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

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laben

Junior Member
Failure to Stop at Red Light (21453 C) -- California

I received my first traffic ticket in walnut, California, Violation code 21453(c) Failure to Stop and Red Traffic Signal . I watched the video and seems like I didn't stop before taking right and made mistake . Violation code 21453(c) states:” A driver facing a steady red arrow signal…….” whereas there wasn't any red arrow at the signal, it’s solid red. I followed the instrution from this thread:
https://forum.freeadvice.com/speeding-other-moving-violations-13/failure-stop-red-light-21453-c-california-484306.html

Unfortunately ,after 40 days, I received court decision found guilty. Then I asked a copy of police declaration. But the declaration statement show I were charged with 21453a Seem like the officer corrected sub-section. But court decision still on 21453c.:confused:

Should I request trial be novo for this reason? Is it true that most judges will deny traffic school to anyone who contests a ticket at all ?

Here is my particulars:

1. Received automated traffic ticket. Violation code 21453(c) Failure to Stop and Red Traffic Signal
Date 06/28/2010
Received notice on 07/08/2010

2. Requested TBD, Submit TBD TR-205 with declaration along with traffic light picture on 7/18/2010

3. Checked the case in Pomona court, status showed in pending on 9/9/2010

4. The next day, 9/10/2010, Received court decision found guilty on 21453(c). Then went to court got a copy of officer "statement of facts" show "C.V.C section charged: 21453(a), Failure to stop at red light."
 


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StevenJ_420Law

Member
If the officer amended the case and these are clerical errors, that could be amended if brought to the courts attention.

If the officer didnt amend the case, that would be great grounds for an appeal of a court trial.. such as it is.. a TBD.. you can go ask for a trial de novo. This would be a major screw up by the court and despite that, at some point they will likely pull their heads out and it will likley be corrected and you'll be found guilty of the correct thing. Definately file for a new trial.
 
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laben

Junior Member
StevenJ_420Law said:
If the officer amended the case and these are clerical errors, that could be amended if brought to the courts attention.

If the officer didnt amend the case, that would be great grounds for an appeal of a court trial.. such as it is.. a TBD.. you can go ask for a trial de novo. This would be a major screw up by the court and despite that, at some point they will likely pull their heads out and it will likley be corrected and you'll be found guilty of the correct thing. Definately file for a new trial.
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Thanks!
Do you think the judge will allow officer amend the case in count?
I afraid I get denied traffic school at trial de novo after found guilty.
 
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I_Got_Banned

Senior Member
laben said:
Should I request trial be novo for this reason?
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If you feel you were wrongfully convicted, then why not!
laben said:
Is it true that most judges will deny traffic school to anyone who contests a ticket at all ?
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That's not necessarily true... The decision to grant or deny traffic school after the citation has been contested is up to the discretion of the judge... Meaning, you might get it and you might not. 50/50 chance...

laben said:
Do you think the judge will allow officer amend the case in count?
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There is nothing that precludes the judge from allowing the officer to amend the citation in court. You can make an objection that you were not notified of the amendment (they typically will send you a TR-100 form notifying you of the correction)...

The judge would then have the discretion to either dismiss the citation... or... to allow the amendment and allow the officer to continue with his testimony.

It is also possible that the judge will allow the amendment, give you additional time to prepare (although I'm not sure how much more time you could justify needing)), and then order the trial to continue.

You can read through this thread: https://forum.freeadvice.com/speeding-other-moving-violations-13/appealing-red-light-traffic-violation-legal-error-506517.html where we discussed a similar problem to yours.
 
D

demurringdude

Member
I_Got_Banned said:
There is nothing that precludes the judge from allowing the officer to amend the citation in court.
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You could prevent that from happening by not being in the courtroom. Send an attorney. The police officer would not be able to amend the complaint, because he is required to deliver that amendment to you, and you're not there. VC 40505. Then your attorney gets the unamended citation dismissed.

EDIT - I'm not sure you even need to worry about this. Once you have entered a plea, the complaint cannot be changed. They would have to start over with a new complaint, new arraignment, new trial.
 
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Zigner

Zigner

Senior Member, Non-Attorney
demurringdude said:
You could prevent that from happening by not being in the courtroom. Send an attorney. The police officer would not be able to amend the complaint, because he is required to deliver that amendment to you, and you're not there. VC 40505. Then your attorney gets the unamended citation dismissed.
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Or, it could be re-served ;)
 
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laben

Junior Member
demurringdude said:
You could prevent that from happening by not being in the courtroom. Send an attorney. The police officer would not be able to amend the complaint, because he is required to deliver that amendment to you, and you're not there. VC 40505. Then your attorney gets the unamended citation dismissed.

EDIT - I'm not sure you even need to worry about this. Once you have entered a plea, the complaint cannot be changed. They would have to start over with a new complaint, new arraignment, new trial.
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Do you mean if I hire a attorney, I don't even need to show up in the courtroom? But I paying for the attorney maybe more than guity fine. :(
 
D

demurringdude

Member
laben said:
Do you mean if I hire a attorney, I don't even need to show up in the courtroom? But I paying for the attorney maybe more than guity fine. :(
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I was over-thinking it. Don't hire an attorney.

The charge against you cannot be changed in court. Don't believe the poster above who stated that it could, he is wrong. Once you have entered your plea, you can only be tried on the charge that you pleaded to.

Assuming that your citation still says 21453c, then your best option is to get a trail de novo, and at that trial you simply let the officer give his evidence. Then you ask him to present evidence that there was a steady red arrow signal, which is one of the elements of the crime. He won't be able to. Then you move for dismissal on the grounds that there is no evidence to support the charge. You don't even need to give any evidence or testimony yourself.

If the officer or the judge starts talking about just changing it to 21453a, just flat out object and tell the judge it will be going straight to appeal if he allows that. Make sure to make a big fuss and get it in the record. Don't let him talk over you, get your objections into the record clearly. He can't even "allow" it. It's not within his jurisdiction to listen to some new charge that has not been properly served, or to try you on some charge for which you were never even arraigned. I doubt any judge would dare do that in open court.
 
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laben

Junior Member
demurringdude said:
I was over-thinking it. Don't hire an attorney.

The charge against you cannot be changed in court. Don't believe the poster above who stated that it could, he is wrong. Once you have entered your plea, you can only be tried on the charge that you pleaded to.

Assuming that your citation still says 21453c, then your best option is to get a trail de novo, and at that trial you simply let the officer give his evidence. Then you ask him to present evidence that there was a steady red arrow signal, which is one of the elements of the crime. He won't be able to. Then you move for dismissal on the grounds that there is no evidence to support the charge. You don't even need to give any evidence or testimony yourself.

If the officer or the judge starts talking about just changing it to 21453a, just flat out object and tell the judge it will be going straight to appeal if he allows that. Make sure to make a big fuss and get it in the record. Don't let him talk over you, get your objections into the record clearly. He can't even "allow" it. It's not within his jurisdiction to listen to some new charge that has not been properly served, or to try you on some charge for which you were never even arraigned. I doubt any judge would dare do that in open court.
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Your posts really encourage me , I think I'm going to fight.
 
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demurringdude

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

When you get a trail date, come back here for ideas on specific motions you should make if they try to change the charge. Judges usually tromp all over defendants who don't have their ducks in a row.

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.

Of course there is the objection that you can't be tried if you haven't been arraigned.

Also the objection that you haven't been properly served with the new charge.

Also that you have been given no notice of the pretrial motion to change the charge.

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.
 
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demurringdude

Member
To add some specificity to the issue of being given adequate notice, here's the legal requirement for that:

2010 California Rules of Court

Rule 4.111. Pretrial motions in criminal cases

(a) Time for filing papers and proof of service

Unless otherwise ordered or specifically provided by law, all pretrial motions, accompanied by a memorandum, must be served and filed at least 10 court days, all papers opposing the motion at least 5 court days, and all reply papers at least 2 court days before the time appointed for hearing. Proof of service of the moving papers must be filed no later than 5 court days before the time appointed for hearing.
 
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laben

Junior Member
Thank you everyone information!

I posted a copy of citation and a copy of the officer's declaration here,

Pictures by laben1 - Photobucket
I still bear a grudge against TBD decision, Maybe they don't even notice the mistake in officer's declaration.

Can I argue court's TBD decision?
 
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I_Got_Banned

Senior Member
laben said:
Thank you everyone information!

I posted a copy of citation and a copy of the officer's declaration here,

Pictures by laben1 - Photobucket
I still bear a grudge against TBD decision, Maybe they don't even notice the mistake in officer's declaration.
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Your citation lists the violation code as "21453CVC" which could possibly be interpreted as "21453 California Vehicle Code".

And if that is the case, you can argue that the officer failed to specify a particular subsection on the citation itself. I don't know how far that will get you...

laben said:
Can I argue court's TBD decision?
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Your only recourse after losing a TBD is to request a Trial De Novo... Once you do that, all the evidence and testimony presented prior to the TDN including the court's decision is set aside...
 
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