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  1. #21
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    Default Re: Properly Citing Audio Transcript, Case Law, and Statutes

    Quote Quoting bnewall1
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    I would argue that if I picked up a gun to examine it and it accidentally went off and killed someone, my intent was to pick up the gun, but not to murder someone.
    You'd be laughed out of court as that kind of argument would be ludicrous and irrelevant.

    Quote Quoting bnewall1
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    Again, PEN 20 is not one of the stronger points of my case. But I'm giving this everything I've got, so I'll at least throw it out there.
    I predict you will lose the appeal. I agree with the other responses so I'm not going to enter the argument.

  2. #22
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    Default Re: Properly Citing Audio Transcript, Case Law, and Statutes

    Quote Quoting bnewall1
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    I intended to drive 45 MPH, which I believed was the speed limit. I wasn't looking at my speedometer at the time I was stopped, so if I was driving faster, I hadn't intended to. If a response similar to yours came back in a response brief, or during oral arguments, I would argue that if I picked up a gun to examine it and it accidentally went off and killed someone, my intent was to pick up the gun, but not to murder someone.

    Again, PEN 20 is not one of the stronger points of my case. But I'm giving this everything I've got, so I'll at least throw it out there.
    if you intended on driving 45 then the intent issue is settled. You intended on doing what you were doing. The fact you were mistaken about the speed limit does not change anything.


    For the gun situation to be analogous you would have had to have pulled the trigger intentionally but shot somebody that was standing behind a door you believed there was nobody standing behind. You fired the gun intentionally. You didn't mean to shoot somebody as you were mistaken it was safe to shoot through the door.

  3. #23

    Default Re: Properly Citing Audio Transcript, Case Law, and Statutes

    Quote Quoting Jim Kozlovich
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    One of the important issues you need to keep in mind is that traffic infraction cases are criminal in nature (See People v. Simpson, (2014) 223 Cal.App.4th Supp. 6) and as such PC 19.7 applies.
    Thanks, that Simpson case is actually very helpful. I believe it underscores what is already defined in PEN 16.

    Quote Quoting Jim Kozlovich
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    You've got the right idea with GC 26500 but to get a bigger picture, tie that section in with GC 100(b). Now, with that understanding, does the police officer, who is only a witness, have the authority to initiate criminal proceedings on behalf of The People of the State of California? If your answer is "yes" then there is no need for he DA to be there, but then, how do they get around a violation of B&PC 6126(a), the unauthorized practice of law statute? If your answer is "no", how does the trial court acquire jurisdiction over your person without a complaint from the DA?
    If asked, I would not answer Yes to that question. And as such, without the DA or a representative from his/her office being present, that's the basis for one of my arguments, in which I stated that by not appearing in court, the Public Prosecutor exercised his/her discretion to not prosecute the case, and that the case should have been dismissed for lack of prosecution.

    Quote Quoting Jim Kozlovich
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    This is simply a starting point with issues that should have been raised at arraignment even before you entered a plea.
    Not something that would have occurred to me during arraignment; however, I DID make a pre-trial motion to dismiss the case on the grounds that the survey did not justify the posted limit. The motion was denied, because it was submitted directly to the court and did not afford the Prosecution the opportunity to be present when the motion was made. I'm guessing that a motion made to dismiss the case at arraignment due to lack of prosecution would have been similarly denied, since the arraignment is simply to enter my plea, and no representative from the prosecution would have been present to hear the motion.

    Quote Quoting Jim Kozlovich
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    I don't want to discourage you, but I'm sure the Superior Court Appellate Dept. will rule against you. With that being said, DON'T QUIT. No matter how they rule, this could be a good learning experience that you can build on.
    I know that's a possibility, and I'm willing to accept it as a learning experience if that happens. But I believe I have a strong enough case on other points that they will rule in my favor.

    Quote Quoting Jim Kozlovich
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    I would be interested in seeing your appellate brief if you wouldn't mind (you can send it privately if you prefer). I know the issues you are raising very well and would be interested in how you're putting them all together.
    Sure, I'll be happy to PM it to you. It's still a work in progress (especially the citations), but I'll send you what I have so far.

    Quote Quoting Jim Kozlovich
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    I would be really surprised if you got a respondent's brief in your case so plan your strategy with the assumption that you won't get one and therefore won't be filing a response to their brief. This will be your one and only chance to address your issues before the court.
    I understand that if no response brief is received, that does NOT mean they concede the case. But it would certainly weaken the prosecution's side. Also, there should be the opportunity for oral arguments as well, not just the written brief, so I'd have an additional opportunity to present arguments or answer questions that the appellate judges may have.

    Quote Quoting Mr. Knowitall
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    Given that no appellate court has yet agreed with the notion that prosecutors have an obligation to provide discovery in traffic court cases, that's a high hurdle an appellant would have to cross, and would appear to be best attempted without devolving into blithering idiocy about how the prosecution of a traffic infraction without the involvement of a prosecutor constitutes the unauthorized practice of law.
    I have every intention of making my point about the DA failing to provide discovery, but I am not getting into anything about unauthorized practice of law, as I don't see that having happened. I believe the court acted lawfully as far as questioning witnesses goes, but that the DA's lack of presence indicated a decision not to prosecute, meaning the case should have been dismissed for lack of prosecution. That's the angle I'm going after in that section of my brief. It is, admittedly, one of the weaker points, but I have many points (at least 2 that are stronger), so I believe I still have a fair chance.

    Quote Quoting adjusterjack
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    You'd be laughed out of court as that kind of argument would be ludicrous and irrelevant.
    Quote Quoting jk
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    if you intended on driving 45 then the intent issue is settled. You intended on doing what you were doing. The fact you were mistaken about the speed limit does not change anything.

    For the gun situation to be analogous you would have had to have pulled the trigger intentionally but shot somebody that was standing behind a door you believed there was nobody standing behind. You fired the gun intentionally. You didn't mean to shoot somebody as you were mistaken it was safe to shoot through the door.
    I concede your points. I'm still going to leave the argument in my brief, though. They can ignore it, or respond to it, or tell me I'm an idiot, as they deem fit.

    Quote Quoting adjusterjack
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    I predict you will lose the appeal. I agree with the other responses so I'm not going to enter the argument.
    If I had only PEN 20 to rely on, then you're right, I'd probably lose. But as I mentioned before, this is only one of many points in my brief, and admittedly, one of the weaker ones, along with, perhaps, the discovery argument. I believe my stronger points give me a fair to excellent chance of winning. I've seen appeals won repeatedly on points identical to mine.

    Actually, upon giving this more thought, I believe my PEN 20 argument may be stronger than I thought. I did not intend to commit a crime. The crime of which I'm accused, however, is not driving faster than the posted speed limit. VEH 22350 says nothing about posted speed limits. Rather, I am accused of driving at a speed that was unsafe for the conditions at the time of my citation. The officer even testified that I stated during the citation (which I did) that I was driving for the conditions of the roadway and following the flow of traffic. The officer also testified during cross-examination that I had not lost control of my vehicle, nor did he feel he was in danger of being struck by my vehicle when he stepped out into the roadway to stop me. So, his own testimony makes it clear that there was no intent to commit a crime.

    I know we've gone way off topic with this, as my original question had to do with citing the transcript, and thanks to those who answered me on that. The ensuing discussion, however, has been most educational, and any additional feedback is welcome.

  4. #24
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    Default Re: Properly Citing Audio Transcript, Case Law, and Statutes

    Quote Quoting bnewall1
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    It's still a work in progress (especially the citations)
    When is your brief due?

  5. #25
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    Default Re: Properly Citing Audio Transcript, Case Law, and Statutes

    Quote Quoting bnewall1
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    If a response similar to yours came back in a response brief, or during oral arguments, I would argue that if I picked up a gun to examine it and it accidentally went off and killed someone, my intent was to pick up the gun, but not to murder someone.
    Not a good analogy because the intent standard for murder is different than it is for most other crimes.

  6. #26

    Default Re: Properly Citing Audio Transcript, Case Law, and Statutes

    Quote Quoting Jim Kozlovich
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    When is your brief due?
    November 21. (My wife's birthday...) I was planning to send it on the 14th, because I'll be out of town the week of the 7th. I'm going to have her serve the opposing party's copy (since she is not a party to the action), and then I will hand-deliver the required copies to the court with the copy of the proof of service.

    Quote Quoting Taxing Matters
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    Not a good analogy because the intent standard for murder is different than it is for most other crimes.
    True, using murder was probably rather extreme. Let's say, instead, that I was walking down the street and dropped something, and it landed on someone's lawn. I went to retrieve it, and didn't notice the "No Trespassing" sign, but a police officer happened to spot me and cited me for trespassing. I would have to argue (and hopefully, successfully) that my intent was not to trespass.

  7. #27
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    Default Re: Properly Citing Audio Transcript, Case Law, and Statutes

    bnewall1: You may want to read this case.

    People v. Carlucci, (1979) 23 Cal.3d 249

  8. #28

    Default Re: Properly Citing Audio Transcript, Case Law, and Statutes

    Quote Quoting Jim Kozlovich
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    bnewall1: You may want to read this case.

    People v. Carlucci, (1979) 23 Cal.3d 249
    I've read that one before. That case covers the question of whether or not the lack of a prosecutor is a violation of due process, and the conclusion is that it does not. It does not touch, however, on GOV 26500 and other various codes I'm invoking to contend that no prosecutor = lack of intent to prosecute, therefore the case should be dismissed.

  9. #29
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    Default Re: Properly Citing Audio Transcript, Case Law, and Statutes

    Quote Quoting bnewall1
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    November 21. (My wife's birthday...) I was planning to send it on the 14th, because I'll be out of town the week of the 7th. I'm going to have her serve the opposing party's copy (since she is not a party to the action), and then I will hand-deliver the required copies to the court with the copy of the proof of service.



    True, using murder was probably rather extreme. Let's say, instead, that I was walking down the street and dropped something, and it landed on someone's lawn. I went to retrieve it, and didn't notice the "No Trespassing" sign, but a police officer happened to spot me and cited me for trespassing. I would have to argue (and hopefully, successfully) that my intent was not to trespass.
    but your intent would be to enter the property. That is the intent of concern. Think of it as you meant to walk onto the lawn or you tripped and fell. One is with intent. The other isn't. It isn't whether you intended on trespassing or not.

  10. #30

    Default Re: Properly Citing Audio Transcript, Case Law, and Statutes

    Quote Quoting jk
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    but your intent would be to enter the property. That is the intent of concern. Think of it as you meant to walk onto the lawn or you tripped and fell. One is with intent. The other isn't. It isn't whether you intended on trespassing or not.
    I see your point. But it sounds like it's kind of open to interpretation, too.

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