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  1. #1
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    Default How to Ensure TBD is Dismissed when Officer Does Not Submit His Side

    My question involves traffic court in the State of: California

    Here's the latest in my efforts to improve "expertise" via personal experience It's a 22349a. Arraigned on 11/21, requested TBD, granted with due date (and officer's return date) of 12/01 (10 days); "trial"--decision on TBD--set for 12/15. Submitted mine 12/1. No submission from officer as of 12/2. Asked for a copy of the TR-210 ("subpoena" to officer to submit TBD), which revealed that "subpoena not received" because officer is on vacation until 12/26/11. Here's the stamp:


    .
    Here's the relevant docket entries:
    Code:
    045 DEFENDANT ENTERED A PLEA OF NOT GUILTY TO COUNT 1.
    050 DEFENDANT'S REQUEST FOR TRIAL BY DECLARATION IS GRANTED.
    055 THE COURT MAKES THE FOLLOWING FINDINGS AND/OR ORDERS:
    060 CASE IS SET FOR TRIAL BY DECLARATION ON 12/15/2011 AT
    	3: 00 P. M. IN SUPERIOR COURT...JUDGE/COMMISSIONER FOR
    	TRIAL BY DECLARATION. MANDATORY APPEARANCE NO. CUSTODY
    	STATUS CITED.
    065 DEFENDANT TO FILE DECLARATION STATEMENT BY 12/01/2011.
    070 CHP A****** TO FILE DECLARATION STATEMENT BY 12/01/2011.
    PDFs of the full documents can be found here.

    I discuss the reasons why below, but from prior experience I'm not sure that the commissioner here will do the right thing and dismiss on 12/15 if there is nothing from the officer. He might grant a continuance, or if the officer somehow submits before 12/15, find me guilty.



    I don't look forward to going through a TDN and then appealing any errors in the TBD (or via writ after the TBD). So, I'm thinking of filing a pre-emptive motion on 12/5, which I know will be heard on the morning of the "trial" on 12/15 before he decides the case. It should cover all my bases with the following (citations omitted for now):
    1. It's the prosecution's burden to prove guilt, and in the absence of testimony from the officer, case must be dismissed for insufficient evidence.
    2. The case may not be continued to a later date...
      • On the court's own motion, in the absence of a motion from the prosecution.
      • If the prosecution did file a motion for continuance, it must comply with all requirements of PC 1050(b) (proof of service, notice, etc.)
        • If the prosecution's motion was not compliant with PC 1050(b), it must be denied because there is no good cause to excuse this non-compliance (essentially, the prosecution has known since at least 17 days before trial that officer is on vacation and unavailable)
        • Even if the prosecution's motion is compliant, there is no good cause to grant the continuance because:
          1. The TR-210 form is not a proper subpoena
          2. Even if it is, the prosecution did not exercise due diligence in subpoenaing the officer -- e.g. it does not say he was on vacation out of state
          3. Vacations are generally not "good cause" (quite a bit of case law here)
    3. If the officer did somehow submit his declaration after the return date of 12/01 but before 12/15, it must be excluded because CRC 4.201(b)(5) says:
      Quote Quoting Cal. Rules of Court, rule 4.210(b)(5) & (8)
      (5) ...After receipt of the officer's declaration, or at the close of the officer's return date [12/01] if no officer's declaration is filed, the clerk must submit the case file with all declarations and other evidence received to the court for decision.

      (8) ...Failure of the clerk or the court to comply with any time limit does not void or invalidate the decision of the court, unless prejudice to the defendant is shown.
      • Rule 4.210(b)(8) above does NOT apply to the return date because it is not a "time limit" but a mandatory date -- "at the close of the return date...must submit...for decision.
      • Even if 4.210(b)(8) applies, the defendant has been prejudiced by not being given the same generosity (because with more time than 10 days from arraignment, I could have come up with better evidence to cast reasonable doubt)




    The two reasons for doubting the commissioner will dismiss are:
    • His understanding of criminal (traffic) procedure seems poor. At arraignment, he didn't allow me to demur because "demurrers must be filed with the DA 30 days prior, by court rules", which looks like he's applying civil rule 3.1320 to a criminal proceeding. Also, at one of his trials, when the defendant said "I didn't get video evidence", he said "You have to subpoena the police" with no mention of the word "discovery."
      • (not relevant here, but see last paragraph of VC 40502(d) if you want to know the reason behind the demurrer )
    • At trial, he's happy to grant continuances to the prosecution without (at least he doesn't say it on the record) checking if it was properly served on the defendant, if there is real good cause, etc.





    Thoughts?

  2. #2
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    Default Re: How to Ensure TBD is Dismissed when Officer-On-Vacation Does Not Submit His Side

    For the sake of disclosure, I am a bit under the influence right now, but what the hell...

    I see one issue with your train of thought. If you read Rule 4.210(b)(5) carefully, the officer only gets the notice to submit his side of the story once the defendant submits TR-205 (the two-page form where you write your current mailing address and 'I am not guilty ^_^'), not the just the initial written notice requesting the TBD. The officer's deadline is NOT the same as defendant's. A couple of clerks from different courts also gave me similar info about TBD procedures, as well. IMO, arguing that the entry in the docket minutes trumps the deadline prescribed by Rules of Court is going to be tough, to say the least...

    Besides that, there's also Rule 4.210(c), which gives the court a lot of discretion in extending the due dates for TBDs.

    That being said, in my opinion, your best bet is to keep quiet and hope is that the Ofc. doesn't submit a reply by the 15th. Unfortunately, the law and the Rules of Court are not fully on your side on this one. If he submits a reply and you lose the TBD, time to prepare for TDN and figuring out how to set up as many grounds for appeal as possible.

  3. #3
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    Default Re: How to Ensure TBD is Dismissed when Officer-On-Vacation Does Not Submit His Side

    Quote Quoting HonkingAntelope
    View Post
    I see one issue with your train of thought. If you read Rule 4.210(b)(5) carefully, the officer only gets the notice to submit his side of the story once the defendant submits TR-205 (the two-page form where you write your current mailing address and 'I am not guilty ^_^'), not the just the initial written notice requesting the TBD. The officer's deadline is NOT the same as defendant's. A couple of clerks from different courts also gave me similar info about TBD procedures, as well.
    Well, that whole rule is ambiguous in a lot of essential parts. As far as I see, though, the notice is sent on or shortly after the ORIGINAL appearance date which is what the rule defines as "due date.":

    Quote Quoting CRC 4.210(b)
    (5) If the clerk receives the defendant's Request for Trial by Written Declaration (form TR-205) and bail by the due date, the clerk must deliver or mail to the arresting officer's agency Notice and Instructions to Arresting Officer (form TR-210) and Officer's Declaration (form TR-235) with a copy of the Notice to Appear and a specified return date for receiving the officer's declaration.

    (1) Definition of due date: As used in this subdivision, "due date" means the last date on which the defendant's appearance is timely.
    Now, it also says that when the clerk receives a written request, the "appearance date" must be extended by 25 days. However, three different sub-rules 2, 3 & 4 explicitly refer to this date as the extended due date, thus making a distinction between that and the original "due date."

    I know that (5) implies the "due date" is when the clerk receives the form and the bail, while (4) allows bail to be submitted on the "extended due date", but we all know that courts demand the bail upfront when you request a TBD, in person or by mail.

    I don't know about what goes on up north, but I know that around SoCal, at least, the TBD forms get sent out to both the officer and the defendant when the request/bail are made, and usually with the same date, i.e. the "return date" = "extended due date" = 25 days (usually).

    Quote Quoting HonkingAntelope
    View Post
    IMO, arguing that the entry in the docket minutes trumps the deadline prescribed by Rules of Court is going to be tough, to say the least...
    Actually, 12/01 as the return date is listed in the TR-210 'subpoena' sent to the officer, in the docket AND in the court's official ruling of that day ("papers due by 12/01". And hey, 4.210(c) allows the court to change or extend any date, so I guess it's good

    Quote Quoting HonkingAntelope
    View Post
    Besides that, there's also Rule 4.210(c), which gives the court a lot of discretion in extending the due dates for TBDs.
    True, but the only case law around indicates that the court must ORDER the extension on the record (but no reason is needed). So absent an order in the docket/minutes, doesn't mean much.

    Quote Quoting HonkingAntelope
    View Post
    That being said, in my opinion, your best bet is to keep quiet and hope is that the Ofc.
    With the benefit of some sleep, I conclude similarly Since the subpoena has NOT been received by the officer and he IS on vacation until well after the trial date, I doubt he'll submit and it's best to keep mum. I *think* that this commissioner decides TBDs in the courtroom at 3 PM, right after he concludes the 1:30 arraignment -- I may just show up to keep an eye on things. BTW, if the officer had missed the 12/01 date because of oversight though and were still around, I'd most definitely do the motion to exclude to nip it in the bud at this stage.

  4. #4

    Default Re: How to Ensure TBD is Dismissed when Officer-On-Vacation Does Not Submit His Side

    Quote Quoting quirkyquark
    View Post
    With the benefit of some sleep, I conclude similarly Since the subpoena has NOT been received by the officer and he IS on vacation until well after the trial date, I doubt he'll submit and it's best to keep mum. I *think* that this commissioner decides TBDs in the courtroom at 3 PM, right after he concludes the 1:30 arraignment -- I may just show up to keep an eye on things. BTW, if the officer had missed the 12/01 date because of oversight though and were still around, I'd most definitely do the motion to exclude to nip it in the bud at this stage.
    What actually happens in the court room when the judge or commissioner is ruling on TBDs? I just kinda of imagined that the judge would be sitting in an office going over them instead of in a court room that was presumably empty.

  5. #5
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    Default Re: How to Ensure TBD is Dismissed when Officer-On-Vacation Does Not Submit His Side

    Quote Quoting California student
    View Post
    What actually happens in the court room when the judge or commissioner is ruling on TBDs? I just kinda of imagined that the judge would be sitting in an office going over them instead of in a court room that was presumably empty.
    I'll let you know on the 15th!

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