Results 1 to 6 of 6
  1. #1

    Default What are the Chances of Having a Case Certified for Transfer to the Court of Appeals

    My question involves a traffic ticket from the state of: California
    (County of San Diego)

    Hello Experts,

    Starting a new thread, because this doesn't have to do with forms as I was asking about in a previous thread.

    It seems my potential for appeal in the California Court of Appeal has had new life breathed into it. I thought the deadline had passed, because it looked like the decision was filed on March 6, and an application to certify transfer (or whatever it's called) would have been due within 15 days. However, I just got a notice from the Appellate Division of the San Diego Superior Court, which states that the decision was filed on April 6. I'm now well within my 15-day period.

    Here is my question: Do I even have a snowball's chance in you-know-where for my case to be certified? I ask because first, when I submitted a petition for rehearing, the petition was denied. It was denied by the same judge who heard my oral arguments and who decided the case. I suppose it stands to reason -- if the judge affirmed the trial court's decision, what possible reason could he have for granting a rehearing? My appeal was assigned to a single appellate division judge per Code of Civil Procedure section 77, and according to California Rule of Court 8.1005(a)(3), that same judge would be the one to certify transfer, or deny it. I'd imagine that since the judge ruled against me, AND denied my petition for rehearing, he would also undoubtedly deny an application for transfer. Am I understanding this correctly? And if so, is it even worth the effort of trying to get the case transferred?

    Thanks!

  2. #2
    Join Date
    Jul 2016
    Location
    Paso Robles, California
    Posts
    506

    Default Re: Chances of Having a Case Certified for Transfer to California Court of Appeals

    A snowball has a better chance in hell. Rule 8.1005(a)(1) states:

    "The appellate division may certify a case for transfer to the Court of Appeal on its own motion or on a party's application if it determines that transfer is necessary to secure uniformity of decision or to settle an important question of law."

    Nothing in your case comes even remotely close to meeting this mandate.

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: What are the Chances of Having a Case Certified for Transfer to the Court of Appe

    Quote Quoting Rule 8.1005(a). Certification for transfer by the appellate division
    (a) Authority to certify

    (1) The appellate division may certify a case for transfer to the Court of Appeal on its own motion or on a party's application if it determines that transfer is necessary to secure uniformity of decision or to settle an important question of law.

    (2) Except as provided in (3), a case may be certified for transfer by a majority of the appellate division judges to whom the case has been assigned or who decided the appeal or, if the case has not yet been assigned, by any two appellate division judges.

    (3) If an appeal from a conviction of a traffic infraction is assigned to a single appellate division judge under Code of Civil Procedure section 77, the case may be certified for transfer by that judge.

    (4) If an assigned or deciding judge is unable to act on the certification for transfer, a judge designated or assigned to the appellate division by the chair of the Judicial Council may act in that judge's place.
    What issue of uniformity, or important question of law, do you hope to use as a basis for transfer? Absent such a ground, you have no chance of succeeding.

  4. #4

    Default Re: What are the Chances of Having a Case Certified for Transfer to the Court of Appe

    Quote Quoting Mr. Knowitall
    View Post
    What issue of uniformity, or important question of law, do you hope to use as a basis for transfer? Absent such a ground, you have no chance of succeeding.
    My appeal was based on 5 or 6 different issues. I argued the two most important ones (use of a speed trap; lack of sufficient evidence to convict) during oral arguments. One of the other issues I raised in my appeal was the trial court's improper requesting of a response to my motions from the officer (a witness). The appellate decision did not address those issues at all. It instead focused on other issues that I raised (for example, the lack of response to discovery), but claimed no harm was done to my case (which is also false), and affirmed the trial court's decision.

  5. #5
    Join Date
    Oct 2014
    Posts
    7,454

    Default Re: What are the Chances of Having a Case Certified for Transfer to the Court of Appe

    Quote Quoting bnewall1
    View Post
    My appeal was based on 5 or 6 different issues. I argued the two most important ones (use of a speed trap; lack of sufficient evidence to convict) during oral arguments. One of the other issues I raised in my appeal was the trial court's improper requesting of a response to my motions from the officer (a witness). The appellate decision did not address those issues at all. It instead focused on other issues that I raised (for example, the lack of response to discovery), but claimed no harm was done to my case (which is also false), and affirmed the trial court's decision.
    How was the court asking the officer a question about your motion “improper.” What law or rule of court did you argue was violated by what the court did?

    Harmless error is a standard the courts use to weed out those minor errors of the trial court that really did not impact the final outcome of the case. It is not worth retrying a case that will come out the same again even with the technical errors corrected. So this kind of ruling is not unusual. While I know you feel the errors were not harmless, obviously the courts so far feel differently. Your bias in the matter may be leading you to magnify errors that are in reality quite small into something much larger. Just something for you to consider.

    In any event, how do any of these issues form the basis for a transfer request? As Mr. K pointed out, you have to show that the the “transfer is necessary to secure uniformity of decision or to settle an important question of law.” I’m not seeing anything here that meets that standard.

  6. #6

    Default Re: What are the Chances of Having a Case Certified for Transfer to the Court of Appe

    Quote Quoting Taxing Matters
    View Post
    [FONT=Garamond][SIZE=3]How was the court asking the officer a question about your motion “improper.” What law or rule of court did you argue was violated by what the court did?
    People v. Marcroft. "Whether or not the People provide a prosecuting attorney, the citing officer who testifies as to the circumstances of the citation is a witness, no more, no less."

    Responding to a motion from the defense is the job of a prosecuting attorney, not a witness. Let's say a prosecuting attorney was present and made a motion. If I had a witness, would it be proper for that witness to respond to the prosecution's motion? No. Would it be proper for that witness to argue in favor or against statements made by the prosecution (or by me)? No. Likewise, it is improper for the officer to argue in favor of, or against, statements made by me (the defendant) or motions made by me.

    Quote Quoting Taxing Matters
    View Post
    Harmless error is a standard the courts use to weed out those minor errors of the trial court that really did not impact the final outcome of the case. It is not worth retrying a case that will come out the same again even with the technical errors corrected. So this kind of ruling is not unusual. While I know you feel the errors were not harmless, obviously the courts so far feel differently. Your bias in the matter may be leading you to magnify errors that are in reality quite small into something much larger. Just something for you to consider.
    The errors they ruled as harmless were not the ones in question, though. In my case, the use of a speed trap was clear, since the survey did not justify the posted speed limit. (People vs. Goulet; People vs. Earnest.) There was also insufficient evidence to convict -- no proof that my speed actually violated VC 22350. Those were the two major points I raised during oral arguments. The decision that came back never even addressed those points.

    I can't find the exact rule now, but I remember reading previously that one of the conditions for a Petition for Rehearing is an "omission." Not even commenting on the two most important points of my appeal is certainly an omission. The appellate division convenient ignored them, and only touched on the weaker points of my appeal.

    What I was going for here, however, was not to debate the merits of my appeal, but rather, to see if there was any chance of it being transferred based on the fact that the application to certify for transfer would undoubtedly be decided by the same judge who decided on the appeal in the first place, and who denied by petition for rehearing.

    This may all be a moot point, though, because upon further examination, I see that what I got in the mail was a "remittitur." From what I've been able to determine, that means that since the decision was filed and nothing else was done on it, the decision is now final and cannot be appealed further.

    1. Sponsored Links
       

Similar Threads

  1. Post-Conviction Relief: How to Get Your Case Back Into Court Once Your Appeals Are Denied
    By lawfacts in forum Criminal Procedure
    Replies: 1
    Last Post: 02-25-2017, 09:50 AM
  2. Post-Conviction Relief: When Will an Appeals Court Dismiss a Case Without Remand
    By lawfacts in forum Criminal Procedure
    Replies: 1
    Last Post: 12-31-2016, 01:30 PM
  3. Appeals: How to Get a Court of Appeals to Retain Jurisdiction After Remanding a Case
    By LexisLutor in forum Civil Procedure
    Replies: 8
    Last Post: 06-20-2016, 11:39 AM
  4. Criminal Law Issues: How to Get Court Certified Document of Expunged Case for Green Card Interview
    By sadrabbit in forum Immigration Issues
    Replies: 5
    Last Post: 12-21-2009, 11:13 AM
  5. Hearings & Appeals: What Are The Chances Of The Appeals Council Reviewing My Approval?
    By tigervet in forum Social Security Law
    Replies: 4
    Last Post: 06-18-2007, 06:31 PM
 
 
Sponsored Links

Legal Help, Information and Resources