My question involves traffic court in the State of: California
(For reference: here's the base page from which all documents are/will be available)
I recently lost a VC 22350 (basic speed law) trial in LA Metro where the road involved was clearly a speed trap, and the survey was over 7 years old. The location was San Vicente@Curson in West LA. The highlight of the trial was this priceless quote:
THE COURT: The speed laws apply outside of the city limits. They donít apply within the City of Los Angeles.
Anyway, I'm now appealing to the LASC Appellate Division. It was a pro-tem judge, so the session was electronically recorded and I eventually received a copy. Although I was told otherwise and checked off the transcript box on the notice of appeal, apparently these official recordings are for "quality assurance" (under GC 69957(b)) and cannot be used for any other purpose. So, I'm now back to the "statement on appeal". I transcribed the recording tonight and will pretty much be shoe-horning it in as an attachment to minimize any conflicts with the judge while settling AND (more importantly) to NOT foreclose any appealable issues that may come to light after the SoA has been filed.
Here's the transcript (PDF). The main page also contains other relevant documents: the officer's TBD and the full traffic survey.
I'd like to put the whole process here to both get feedback and have a sort of reference for future visitors. Please look at the transcript, etc. and see if you can find additional grounds for appeal than the ones I list below. I know I made quite a few mistakes at the trial, so critiques of that are welcome too. References to page/line numbers are appreciated.
We didn't get to the speed-trap issue until the beginning of the closing argument (about 60% of the way through) because I (wrongly) assumed that the judge was certainly not going to question that fundamental point.
On objections/forfeiting issues:
I know I explicitly raised only two objections at trial. But the judge said "I'm giving you grounds for appeal" at three different points . From this excellent article, here are a few brief arguments to not consider any issue waived for lack of an objection (see the article for details and cites):
- Form or phrasing doesn't matter as long as court understands what the issue is
- Repeating objections is not required once adversely ruled against
- Objections need not be made if they would be "futile" (based on trial court's conduct, i.e. "shut up and move on)
- An issue purely about a matter of law is reviewed "de novo", objection irrelevant
- Court's assurance that issue can be raised on appeal is enough even if court was wrong to give such an assurance
I'll list the ones I'm arguing in detail once I make a draft of the "errors summary" for the statement on appeal.
Grounds for appeal:
"prejudice" in pretty much all of these is that they are required by VC 40802 and non-compliance automatically results in an "incompetent" witness and revokes the court's jurisdiction to render judgment.
- The court erred in ruling that speed-trap laws (VC 40802, et seq.) are inapplicable within the limits of the City of Los Angeles in general, and specifically on the section of San Vicente Blvd at and around Curson Ave.
- The court erred in admitting, over defendant's hearsay objection, a photocopy of the purported LIDAR calibration certificate from a private facility under the business records exception.
- The court erred in admitting the officer's visual estimate of speed (witness incompetent if speed trap exists)
- The court erred in considering the officer's testimony sufficient to meet the training requirements of VC 40802(c)(1)(A-B) (He testified about the hours and type of training, but not that it was POST-certified. In any case, case law says that the officer cannot testify that the course was POST-certified (hearsay)...either POST regulations have to be judicially noticed or a paper certificate has to be produced.)
- The court erred in considering the officer's testimony, where he could not state the before/after days/times when he tested the unit, sufficient to satisfy VC 40802(c)(1)(C)(i):
The prosecution proved that, prior to the officer issuing the notice to appear, the arresting officer established that the radar, laser, or other electronic device conformed to the requirements of subparagraph (D). (i.e., meets NHTSA standards)
- The court erred in considering the officer's speculative testimony about "possible" pedestrians and "possible" potholes or oil slicks sufficient to speed was unsafe for the conditions (required by VC 40802(c)(1)(C)(ii))
These are about the survey but I was cut off at trial before I could state them:
- Memorandum of 3-year extension was hearsay/confrontation clause violation because it just said "a registered engineer" --- did not identify him/her; additionally did not state any of the two engineers signing it were "registered" --- no professional engineer seal or license # present as required by Business & Professions Code.
- Survey report justifying 5 mph reduction insufficient because (a) used conditions "readily apparent to driver" in violation of VC 22358.5 and (b) stated an accident rate without any comparison to show if it was higher than normal; alternately, if no reduction is claimed, survey incorrectly "averaged" various critical speeds to less than 40 mph
- Extra "informal" markups on left and right edges of survey sheets were not accounted for by "prosecution", violating Evidence Code 1402.
The Penal Code 1473.6 Motion to Vacate Judgment:
PC 1473.6 was introduced in 2003 in response to the LAPD "Rampart" scandal where officers perjured and falsified evidence, etc. It allows people no longer in custody to effectively file a habeas corpus-like motion within one year of the discovery of fraud, perjury or misconduct by a government official in their case which was prejudicial to them. In pertinent part, it states:
Note that the "false testimony" does NOT have to be knowing. Here, the officer "testified" in the TBD that he had personal knowledge thatQuoting PC 1473.6
- The LIDAR was last calibrated on 11-25-08 (certificate at trial said 9-20-10)
- The survey was between 5 and 7 years old (actually was more than seven; this means 3-year extension was not checked off in TBD either)
- Left the "Equipment accuracy check conducted on date/time: ____ and again on date/time: _____" blank (just as he tried to weasel his way out at trial)
This motion would be collateral to the appeal. The problem here is that the judgment of the TBD is vacated once you request a TDN, so it somehow has to be justified with case law instead of just common sense (TBD should have been won, then no TDN would have resulted). A number of states (KY/MA) had/have such a two-tier trial system for petty offenses -- the first one has no jury, and you have an absolute right to get a new jury trial if you lose the first one. The Supreme Court ruled in the late '70s-early 80's that such systems are constitutional in that it's all technically one big trial -- double jeopardy is not involved. Anyway, I'll think more about this once the SoA is sent off.