, or send them a short "No can do, sorry" via minute order. Instead, he filed a declaration trying to argue his way out. The essential-but-totally-false part:

    Petitioner Defendant, whose underlying appeal was without any merit, had an opportunity to respond to the modified statement on appeal, a conforming copy of which is attached hereto, and failed to do so.
    Plus, he filed this under the case no. for the appeal, NOT the current writ proceeding. I doubt the app. div. would have even noticed it if not for the required notification from me. Important bits (controlled-release of fury ):

    The trial court’s response, dated January 5, 2012, is a one-page declaration arguing against extraordinary relief. In the context of the Palma notice it is a non sequitur, amounting effectively to a notice of inaction. The manner of response, however, is in excess of jurisdiction. Instead of issuing a minute order as directed, the trial court transmitted an additional clerk’s transcript to augment the appellate record in the related appeal (no. BR0xxxxx.) The new transcript consists primarily of said declaration.

    ...

    The declaration demonstrates a continuing misunderstanding of the relevant Rules of Court. Flying in the face of this court’s crystal-clear explanation of error, the respondent alleges that “[p]etitioner … had an opportunity to respond to the modified statement on appeal … and failed to do so” (Exhibit A, p. 6), even though the modified statement had been certified immediately.

    Just like the original order, the declaration inappropriately disparages the grounds of appeal—once again—calling the entire appeal “without any merit.” (Exhibit A, p. 6; italics added.) Can a trial court really be this detached from its role as an impartial arbiter? Should the writ ultimately issue, will it even comply in good faith? Regrettably, one must now wonder.
    I'm pretty sure this has now progressed to the "or else" part, where the LA City Attorney can file any opposition to issuance of the writ by Feb 6. I've written to the supervising attorney in charge of criminal appeals to please let the court know asap if they DON'T plan to submit any opposition (since they don't usually care about infraction appeals at all). We'll see what happens...

  10. #30
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    Default Re: "Speed Trap" Appeals Under VC 22350

    So he came out of retirement to show how big an idiot he can be?

    And in summary....

    Quote Quoting quirkyquark
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    Can a trial court really be this detached from its role as an impartial arbiter?
    The answer is "yeah, should it really slap you in the face before you believe it to be true?"

    So at this point, do you see any potential for a retrial by a different judge, or is it ultimately "a remand with direction to dismiss"? (Clearly should be the latter, but is there any chance whatsoever of the former?)

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