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:
PDFs of the full documents can be found here.
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
065 DEFENDANT TO FILE DECLARATION STATEMENT BY 12/01/2011.
070 CHP A****** TO FILE DECLARATION STATEMENT BY 12/01/2011.
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):
- 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.
- 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:
- The TR-210 form is not a proper subpoena
- 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
- Vacations are generally not "good cause" (quite a bit of case law here)
- 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:
Quoting Cal. Rules of Court, rule 4.210(b)(5) & (8)
- 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.