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  1. #1
    Join Date
    Sep 2006
    Posts
    16

    Exclamation Appeal for Refusal to Allow Trial by Declaration in California

    Hi there, folks. I'm in search of some tips regarding an appeal for a traffic infraction in Santa Cruz Superior Court of California.

    Quick summary:
    I filed a Trial by Written Declaration on the day noted on the Notice to Appear. The clerk denied it, saying that the Santa Cruz court has a policy of requiring it to be filed 6 days before the due date. I insisted they take it anyway, which they did, but the judge deemed it untimely. I went to court, lost, and am now looking for tips on appeal, specifically on what to claim on the TR-160.

    More detail:
    I got a seat-belt ticket. No biggie, but since I was in a parking lot going from store to store, I thought I'd fight it. Really, the specifics of the ticket aren't particularly relevant, what's important is the Santa Cruz court's complete disregard for every TBD law, rule, and guideline I can find. This is not the first time I've been screwed by their bogus TBD policy, but now that I have a case where there's no repercussions from losing (i.e. no points) I feel it's my duty to establish some case law to prevent them from abusing the system.

    Justification for Allowing a TBD:
    40902(a)(1) "The court, pursuant to this section, shall, by rule, provide that the defendant may elect to have a trial by written declaration..."

    2008 California Rules of Court - Rule 4.210 - I'll avoid copying the whole giant thing here, but the gist is that the "'due date' means the last date on which the defendant's appearance is timely" and that as long as the bail and written request for a TBD is "filed with the clerk by the appearance date ... or the extended due date" it is timely.

    Benchguide 82 - summarizes these rules as I mention in section 82.13.

    Superior Court, Santa Cruz, Rule of the Court - only interesting in that they don't mention any deviation from state law or policy.

    People v. Cooper - Cooper fails in his appeal concerning a denied TBD, but the opinion was that it was because it was 2 1/2 months after the due date and that it was not in writing. I've met both of these requirements.

    There's more, but I think you get the gist. They're screwing with the law.


    This then is the question: What exactly should I claim as "grounds for appeal" on the TR-160?

    In People v. Coooper, the claim is: "1. The trial court committed reversible error by violating appellant’s statutory right to a trial by declaration." but then again, Cooper was in Pro Per and did, well, lose! Is the court committing reversible error grounds for appeal? Is there some other better way of putting this? I have to file the TR160 tomorrow, so any thoughts would be greatly appreciated!

    Thanks so much!

  2. #2
    Join Date
    Feb 2008
    Posts
    1,622

    Default Re: Appeal for Refusal to Allow Trial by Declaration in California

    It seems to me like an effort in futility. If the appellate division did find in your favor, they likely would simply order the lower court to accept your TBD... and you'd be found guilty... again! I don't think the appellate division will overturn a guilty verdict just because you didn't get a TBD.

  3. #3

    Default Re: Appeal for Refusal to Allow Trial by Declaration in California

    I agree. You may win the appeal but then it will just be remanded and you will lose the TBD. Happens all the time. You win but you really lose since it goes back to the trial judge and he corrects the issue and finds you guilty again.

    It is also not unusual for a traffic court to ignore the law unless you have an attorney.

  4. #4
    Join Date
    Sep 2006
    Posts
    16

    Default Re: Appeal for Refusal to Allow Trial by Declaration in California

    Yeah, I kinda figured it'd be a long shot, but since I have nothing to lose, I figured it'd give me some leverage the next time the court tries to screw me over on a TBD. That said, the amount of time spent and stress caused crafting the Proposed Statement is making me rethink all this. There is much precedent, however, in dropping the infraction altogether upon successful appeal, with the thought that the appeals process itself is punishment enough.

    And yes, it is night and day with and without an attorney. The very same day I was there, there was one person with representation where they objected on foundation when the officer was testifying about a pace. The officer didn't know that he was supposed to talk about his speedo calibration and each time he tried to figure out what the judge meant saying only "Lay your foundation" he say something else and the lawyer would object again. Eventually, after several sustained objections, the judge dismissed the case.

    Then, two people later, some college kid who had done his research but was scared, objected on foundation regarding an invalid speed survey, saying (correctly) that it had to be within 5 years. The judge said "What makes you think that it should be 5 years when the law says 7 or 10?" -- mind you this is NOT a local road... Since the kid didn't have the guts to stand up to her, he lost. I gave him my email and told him to appeal, but I think he ended up just doing traffic school.

    Sigh. Anyway, I'll keep everyone posted and I'm sure I'll be back around when I have to file the opening brief!

    Thanks for your help!

  5. #5
    Join Date
    Feb 2008
    Posts
    1,622

    Default Re: Appeal for Refusal to Allow Trial by Declaration in California

    Wow... talk about an abuse of authority (with the college kid). I have said it many times... there is no justice to be found in a court room.

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