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  1. #31
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    Default Re: "Speed Trap" Appeals Under VC 22350

    You can disregard this last question:

    Quote Quoting That Guy
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    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?)
    I now see this here before it:

    Quote Quoting quirkyquark
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    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.

  2. #32
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Quote Quoting That Guy
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    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?)
    Well, it's too early to talk about the final outcome, right? We're still haggling over the record on appeal...

    Unless you mean that the Appellate Division gets tired of the back-and-forth over the record and, perhaps with a hint, either orders a retrial or just dismisses in the interests of justice?

    Assuming the writ issues, and they order the judge to accept objections/amendments to his "corrections", etc., and THEN we run into an impasse (quite possible, considering what's happened so far)? Then yeah, my options would be to ask for a retrial (the legally logical one), to ask for a dismissal in the interests of justice (considering the time/effort spent so far for an infraction) OR ask the appellate div. to appoint a neutral referee to objectively settle the record. I doubt I wanna deal with a retrial, and appellate courts consider PC 1385 dismissals VERY VERY RARELY, so I think it may just end up being option three.

    Quote Quoting That Guy
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    The answer is "yeah, should it really slap you in the face before you believe it to be true?"
    Well, that's a hint to the appellate div. as they consider writing their decision on the writ. I asked them to do two things: (a) order the judge to correctly settle the record, accept objections, etc. and (b) order the judge to refrain from adding his own conclusions to the record, i.e. "meritless", etc. The Palma Notice they sent pretty much deals with (a), the preliminary step. I'm hoping to get them to broach (b), and thus perhaps avoid the impasse I described above.

    Here's what they "suggested" the judge do. My impression is that a regular judicial officer would just do it, even if they didn't agree with the reasoning, instead of risking a slap in the face from a higher court:
    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 re-orders certification of the record, the writ petition will be dismissed as moot.

  3. #33
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Have you considered filing a challenge for cause against this judge? I was doing my own research on this. In the process, I came across a case that might have some application to your ongoing problem. It deals most specifically with judges interfering with writs.

    I ran across this case while looking through West's Annotated California Codes, In re Wagner, (2005) 25 Cal.Rptr.3d 201:

    And Judge Iles's decision to file a return in these proceedings contradicts her function as a dispassionate fact finder. Except where the issues involve the trial court's procedures rather than the litigation in which the issues arise, it is inappropriate for trial judges to make their voices heard in the appellate process. (Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1016, 1018, 61 Cal.Rptr.2d 49, disapproved on another ground in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1069, fn. 6, 103 Cal.Rptr.2d 751, 16 P.3d 166.) By filing the return, Judge Iles indicates that she believes she has a personal stake in this matter. She is not allowed to have such an interest.
    At least one other of the cited cases is interesting. The Curle v. Superior Court case is confined to issues about whether a disqualified judge may file a writ to reverse the disqualification. That doesn't seem relevant to your problem However, Ng. v. Superior Court, (1997) 52 Cal.App 4th 1010 may also be of use:

    The trial judge also submitted a declaration supporting his decision. Petitioner moved to strike this declaration as well. In the declaration, the judge, inter alia, describes his reasons for not reinstating prior counsel, including various matters not apparent from the record of the hearing. The same considerations which compel us to strike his return to the petition, noted in the preceding section, also require us to strike this declaration. The same prohibition on advocacy by a trial judge should preclude her or him from offering evidence in opposition to a petition for extraordinary writ not involving the procedures of the court.
    The preparation of a statement of appeal is a procedure of the court, but you could argue that if this is so, then the judge should confine his comments to matters of procedure, instead of offering his opinion about the merits of your appeal.

    Apologies if you've read the cases before. I didn't see any mention of these two in this thread, and thought they could be helpful.

  4. #34
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Quote Quoting themadnorwegian
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    Have you considered filing a challenge for cause against this judge? I was doing my own research on this. In the process, I came across a case that might have some application to your ongoing problem. It deals most specifically with judges interfering with writs.

    I ran across this case while looking through West's Annotated California Codes, In re Wagner, (2005) 25 Cal.Rptr.3d 201:



    At least one other of the cited cases is interesting. The Curle v. Superior Court case is confined to issues about whether a disqualified judge may file a writ to reverse the disqualification. That doesn't seem relevant to your problem However, Ng. v. Superior Court, (1997) 52 Cal.App 4th 1010 may also be of use:



    The preparation of a statement of appeal is a procedure of the court, but you could argue that if this is so, then the judge should confine his comments to matters of procedure, instead of offering his opinion about the merits of your appeal.

    Apologies if you've read the cases before. I didn't see any mention of these two in this thread, and thought they could be helpful.
    Interesting perspective and a great first post, by the way.

    Ultimately, the decision is up to Quirky to make but in my opinion, filing a challenge against this judge will simply end up being a whole lot of extra work that might not add much to or change the end result in any way.

    The appellate court is clearly on the petitioner's side at this point in the process and will continue to be at least until the record is settled but by then, the rest becomes easy considering the fact that this judge has been and will likely continue to be pretty defiant of what is required of him...

    Fortunately for all of us, he has obviously seen his last day from that side of the bench!

    And after glancing over the cases, I should add that if it were me, I'd be opposed to a new trial. Fact of the matter is, a new trial is no going to validate an invalid survey, so what is there to accomplish from a new trial except for allowing the people to come (short of being) fully prepared, when in fact, no amount of preparation will change the outcome?

  5. #35
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Quote Quoting themadnorwegian
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    Have you considered filing a challenge for cause against this judge? I was doing my own research on this. In the process, I came across a case that might have some application to your ongoing problem. It deals most specifically with judges interfering with writs.
    Thanks, TMN, I appreciate your response. I have read those cases before. Like most writs though, they deal with matters arising before sentencing (i.e, pre-trial, mid-trial, post-trial). The problem here is that the trial is over, and the defendant sentenced. There doesn't appear to be any precedent on disqualifying or challenging trial judges during the pre-hearing phase of an appeal (IIRC, there was one where the judge had died, though -- I'll look that up). Upon remand, the appellate court can certainly direct that a different judge handle matters (under CCP 170.1(c).)

    Among the options I discussed above, the only way to "change" the judge is to demand a remand/retrial based on denial of due process in preparing the record on appeal. And I don't want to go that route (yet). (Edit: for precisely the reason TG stated...)

    If this judge should somehow try to interfere in the writ briefing process, all the precedents you cited (and more) will come in handy.

    Quote Quoting themadnorwegian
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    The preparation of a statement of appeal is a procedure of the court, but you could argue that if this is so, then the judge should confine his comments to matters of procedure, instead of offering his opinion about the merits of your appeal.
    You're right, but there's no need to even make such an argument when there is precedent squarely on point:

    Quote Quoting People v. Jenkins (1976) 55 Cal. App. Supp. 3d 55, 65-66
    A conclusionary statement of what the evidence showed as to a disputed issue or the sufficiency of the evidence to establish guilt does not comply with the responsibility of the trial judge under rule 187 to set forth the evidence "fairly and truly." It is of no value to this court to include the trial court's conclusions as to the merits of the appellant's grounds of appeal. Such conclusions tend to cast doubt on the impartiality of the trier of fact.
    ...
    As noted above, partisan comments on the issues to be raised on appeal are totally inappropriate in a statement on appeal.

  6. #36
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Thanks for to both you and TG for the detailed and thoughtful responses. I wasn't aware of People v. Jenkins; thanks. I figured that you had probably read Ng and In re Wagner, but wanted to be sure, just in case they turned out to be useful. I wish you all the best in your continuing appellate saga.

  7. #37
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Quote Quoting That Guy
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    Ultimately, the decision is up to Quirky to make but in my opinion, filing a challenge against this judge will simply end up being a whole lot of extra work that might not add much to or change the end result in any way.
    It's too late to file a challenge that would be effective. The trial judge is absolutely crucial to the whole settled statement on appeal process because he is supposed to use his memories, notes, etc. All any challenge would do at best is remand for retrial with a different judge. Once 6+ months have passed (around mid-March), and if we're still haggling over the record, I'll try the dismissal in the interests of justice, no remand because it's only an infraction, suffered enough, etc.

    Quote Quoting That Guy
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    ...but by then, the rest becomes easy considering the fact that this judge has been and will likely continue to be pretty defiant of what is required of him...
    Well, enforcing the writ in the face of defiance may not be easy for me, but it most certainly will NOT be pretty for the judge:

    Quote Quoting King v. Woods (1983) 144 Cal. App. 3d 571, 577-578

    [CCP] section [1097] authorizes three methods by which a court may enforce a peremptory writ of mandate: (1) a court may impose a fine not exceeding $1,000; (2) a court may order the disobedient party to be imprisoned until the writ is obeyed; and (3) a court may make any order necessary and proper to enforce the writ. Because these methods vary in their severity, different levels of disobedience must be shown to justify their use.

    The third method, allowing the court to order compliance, is the least severe and thus only requires that a court find that such an order is necessary and proper under the circumstances. ... Thus, the power to order compliance with a writ is not dependent on a showing of wilfulness or persistent refusal. This method of enforcing a writ may be used when there is any inadequacy in the compliance with the writ.

    Section 1097 also allows the imposition of a fine not exceeding $1,000. This method of enforcement may be used upon a finding of the following three elements: first, that the party was personally served with the writ; second, that the party refused or neglected to obey the writ; and third, that the party's refusal or neglect was without just excuse. ... Thus, for a fine to be imposed the court must find refusal or neglect to obey the writ, but need not find deliberate intent.

    The final method of enforcement allows a court to order imprisonment where there is persistence in refusal to obey the writ. Because the penalty is more severe than a fine, a higher level of disobedience must be found. All the elements necessary for the imposition of a fine must be shown and, in addition, there must be a finding of persistence in refusal. Thus, for imprisonment more than mere indifference must be demonstrated. The court must find intentional refusal to obey the writ.
    Quote Quoting That Guy
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    Fortunately for all of us, he has obviously seen his last day from that side of the bench!
    I wouldn't be so sure of an LASC Mailroom Clerk's checkmark on a return to sender stamp.... Certainly, a number of "grievance" procedures exist to ensure the above outcome, but it would be pragmatic to think about those only after the final record is ready.

  8. #38
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    Default Re: "Speed Trap" Appeals Under VC 22350

    This is quickly becoming a farce. The latest "update": I get a letter from the Superior Court appeals clerk saying:

    Enclosed is the Modified statement on appeal [same old Nov. 7 CR-144 order] correcting appellant's proposed statement from the Court, under Rule 8.837.

    You have 10 days to serve and file Proposed Modifications or Objections to this statement.

  9. #39
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    Default Re: "Speed Trap" Appeals Under VC 22350

    Quote Quoting quirkyquark
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    This is quickly becoming a farce. The latest "update": I get a letter from the Superior Court appeals clerk saying:
    Enclosed is the Modified statement on appeal [same old Nov. 7 CR-144 order] correcting appellant's proposed statement from the Court, under Rule 8.837.

    You have 10 days to serve and file Proposed Modifications or Objections to this statement.
    Your battle to get your PSoA properly written has convinced me to use a transcript of the electronic recording if I ever have to appeal a case.

    Edit: realized one of the questions here was already asked and answered. Do you have to file another motion with the appellate division to get them to enforce the writ using one of the three methods described in King v. Woods?

  10. #40
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    Default Re: "Speed Trap" Appeals Under VC 22350

    We have a writ, folks! A deputy LA city attorney was kind enough to respond to my request, and informed the court on 1/23 that they did not intend to oppose issuance of the writ.

    On 1/26, a minute order (="opinion") to issue the writ was entered, and so it did!

    Here's the important bit:
    Quote Quoting PEREMPTORY WRIT
    This court issues a peremptory writ this date ordering the respondent court to take the following actions:

    1. Forthwith vacate its certification of appellate record.
    2. Comply with California Rules of Court, rule 8.916 by:
      • (a) Forthwith sending a copy of the modified statement on appeal to the parties;
      • (b) Providing the parties with a minimum of 10 days after the date the modified statement is sent to them to file objections or proposed modifications; and
      • (c) No later than 5 days after the expiration of the period described in paragraph (2)(b), reviewing any submissions, making any necessary changes to the statement on appeal to ensure its accuracy, and forthwith certifying it for transmission to this court.
    As expected, the didn't address the inappropriate comments at this stage. But I see that they used the underlined language above, instead of the literal court rule which says "to ensure that it is an accurate summary of the trial court proceedings." Presumably, they have ordered that any changes be to ensure it is accurate, period, not just an accurate summary.

    Let's see where this goes. It appears from the writ's "proof of service"* that even the Appellate Division isn't sure what the correct address to write to the judge is!
    ____________
    * because it's not a p.o.s. CCP 1097 requires that the writ be served (by the petitioner) "in the manner of a civil summons", i.e. usually in person/via process server, instead of just mailing it out. But there is an alternate "acknowledgment by mail" procedure which can be used if you're not in a hurry, where the receiving party has to sign a "notice of acknowledgment" and return it to you in the enclosed prepaid envelope.

    ---------

    Quote Quoting themadnorwegian
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    Do you have to file another motion with the appellate division to get them to enforce the writ using one of the three methods described in King v. Woods?
    If the court doesn't comply, yes. The treatises highly recommend that you attach summons-like proof of service (as noted above) to any such motion.

    ----------

    As an aside, there was a fascinating red-light-camera case decided by the Court of Appeal last week (unpublished decision). It has potentially huge implications for RLC trials, especially in LA County; I might make a separate post about this later.

    I mention it here because the appellant (an attorney) faced a situation somewhat similar to mine; the commissioner completely rewrote her proposed statement, removing important points and making inappropriate comments on the merits as well as inappropriate allegations. The LASC Appellate Div. allowed her to add her own version as part of the record. She doesn't seem to have tried a writ petition, however. The CofA slapped this down, using some of the same citations in my petition.

    Quote Quoting People v. Borzakian CA2/7, Filed 1/23/12 (unpublished)
    Further, the trial court did not identify any factual inaccuracies in Borzakian’s proposed statement, and to the contrary, accused her of “surreptitiously” recording the proceedings without first requesting the court’s permission.
    I think the lesson for us all is to always file a request for electronic recording and/or personally record and insist upon it at trial. (if still refused and you are not satisfied with the statement on appeal, case law supports an immediate remand for retrial). I got lucky with the recording because it was a pro-tem judge; I don't think LASC routinely records infraction trials.

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