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  1. #1

    Default Discovery After A TBD in California

    I've already submitted my Trial By Declaration (TBD), and am awaiting the court ruling (clerk advised I will probably receive it around mid June to early July). I'm aware of the De Novo request ability if I'm found guilty.

    However, since I did no discovery prior to the TBD, will it be too late to submit discovery requests after my TBD ruling?

    What I'm thinking is that I have 20 days for a De Novo request, I figure I could possibly file a discovery with the DA and Police Dept. about 5 days prior to making the De Novo request. That would allow me time to recieve the items, or to file for a motion if there is no response to discovery.


    I guess my 2 questions, in sum, are this:

    Is it too late for discovery now that the TBD process has begun?

    If I can still do a discovery, should I wait until AFTER the De Novo request or is it proper to file discovery in anticipation of making the De Novo request?



    Thanks for any assistance.

  2. #2

    Default Re: Discovery After A TBD in California

    The only hope of winning a TBD is if the officer does not reply. Making him do the discovery parperwork will probably remind him to get the TBD reply in on time. Wait and file for the new trial and discovery at the same time.

  3. #3

    Default Re: Discovery After A TBD in California

    Thank you ... that was the approach I was planning. I just wasn't sure if by not doing discovery before TBD I had lost the opportunity. My statement of facts for the TBD was 2 paragraphs that in sum said no more than "I did not commit the offense". I'm hoping the officer involved will be less prepared for trial once we get there since he may think that will be approach in court as well.

    My understanding of the discovery in Calif. is that it is served on the "prosecuting attorney" (in my case the D.A.'s office) and sending a courtesy notice to the Police Dept is allowed but not required.

    I was thinking that I could disclose my evidence to the D.A. (during discovery request) but don't need to include my evidence in my courtesy notice to the PD since it's just that, a courtesy notice and a witness doesn't have any rights to see the evidence. Does that make sense?

  4. #4

    Default Re: Discovery After A TBD in California

    Why would you "disclose" your evidence to the DA unless you are trying to negotiate?

  5. #5

    Default Re: Discovery After A TBD in California

    Quote Quoting lwpat
    View Post
    Why would you "disclose" your evidence to the DA unless you are trying to negotiate?
    California law (1054.1 PC) requires disclosure,upon request, from the DA of all witnesses that will be present as well as any evidence that is in control of DA or citing/arresting agency. This law is written so that if defendant requests disclosure they are required to disclose all evidence in their control (photo's/diagrams/etc) and list of all their witnesses.

    My understanding is that many people make a disclosure request but do not disclose their evidence. I guess it's widely overlooked but if I'm going to be fighting the good fight I will do it the legal / just way.

    My point is that the DA is the prosecuting agency for the county I was cited .. the law requires me to disclose all evidence to the prosecutor. Even though they do not attend traffic infraction sessions in Calif (the DA has the right to attend or not attend infractions, rarely do they attend) ... it will just be me and the citing officer.

    From my reading of the law I will be in compliance so long as I send the DA all the evidence ... it's not my responsibility to make sure it makes it to the witness and even then (in my mind) a witness should not be privy to all of the information unless it pertains directly to their testimony. I do plan on sending a "courtesy notice" with a copy of discovery items that were requested to PD, hoping to speed up the discovery process.

  6. #6

    Default Re: Discovery After A TBD in California

    In case anyone is interested in hearing an update on my red light ticket ...

    I lost my TBD and requested a de novo trial on 5/29/07 and sent a discovery request to DA with a courtesy copy to the PD. The items I requested were the Traffic Engineering Survey, copy of any audio/video recordings of the traffic stop, list of witness(es) that would attend trial, Engineering report showing the timing of the yellow light for the intersection, and a list of any repairs made since 1/6/07 (the date of my violation).

    My discovery was never met but when trial began on 6/25 we were sworn in an agreed to have the issue handled by a Pro Tem judge. He reviewed the issue, verbally ordered the officer to have his departmend disclose all the documents I had asked for and continued the matter for two weeks.

    10 days went by, I hadn't received a shred of paperwork so I called and left a voicemail with the citing officer asking if he knew what the status of receiving the documents was or who to contact to receive the items.

    Surprise, never heard back. Showed up at court on 7/9 and the officer "disqualified" the pro tem judge. The bailiff told me I would have to go home and wait for a new trial date to be held in front of another judge. THe problem I ran into was I had disqualified the judge originally scheduled because he found me guilty in the TBD ... the pro tem was the only other traffic judge for Monterey County. So the matter was referred to the Salinas court.

    On 7/11 I finally got a response from the day (47 days after I made my original discovery request) which basically said they didn't have to disclose the reports I requested because while they were under their control and they agreed they were potentially exculpatory since they are public record I can obtain them through other means. They also mention that they "intend to comply with discovery provisions and will provide a list of witnesses that will be at the trial". Which still hasn't been done.

    On 7/16 since it had been past the 45 day period allowed to bring a trial to justice I filed a motion to dismiss with the court and served it upon the DA. Basically it said in sum that pursuant to 1382 PC I had 45 days to be borught to trial, that time had passed, the delays were not caused by me, etc etc.

    The motion was assigned to the Presiding Judge for the county on 7/20 and barely today it was assigned for a hearing on 8/14/07. I'm really hoping this hearing will be the end of this ordeal.

    I didn't run the light ... was about 10 feet into the intersection when the light turned red, which is legal in Calif. The officers testimony between his evidence (notes on ticket) and his TBD are inconsistent and I've discovered once I got the Engineering report through other means that the yellow light is timed about .4 seconds too slow. So if I don't get my dismissal I can still probably win.

    I have no clue what to expect during the "Motion Hearing". What I'm wondering is since this hearing has been sent back to traffic division ...

    . Should I expect the officer to be there? Or the DA? or just me
    . and the judge??

    . If the officer is there, I already know he can't object to the motion
    . but if the motion were to be denied would it proceed to trial
    . immediately, so I could have this issue resolved by the same day?

    I'm hoping obviously my motion will be agreed to but if not then to proceed to trial right there because I live in an adjacent county about 50 miles away and I've already made 3 extra trips to court because no one bothered to disclose. Even worse on this hearing date I work 12 hours the night before and will have to leave straight from work to go the trial (about an hour travel frm my work).

    Wow I didn't mean to ramble on so long but if anyone reads this far and has some advice on what they think will happen or what I can expect the feedback would be much appreciated.

    Thank!

  7. #7

    Default Re: Discovery After A TBD in California

    You might want to check the law in CA about the court in another county having jurisdiction to hear the case. I know that you cannot transfer from one county to another and the court in the other county may not have jurisdiction. You will have to make a motion for dismissal prior to your court date.

  8. #8

    Default Re: Discovery After A TBD in California

    Quote Quoting lwpat
    View Post
    You might want to check the law in CA about the court in another county having jurisdiction to hear the case. I know that you cannot transfer from one county to another and the court in the other county may not have jurisdiction. You will have to make a motion for dismissal prior to your court date.

    Monterey county has jurisdiction in this case because that is the county where the citation was issued. Unfortunately it's not the county I live in so I have to keep driving over there.

    I've already made my motion for dismissal (after going to court twice w/ the officer) and that what the next court date is for ... they're calling it a motion hearing. I'm just not sure who I can expect to be in attendance at the hearing. I'm trying to figure out if the officer will be there or the DA or nobody but me and the judge.

    I'll guess I'll just go over my trial notes and be prepared in case the officer is there and if my motion is denied I'll be prepared to go to trial.

  9. #9

    Default Re: Discovery After A TBD in California

    Just got a call from Monterey County court clerk who advised that after the matter was handed back down to traffic court the traffic judge reviewed the matter and granted my motion for dismissal (speedy trial)!!

    It was kind of funny because the clerk who called, after telling me my dismissal was granted, was asking me "what is 1382(a)(3) pc" and "what is rule of court 4.10(b)(7)?". I explained them but was thinking, ok shouldn't he know what the rules of court are at least??

    Anyways I can expect my refund in a short 4-6 weeks. They've had my bail since early March so another 4-6 weeks isn't that big of an issue.

    Thanks to several people on here who answered my questions and gave me a place to bounce some ideas off of.

  10. #10

    Default Re: Discovery After A TBD in California

    Thanks for the update.

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