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  1. #1
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    Default Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    My question involves traffic court in the State of: California

    I was cited for 22356(b), exceeding the max speed limit of 70 on 1-10 in Riverside. I understand this is hard to win. Nonetheless, I submitted a TBWD after seeking an extension, the date to appear was moved to 11/28 and I filed & submitted my TR-205 in time. Traffic court is not an option for me due to prior tickets. My arraignment was pushed back to 12/8 and the my declaration was received and filed on the same date (12/8). The officer was supposed to return his declaration by 1/3/2012 and the trail is set for 1/9 (tomorrow). The case minutes show that his declaration was received and filed on 1/5, after the 1/3 deadline.

    Cal. Rules of Court, rule 4.210(b)(5), After receipt of the officer's declaration, or at the close of the officer's return date (1/3) 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.

    Cal. Rules of Court, rule 4.210(c) Due dates and time limits
    Due dates and time limits must be as stated in this rule, unless changed or extended by the court. The court may extend any date, but the court need not state the reasons for granting or denying an extension on the record or in the minutes.

    I have a several of questions here:

    It seems that the officer missed the window so the clerk should of submitted the case WITHOUT the officer's declaration to the court on 1/3 right? Does (b)(5) give leeway to allow the clerk to file the officer's declaration even though the officer was 2 days late? In other words is section (b)(5) interpreted as the latter of EITHER the receipt of the declaration OR close of the officer's return date? The wording of the minutes makes it seem as if the clerk willingly accepted and filed the declaration. What's the point of (b)(5) then if the prosecution can submit after the due date and can have it's declaration accepted all the way up to the trial date?

    Is it possible that he submitted the stuff on time on 1/3, but the court just was slow in recording it, hence the 1/5 date? How would I know, is the a time date stamp of when the clerk of the court receives it?

    If the court did extend the date for the officer under rule 4.210(c), I understand that it does not have to PROVIDE a reason. However, does it have to RECORD such a decision anywhere in the minutes? How does one actually know if the court did grant such an extension?

    The case is tomorrow and I will not be able to attend because I am 500 miles away. I'm presuming that the court will review his accept his declaration any ways and find me guilty. However, if I were present, would I be able to file a motion to exclude? I know I can file a TDN, and the outcome is likely to be the same given he shows up at the TDN. Would there be a case for appeal (assuming I lose the TDN) due to the fact that the court was supposed to submit the case on 1/3 but allow the testimony to be admitted after the 1/3 deadline?

    Here are the minutes and actions:

    01/09/2012 8:30 AM DEPT. 260 TRIAL BY DECLARATION (COURT TRIAL-NON APPEARANCE)
    01/05/2012 DECLARATION OF FACTS FROM OFFICER RECEIVEDAND FILED.
    12/08/2011 DECLARATION OF FACTS FROM DEFENDANT RECEIVED AND FILED.
    12/08/2011 DATE-TO-APPEAR CHANGE FROM 11/28/11 TO01/09/12
    12/08/2011 3:14 PM DEPT. 260 TRIAL BY DECLARATION - ARRAIGNMENT DISPOSED ARRAIGNMENT
    DEFENDANT WAIVES INITIAL ARRAIGNMENT PURSUANT TO SECTION 40519 VC
    TRIAL BY DECLARATION - ARRAIGNED. REQUEST FOR ENTRY OF NOT GUILTY PLEA AND THAT MATTER BE SET FOR COURT TRIAL AND ARRAIGNMENT AS INDICATED BELOW. PLEADS NOT GUILTY TO COUNT(S) 1.
    TRIAL BY DECLARATION SET 01/09/2012 @ 8:30 IN DEPT. 260.
    DECLARATION OF FACTS FORMS MAILED TO OFFICER(S) AND DEFENDANT TO BE RETURNED BY 01/03/2012.
    CASH BAIL CONTINUED.
    DEFENDANT RELEASED.
    DATE TO APPEAR IS CONTINUED TO 01/09/2012

  2. #2
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    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    Quote Quoting theadog
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    In other words is section (b)(5) interpreted as the latter of EITHER the receipt of the declaration OR close of the officer's return date?
    Well, the case isn't scheduled to be reviewed until 01/09... But I see your point!

    Quote Quoting theadog
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    The wording of the minutes makes it seem as if the clerk willingly accepted and filed the declaration.
    You have a copy of the case file and those are the docket entries for your case?

    Andf in all honesty, I don't see how you could even begin to establish "willingly"
    Quote Quoting theadog
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    What's the point of (b)(5) then if the prosecution can submit after the due date and can have it's declaration accepted all the way up to the trial date?
    The point would be to establish the next step in the process as any other subsection/subparagraph in 4.210 does. Combine that with 4.210(c) and you've got an argument that seems to be moot before it stats. Adding to that the fact that typically, you cannot "appeal" from the TBD stage (heck, its not even the TBD stage as of yet -not until tomorrow and even then that is assuming the case review isn't delayed-) I don't see a process by which you can change anything at this point. Your only recourse as I see it would be to wait out the verdict, and if you're found guilty, request a TDN....

    And by the way, this:


    Quote Quoting theadog
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    Traffic court is not an option for me due to prior tickets.
    ... is not a valid reason why traffic court is not an option.



    Quote Quoting theadog
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    Is it possible that he submitted the stuff on time on 1/3, but the court just was slow in recording it, hence the 1/5 date?
    It is possible.

    Quote Quoting theadog
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    How would I know, is the a time date stamp of when the clerk of the court receives it?
    Well, it is also possible that mail that is received on xx/yy.zzz date might sit there for a day or two before it is processed! So I'm not sure if you're making the right assumptions and being lead to the right conclusions!


    Quote Quoting theadog
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    The case is tomorrow and I will not be able to attend because I am 500 miles away.
    You couldn't "attend' even if you wanted to!



    Quote Quoting theadog
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    I'm presuming that the court will review his accept his declaration any ways and find me guilty.
    But that's the nature of the offence you were cited for... Meaning, take all other factors out of the picture, and the likelihood that you'll be convicted is closer to 100% than it is to 99%!


    Quote Quoting theadog
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    Would there be a case for appeal (assuming I lose the TDN) due to the fact that the court was supposed to submit the case on 1/3 but allow the testimony to be admitted after the 1/3 deadline?
    You won't find much precedent on the TBD process although in this case, People v. Benhoor speaks volumes with regards to an issue that is similar to what you're up against, specifically, time delays and deadlines. In Benhoor, the court and although it did provide an analysis of the issues that Benhoor presented from a constitutional as well as statutory perspective, ultimately, it boiled down to the simple fact that rule 4.210 itself provides no remedy for a violation of its time limits, and neither does CVC 40902.

    So the way I see it, you can wait for a decision from the TBD, request a TDN if you're not satisfied with the result, but the fact that you think you'll be convicted by terms of the nature of the offense, or because you have issues with the court that make it difficult to appear in court should not and does not give rise to any exceptions in this case!

  3. #3

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

    Quote Quoting That Guy
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    You have a copy of the case file and those are the docket entries for your case?
    It looks like he copied from the "public access" portal that you, QQ, and I discussed in another thread. This also answers the question we had about the officers declaration being listed as filed if it was received (mine never had it filed, but despite being a week out, I don't have a decision from my TBD court date on 12/30/11).

  4. #4
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    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    I think you have an argument that the late declaration should have been excluded because the case should have been submitted on the 3rd, no matter when it was actually reviewed or decided upon. To have any chance at relief, you MUST take this up by petitioning the appellate division for a writ BEFORE YOUR TDN. It won't work if you first bring it up on appeal. What county are we talking about? You may have to personally file the writ petition.

    To understand why this is a violation of procedural due process and is not an exception, the difference between rule 4.210(b)(8) and 4.210(c) is important, as is the difference between "due date" and "time limits". Remember, first of all, that "due date" is basically ONLY the defendant's deadline during the various stages of the process, by definition (4.210(b)(1).) It doesn't apply to the officer's return date, or to anything else.

    Under 4.210(c), the court can extend any due date or time limit (i.e., within x days), but this must be on the record (no reason needed). i.e., there must be an entry in the minutes, before said date, of an order extending it. 4.210(b)(8) says that failure to comply with any time limit does not invalidate the decision unless prejudice is shown.

    Well, 4.210(b) is neither a due date, nor a time limit. It is a mandatory requirement - "the clerk must submit the case file with all declarations and other evidence received to the court for decision." Unless evidence shows otherwise, this is presumed to have occurred. Admitting any evidence after a case has been "submitted" is usually not allowed.

    You need to go to (or contact) court clerk and get a copy of the officer's declaration. So you can see when it was dated, and when it was file-stamped. No mailing date, postmark, etc. matter here. A document is received as of the date that is file-stamped on it. If you mailed your declaration on the TBD deadline, the court can go ahead and ignore it. Why should it be any different for the officer?

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

    @That Guy: I meant traffic school not traffic court. I pasted in the minutes and actions from the online case status.

    @QQ:
    This is a Riverside County case. I will try getting a copy of the declaration. I do indeed hope that it is file-stamped as the online minutes state, but who knows I assume that I can only get that when the vedict is handed down.

    My reading and interpretation of 4.210 is the same as QQ I read People vs. Behoor, it relates to speedness of trial and whether that could invalidate the decision, not interpretation and compliance with TBD procedural process as set forth in the statue.

    My contention is that the officer's declaration should be excluded since "...the clerk must submit the case on the due date..." Therefore my case is uncontested. Furthermore, I am/was not afford time to file a motion since the officer's declaration was filed and accepted on 1/5. even if I overnighted some thing on 1/6 it would arrive on 1/9. My trial is on 1/9 at 8:30am!

    I'm ok with having no reason given, but I agree that it should be noted in the minutes. I see no entry, I pasted it in my initial posting. Otherwise, what's to prevent the court from extending the due date for the officer's submission up until or at the trial??? I'm not afforded the right to submitt declarations after the due date...

    I agree with QQ. I don't want a TDN, I want to be able to appeal a guilty verdict on the basis of a violation of procedural process during the TBD (if infact the file stamp shows that it was a late submission)

  6. #6
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    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    Quote Quoting theadog
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    ...but who knows I assume that I can only get that when the vedict is handed down.
    Says who? It can't hurt to politely ask NOW. In person is better. In any case, they should be able to give it to you once the case goes on "trial" on the 9th, assuming they have a copy since the original will have gone to the judge.

    Quote Quoting theadog
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    I read People vs. Behoor, it relates to speedness of trial and whether that could invalidate the decision, not interpretation and compliance with TBD procedural process as set forth in the statue.
    Well, Benhoor is relevant, but even more so is People v. Kennedy (2008), where the issue was whether you can directly appeal a TBD without going to TDN. It explicitly compares the TBD procedure to a procedure for administrative violations (e.g. of municipal ordinances) -- the latter can be contested via writ.

    In any case, any act by a court in excess of jurisdiction (i.e., what it is allowed to do or not do by law) can be challenged by seeking a writ of mandate/prohibition -- all the way up to THE Supreme Court (of the US) if necessary. This will be the basis for your petition --- you're not seeking a review on the merits (i.e., whether there was sufficient evidence to find you guilty), which Kennedy (sort of) prohibits.

    Quote Quoting theadog
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    My contention is that the officer's declaration should be excluded since "...the clerk must submit the case on the due date..." Therefore my case is uncontested. Furthermore, I am/was not afford time to file a motion since the officer's declaration was filed and accepted on 1/5. even if I overnighted some thing on 1/6 it would arrive on 1/9. My trial is on 1/9 at 8:30am!

    I'm ok with having no reason given, but I agree that it should be noted in the minutes. I see no entry, I pasted it in my initial posting. Otherwise, what's to prevent the court from extending the due date for the officer's submission up until or at the trial??? I'm not afforded the right to submitt declarations after the due date...
    Your "gut" argument is right, but just court rules won't be enough because of the way 4.210 is written, and the Behnoor precedent. You will need to throw in some due process and a good bit of case law -- hopefully, some analogous to your situation. See this example (related to my ongoing appeal) for how complicated it can sometimes get. Post back when you get the copy of the declaration, and the verdict.

    Edit: I had a similar situation recently, where the TBD deadline was set 10 days from arraignment, but "trial" set 25 days after. I probably got lucky (still waiting for decision), since the officer was on vacation until well after the date of the trial.

  7. #7
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    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    Quote Quoting quirkyquark
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    Says who? It can't hurt to politely ask NOW. In person is better. In any case, they should be able to give it to you once the case goes on "trial" on the 9th, assuming they have a copy since the original will have gone to the judge.
    LOL.. U. M's.??? Or a misread calender?

    Today is the 9th, Quirky... Yesterday (when you posted the "NOW") was Sunday!

  8. #8
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    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    Quote Quoting quirkyquark
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    To understand why this is a violation of procedural due process and is not an exception, the difference between rule 4.210(b)(8) and 4.210(c) is important, as is the difference between "due date" and "time limits". Remember, first of all, that "due date" is basically ONLY the defendant's deadline during the various stages of the process, by definition (4.210(b)(1).) It doesn't apply to the officer's return date, or to anything else.
    For starters, you can call it a procedural due process exception, a violation of constitutional rights, or a human rights violation, this is in no way shape or form any different that the argument Benhoor brought before the appellate and although he still had PC 1382 and a presumed federal violation of his right to a speedy trial, the entire idea of a dismissal was rejected simply because that is NOT a remedy offered by the same rules he claimed were violated. Instead, and "if the defendant is dissatisfied with the decision of the court in a TBD, then he is free to submit a timely request for a TDN and try his luck again!

    I prefer to assume that the appellate is a bit smarter than to get caught snoozing on the bench so as to buy into a simple play on words that suggests that the "officer's return date" is neither a "due date" or a "time limit"... If it is neither a due date or a time limit, then why are you making such a big issue of the possibility that it was "exceeded"?

    Let me address this part first:


    Quote Quoting quirkyquark
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    Well, 4.210(b) is neither a due date, nor a time limit. It is a mandatory requirement - "the clerk must submit the case file with all declarations and other evidence received to the court for decision."
    A mandatory requirement as much as Benhoor's "... the clerk must set a trial date within 45 calendar days of receipt of the defendantís written request for a new trial..." was and still is a mandatory requirement and request for dismissal it still got REJECTED!


    Quote Quoting quirkyquark
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    Under 4.210(c), the court can extend any due date or time limit (i.e., within x days), but this must be on the record (no reason needed). i.e., there must be an entry in the minutes, before said date, of an order extending it. 4.210(b)(8) says that failure to comply with any time limit does not invalidate the decision unless prejudice is shown.
    But that is not the only allowance available for approving a different procedure...

    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"!

    And allowing the officer's declaration (I'll even play along for a minute) after the "officer's return date" and as long as it does not conflict with or delay the date the case is scheduled for review...

    Whether its a writ or a full fledged appeal, this has Benhoor written all over it!

  9. #9
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    Default Re: Officer Submitted Declaration Late, Can I Appeal Under 4.210(B)(5)

    Quote Quoting That Guy
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    I prefer to assume that the appellate is a bit smarter than to get caught snoozing on the bench so as to buy into a simple play on words that suggests that the "officer's return date" is neither a "due date" or a "time limit"... If it is neither a due date or a time limit, then why are you making such a big issue of the possibility that it was "exceeded"?
    4.210 explicitly defines "due date" for some reason, assumed to not be gratuitous. The issue here is not that something was "exceeded", it's that if the verdict is guilty, the court admitted evidence once the case had been submitted.

    Quote Quoting That Guy
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    A mandatory requirement as much as Benhoor's "... the clerk must set a trial date within 45 calendar days of receipt of the defendantís written request for a new trial..." was and still is a mandatory requirement and request for dismissal it still got REJECTED!
    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.

    Quote Quoting That Guy
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    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".

    Quote Quoting That Guy
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    And allowing the officer's declaration (I'll even play along for a minute) after the "officer's return date" and as long as it does not conflict with or delay the date the case is scheduled for review...
    Well, if you were making this argument (i.e., officer's delayed TBD should not be accepted), it certainly helps if you can show prejudice somehow as required by 4.210(b)(8).

    But we'll just have to see. It'll be an interesting case of threading the needle, assuming OP decides to go through with a writ...

    ------------

    Quote Quoting That Guy
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    LOL.. U. M's.??? Or a misread calender?

    Today is the 9th, Quirky... Yesterday (when you posted the "NOW") was Sunday!
    U.M's??? I think fate gave me my own (premature) senior moment there, perhaps for making fun of your reading glasses in that lidar-pacing-ETS thread!

  10. #10

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

    What's the point of having rules if the court can ignore them at will and without recourse?

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