Ticket Dismissed from Failure to Make Discovery

[JacobsladderII]

This is about my experience protesting a red light ticket issued from a live officer. It took many months with many continuances, but with much perseverance and will it’s very possible for someone whom is a non-lawyer like myself to defend it pro per. It never made it to trial so the experience focuses on an arraignment motions only. It will contain some anecdote experience as well as some legal procedure. The laws and procedures are applicable to the state of CA and more specifically to the Superior Court of California in San Francisco. By no means is this to be taken as legal advice to help your case, although I can certainly try to answer any questions you may have pertaining to my experience in the process. This is not an official guide to courthouse procedure or a step-by-step-fight-your-ticket-and-win guidebook either, considering it never reached trial. All names used are fictitious, but the story is true.

On May 30th 2010, I was on my way to pick up my friend at the SFO airport. I was heading southbound on 19th Ave in San Francisco. I was driving in the right lane when the traffic light turned yellow to red. There were cars in the other two left lanes that slowed down to the yellow light, but I chose to drive through it. The light turned solid red as my car entered the in the intersection. In the corner of my eye, I saw the red cherries light up in my rear view mirror. A police car pulled out from Ulloa Street. Officer Moonshine wrote me a ticket and did not cite me for having no proof of insurance in the car. I thanked him for that, but I still got the red light citation 21453(c).

At this point, I was upset because I honestly believed that I made it through the intersection legally. I didn’t want to pay for this ‘ridiculous’ ticket.

My wife called her old college friend who is a police officer in Nevada. He told me, “Don’t fight it; you won’t win. We’re trained to say the right wording that will convict you and we use signal light indicators as well. If you can, you should plead for a ‘parked in red zone’ or something.” And then he asked, “What time were you pulled over?” I told him around 8:00pm. “You should schedule the trial in the morning. He probably works the night shift. If you schedule in the evening, he will most likely be around. Schedule in the morning. He may not want to wake up early to attend the trial.”

I thought I would need more than strategically planning the trial in the early morning hoping the officer would not show. I did some research and found this penal code called 1054 which gave you the right to demand evidence through Informal Discovery Request, or my case, the officer’s notes. Police officers generally will make their own notes of the incident and will use them when testifying in court. They’re not the notes you see on your citation, but on separate notebook or on the back of the ticket.

So now the investigation began. I hadn’t decided what to do. I was eligible for traffic school since this was my first citation in California, but that meant I would have to pay the bail, the administrative fee for traffic school, and then pay for the traffic school tuition. If I plead not guilty and take it to trial, I risk losing not being eligible for traffic school, goes on my record, plus I would lose the bail. Before I made a decision, I had to learn more about my infraction.

I started with the definition of the violation:

VC § 21453(c). A driver facing a steady circular red signal alone shall stop at a marked limit line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection, and shall remain stopped until an indication to proceed is shown.

As long as the front of your vehicle entered the intersection or passed the crosswalk or limit line before the light turned red, you haven’t broken the law. As the driver, I had a better vantage point than the officer; especially if had obstructed views such as cars or the medium in front of him. This gave me more weapons of reasonable doubt if Officer Moonshine claimed what he saw. If he was looking at the light, he couldn’t be looking where my front end went through. If he were looking at my frontend, he wouldn’t be looking at the traffic light. Was the officer driving to the cross street intersection or was he already parked? I had all these scenarios and hypotheticals going through my mind. I just had to see what he wrote in his notes.

The first step was to gather evidence by getting the officer’s notes. This format is called Informal Discovery Request under Penal Code 1054 section 19.7, which includes infractions. You can type up the request or use a template online. I found out later San Francisco Superior Court had the form readily available on the 5th floor. The departments I needed to send the requests included the Taraval Police Precinct and the District Attorney’s office of San Francisco, which is location in the Superior Court House.

The police department and district attorney have 15 days to deliver it if personally served or 20 days if served by mail. If both the police officer and prosecutor refuse to respond, I will request a pre-trial date for a motion to preclude all his notes for the trial or request his notes to be handed to me at the trial.

You can’t send the form yourself. Someone else must send it for you. You have him/her sign a form called a Proof of Service. Two things to remember with the Proof of Service is make sure the person who signs it is at least 18 years of age and he/she lives or works in the county you got cited in.

I researched the area of the where I got my ticket and found the police station where the officer was based. I filled out the form and had my wife sign the Proof of Service forms and mailed it out certified. I didn’t use signature return on these because I was hoping to see what the officer’s notes would read and I would use this to determine if I had any chance of winning. To no prevail, I got no response.
I would keep my records and found out I could get my case dismissed from failure to response of discovery.

I needed to respond within the thirty days of the courtesy notice received in the mail or in my case, by 5/30/2010.

I went to the Hall of Justice in San Francisco on 5/20/2010 to schedule the arraignment. The court is located at 850 Bryant St. RM#145. The county clerk showed me a schedule on a laminated sign that looked like a restaurant menu. You can choose Room A or Room B. Each Room had an assigned judge/commissioner that will hear your plea and schedule your court date if you plead not guilty. I chose 10:30am and the date was not until September 17th. (Wow!) I signed the Own Recognizance Agreement to Appear in Lieu of Posting Bail. This is an agreement that you will show up for the arraignment or pay a penalty if you fail to do so. This can also be used as a strategy to delay payment of the bail by a couple of months even if you decide not to go to trial.

So, this gave me plenty of time to think about what I should plead: Guilty, Not Guilty, or pay the bail and attend traffic school which is similar to pleading guilty except no points are taken away and it will only appear on your DMV record as attended traffic school. I haven’t received a response from either Taraval Police Station or the district attorney/prosecutor. I thought now I had the opportunity to get this ticket dismissed due to failure to produce discovery.

I prepared my notes to ask for dismissal of the citation at the arraignment. September 17th rolled around so I only needed to take two hours off from work. I got there early and walked up to the second floor. The doors were locked until the bailiff arrived which would allow the judge to go in first followed by the defendants. There were about forty of us scheduled in that 10:30am timeframe. We all went in and found a seat.
The names were arranged alphabetical order, which made me wait towards the end. The judge finally called my name, “Mr. Jacobsladder, you seem to be in the best position to choose either guilty, not guilty, or pay the bail and do traffic school.”

Being prepared for an arraignment is an understatement. The judge wanted fast responses and limited questions. The arraignment will be very quick. On average, the arraignment hearing per defendant lasted no longer than a minute and half.

I had to prepare for what I said and prepared for contingencies. If the judge would not allow discovery hearings for infractions, I would cite case law, Hobbs v. Municipal Court (1991) 233 Cal.App.3d 670, 284 Cal. to remind the judge that a discovery hearing does apply for infractions (19.7).

I whipped out my notes and began to read my notes, “Your Honor, both the prosecuting and police agencies, to whom I sent a written discovery request under Penal Code Section 1054, have refused my request for discovery and I request dismissal…”
The Judge interrupted me, “Not unless I get something in writing. Now you are eligible for traffic school, but if you plead not guilty you no longer have that option and it will go on your driving record if you lose at trial.”

This was the big moment I could pay the bail and traffic school or plead not guilty where there’s no turning back, “Your honor, I plead not guilty and motion for discovery.”

“OK, I will schedule a continuance… How does 9:00am work for you on October 29th? If there’s no response, well we will cross that bridge when we get there.”

“That’s fine, your honor.”

I didn’t know what that meant, crossing the bridge, but I hope it meant dismissal.

In the San Francisco Hall of Justice, the motion hearings for infractions can be scheduled with the arraignment judge. If not, you will have to contact the county clerk and ask to see a motions calendar.

What the judge wanted in writing was a copy of the Notice of Motion demanding the notes from either the police and/or district attorney. I would need a total of 3 copies. The first copy would go to the district attorney, second would be filed with the judge and third would be my copy. A written motion will consist of three points: 1) Notice of Motion tells the prosecutor when and where the motion will be heard 2) Declaration what I am requesting 3) Points and Authority which is a legal essay quoting case law and why my motion should be validated.

The title of my motion would go as followed: NOTICE OF MOTION FOR PRECLUSION OF TESTIMONY {; FOR EXCLUSION OF EVIDENCE;} OR IN THE ALTERNATIVE FOR DISCLOSURE AND MONETARY SANCTIONS; DECLARATION; POINTS AND AUTHORITY
I will spare you by not posting the entire 13 pages.

I also added a monetary sanction for $250.00 for making me have to go through this stage. You never know, the judge might want to teach the D.A. and/or the officer a lesson.

The motion should be filed at least two weeks before the motion hearing. This gives the judge and prosecutor reasonable enough time to review the motion that will be heard at the arraignment. There is no prosecutor for this type of infraction. The prosecutor is actually the police officer/ witness. The only difference is the officer should not cross-examine the defendant. If they do, you should object and tell the judge that the officer is non-attorney and not the true plaintiff of the state.

This raises questions. Who would receive the motion? Who would read it? Does someone who normally handles misdemeanors pick up the Notice of Motion and respond to it?

If there’s still no response for the requested discovery, then one of four things can happen: 1) the judge could dismiss the ticket which means I win! 2) Sign a court order to preclude the evidence, which means I would win later at trial by presenting the court order. 3) Sign a court order to compel the evidence. 4) Lastly, if the judge wanted to be difficult, he could put the decision off until the day of the trial at which point I would motion a continuance so I could use that time to prepare for the new discovery. I would argue that the point of receiving discovery is so I have time to prepare a defense. (Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672, 22 Cal. Rptr.2d 261)
I’m hoping for at least the first two options.

I brought my paperwork to the 2nd continuance hoping that it would get dismissed. The discovery hearings went last. The bailiff saw everyone in the room to confirm that they were in the right room and on the list for the arraignment. He approached me and seemed a bit confused why I was here.

“You’re here for something…” he said.

“I’m here for a discovery hearing,” I replied. I was a bit surprised. Hasn’t anyone ever done this before? I wanted to observe other defendants to see how they responded at a discovery hearing because this was my first time, but there was no one else.

The judge reviewed it and wanted to see the informal discovery request form… I didn’t have it attached. I had everything else including the proof of service, but no discovery form. That lasted all of forty-nine seconds. The judge scheduled the next continuance for November 19th.

I decided to fax the Informal Discovery form directly to the District Attorney’s office and the Taraval Police Station.

A few minutes later I received a ring on my cell phone, “Hello, is Mr. Jacobsladder there?”

“Yes, this is,” I replied.

“I received a fax requesting something, but I not quite sure what you want.”

“Oh, I’m requesting the notes from Officer Moonshine.”

“I know Officer Moonshine. He doesn’t take notes.”

I thought to myself, how would I present this to the judge? Do I tell the judge this?

“If you like, you can talk to him when he comes in. He should be here in about 15 minutes.”

“No, that’s OK,” I said.

He continued, “ All notes and that the officer takes down are turned into our officer who is in charge of evidence. You need to mail the request to Officer Kline who is in charge of evidence.”

What I needed was a response from the prosecutor and Taraval Police Department by mail. Whether or not he took notes, I still needed them to respond to the certified mail. I had my wife resubmit the request this time to the attention of Officer Kline.

A few days later, I received another phone call. It was from the Photo Enforcement Agency Department. The woman on phone was confused too. She didn’t recognize the VC 21453(c). I explained that that it was a red light ticket issued from a police officer.

She said, “Oh, we handle evidence for photo tickets only. We don’t handle live officer tickets.” Photo Enforcement ticket code is VC 21453(a). This was why she didn’t recognize the code.

I asked, “Do you know where I send my Notice of Motion then?”

“I have no idea,” she said.

I wondered other than the photo enforcement department if anyone actually red the request and Notice of Motion.

I made sure I had all my paperwork together. The same four possibilities remained the same. The judge decided to sign a court order to compel the evidence. I was very prepared that day and happen to have a blank copy for him to sign. He read it over and told me this will work. He added the dates that the notes needed to be received. He asked me if I had a copy. I only had one. So the judge got up from the bench and walked across the hall to make a copy of the court order. At this point, I curled my toes in my shoes thinking how I didn’t expect that!

I was disappointed it didn’t get dismissed and had to schedule another continuance, but at least I got another opportunity. The next continuance was December 17th. The judge’s assistant prints out another white ribbon piece of paper.

I anticipated everyday that the response to my request for discovery would appear in my mailbox, but it never did.

Finally, December 17th came and I still got no response from the officer or the district attorney.

I made copies of everything and was ready for the hearing. The judge called my name. He had a very confused look on his face. “Why has there been three continuance? Why hasn’t a trial been set?”

I was getting nervous. I explained to him this was a motion for discovery. He turned to his assistance, “Oh, I remember this case, it’s the one with all the paperwork.” She pulled out the motion that was stuffed in her bottom drawer. I helped him recall the case and it came back to him.

“OK, do you have the signature returned envelopes?” the judge asked.

“Yes, your honor.” I responded.

He looked over the mailing addresses, “ “You’re mailing the notice to the wrong address! It should be to room #575! I told you that last time!”
I didn’t remember him telling me that at all and I wasn’t going to argue with him. The address was the same 850 Bryant Street. I just didn’t include the room number.

He set another continuance for January 7th, 2011.

I decided to go the 5th floor and checked out this department. The room was functioned for infraction cases where you can request your discovery for all traffic tickets. They even had the informal discovery forms available to fill out. The officer behind the counter was very helpful. He even told me that if you make an attempt and they don’t respond, keep your record and tell the judge.

I remailed out the court order, this time including room 575. I checked the mailbox everyday until January 7th and to no prevail, no response. I made copies of everything and handed it the judge. He asked me if I had any response and I told him no.
He responded, “Typical. Sorry to make you come all these times.”

I couldn’t believe a judge would apologize to me! I just told him thank you.

Stamped my continuance ribbon with blue-rubber stamp ink that read DISMISSED and the case was over… I had won!

I didn’t bring up the monetary sanction of $250.00 nor did the judge mention it. I was just glad it got dismissed.


There were few advantages that went in my favor. For one, it was an infraction and not a serious one at that so not a lot of attention would be placed on this case. It would take a misdemeanor or felony to grab the attention of the district attorney or even the police officer. Secondly, I was requesting notes. Notes are not like a speeding ticket where you have documentation such as survey’s radar certifications etc. Notes are subjective and not required for an officer to use. They are references for officers to help remember the incident.

I went to a total of 5 continuances. I believed I was innocent. I had the opportunity to observe defendants make their pleas. Not one requested discovery and all seemed to waive their rights to a speedy trial. I believe, if you put some research into understanding court law procedure, you can confidently be able to defend yourself or at least make an educated decision if it’s worth it.

The officer was very professional and I thought the judge was very fair and patient with me.

- - - Updated - - -

In summary, I would like to add: the steps I took was 1) Request a motion to have the notes or anything else you believe that the officer/ DA could use against you. (Informal Discovery) 2) Also, submit a motion in writing that you want the notes and the officer precluded as evidence if they don't comply.

Mostly likely the judge will sign a court order to that effect. If that is ignored, than the judge may dismiss the case. It worked for me it could work for you, but again expect a response from the officer when court orders are sent to them. Mine just got ignored.

[free9man]

Your story makes no sense. According to you, there was nothing to be discovered (as the officer did not make notes). So how could you win on a failure to produce discovery?

[Disagreeable]

Sooo, the gist is not that your case was dismissed for any reason you engineered. The case was dismissed because the officer did not show up for court that day. It is a common happening.

[JacobsladderII]

You have a right to request the officer's notes. The officer and DA Ignored the request. There was no reply to prove whether the officer did or did not in writing. The judge needed to see that from the officer or DA; ignoring the request regardless of whether the officer took notes or not doesn't assume there's no discovery. So I presented to the judge the motion to have the notes precluded and the officer if the request got ignored. The motion was not denied. There simply was no response to the request. A reply sent in certified mail saying, 'I took no notes,' would preclude him from using notes and a trial date would have been set. Once through informal discovery there was no response and the judge signed a court order to compel the notes still no response. I followed a legal guide on what to do and it worked. Ignoring requests doesn't answer the request of no discovery. If I ignored the courtesy letter that I must pay a fine that doesn't make me not-guilty.

- - - Updated - - -

If there is any issues about my facts, I used a legal guide. I can refer you to that guide per request if any of my legal statements you feel are not true I can back all of them up.

[davidmcbeth3]

Your story makes no sense. According to you, there was nothing to be discovered (as the officer did not make notes). So how could you win on a failure to produce discovery?

I would think because the judge gave an "order" to produce and they did not produce. A dismissal would then be OK, part of the judge's discretion authority. If there was "nothing to be discovered" it was not put in writing, just a flip comment or opinion by an employee IMO...so they did not properly respond to discovery.

This case could have gone either way in respect to a dismissal being considered. Some judges, even in traffic court, do not like people disobeying their orders.

[That Guy]

If there is any issues about my facts, I used a legal guide. I can refer you to that guide per request if any of my legal statements you feel are not true I can back all of them up.

Not only are there issues with many of what you're calling "facts" but your entire story defies the clearly known laws that are related to the subject matter. An example:

This format is called Informal Discovery Request under Penal Code 1054 section 19.7, which includes infractions.

That^^ is called "gibberish". You couldn't even properly cite the related laws, and you expect us to believe your story?

Furthermore, your claim is that this story is about a citation that you received in May of 2010... And yet you're only writing about it now, ..., 3 years later?

Your post is not of any value to anyone seeking assistance or answers, quite the contrary, it is a front to the way issues are handled in this state.

Your story is made up whether you like it or not.

You posted this thread previously and it got deleted. So you posted it again.

I'm not sure what your point here is but you're wasting your time which is your issue. But to assume that someone should read your wall of text to try and ascertain the accuracy of the information in it, all when you are clearly attempting to either mislead people or, more likely, are simply here under a different screen name with some sort of vendetta for making a fool of yourself in a different thread!

[JacobsladderII]

First off, I've read your responses with other threads and your role serves as a deconstructionist for hypothetical defenses for members who post here to see if it work. I believe to a certain extent that you provide an invaluable service. That being said, I do not succumb or will be intimidated by cyber bullies who are blinded by their own arrogance! I used a legal guide through Nolo law that provided a motion to preclude evidence and the officer if my discovery was not responded to! That's gibberish? I made that up? You can't get a case dismissed because there was no response? You are 100% wrong. Unfortunately for you, I will give the reference of what I used because if the people reading looks up the process it's not going to make you look any good either.

All I wanted to do was post my experience. Gibberish? I won and this is a true story. You are doing no one any favors by mocking my experience. You are probably the one who had this deleted which I'm still a little upset about. I was excited to post this to share
I put a lot of work into this and to have someone who we have no idea what his credentials are believes this is gibberish really annoys me.

The resource I used to get my ticket dismissed from : Nolo Fight Your Ticket & Win in CA Attorney David W. Brown 13th Edition

It's all there I followed it step by step and it worked for me. Write them a letter and tell them that they're gibberish. No me, I just followed their advice and it worked.

[That Guy]

1054.5. (c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.

Just know that to those who can read and understand the law, you look like a fool making the claims you're making. To those who aren't familiar with the system, you are simply and clearly misleading them and eventually, they will realize what a fool you are for posting all this drivel that you insist is realistic and true.

I've already wasted more that enough time on this thread. Point is, anyone who believes your "story" is bound to be extremely disappointed when it comes time for their case to be heard.

[jk]

First off, I've read your responses with other threads and your role serves as a deconstructionist for hypothetical defenses for members who post here to see if it work. I believe to a certain extent that you provide an invaluable service. That being said, I do not succumb or will be intimidated by cyber bullies who are blinded by their own arrogance! I used a legal guide through Nolo law that provided a motion to preclude evidence and the officer if my discovery was not responded to! That's gibberish? I made that up? You can't get a case dismissed because there was no response? You are 100% wrong. Unfortunately for you, I will give the reference of what I used because if the people reading looks up the process it's not going to make you look any good either.

All I wanted to do was post my experience. Gibberish? I won and this is a true story. You are doing no one any favors by mocking my experience. You are probably the one who had this deleted which I'm still a little upset about. I was excited to post this to share
I put a lot of work into this and to have someone who we have no idea what his credentials are believes this is gibberish really annoys me.

The resource I used to get my ticket dismissed from : Nolo Fight Your Ticket & Win in CA Attorney David W. Brown 13th Edition

It's all there I followed it step by step and it worked for me. Write them a letter and tell them that they're gibberish. No me, I just followed their advice and it worked.

Ok, make it easy on yourself. Here is a chance to prove your claims. Produce California Penal code 1054 section 19.7, you know, the code you referred to in this statement:

This format is called Informal Discovery Request under Penal Code 1054 section 19.7, which includes infractions.

I used a legal guide through Nolo law that provided a motion to preclude evidence and the officer if my discovery was not responded to! That's gibberish?

yes, that is. There is no obligation to respond if there is nothing to provide to you under your request for discovery. You asked for notes. You were informed the officer had no notes. Therefor, they sent you nothing.

along with what TG posted, here is an expansion on the section he cited as I believe part (b) should be read so to determine what part (c) was referring to:

(b) Before a party may seek court enforcement of any of the
disclosures required by this chapter, the party shall make an
informal request of opposing counsel for the desired materials and
information. If within 15 days the opposing counsel fails to provide
the materials and information requested, the party may seek a court
order. Upon a showing that a party has not complied with Section
1054.1 or 1054.3 and upon a showing that the moving party complied
with the informal discovery procedure provided in this subdivision, a
court may make any order necessary to enforce the provisions of this
chapter, including, but not limited to, immediate disclosure,
contempt proceedings, delaying or prohibiting the testimony of a
witness or the presentation of real evidence, continuance of the
matter, or any other lawful order. Further, the court may advise the
jury of any failure or refusal to disclose and of any untimely
disclosure.
(c) The court may prohibit the testimony of a witness pursuant to
subdivision (b) only if all other sanctions have been exhausted. The
court shall not dismiss a charge pursuant to subdivision (b) unless
required to do so by the Constitution of the United States.

not seeing a requirement or even an allowance for a dismissal based on your story.

[JacobsladderII]

I want apologize to 'that guy' I was too harsh and should have approached it more professionally. I should have also included a bibliography listing the published author and give credit where credit is due.. I submitted a motion that is like request to have the ticket dismissed if discovery is not responded to.It's not going to mention it automaticly in the laws. it must be argued thru a motion. At least that is what I understand from the guide. you must request that condition at the discovery hearing. The Judge is not going to dismiss if you don't request it. The judge accepted my motion but I had to make sure I could prove I requested it. My experience includes a lot of legal mat. From the guide. I thought it was great I could get the ticket dismissed. If I received a response The story would have been very different. I don't know if I could have won at trial.