Discovery request

[NorCalBusa]

Excellent posts everyone- very educational. Thank you for taking the time and making the effort.

 

[Warrior Princess]

Are you agreeing that it is the Judge who is acting on behalf of the not present Prosecutor?

To me personally traffic court is a circus. There generally is not an attorney present on either side. It is you and the officer. Two common people without legal knowledge.

Maybe the officer has court experience, but not schooled in law, and you most likely have less knowledge for the most part.

It is up to the judge to apply the law, but he has a lot of freedom, and for the most part it is an attorney just putting in time in place of a judge.

The best you can do is prepare for appeal or get lucky. I dont want to get in to cases here and what has been, becasue I was suspended for stating facts before in the LEO forum. So I wont go there on here.

I have a good background in law and even after a good court session my case was put on a 1 year deferment that lead to a dismissal even though my case was air tight.

Once I did an appeal and I won hands down.

Always try to get a court reporter present or be allowed to tape the proceedings. If not you will almost always win on appeal.

 

[horsepower]

okay.

 

[Warrior Princess]

Study up on Writs of Mandate. That , if used well, can give you a lot of power upon the judge. I have used them a lot in Unlawful Detainer cases.

 

[UDRider]

Final inside scoop: if the judge takes your case "under advisement", but DOES NOT SPECIFICALLY ASK YOUR PERMISSION TO DO SO and comes back with guilty in the mail (or more than 6 hours) YOU WIN anyways....law states that sentencing for traffic cases must be heard then and there unless permission is given to be waived. You win by filing an appeal. These are all things lawyers know and will use to win your case..........................but by then expect a $1500 bill and the some.
Judges take traffic cases under advisement all the time. Most people will never think anything of it and NOT object simply because they don't know the constantly changing house of mirrors of law. If your cause is righteous, be pro active.

What do you mean takes it under advisement? Last time I was in traffic court. Officer laid out his argument, I did mine. Judge said she will evaluate the evidence (or something like that), and can either mail the verdict or I can come back for it. Is that what you mean?

Always try to get a court reporter present or be allowed to tape the proceedings. If not you will almost always win on appeal.

Is that something that needs to be requested prior to the hearing, or can it be done during?

Thank You.

 

[horsepower]

What do you mean takes it under advisement? Last time I was in traffic court. Officer laid out his argument, I did mine. Judge said she will evaluate the evidence (or something like that), and can either mail the verdict or I can come back for it. Is that what you mean?


Is that something that needs to be requested prior to the hearing, or can it be done during?

Thank You.

That is exactly what I mean. *However, that judges ^^^^^wording is a passive request for permission, especially given the "either /or".
You could respond that you'd really want to hear it then and there...................................

Problem is, now you risk a snap judgment that may work against you.
However, when a judge withholds a verdict in court it is often a good one: not guilty or with valuable consideration of $ refunded etc., reduced fees, etc It makes sense for any Judge not to want to announce too many 'not guilty's' in traffic court, doesn't it??


So, If the judge flat out states "You'll receive your judgment in the mail or at a later time", then that's not giving due process by law.......sciddadle with thanks and file an appeal if you are found guilty. *If she says, "Would you like to receive it in the mail or now?", he/she has just requested permission. Best diffuser answer you could give is "Actually your honor I prefer not to be kept in suspense. The suspense is killing me." Then you both have ambiguity on your side, and some potential appeal back in your favor if you ultimately lose your case, lol.

I have never even thought of wasting court resources for a court reporter, but then again, the above scenario would be very valuable to have in writing or audio. It is an option even in traffic cases as noted by RH.

 

[MCSFTGUY]

Excellent posts everyone- very educational. Thank you for taking the time and making the effort.

I agree with this and I am saying this now because I wanted to bump this back to the top to see if there was any more discussion on this topic, there are still some open questions pending.

 

[horsepower]

I agree with this and I am saying this now because I wanted to bump this back to the top to see if there was any more discussion on this topic, there are still some open questions pending.

What questions have been unanswered?
Only one I see is a court reporter for an Infraction.

Yes, legal albeit very rare.
Ask for one for your trial at arraignment or file a request with the court within 15 days of trial. Can be faxed or self-mailed request.

 

[UDRider]

Since this thread was bumped up I thought I would give an update.

The officer didn't show up for the hearing. The commissioner gave a continuous. I didn't not wave a right to speedy trial. So new date is within 45 days. When I objected and requested dismissal based on lack of prosecution commissioner rejected it.

Also he seemed to get visibly upset when I didn't just walk away and tried to request dismissal Quote from him: "I am done with you", when just talking over me didn't work. heh.

 

[Rel]

Who was the Commissioner?

 

[UDRider]

Who was the Commissioner?

PM sent.

 

[horsepower]

PM sent.

So you have two options here.
FILE A MOTION........with order to Dismiss: (The judge acted as prosecution by asking for a continuance on the prosecution's behalf , and others) and 2) you should MOST DEFINITELY boot this commissioner and file a peremptory challenge.
It's always best to sit in on traffic court prior to your case being heard. A "judge" like this sets a clear pattern that due process of law and a fair and speedy trial doesn't matter and his word is all knowing. CA has actual traffic court rights on your side and a judge has discretion, but a real judge is often more fair and discreet.

EDIT: wait wait wait...you DID NOT waive your right to speedy trial?? Then 45 days after this trail date is still not a speedy trial. Now you have 3 arguments for Motions for dismissal. If you lose in the end (i.e. found guilty at trial) you still have 3 possible appeals as well to go back to.

 

[horsepower]

One more Point:
Filing Motions is not easy. Attorneys can crank them out in perfect legal form in 5 minutes with a CALAW database and good law program.
You in pro per have it a lot tougher. But if you buckle down, it is possible for you to prevail here simply by a Judge reviewing the Motion and filing an Order...even without a court appearance to argue the Motion.
Now is the time when you need a How to Book and be sure to serve the DA and the issuing agency as well as the court to keep it in proper form.
YOU have to pick the date of the Motion off the Motion calendar and set the date on the Notice of Motion. Read up on it and keep your argument (Points and Authorities simple and concise.

 

[UDRider]

So you have two options here.
FILE A MOTION to Dismiss: (The judge acted as prosecution by asking for a continuance on the prosecution's behalf and Lack of Foundation) and 2) you should MOST DEFINITELY boot this commissioner and file a peremptory challenge.
It's always best to sit in on traffic court prior to your case being heard. A "judge" like this sets a clear pattern that due process of law and a fair and speedy trial doesn't matter and his word is all knowing. CA has actual traffic court rights on your side and a judge has discretion, but a real judge is often more fair and discreet.

In his notes it said, well judge read from them, that officer is in training. Can that constitute as officer requesting continuous?

EDIT: wait wait wait...you DID NOT waive your right to speedy trial?? Then 45 days after this trail date is still not a speedy trial. Now you have 3 arguments for Motions for dismissal. If you lose in the end you still have 3 possible appeals as well.

Sorry for confusion. I did not waive my right to speedy trial, the new date was set within 45 days.

One more Point:
Filing Motions is not easy. Attorneys can crank them out in perfect legal form in 5 minutes with a CALAW database and good law program.
You in pro per have it a lot tougher. But if you buckle down, it is possible for you to prevail here simply by a Judge reviewing the Motion and filing an Order...even without a court appearance to argue the Motion.
Now is the time when you need a How to Book and be sure to serve the DA and the issuing agency as well as the court to keep it in proper form.
YOU have to pick the date of the Motion off the Motion calendar and set the date on the Notice of Motion. Read up on it and keep your argument (Points and Authorities simple and concise.

Thanks for the explanation. Any good starting point or relevant terms I can google?

 

[summitdog]

Some of the advice on the thread has been pretty good but not 100% correct. I will start from the beginning:

1) Send the informal discovery request to the DA only. (1054 does not require service on the agency.)
2) Call the court clerk and ask on what days and at what time the commissioner hears motions.
3) Prepare your motion to compel giving proper notice of the date and time of the hearing. Serve the DA's Office.
4) File a motion to compel with the court, with a copy of the informal discovery request as an exhibit with the proof of service, 16 days after serving the DA's Office with the IDR.
5) Go to the hearing and present your case. Due process and your 6th Amendment Right to cross-examine witnesses includes impeachment evidence. See: Giglio v. US, 405 US 150.
6) Once the court orders discovery, request a disclosure due date.
7) When the DA's Office has not complied, request a dismissal for a discovery violation.

The "I am done with you" sound very much like Commissioner Schroeder.

Once you have had the hearing with a jurist and they have made a "substantial ruling", like continuing your case, you will likely not be able to "boot them" under 170.6 but you might try under 170.1

Now:
1)You need to request the audio recording from the hearing. (Cost: $10)
2) File a notice for a Writ of Mandamus/Writ of Prohibition. (Forms are online: www.courtinfo.ca.gov). Don't forget to request a stay the proceedings.
3)Get recording transcribed.
4) Do lots of research on speedy trial. See: Cunningham v. Municipal Court 62 Cal. App. 3d 153,)
5) Do lots of research on Penal Code 1050 (this covers continuances. There was no proper motion for a continuance in front of the court, there was no proper service to you, there was no competent evidence before the court for the continuance [ a note from the officer is hearsay and is not under penalty of perjury])
Draft and file writ. (The California Rules of Court guides one on how to do this, who needs to be served, et cetera.)

You cannot appeal until there is a final verdict in your case.

Good Luck,
Scotty

 

[goodness-707]

1) Send the informal discovery request to the DA only. (1054 does not require service on the agency.)

This is what I mean when I suggest there is no clear consensus among smart, experienced professionals.

Not pitting you against each other btw, just noting that there are differences of legal opinion. We get this all the time in IP law where one counsel tells us to do things one way, and another tells us to do them a different way. In those cases, it's pretty easy, go with the advice of the person/team who has to defend your issue.

In this case, where a person is trying to represent himself, it's swimming pretty hard upstream without a law degree and experience.

Thanks for the explanation. Any good starting point or relevant terms I can google?

Somewhere else on this board, someone (summitdog, I think) said soemthing like this:

If you count the time you spend learning everything you need to know to defend yourself properly (statutory law, case law, court procedure, and even learning the personalities, etc.), then divide the cost of the ticket per hour, you'll end up working for far, FAR less than minimum wage by the time it's over.

When you count the cost of educating yourself, even expensive attorneys seem like a bargain.

 

[horsepower]

This is what I mean when I suggest there is no clear consensus among smart, experienced professionals.


In this case, where a person is trying to represent himself, it's swimming pretty hard upstream without a law degree and experience.

So, I agree with you 100% on both counts. What an attorney does through clerks of court and what we do gets treated quite differently and every attorney has his own approach.
But the very fact that Scotty gave us all legal advice FOR FREE here is just plain f*!ucking awesome. Frankly it's what I've been waiting for.

And Scotty is also correct in that when all is said and done, sometimes in fairly good "OUTS" like UCRider is amassing, a $200- $250 traffic attorney isn't a bad idea. But $1500 to beat what is beatable with a little effort, depends on your job I guess and how much time and mon ey you have vs what you may lose.

 

[horsepower]

Some of the advice on the thread has been pretty good but not 100% correct. I will start from the beginning:

1) Send the informal discovery request to the DA only. (1054 does not require service on the agency.)
2) Call the court clerk and ask on what days and at what time the commissioner hears motions. CAN ALSO BE SEEN ONLINE
3) Prepare your motion to compel giving proper notice of the date and time of the hearing. Serve the DA's Office.
4) File a motion to compel with the court, with a copy of the informal discovery request as an exhibit with the proof of service, 16 days after serving the DA's Office with the IDR.
5) Go to the hearing and present your case. Due process and your 6th Amendment Right to cross-examine witnesses includes impeachment evidence. See: Giglio v. US, 405 US 150.
6) Once the court orders discovery, request a disclosure due date.
7) When the DA's Office has not complied, request a dismissal for a discovery violation.

The "I am done with you" sound very much like Commissioner Schroeder.

Once you have had the hearing with a jurist and they have made a "substantial ruling", like continuing your case, you will likely not be able to "boot them" under 170.6 but you might try under 170.1

Now:
1)You need to request the audio recording from the hearing. (Cost: $10)
2) File a notice for a Writ of Mandamus/Writ of Prohibition. (Forms are online: www.courtinfo.ca.gov). Don't forget to request a stay the proceedings.
3)Get recording transcribed.
4) Do lots of research on speedy trial. See: Cunningham v. Municipal Court 62 Cal. App. 3d 153,)
5) Do lots of research on Penal Code 1050 (this covers continuances. There was no proper motion for a continuance in front of the court, there was no proper service to you, there was no competent evidence before the court for the continuance [ a note from the officer is hearsay and is not under penalty of perjury])
Draft and file writ. (The California Rules of Court guides one on how to do this, who needs to be served, et cetera.)

You cannot appeal until there is a final verdict in your case.

Good Luck,
Scotty

So I highlighted some stuff above of Scotty's:
1) Clearly Scotty agrees or infers that your statute for a Speedy Trial doesn't count from 45 days of a continuance and you DO have a potential out there.
2) He has also given you tools to argue the dismissal for the officer's no show.
3) I have never had a problem with a peremptory challenge being accepted even with a continuance or appearance. I would do this no matter what; Worse case, it's rejected.
4) So again, you DO have a speedy trial argument, please understand that!!

 

[horsepower]

In his notes it said, well judge read from them, that officer is in training. Can that constitute as officer requesting continuous?

so the officer is in training and that's your problem because wha????
In essence that constitutes a lack of due process/due notice on the prosecution's side and the judge is passing on that info on the prosecutions behalf and therefore many aforementioned points come into play.

 

[Rel]

so the officer is in training and that's your problem because wha????
In essence that constitutes a lack of due process/due notice on the prosecution's side and the judge is passing on that info on the prosecutions behalf and therefore many aforementioned points come into play.

The officer doesnt know when court is until we get the subpoena. Things happen. Traffic court will normally issue one continuance to both sides.

Speedy trial does not mean, at all costs and screw the officer.