I were charged with the wrong sub-section on Failure to Stop at Red Light (21453 C)

[laben]

Gotcha... At the time I checked your link/images, you only had 5 images posted there...

Your post scared me a cold sweat, so I found out the original traffic ticket.

 

[I_Got_Banned]

Your post scared me a cold sweat, so I found out the original traffic ticket.

Didn't mean to scare you, I simply posted a "possibility" based on what I saw.

Let me ask you this... When you initially requested a TBD, did you request it from the court clerk or did you appear before the judge, entered a plea of "not guilty" and requested a TBD at that time?

 

[laben]

Didn't mean to scare you, I simply posted a "possibility" based on what I saw.

Let me ask you this... When you initially requested a TBD, did you request it from the court clerk or did you appear before the judge, entered a plea of "not guilty" and requested a TBD at that time?

I went to court clerk window, plead not guilty and requested a TBD, then I finished paperwork at home and sent it to court by certify mail.

 

[laben]

Today I requested trial de novo.

 

[demurringdude]

If there is a mistake on the ticket, and I think your venue is a civil case, then usually you would have to file a pre-trial motion to either: 1) revise the complaint 2) strike that section of the complaint 3) dismiss the case

That's spectacularly bad advice. The whole point is to keep the wrong charge on the complaint until trial, and be found not guilty at trial because the facts do not match the charge. Getting it corrected ahead of time, even if achievable, means you appear at trial on the correct charge and get convicted.

To correct some other points:

Traffic tickets in California are criminal, not civil.
Red light tickets are valid criminal complaints as soon as they are mailed, in California.
Trial de Novos are an absolute right after a TBD in California. No reason needed, goofy or otherwise.

 

[demurringdude]

usually you would have to file a pre-trial motion to either: 1) revise the complaint

This is such nonsense. A defendant doesn't get to decide what he is going to be charged with. The people decide that.

You can't file such a motion. Not that you would want to, for reasons I gave in the previous post.

 

[HighwayMan]

Will whoever got rid of SuperLitigator please take care of this incarnation also? Please...

 

[HighwayMan]

You are him, so give up on the charade.

 

[avrfan]

Which Judicial Council rule state a complaint cannot be edited by the Judge/Court???

Good! Everyone should fight this red light tax. If the courts got a bit more jammed up, they'd have to rethink it.

One that I can think of right away is to object to the police officer speaking to anything other than what he observed you do. As soon as he starts to talk about changing the charge, object that he is not attorney, neither is he a party to the case, he is just a witness, and he should not be heard on any motions. The only two people in court who can make motions are you and the judge (strictly speaking "the court"). The prosecutor could too, but he won't be there. So make sure to get the police officer shut down on that. I doubt the court will want to make its own motion to change the charge, since courts aren't allowed to make charges.

1. Of course there is the objection that you can't be tried if you haven't been arraigned.
2. Also the objection that you haven't been properly served with the new charge.
3. Also that you have been given no notice of the pretrial motion to change the charge.
4. Also object that Judicial Council rules state that a complaint can only be amended by the person/department who wrote it out (ie not by a judge). I'll find you a specific reference for that.

Others will think of more I hope.

hi DemurringDude... and other forum members:

I know this thread is a little old but still very relevant today. I really appreciate your insights and help on this forum. In this post you mentioned finding the specific reference for the Judicial Rule that states who can amend a complaint (not the judge). I read the entire thread and there was no reference posted. You only posted about Rule 4.111. Pretrial motions in criminal cases... which only refers to pretrial motion filing deadlines, no mention of who can or cannot amend a complaint.

a) Can somebody, Please post which court rule states the complaint can only be edited by the person/department who filed the original complaint (not the judge).

b) Is there a Penal Code or Court Rule that sets a statute of limitations for how long after a citation that an officer can amend the charge? My citation was on Oct 23 2012, my trial is July 5th 2013, so basically it has been close to 8 months since the violation date. Perhaps its too late for any amendments and I could use that rule or law to object to any attempts to change the charge at trial.

c) Lastly, about a month ago I requested a copy of the citation from the court and on the copy it was printed or stamped "Amended by the court" but no mention of what was changed. I never received any notices by mail of any changes of charge or anything. The court documents from my arraignment and TBWD still show the same original charge of 21453(c) (no turn on red arrow) Is it possible they changed the charge without telling me? Are they required to notify me in writing or in the court? I suppose I will hear the official charge I am being tried on when the case is called.

Thanks
avrfan

 

[Zigner]

This thread is nearly 3 years old. Please don't necropost.

 

[demurringdude]

Yes, they are required to notify you, and provide proof of service, if they change the complaint. That comes from the Judicial Council rules in the following document...

http://www.courts.ca.gov/documents/trinst.pdf

The relevant rule is 1.050 in that document. The rule was made to ensure compliance with this section of the Vehicle Code:

http://www.dmv.ca.gov/pubs/vctop/d17/vc40505.htm.

The authority of the Judicial Council to set the rules comes from the Penal Code, for example 853.9

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=853.9

Anyway, a judge isn't going to argue with the Judicial Council once you draw his attention to it.

Can't put my finger on the relevant statute that says only the original officer or his agency can fill out the TR-100 to amend the complaint. I'll look into that. In any case, whoever fills it out also has to submit proof of service.

 

[demurringdude]

My citation was on Oct 23 2012, my trial is July 5th 2013, so basically it has been close to 8 months since the violation date.
avrfan

Did you waive your right to a speedy trial at your arraignment?

 

[demurringdude]

That TR-100 form for correcting the ticket is also required by the Criminal Rules:

http://www.courts.ca.gov/documents/title_4.pdf

See 4.103 (c)

 

[avrfan]

Did you waive your right to a speedy trial at your arraignment?

No, I did not waive my right to speedy trial. When I rescheduled from the Memorial Day trial(May 28th), I asked for July 5th and the clerk reminded the judge that it was less than 45 days away and he said that was ok. Also when I originally requested the Trial De Novo, the clerk insisted on scheduling it less than 45 days out, perhaps to preserve my request for speedy trial during the TBWD.

Why do you ask?

Avrfan

 

[avrfan]

Re: proof of service for TR-100 Notice of Correction

Yes, they are required to notify you, and provide proof of service, if they change the complaint. That comes from the Judicial Council rules in the following document...

http://www.courts.ca.gov/documents/trinst.pdf

The relevant rule is 1.050 in that document. The rule was made to ensure compliance with this section of the Vehicle Code:

http://www.dmv.ca.gov/pubs/vctop/d17/vc40505.htm.

The authority of the Judicial Council to set the rules comes from the Penal Code, for example 853.9

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=853.9

Anyway, a judge isn't going to argue with the Judicial Council once you draw his attention to it.

Can't put my finger on the relevant statute that says only the original officer or his agency can fill out the TR-100 to amend the complaint. I'll look into that. In any case, whoever fills it out also has to submit proof of service.

Just curious, if the officer or court has a copy of proof of service, can I have that thrown out because I never received anything? Should I ask for some kind of proof of delivery/certified mail receipt? Reason I ask is ealier when I filed the motion for peremptory challenge pc170.6 and appeared in court to make the motion, the judge claimed that he never received anything and I somehow forgot to bring my proof of delivery (certified mail return receipt) and so the judge basically used that as excuse to deny me.

Are there any filing deadlines or statute of limitations to when an officer can file a TR-100 Notice of Correction to amend a complaint?

Thanks
avrfan