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  1. #1

    Default Appeaing Based on an Error on California TR-16 Form

    My question involves traffic court in the State of: California

    I was ticketed for failing to stop at a stop sign. I went to traffic court and lost in a he said/she said battle with the officer. Initially, I wanted to subpeona the officer's ticket records to show the court that this particular officer sits in a blind alley on a regular basis to ticket people for this particular infraction. My assertion would be that this type of lazy, predatory policing can lead to sloppy work.

    When preparing, I read through the basic rights on the request for trial form and was surprised to learn that according to the form, I could "subpoena witnesses only." So in my opening statement to the court, I asked them to look at these very records. The judge then asked if I had subpoenaed the records and I replied that "I didn't think that I could do that" (but I could not recall where it said that). She blew past it and, as I mentioned, I ended up losing.

    That brings me to my appeal. When I got home, I saw that my misunderstanding of my rights stemmed from a typo on the statutory rights section of the form (and my arraignment was about 30 minutes before the trial and I don't remember them going over them their either.). Here is the entire rights statement with the same indentation on the form:

    You are entitled: (1) to a speedy and public trial by judge or court
    Commissioner, without a jury, within 45 days after you are arraigned:
    (2) to have the charges dismissed if you are not brought to trial within
    the 45-day period, provided the delay was not requested by,
    consented to, or caused by you; (3) to confront and cross-examine
    the witnesses who testify against you; (4) to subpoena witnesses only
    your behalf at no cost to you; (5) to be represented by an attorney,
    paid for at your own expense, at all stages of the proceedings; and (6)
    to exercise your right against self-incrimination, which means that you
    cannot be forced to testify against yourself.

    Look at (4)...

    I argue that the confusing/erroneous language in the rights advisement caused me to believe that I could not subpoena any documents for trial, rather only witnesses. Due to the confusing/erroneous language in the rights advisement, it was my belief that only the court could subpoena documents/information.

    My personal belief and experience reasonably indicated that the officer's basis for focusing on the intersection was to write a lot of tickets as quickly as possible and that this sort of motivation might reasonably lead to sloppy and/or lazy work. The confusing nature of rights advisement section (4) deprived me of the opportunity to request records that would have enabled me to investigate whether or not this led to an error in this particular case.

    I need to turn in my opening brief on Thursday and was hoping that someone could help me with any CA case law that would help support my appeal.

    - - - Updated - - -

    The TR-16 is the CA Superior Courts Request For Trial Form (Not-Guilty Plea).

  2. #2
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    Default Re: Error on Form - California Tr-16

    Quote Quoting fightingthepower
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    I was ticketed for failing to stop at a stop sign. I went to traffic court and lost in a he said/she said battle with the officer. Initially, I wanted to subpeona the officer's ticket records to show the court that this particular officer sits in a blind alley on a regular basis to ticket people for this particular infraction. My assertion would be that this type of lazy, predatory policing can lead to sloppy work.
    How would his "ticket records" (whatever that means) show that he sits in a "blind alley?" Further, how would his positioning himself to observe traffic infractions in any way show that he is "sloppy?" And, how would it show that he made an error in YOUR particular situation?

    Chances are you would NOT get a copy of every ticket he had ever written. You would need to formulate a very specific discovery request that might stand a chance of obtaining the information you wanted. Or, you can simply ask him where he was when he spotted you on this instance.

    When preparing, I read through the basic rights on the request for trial form and was surprised to learn that according to the form, I could "subpoena witnesses only." So in my opening statement to the court, I asked them to look at these very records. The judge then asked if I had subpoenaed the records and I replied that "I didn't think that I could do that" (but I could not recall where it said that). She blew past it and, as I mentioned, I ended up losing.
    I doubt a record of his citations would have changed that decision, but, okay.

    I argue that the confusing/erroneous language in the rights advisement caused me to believe that I could not subpoena any documents for trial, rather only witnesses. Due to the confusing/erroneous language in the rights advisement, it was my belief that only the court could subpoena documents/information.
    Did you not also read about discovery? You can request documents through discovery as well, and without a subpoena.

    My personal belief and experience reasonably indicated that the officer's basis for focusing on the intersection was to write a lot of tickets as quickly as possible and that this sort of motivation might reasonably lead to sloppy and/or lazy work.
    And how would you make such a connection? Did you have experts lined up to testify as to the tendency for errors when an officer writes a lot of tickets? Did you have statistics that objectively shows that this officer has written bad citations at this or similar locations? Any objective evidence to support this contention of "sloppy" work at all?

    The best result you can probably hope for is a new trial. Which, based upon what you have written here, would likely result in the same verdict.

    Your best bet would be to argue the officer's position and inability to see your vehicle or the limit line. However, if your vehicle never came to a complete stop, he wouldn't NEED to see the limit line.

    Can you make a case that you came to a complete stop and that the officer was in a position where he could not have observed your vehicle? If you cannot, I cannot see how this Hail Mary effort will result in a different decision.

    As for the appeal, there may be others along shortly that can address that specifically. But, I just don't see how you can make a case that the officer might have been sloppy because he tends to sit in a particular spot and write a lot of tickets. More importantly, how that showed he was sloppy on YOUR violation.

  3. #3

    Default Re: Error on Form - California Tr-16

    Thanks for the reply Nor Cal Cop. There are several other factors in this case, but I did not want to waste everyone's time with details that have nothing to do with the appeal. Hopefully, I will be able to take your suggestions under advisement in my new trial.

  4. #4
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    Default Re: Error on Form - California Tr-16

    Actually, I would argue the opposite. He is a proven expert at judging spacial relationships from the alley as he has issued 2 million tickets from that location.

  5. #5
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    Default Re: Error on Form - California Tr-16

    I think Carl's (cdwjava) response above says all there is about the merits of your case (or lack thereof, to be honest!)

    Quote Quoting fightingthepower
    View Post
    I argue that the confusing/erroneous language in the rights advisement caused me to believe that I could not subpoena any documents for trial, rather only witnesses. Due to the confusing/erroneous language in the rights advisement, it was my belief that only the court could subpoena documents/information.
    You should have gone for discovery in the first place. The "you have the right to subpoena witnesses on your behalf at no cost..." is standard language, and I haven't seen any California forms add the "and also documents" language (probably because discovery usually covers everything). I don't think the minor typo changes the meaning of that language (if it was missing, etc. you'd have a case)

    Anyway, the subpoena right derives federally from the Sixth Amendment (Confrontation and Compulsory Process) and the Fourteenth Amendment (Due Process as applied to the states), and from the similar clauses of the California Constitution. The only California law regarding rights and misdemeanors is when you plead guilty and there's an advisement issue. So you're pretty much left with federal (US Supreme Court) case law. You use Google Scholar and if you go to your local library, KeyCite on Westlaw or Shepard's Citations on Lexis to search. Note that the S. Ct. decisions differ on what fundamental rights apply to crimes and "petty crimes" (which is usually no or less than 6 months imprisonment, like infractions), so you have to try to bridge that with some precedents.

    Assume that in the worst case scenario, even if the appellate div. considers that a mistake was made, they will hold you to a harmless error standard, i.e. no reversal unless you can show how the error could possibly have lead to a different outcome ("miscarriage of justice.") And currently, your "sloppy" argument has no teeth. Also, you'll have to explain why you didn't just go for discovery.

    Resources:
    • This document from a New York State county's public defender extensively covers the S. Ct. decisions affecting subpoenas. A lot of it is about subpoenas being denied, but it's a good overview.
    • Criminal subpoenas/subpoenas duces tecum (documents) are covered under CA Penal Code 1326.
    • See here for the court rules on infraction AOBs (Appellant's Opening Brief). The following references (all on this page) talk about writing briefs for real criminal cases for the Courts of Appeal, but the advice applies in general, I've found:
      • Everything You Need to Know About Preparing Statements of Appealability, the Case and the Facts in Criminal Cases
      • The Art of Structuring a Well-Written Appellate Argument
      • Sample AOB: Sample criminal case AOB with briefing analysis and notations interjected by CCAP.

    • Chapter 4 and 5 of this reference may be helpful; it's more "by-the-numbers" than the above I think.

  6. #6
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    Default Re: Error on Form - California Tr-16

    Quote Quoting fightingthepower
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    and my arraignment was about 30 minutes before the trial and I don't remember them going over them their either
    Is it safe to assume that this happened by virtue of your own request; you decided to request an/arraignment/trial and submit bail by mail and so your trial and arraignment were scheduled on the same date. And so by you accepting that kind of set up, how much of that subpoena power would you have been able to use regardless of whether it was supposedly misspelled or not?

    And where is this form TR-16? Do you mind posting a copy of it?

    Clearly, even from your short post here, you've made it painfully obvious that you are simply looking for silly excuses to undermine you righteous conviction. In other words, and whether the cop was/wan't lazy, whether or not the court had taken an entire day to explain your statutory rights to you would not change the facts and the evidence against you.

    You violated the provisions of a vehicle code section and were simultaneously witnessed while doing so by an officer who cited you for it shortly thereafter. Deal with it!

    Quote Quoting fightingthepower
    View Post
    Hopefully, I will be able to take your suggestions under advisement in my new trial.
    What new trial?

    You've already been to trial and you're done!

  7. #7

    Default Re: Error on Form - California Tr-16

    The arraignment was not my own request, but the system in place in LA traffic court. Not being a lawyer, I was not fully aware of the implications.

    As I have stated before, there are several details of this case that I have not fully explained because they are not important to my appeal. The documents that I wanted to subpoena would have improved my case tremendously - and that is why I naively requested them of the court.

    All I am looking for is a fair trial - one where I have the documents there to improve my case. If I lose then, so be it. But what happened is not why the officer said happened. What can a citizen do other than go into court and say this? All I want is to be able to present a proper case.

    - - - Updated - - -

    I would like to include a photo of the TR-16 form, but I do not have permission for attachments. It is the request for trial form (Not Guilty) for the Superior Court of California, County of Los Angeles. It's rights advisement section is written exactly as I have in my initial email. And it sets the arraignment and trial at the same time. I did not have a choice in this.

  8. #8
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    Default Re: Error on Form - California Tr-16

    You did not ask for the witness ... form aside it wouldn't matter .. you should have asked to preserve it for appeal.

    I don't think you can argue this point anymore...you should have asked for a continuance to effect the request.

  9. #9
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    Default Re: Error on Form - California Tr-16

    Quote Quoting fightingthepower
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    The arraignment was not my own request, but the system in place in LA traffic court.
    When you submit a written plea and submit the bail amount along with it, The case shall thereupon be set for arraignment and trial on the same date, unless the defendant requests separate arraignment. This is not an L A Traffic court provision but one that is provided and described under Vehicle Code section 40519 -Titled: Trial Scheduling; Written Not Guilty Plea

    Quote Quoting fightingthepower
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    Not being a lawyer, I was not fully aware of the implications.
    Ignorance of the law is not a valid excuse. You opted to go it alone. And as such, you accepted responsibility for your own actions (or lack thereof).

    Quote Quoting fightingthepower
    View Post
    As I have stated before, there are several details of this case that I have not fully explained because they are not important to my appeal.
    And yet as matters stand right now, you have very little grounds for an appeal.

    Quote Quoting fightingthepower
    View Post
    The documents that I wanted to subpoena would have improved my case tremendously - and that is why I naively requested them of the court.
    You claim to have gone into court with the expectation that you could subpoena documents, you were given a waiver which included a statement of right, one of which did not conform to what you claim you knew.

    (1) You could have asked for an explanation from the court about any of the provisions which you've just read (and was confused by) at the time, but you didn't.

    (2) Even if you did ask, and even if the court was able to clarify the matter to you, you were already scheduled for trial 30 minutes from that point. And while a short recess might have been in order had you had access to such documents, there were no documents for you to review because there was no subpoena.

    (3) Even if the form had clearly stated that you can subpoena documents, you were already in receipt of a document informing you of your arraignment and trial will be held on the same date, so how would the power of a subpoena help you at that point when in reality:

    (a) the officer was likely in court already, and

    (b) a subpoena was not going to get issued by the court knowing that your trial is within 30 minutes...

    (4) You had other options which you could have utilized to obtain whatever documents you wished to present in your defense, like Discovery and/or a Public Records Act request... etc... But you did not explore any of those options.

    (5) There is no connection between other citations issued by the officer and the one he issued to you even if he spent his entire career issuing citations at that corner -as long as it can be shown that the one citation which was issued to you was based on alleged facts that would lead a reasonable person to assume a violation of law had occurred.

    Quote Quoting fightingthepower
    View Post
    The documents that I wanted to subpoena would have improved my case tremendously - and that is why I naively requested them of the court.
    Again, the only requirement that the officer needed to prove in your case was whether you had violated the provisions of the code which he cited you for. Matters which were already decided under different venue and unless they can show that he would lie about reasons why he issued those citations, are not for you to retry and reevaluate.

    Quote Quoting fightingthepower
    View Post
    All I am looking for is a fair trial - one where I have the documents there to improve my case.
    You already got a fair trial!

    Quote Quoting fightingthepower
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    one where I have the documents there to improve my case.
    Hindsight is 20:20. And if we were all allowed to redo each of our cases based on what documents we should have had, no case would ever be closed and no conviction would ever be final!


    Quote Quoting fightingthepower
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    But what happened is not why the officer said happened.
    And how would other citations prove what he said was untrue or what you said was true?

    Fact is "witness credibility" is not a matter for the appellate to revisit. It is totally and wholly up to the trier of fact to decide. And if your judge decided that the officer's testimony weighed more than yours, then welcome to the club. You will not prevail in this case and not on this basis!

    Quote Quoting fightingthepower
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    All I want is to be able to present a proper case.
    And you had that opportunity and you were not successful! You don't get a "do-over"! None of us did!

    An appeal is not a procedure by which we get to express our dismay about issues of credibility or missed opportunities or our dissatisfaction with the outcome. An appeal is a process by which a review of the case is conducted to ascertain whether errors of questions of law and procedure occurred and whether those errors contributed to the final outcome of the case.

    The issue you're bringing here is based upon your inability to subpoena records which regardless of what that form said, you could not and would not have been able to subpoena and even if you did, they would have had zero impact on the outcome of your case!

    Quote Quoting fightingthepower
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    I would like to include a photo of the TR-16 form, but I do not have permission for attachments. It is the request for trial form (Not Guilty) for the Superior Court of California, County of Los Angeles. It's rights advisement section is written exactly as I have in my initial email. And it sets the arraignment and trial at the same time. I did not have a choice in this.
    You have to upload the image to a web-hosting site (photobucket.com or imageshack.com) and then post the link that is provided to you by that host site.

    - - - Updated - - -

    But, and as is always the case, you are free to appeal and find out the potential for a new trial in your case!

  10. #10
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    Default Re: Appeaing Based on an Error on California TR-16 Form

    Quote Quoting fightingthepower
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    (4) to subpoena witnesses only your behalf at no cost to you
    This seems correct, really. You are only allowed to subpoena witnesses or documents that are related to the matter that you're attending trial for. If you attempt to subpoena someone or something about something that's not related to your case, then the subpoena doesn't have to be granted. If this had read "to subpoena only witnesses" it would have meant what you thought it did. However, "subpoena witnesses only on your behalf" means only on your behalf. The no cost to you part of this is a right that's afforded criminal defendants. In civil cases, the party who subpoenas the witness or document is responsible for paying the fees. Although, the side that prevails in the action may later have the loser pay the costs. In a criminal case, these witness fees are paid by the court instead.

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