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  1. #41

    Default Re: Submission of Evidence "For Reference Only"

    Quirky,


    Here is the link to the transcript:
    http://s125.photobucket.com/albums/p...at/transcript/

    Also find the copy of the certificates with the transcript.
    Any advice would be most appreciated!

  2. #42
    Join Date
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    Default Re: Submission of Evidence "For Reference Only"

    Quote Quoting jefsanger
    View Post
    Here is the link to the transcript:
    http://s125.photobucket.com/albums/p...at/transcript/
    That judge is nuts. Where do you go to harvest your objections once they have ripened?

    A few thoughts about this in the order that I read them in the transcript:

    1. The trial court shouldn't rescind an offer to take traffic school, just because you're going to trial. See People v. Enochs, where the trial judge's words are eerily similar to what your judge said.
    2. We already discussed the need for the prosecution to present the survey in court. You objected, and the judge should have allowed you to look at the survey that the officer was trying to introduce into evidence. See People v. Earnest, People v. Ellis, and People v. Halopoff -- these three were mentioned in an earlier post.
    3. Did you get a chance to look at the certificates that the officer presented to show his POST certification for Radar and Laser? They need to meet the guidelines for POST, and say that the officer is POST certified. He can testify that he took the training, but it's hearsay for the officer to testify that he's POST certified without having a certificate that says as much. See People v. Dawkins for more about this.
    4. The officer's statement that his LIDAR device is NHTSA certified is hearsay. The certificate that he entered into evidence only shows that the device complies with NIST standards, but says nothing about certification from NHTSA.
    5. Similarly, the LIDAR calibration doesn't meet the requirements in 40802. It doesn't say that the shop that performed the calibration was certified, nor does it say that it meets the requirements in the NHTSA. Furthermore, the certificate is inadmissible under the Official Records Exception to the hearsay rule in Evidence Code 1280. The officer's copy of the certificate is inadmissible as secondary evidence of the writing, because it doesn't meet the requirements in Evidence Code 1530. In particular, the copy doesn't purport to be published by a nation, state, or public entity therein. Evidence Code 1532 also does not apply, since the record of the calibration is kept by Kustom Signals, and not a public entity. In this situation, the prosecution needs to use Evidence Code 1271 to get an exception to the hearsay rule. In order to do that, the custodian of record from Kustom Signals must testify to the identity and mode of preparation of the certificate.

  3. #43

    Default Re: Submission of Evidence "For Reference Only"

    Thanks for your response TMN. I too saw that in what you are saying and am trying to incorporate some of those ideas into grounds. Thats where I am at now.
    Do you also feel that the elements of the charge were not proven? The officer didnt establish any element of the charge as far as I can see and didnt use info from the survey at all in his testimony.

  4. #44

    Default Re: Submission of Evidence "For Reference Only"

    TMN,

    I realized I hadnt answered your question #3. I did get a look at the training certificate prior to trial specifically looking for any indication it was POST certified and I saw none. He directed me away from the radar certificate saying that it "wasnt relevant" in my case just the laser certificate. I didnt see any POST certification.

  5. #45
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    Default Re: Submission of Evidence "For Reference Only"

    Quote Quoting jefsanger
    View Post
    Do you also feel that the elements of the charge were not proven? The officer didnt establish any element of the charge as far as I can see and didnt use info from the survey at all in his testimony.
    Your ticket was for 55 in a posted 40mph, correct? I found the officer's testimony about the school zone confusing. Were you headed away from the school-zone when he measured your speed?

    There are three cases worth reading for questions around the sufficiency of evidence. People v. Behjat is probably most favorable to defendants. People v. Huffman says that if the court accepts the prosecution's survey, the burden shifts to the defense to prove that their speed was safe. People v. Johnson is cited by both, as the canonical explanation for whether there is substantial evidence supporting each element of the charged offense.

    The relevant part of Behjat says that:

    Quote Quoting People v. Behjat
    No conviction can be sustained unless the record contains substantial evidence supporting each element of the charged offense. In a prosecution under Vehicle Code section 22350, the record must contain substantial evidence from which a fact finder could conclude either that the defendant drove at a speed that endangered people or property or that he drove at a speed that was unreasonable for the driving conditions. This record contains no such evidence.

    The evidence shows only that appellant drove 59 miles per hour. The record, however, contains no evidence supporting a finding that this speed violated the basic speed law. First, it contains no facts suggesting anything or anyone was endangered. Nor does it contain information from which any particular speed could be found to be reasonable or unreasonable. That is, the record does not contain evidence on the weather, visibility, traffic volume, or road conditions when appellant was stopped. Moreover, while the settled statement indicates the People introduced a radar speed survey, which may refer to an engineering and traffic survey under Vehicle Code sections 40802 and 40803, the record neglects to indicate what pertinent information bearing upon the factors listed in Vehicle Code section 22350 the survey may have contained.
    In your case, the officer testified that you were passing other vehicles, that you were near a school zone, and that there were pedestrians in the area. While he didn't directly testify that your driving endangered people, he presented facts that could be taken to mean that your driving could have endangered people. You're correct that he didn't testify about the weather, visibility, traffic volume, or road conditions. You could try to argue that he didn't prove the charge, but I don't think that this is the strongest argument that you could make. In particular, if you can show that the People failed to meet their burden under 40802, then the officer is incompetent as a witness, and the court is without jurisdiction to enter a guilty verdict.

    IMO, you should focus on the errors that the judge committed that prejudiced your case. The strongest here are whether the officer's radar calibration certificate was admissible, whether the officer met his Laser and Radar training requirements, whether the officer properly introduced the speed survey, and whether the survey justified the speed limit. The reason that you should focus on these is that if any one of these were not true or not properly introduced, then the prosecution failed to prove that a speed trap was not present. If the officer issued you a ticket in maintenance of a speed trap, he's incompetent as a witness, and the court is without jurisdiction.

  6. #46

    Default Re: Submission of Evidence "For Reference Only"

    TMN,

    Thanks for the direction to focus my attention. The officer testimony about peds in the area I believe wasnt true but how could I prove otherwise?
    The officers testimony about a school zone is confusing, since he stated and the citation indicates a 40mph posted speed, the non school zone speed.
    I was cited at 10:35am on a school day and right in front of a school (surrounded by a high wall) but at that time the students are in class. Otherwise the school zone sign says 25mph.Am I correct that according to the 40802 definition of a school zone this would not be one at that time of day?
    He also mentions a bus stop and that "indicates pedestrians were there." He didnt see any only that bus stop=peds.
    Overall I had the impression that he didnt remember detail of the incident and was trying to recreate it from the abbreviations on his citation.

  7. #47
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    Default Re: Submission of Evidence "For Reference Only"

    Did the trial court send you the appellate record yet?

    OK, couple of things in addition to what TMN pointed out.

    • Worst case, you get traffic school
    • The judge is clearly crossing the line and acting as a prosecutor here. He's conducting a direct examination of the officer, in question-answer form; almost every trial I've seen, the judge invites the officer to give free-form testimony to start with.
    • The judge shouldn't just ask the officer "gov. record? certified?" and take his word of it. He SHOULD examine it himself before ruling on the objection.
    • You MUST augment the record with a copy of the survey ASAP. Do you have it? If not, request it ASAP from LADOT. Without it, it will be assumed that the survey was only three years old!
    • The POST issue is yours --- it is not mentioned in the transcript. And presumably the record doesn't contain a copy of the certificate. So even if it said POST-certified on its face, it's irrelevant.
    • IMO, it's not even worth delving into how the KSI certification is defective...you have a solid business-records objection, and that should have been ruled inadmissible.
    • To emphasize what TMN said, it's not even worth it making the "prove speed unsafe" a prime issue. Sure, mention it in the context of VC 40802, because the prosecution must explicitly prove it, but don't make it your main focus.


    Did you get the notice of filing opening brief yet?

  8. #48

    Default Re: Submission of Evidence "For Reference Only"

    Quirky and TMN,

    I have only filed the notice of appeal so far. That done Feb 16th, 2012. I understand I have 20 days to come up with grounds and file my CR-142.
    I also requested the court reporter transcript. Additionally I bought one outright from the reporter just to have a copy immediately. It wasnt clear if she also sent a copy to appellate with the purchase so to be safe I checked off that I needed one on the NOA.
    So that is where I am at now...working on the grounds for the CR-142.

    Quirky, you mention the judge examining the survey before ruling. He also should have double checked testimony from the officer on the 85th precentile. He testified to it being 47. it is not it is 48. I objected soon after that apparently the judge didnt want to hear my reasons as he just asked those two questions.certified and goverment document...overruled me and went on with the testimony.

    POST issue..officer states line 15 pg 3 something about a certification(or a survey not clear) that he has and asked to have it entered as exhibit B. Im not sure at all what was entered. I have been unsuccessful in getting a copy of that training cert..they tell me its not a public record.

    So of all these ideas in what order would you suggest I list them as grounds? Start off with the POST issue?

    One other thing..I do have the survey here. How do I augment the record with that? Submit it myself to appellate? Doesnt the court have the officer's copy and submit that with the record? Not clear on that one..

  9. #49
    Join Date
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    Default Re: Submission of Evidence "For Reference Only"

    Unlike the rest of us unlucky sobs, you had a court reporter! What that means is all of the CR-143 statement-on-appeal, grounds, etc. business does NOT apply to you!! The transcript will be your record of oral proceedings. You just sit back and wait for the appellate division to file the record on appeal and send you the notice of opening brief deadline. Your grounds, arguments, etc will all be in your opening brief.

    You did well to check that off in the NOA -- they dont care whether you need one or not; they just want to know what you will be using as a record of oral proceedings.

    Typically traffic courts don't store exhibits -- they return them to the source when trial ends. It's also unlikely that the clerk will take the time to pull the courts copy of the survey and insert it in your record on appeal. What will happen is that once the record is ready, the trial court will transmit it to appellate and will send you a copy. It will contain your transcript and other documents. You check to see if it's missing anything you need, and then make a motion to augment. They will accept anything that was filed or lodged (I.e. "received by reference") at trial.

    Don't bother with requesting the training certificate. As is, the record is in your favor since it contains no mention of POST.

  10. #50

    Default Re: Submission of Evidence "For Reference Only"

    By augmenting I would personally submit what is missing? Or request that it be aquired? Im thinking of the speed survey
    Should I make anything out of the fact the judge was acting as prosecutor or let that go too?
    The transcript you might have noticed has many errors making it difficult to read in areas. Should that be corrected or left as is?

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