Chances of Appeal Success? Speeding - CA

[johnnyhall_2]

What is the name of your state (only U.S. law)? CA

I was cited in California for speeding 71mph in a 55mph zone in June. I had my trial today. Found Guilty. There were a few areas that I thought were erroneous and needed some advice:

1) The Officer read from his notes. I objected to this on foundation and heresay grounds. The Judge 'coached' him to lay the foundation, however, the Officer openly admitted that he couldnt remember anything from the stop and was utilizing his notes in place of his personal memory. Legal? Additionally, it was more appearent that he didnt from the fact his TBWD testimony differed from his Bench Trial testimony. (stated visual at 700ft at trial and 800-900ft on the TBWD declration.

2) Over my objection, the Court admitted RADAR testimony without having a copy of the calibration log being admitted. The Officer did say that the unit was calibrated, however, no written proof.

3) Within 1 second of my saying "Defense Rest", the Judge verbally stated he found me guilty. Left me know time to object to the guilt determination being made before I have a chance to give closing statements.

4) The Code I was convicted under is CVC 22349 (Max Speed law), however, the Officer never made testimony that the road was two lanes. Is the a possible appeelable error?

Thanks for any help!

 

[HighwayMan]

1) The Officer read from his notes. I objected to this on foundation and heresay grounds. The Judge 'coached' him to lay the foundation, however, the Officer openly admitted that he couldnt remember anything from the stop and was utilizing his notes in place of his personal memory. Legal?

Why not? If an officer writes 1000 speeding tickets in a year do you really expect him to have independent recollection of each and every one???

Additionally, it was more appearent that he didnt from the fact his TBWD testimony differed from his Bench Trial testimony. (stated visual at 700ft at trial and 800-900ft on the TBWD declration.

Not sure if the 100 ft difference is really very significant.

 

[johnnyhall_2]

Why not? If an officer writes 1000 speeding tickets in a year do you really expect him to have independent recollection of each and every one???

I had always heard that you cant just read something in court without any personal recollection of the events. Ive heard its hearsay. I forgot to add this, but he didnt even remember the TBWD. He was shocked when I introduced that evidence. I understand he writes 100's of tickets per year, but he did openly admit that he didnt remember. It just seems shady.

Not sure if the 100 ft difference is really very significant.

Agreed. It just supports the fact that he couldnt remember the events. How accurate could his notes be if he had two different answers?

 

[HighwayMan]

I had always heard that you cant just read something in court without any personal recollection of the events. Ive heard its hearsay. I forgot to add this, but he didnt even remember the TBWD. He was shocked when I introduced that evidence. I understand he writes 100's of tickets per year, but he did openly admit that he didnt remember. It just seems shady.

Nothing at all shady about that. What if a case comes up years later? How on Earth could ANYONE remember most details? That is what good notes are for. He openly admitted he didn't remember - that's being honest. If he stated that he remembered everything then he'd be lying big time.

It is not hearsay when an officer testifies based on notes that he wrote himself at the time of the incident.

Agreed. It just supports the fact that he couldnt remember the events. How accurate could his notes be if he had two different answers?

Ah, well that is another issue.

It seems problematic that he didn't even remember the TBWD. Doesn't sound like he was particularly on top of things.

 

[johnnyhall_2]

What about the Officer failing to testify that the road was two lanes? Being that's an element of the specific offense I was convicted of, would that be an appealable error?

 

[HighwayMan]

There are a number of contributors here who are very familiar with California laws and courts. I suggest giving it another day or so and you'll get more expert answers on that then I can provide.

 

[Zigner]

What about the Officer failing to testify that the road was two lanes? Being that's an element of the specific offense I was convicted of, would that be an appealable error?

Did you ASK if it was a two lane road?

 

[johnnyhall_2]

No, didnt think it would be advisable. Not my burden to prove the case. Is this wrong?

 

[Zigner]

No, didnt think it would be advisable. Not my burden to prove the case. Is this wrong?

Yes, it was wrong. You can't appeal a decision based on testimony that was not presented. It was YOUR job to make sure it was introduced in to evidence.

 

[johnnyhall_2]

Yes, it was wrong. You can't appeal a decision based on testimony that was not presented. It was YOUR job to make sure it was introduced in to evidence.

I guess I was wrong then. I was always under the assumption that I didnt have to 'assist' the state in proving it's case (i.e. asking the questions that lead to fulfilling the elements of the offense.) Seems odd that it's my job to ensure that the state introduces all of the needed evidence to convict me.

 

[HighwayMan]

Was it a two lane road?

 

[johnnyhall_2]

One lane of traffic going in each direction.

 

[johnnyhall_2]

What about the RADAR evidence being admitted over my objection on grounds that the Officer didnt bring the records to court? Can the Officer merely testify that they exist? I know with the Traffic Survey's the hard copy has to be in court, wasnt sure why this would be any different.

What about finding me guilty without the opportunity to have the closing arguments?

 

[demurringdude]

1) The Officer read from his notes. I objected to this on foundation and heresay grounds. The Judge 'coached' him to lay the foundation, however, the Officer openly admitted that he couldnt remember anything from the stop and was utilizing his notes in place of his personal memory. Legal?

If the officer is testifying about something he himself saw happen, then it isn't hearsay. Hearsay would be if he testified about what some other person told him happened.

Reading from your own notes is allowed in any court, at least in California. The witness does not even have to lay a foundation for them, because the notes themselves are not being introduced as evidence. The evidence is the oral testimony. The other party can ask to see the notes, and can introduce the notes as evidence, but thats about as far as you can get with that.

See CA Evidence Code section 771...

CA Codes (evid:765-778)

 

[demurringdude]

It was YOUR job to make sure it was introduced in to evidence.

What rubbish! The defendant did not need to introduce anything in to evidence.

He did need to make a legal argument that the people had not introduced evidence that established all the elements of the offense. And it would have been better if he had argued that at trial, rather than waiting for an appeal.