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  1. #11
    Join Date
    Aug 2011
    Location
    South-Central Cali
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    1,274

    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    Well, here's what Benhoor held:

    The Trial Court Violated Rule 4.210(b)(7) by Failing to Bring Benhoor to Trial Within 45 Days of Receipt of Benhoor's Request for a New Trial
    But, they said, the remedy is not dismissal for lack of a speedy trial under PC 1382 because:
    • PC 1382, on its face, does not apply to a Trial De Novo
    • Even if it did, the more specific VC 40902 and Rule 4.210 control, which have no time limit and no remedy, respectively


    And, the reason you must show prejudice for a constitutional speedy trial violation is because of the Barker v. Wingo SCOTUS balancing test.

    So, let's forget the primary argument here (which is that evidence cannot be admitted after a cause has been submitted --- that's due process, which doesn't have to use the Barker v. Wingo standard), and go to the secondary one. If you argue that the cause was not submitted until the date of trial (Jan 9), there is no doubt that the trial court violated Rule 4.210(b)(5). What is the remedy for that?

    Answer: Without research, I don't know --- I can't think of a statute similar to PC 1382 that applies here. And of course, you need constitutional implications to make a solid argument....which I'm sure there will be

  2. #12
    Join Date
    Jan 2012
    Posts
    5

    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    OK. I was found guilty in the TBD. I will get a copy of the officer declaration and look for the file stamp. Seems like that is the critical part. Any idea of what is the quickest way to get it? The court is in Riverside and I'm in Norcal, so it's not like I can just pop in.


    Action: TRIAL BY DECLARATION (COURT TRIAL-NON APPEARANCE)
    HONORABLE JUDGE XXX PRESIDING.
    COURT REPORTER: NONE-NONE
    DEFENDANT IS NOT PRESENT.
    COURT TRIAL - TRIAL BY DECLARATION COMMENCES (40902 VC)
    COURT HAS REVIEWED THE DECLARATION OF FACTS SUBMITTED BY THE DEFENDANT.
    COURT HAS REVIEWED THE DECLARATION OF FACTS SUBMITTED BY OFFICER XXX.
    COURT FINDS DEFENDANT GUILTY AS TO COUNT(S) 1
    FOR COUNT(S) 1 PAY TOTAL FINE OF $284.00 WHICH INCLUDES P.A. PAYABLE TO THE CLERK OF THE COURT.
    CASH BAIL ORDERED APPLIED TO FINE. ANY BALANCE ORDERED EXONERATED.
    - - CUSTODY STATUS/INFORMATION - -
    INFRACTION HEARING CONCLUDED, HEARING DISPOED.
    DEFENDANT RELEASED.

  3. #13
    Join Date
    Aug 2011
    Location
    South-Central Cali
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    1,274

    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    Quote Quoting theadog
    View Post
    Any idea of what is the quickest way to get it? The court is in Riverside and I'm in Norcal, so it's not like I can just pop in.
    Which Riverside court?

    Your best bet is to call them up and ask if they will fax the docket and officer's declaration to you. If not, see if they will mail it to you. They may want a written request and a check for $0.50/page first before they will do the latter.

  4. #14
    Join Date
    Jan 2012
    Posts
    5

    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    Way out in the desert- Blythe. Guess I should have asked at least for county seat...
    When I tried to call and get my fine amount back in October, I wasn't able to get through.

  5. #15
    Join Date
    Mar 2009
    Location
    LA LA Land
    Posts
    9,170

    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    Quote Quoting quirkyquark
    View Post
    No, that is a time limit (i.e., within x days). And the primary reason Benhoor said PC 1382 didn't apply is because TDN is not a "motion for a new trial", i.e. 1382 doesn't apply on its face to a TDN.
    And therefore, 1382 should not have been even brought up by Benhoor. Alternatively, the decision to tell Benhoor to go pound sand was simply because the only remedy to any violation of the steps/rules/time-lines/due dates of a TBD is to submit a request for a TDN! Nothing... And that means NOTHING is to be construed as a means to a dismissal!

    Quote Quoting quirkyquark
    View Post

    Quote Quoting That Guy
    4.210 (h) Additional forms and procedures
    The clerk may approve and prescribe forms, time limits, and procedures that are not in conflict with or not inconsistent with the statute or this rule.
    There is no mention of "record", "record entries" and/or "minutes"!
    Sure, it may be another "out", but I'm also sure that there will be plenty of case law that details what exactly a court can order completely "off the record".
    I think you may want to re-read that Quirky... It specifically states that the CLERK, (NOT the COURT) can make those changes and approvals... That means there is no requirement that every approval to come in through a judge and by way of an entry/notation on the record!

  6. #16
    Join Date
    Aug 2011
    Location
    South-Central Cali
    Posts
    1,274

    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    ^^^^^

    Benhoor WAS about the TDN, not the TBD...

    And re the clerks, it says "approve AND prescribe", meaning it has to be a written policy somewhere, not on a case-by-case basis. I doubt anything like that exists. If it does, then we can decide whether it is valid or not.

  7. #17
    Join Date
    Mar 2009
    Location
    LA LA Land
    Posts
    9,170

    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    Quote Quoting quirkyquark
    View Post
    ^^^^^

    Benhoor WAS about the TDN, not the TBD...
    Benhoor was about a "violation" of court rule 4.210, how it affected the entire process, and what recourse the defendant has if dissatisfied with the end result!!

    Quote Quoting quirkyquark
    View Post
    And re the clerks, it says "approve AND prescribe", meaning it has to be a written policy somewhere, not on a case-by-case basis. I doubt anything like that exists. If it does, then we can decide whether it is valid or not.
    In this case (hypothetical), the file was still with the clerk, officer's declaration came in on the 5th, it was added to the file on the 5th. case submitted for review on Friday the 6th so that the judge will have it on his/her desk the morning of Monday the 9th. Nobody did any twisting or manipulating of any rules or deadlines!

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