Discovery Motion Denied

[wheelie]

What is the name of your state (only U.S. law)? CA
My informal discovery request to the local law enforcement agency was ignored, so I filed a motion to preclude the citing officer's testimony, relying on PC 1054. The judge hearing the motion said, too bad, the officer can give you his notes right now, and your trial is tomorrow. I said, 1054 says 30 days before trial. Judge said, tuff, you have to show prejudice, which PC 1054 clearly doesn't say. It says (DA, or in this case, Police Dept) must honor request in 15 days, or sanctions may be applied. Judge didn't apply no sanctions, and made me and the officer come back the next day, the officer having his scheduled vacation coming up in two days, so I got no more time. Untimely discovery, ain't it agin the law? Not according to this judge. Appeal, obviously, but that's purty complicated for a pro per. Any ideas?

[Zigner]

Originally Posted by wheelie

What is the name of your state (only U.S. law)? CA
My informal discovery request to the local law enforcement agency was ignored, so I filed a motion to preclude the citing officer's testimony, relying on PC 1054. The judge hearing the motion said, too bad, the officer can give you his notes right now, and your trial is tomorrow. I said, 1054 says 30 days before trial. Judge said, tuff, you have to show prejudice, which PC 1054 clearly doesn't say. It says (DA, or in this case, Police Dept) must honor request in 15 days, or sanctions may be applied. Judge didn't apply no sanctions, and made me and the officer come back the next day, the officer having his scheduled vacation coming up in two days, so I got no more time. Untimely discovery, ain't it agin the law? Not according to this judge. Appeal, obviously, but that's purty complicated for a pro per. Any ideas?

The court is under no obligation to apply sanctions. You have been provided the information you requested.

[wheelie]

Originally Posted by Zigner

The court is under no obligation to apply sanctions. You have been provided the information you requested.

Thanks, Zigner. I'm thinking that for every law without an express statement of, "if you don't follow this law, we'll break your finger", the law has no teeth. Taking it a little further, a motion to compel discovery, well that there's a toothless motion, cuz the penal code that says, "SHALL DISCLOSE", is an empty threat.

I've hit a dead end, if they don't disclose? Or, actually, in my case, they disclosed on the day of motion hearing, said come back tomorrow for trial. Another empty threat in PC 1054 is that the disclosure "SHALL BE MADE" thirty days prior to the trial.

I am a big fan of using failure to be timely to solve most things. Easy to monitor, and most folks, including me, are procrastinators. Kinda like a statute of limitations thing, easy to understand, easy to argue.

[I_Got_Banned]

Originally Posted by wheelie

My informal discovery request to the local law enforcement agency was ignored

Local law enforcement is not under any obligation to provide you with discovery. PC1054 requires the DA to provide discovery (and I quote 1054.1) “if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies”... The DA is not in possession of any of the information that you requested nor is he/she aware of its existance.

Originally Posted by wheelie

so I filed a motion to preclude the citing officer's testimony, relying on PC 1054.

You skipped a step... Albeit a worthless one but you did not file a motion to compel. That aside, and if you read 1054 (and I quote): “Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and <1> upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, <2>a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, <3> immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.”

So first (see<1> above), and based on what you've posted, you (the “moving party”) did not comply with 1054.1 or 1054.3 in that you served your IDR on the Law enforcement agency, not the DA. But even with that, and as Zigner has pointed out, (see <2> above) the court “may” not “shall”... Moreover, the court did in fact remedy the situation by providing (see <3> above) “immediate disclosure: of the officer's notes. What else did you request in your IDR?

Originally Posted by wheelie

The judge hearing the motion said, too bad, the officer can give you his notes right now, and your trial is tomorrow. I said, 1054 says 30 days before trial. Judge said, tuff, you have to show prejudice, which PC 1054 clearly doesn't say.

Well, go in tomorrow and argue that you are unable to put on a defense due to the fact that you need more time to read the officer's notes. My guess is that the judge will order you to proceed.

Originally Posted by wheelie

It says (DA, or in this case, Police Dept) must honor request in 15 days

Actually, (again) PC1054 obligates the DA (NOT the PD) to provide discovery IF IT IS IN HIS POSSESSION.... And if they don't, you had the option to file a few motions instead of counting on dismissal on your trial date.

Originally Posted by wheelie

or sanctions may be applied. Judge didn't apply no sanctions

… Wrong... PC1054 says the court “may may any order necessary to enforce the provisions of this chapter” and one of the “order options” that this judge opted to go with was the “immediate disclosure” of the officer's notes.

Originally Posted by wheelie

Thanks, Zigner. I'm thinking that for every law without an express statement of, "if you don't follow this law, we'll break your finger", the law has no teeth. Taking it a little further, a motion to compel discovery, well that there's a toothless motion,

Well, your analogy doesn't fit this situation... In other words, and taking it even another step further, traffic laws are toothless as well. They won't break your finger's if you lose your trial, they will only order you to pay a fine.

Originally Posted by wheelie

cuz the penal code that says, "SHALL DISCLOSE", is an empty threat.

Again, you're reading things out of context... PC1054 says “SHALL DISCLOSE”... “IF IN POSSESSION”.

Originally Posted by wheelie

I've hit a dead end, if they don't disclose? Or, actually, in my case, they disclosed on the day of motion hearing, said come back tomorrow for trial. Another empty threat in PC 1054 is that the disclosure "SHALL BE MADE" thirty days prior to the trial.

And yet again, you're reading things out of context... PC1054.7 says “The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred”

The material you requested was never in the possession of the DA. But even then, and again, based on what you posted, you requested it from the PD not from the DA... Furthermore, the material may have been in the possession of the court prior to your trial date, but you waited until the last minute to request relief from the court.

Originally Posted by wheelie

I am a big fan of using failure to be timely to solve most things. Easy to monitor, and most folks, including me, are procrastinators. Kinda like a statute of limitations thing, easy to understand, easy to argue.

And I am a firm believer in having a decent defense to the alleged violation that was committed. Playing the cat and mouse game with the DA, the PD and the court will never get you anywhere. And like you said before, having to go through an appeal if not only time consuming, but most people will screw that up with procedural errors.

With all that being said, what were you cited for? Any defense at all or are you only hoping for a dismissal (which sounds like quite the stretch for tomorrow)?

[wheelie]

Wow, I_Got_Banned, thanks for the huge effort at shedding light on this. I think it is a worthwhile topic because, I have seen lots of folks struggle with it, and it actually is covered in some amount of depth in David Wayne Brown's book, which I relied on almost solely, being the neophyte I am.

Originally Posted by I_Got_Banned

Local law enforcement is not under any obligation to provide you with discovery.

I actually tried serving the DA in Sacramento with my request for discovery, but, since they don't really mess with infractions, they have an already prepared form that says, hey, take this to the local law enforcement agency and make informal request to them. My server got them to sign and date that attempting serving was conducted, and that referral to LEA (Law enforcement agency) was made. So, actually, I served both, as recommended in DWB's book.

Originally Posted by I_Got_Banned

You skipped a step... Albeit a worthless one but you did not file a motion to compel.

As I understood it, the judge could have possibly issued an order to compel discovery, as a sanction to the LEA. Anyway, you say 'worthless'.

Originally Posted by I_Got_Banned

So first (see<1> above), and based on what you've posted, you (the “moving party”) did not comply with 1054.1 or 1054.3 in that you served your IDR on the Law enforcement agency, not the DA. But even with that, and as Zigner has pointed out, (see <2> above) the court “may” not “shall”... Moreover, the court did in fact remedy the situation by providing (see <3> above) “immediate disclosure: of the officer's notes. What else did you request in your IDR?

See above, I think I complied, the DA having given their duty/responsibility over to the LEA. 1054.3, I think was me being reciprocal with discovery, which I was. To consider "immediate disclosure" as a remedy, that violates 1054.7 which says immediate/schmediate, has to be 30 days before trial, otherwise there's not enough time. (There we go with things easy to understand and easy to argue, the 30 day time frame). What else did I request in my IDR. Nothin'. I just said send me all the stuff listed in 1054.1. Also in 1054.1 it says "or if the prosecuting attorney knows it to be in the possession of the investigating agencies". Somehow here, I feel it is not wrong to keep talking about the LEA and leave the DA out of it. At least that is what DWB's book convinced me of.

Originally Posted by I_Got_Banned

Well, go in tomorrow and argue that you are unable to put on a defense due to the fact that you need more time to read the officer's notes. My guess is that the judge will order you to proceed.

Couldn't agree with you more!

Originally Posted by I_Got_Banned

Actually, (again) PC1054 obligates the DA (NOT the PD) to provide discovery IF IT IS IN HIS POSSESSION.... And if they don't, you had the option to file a few motions instead of counting on dismissal on your trial date.

Once again, don't think this does not apply to LEA. That's maybe cuz this is an infraction and the DA is too important/busy/etc. to do it all/any. I mean, at trial, the DA is not there, only the officer.

Originally Posted by I_Got_Banned

… Wrong... PC1054 says the court “may may any order necessary to enforce the provisions of this chapter” and one of the “order options” that this judge opted to go with was the “immediate disclosure” of the officer's notes.

Just because it's an option, doesn't mean it "holds water". Pardon my reference to Cousin Vinny. This is difficult to say in 25 words or less, but if the option is N/A, then you can't use it. In this case I reaffirm my belief in a 'contradictory' provision requiring 30 days.

Originally Posted by I_Got_Banned

Well, your analogy doesn't fit this situation... In other words, and taking it even another step further, traffic laws are toothless as well. They won't break your finger's if you lose your trial, they will only order you to pay a fine.

You're right. I hate analogies anyway, as they not always on point, and the meaning is lost. But what I meant was, that if there is no penalty (a fine) then most everybody would feel free to break it. That's like the LEA, no disclosure to me, so what, no penalty.

Originally Posted by I_Got_Banned

Again, you're reading things out of context... PC1054 says “SHALL DISCLOSE”... “IF IN POSSESSION”.

But the LEA "WAS" in possession. In fact, in his "immediate disclosure" remedy, possessed documents were handed over to me.


And yet again, you're reading things out of context... PC1054.7 says “The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred”

Originally Posted by I_Got_Banned

but you waited until the last minute to request relief from the court.

I filed the motion after 20 days had lapsed without hearing from the LEA. They had already gone beyond the 15 days allowed by law to disclose. Then they never let you schedule your motion in advance of trial, cuz they think infractions are not worth it. Which is why 1054 via Prop 115 was set up. To make it really easy, really cheap, and really simple to get things done. We don't want anybody, judges, cops, citizens spending any more time and effort than they have to. Everybody should be paying more attention to serious matters.

Originally Posted by I_Got_Banned

And I am a firm believer in having a decent defense to the alleged violation that was committed. Playing the cat and mouse game with the DA, the PD and the court will never get you anywhere. And like you said before, having to go through an appeal if not only time consuming, but most people will screw that up with procedural errors.

Without discovery, how was I supposed to prepare my defense? I spent my effort trying the informal discovery request route. This is not a cat and mouse game. I'm entitled to discovery, and TIMELY. 'Course, as deplorable as my performance went trying to spout 1054 to the judge, maybe I am all wet. The judge, by the way, cared not that the LEA failed to disclose timely. He thought, no problem, just hand it over now "AT THE LAST MINUTE". No sanctions to the LEA, just one big prejudice to the defendant. Okay, I'll calm down.

Originally Posted by I_Got_Banned

With all that being said, what were you cited for? Any defense at all or are you only hoping for a dismissal (which sounds like quite the stretch for tomorrow)?

Thanks for asking. I got no defense. No time to prepare one. I'm in court tomorrow. Actually in a coupla days. Silly as it may sound, I was kinda leaning toward mens rea, but I'm hearing that doesn't fly with infractions. I'm doomed. My motion was my big chance.

[Jim_bo]

IGB,

You are wrong, sir. You should read my post in response to Carl's post in this thread: [url]http://forum.freeadvice.com/speeding-other-moving-violations-13/vc-22348-b-notice-motion-compel-discovery-488793.html[/url]

The most pertinent point is People v Superior Court (Barrett) which stated:

A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigating agency to assist the prosecution or the investigating agency in its work. The important determinant is whether the person or agency has been "acting on the government's behalf"

So... this "in possessions" garbage doesn't fly. That is just a weak justification for the prosecutor not doing the job he is obligated to perform.

[I_Got_Banned]

Originally Posted by wheelie

Wow, I_Got_Banned, thanks for the huge effort at shedding light on this.

Not a problem... And I appreciate you open mindedness and your ability to carry on a discussion as opposed to an argument. In fact, here's a lot more... (Slow night... LOL).

Originally Posted by wheelie

I think it is a worthwhile topic because, I have seen lots of folks struggle with it, and it actually is covered in some amount of depth in David Wayne Brown's book, which I relied on almost solely, being the neophyte I am.

Do you mean “The Da Vinci Code”? Oh wait... That is Dan brown.... At any rate, and while I do agree that DWB did an amazing job in his book... After reading through it and using it myself, and in hindsight, I can tell you that his book is lacking in some areas... “discovery” being one of them.

Originally Posted by wheelie

I actually tried serving the DA in Sacramento with my request for discovery, but, since they don't really mess with infractions, they have an already prepared form that says, hey, take this to the local law enforcement agency and make informal request to them. My server got them to sign and date that attempting serving was conducted, and that referral to LEA (Law enforcement agency) was made. So, actually, I served both, as recommended in DWB's book.

Again, the Penal code does not shift the responsibility to the LEA. I specifically states that the DA is obligated to provide discovery if it is in his possession or if he is aware of it being in the possession of the LEA. But therein lies the problem... You've got a DA that misinterprets that into a “its not my responsibility” , a LEA that says “we're not the DA” (although some LEAs do in fact cooperate), and a court that says “what do you want? Here is some or all of it, let's proceed”.

Originally Posted by wheelie

As I understood it, the judge could have possibly issued an order to compel discovery, as a sanction to the LEA. Anyway, you say 'worthless'.

Well, you did not file a “motion to compel”, you filed a “motion to exclude”, right? So the judge took it upon himself to make a decision that in his opinion will serve to remedy the situation... Provide you with what you've requested via your IDR. Realistically speaking and while I do not fully agree with the judge's decision, I don't think I can say that I disagree.

Originally Posted by wheelie

See above, I think I complied, the DA having given their duty/responsibility over to the LEA. 1054.3, I think was me being reciprocal with discovery, which I was.

Reciprocal? So you want bonus points for providing that DA with... uhm, nothing that they asked for? You did not send them anything.... Am I right?

Originally Posted by wheelie

To consider "immediate disclosure" as a remedy, that violates 1054.7 which says immediate/schmediate, has to be 30 days before trial, otherwise there's not enough time. (There we go with things easy to understand and easy to argue, the 30 day time frame).

You say it violates 1054.7, I say it doesn't and here's why... Can you in any way, shape or form, articulate that you're only having 1 day to review the officer's notes did in fact prevent you from being able to present a defense? Did the officer's notes lead you in a direction, or suggest additional evidence that existed that you were unable to obtain due to lack of time between the disclosure and the trial? I don't know... I still have no clue what you were cited for or even what the officer's notes say.

How much time do you think you need to read a few words from the back of the citation?

And even then, if you disagree with anything that the officer wrote in his notes, you'll get your chance to either question him in an effort to cast some doubt, or otherwise testify on your own behalf. Although I'd stay away from the latter.

So as far as this point is concerned, I am leaning towards agreeing with the judge that you have not shown (nor can you show) that you were prejudiced in any way.

Originally Posted by wheelie

What else did I request in my IDR. Nothin'. I just said send me all the stuff listed in 1054.1.

You know who the witness(es) are, you have a copy of the officer's notes (and without knowing what you were cited for, I have no idea what else you could have requested or what else you should have received).

That, then, might suggest that you received everything you asked for.

AS for this coming just 2 days before the officer's vacation, my guess is that the judge could not schedule the case for a date after the officer's vacation due to the “speedy trial” statutory requirement (just a guess). So for him to simply dismiss the case, would be highly prejudicial to the other party in this case, i.e., the “People of the State of California”.

Originally Posted by wheelie

Somehow here, I feel it is not wrong to keep talking about the LEA and leave the DA out of it. At least that is what DWB's book convinced me of.

And that is exactly why I think that the chapter on discovery (in DWB's book), is quite a bit lacking, maybe even misleading.

Originally Posted by wheelie

Once again, don't think this does not apply to LEA.

Well, show me the statute that says the LEA is obligated to provide you with discovery 30 or more days prior to your trial date. Better yet, keep me out of the loop. Print that statute and take it to court with you tomorrow and hand it to the bailiff to hand to the judge.

Originally Posted by wheelie

That's maybe cuz this is an infraction and the DA is too important/busy/etc. to do it all/any. I mean, at trial, the DA is not there, only the officer.

Think about it this way... The officer is merely a witness, he is not a “prosecutor”. So can you really deem him at fault for not performing a duty which is strictly that of the prosecutor? I don't think so.

Originally Posted by wheelie

Just because it's an option, doesn't mean it "holds water".

The point I was making is that you may have committed a procedural error by waiting until the day of your trial to argue “I never received discovery so I move for a dismissal”... Not only did you skip a few of the remedies offered by PC1054.5, but you could have also served your discovery request immediately after you received the citation and that would have given you time to argue a motion to compel at your arraignment instead of at your trial. Instead, you waited until the proverbial 11th hours to request 'sanctions” in an effort to squeeze a dismissal out of the judge. And my guess is that judges do not appreciate having a defendant force them back in to a corner.

Furthermore, let us assume that you did receive each and every item under the sun in response to your discovery request... Where would you be now? What would you argue? How would you defend yourself?

So see, you were not prejudiced in any way...

Originally Posted by wheelie

In this case I reaffirm my belief in a 'contradictory' provision requiring 30 days.

And I will reiterate that the fact that the DA is not even aware of the existence of your case. Also, the statute does allow for less than 30 day to provide such information. Therefore, there is not “contradiction”.

Originally Posted by wheelie

But the LEA "WAS" in possession.

And yet, the DA had no clue what the LEA has. If some LEAs do comply, they are doing so out of courtesy and not because they are obligated to.

Originally Posted by wheelie

In fact, in his "immediate disclosure" remedy, possessed documents were handed over to me.

Handed to you by the court... Not by the LEA and certainly not by the prosecutor.

Originally Posted by wheelie

I filed the motion after 20 days had lapsed without hearing from the LEA. They had already gone beyond the 15 days allowed by law to disclose. Then they never let you schedule your motion in advance of trial, cuz they think infractions are not worth it. Which is why 1054 via Prop 115 was set up. To make it really easy, really cheap, and really simple to get things done. We don't want anybody, judges, cops, citizens spending any more time and effort than they have to. Everybody should be paying more attention to serious matters.

Again, I am not preview to the timeline in your case. I don't know when you served your IDR... for all I know, maybe you waited until 21 days before your trial to serve it in hopes that you can squeeze them back into a corner, but by doing so, you left the judge no other option but to order you to proceed the next day.

Originally Posted by wheelie

Without discovery, how was I supposed to prepare my defense? I spent my effort trying the informal discovery request route.

Well, again, go to court tomorrow and file a motion to dismiss on the grounds that your case was prejudiced by you not having enough time to read the officer's notes and prepare a defense accordingly. I'm not psychic but I can tell you what the judge will say....

Originally Posted by wheelie

Thanks for asking. I got no defense.

Post the details... You maybe surprised!

Originally Posted by wheelie

No time to prepare one.

Well, it was you who was cited... You mean you have no ideas whatsoever? Not even a few questions for the officer to try a raise doubt? Come on... Was it that blatant of a violation?

Originally Posted by wheelie

I'm in court tomorrow. Actually in a coupla days.

Well, see? You actually had more time that you originally stated... So your claim about a lack of time just diminished a little bit more...

Originally Posted by wheelie

Silly as it may sound, I was kinda leaning toward mens rea, but I'm hearing that doesn't fly with infractions.

You're right... It won't fly.

[I_Got_Banned]

Originally Posted by Jim_bo

IGB,

You are wrong, sir. You should read my post in response to Carl's post in this thread: [url]http://forum.freeadvice.com/speeding-other-moving-violations-13/vc-22348-b-notice-motion-compel-discovery-488793.html[/url]

The most pertinent point is People v Superior Court (Barrett) which stated:



So... this "in possessions" garbage doesn't fly.

So what are you suggesting that "wheelie" should do here?

Originally Posted by Jim_bo

That is just a weak justification for the prosecutor not doing the job he is obligated to perform.

And we both know that the court will not hold the prosecutor to his "obligation"...

[Jim_bo]

Originally Posted by I_Got_Banned

And we both know that the court will not hold the prosecutor to his "obligation"...

That is one statement that you and I are in complete agreement on. Therefore, the only way to deal with an issue like this is to ensure you raise the appropriate objections in court and the file an appeal. This misconception of "there is no prosecutor" is just wrong and needs to be clarified in the appellate court. Until someone goes forward with an appeal that allows the court to clear the issue up, people are going to continue getting their rights violated. Our OP is as good a candidate as anyone to carry this argument forward.

[Zigner]

In THIS case, the judge DID take in to account the failure to provide discovery. He availed himself of one of the available remedies and ordered the information to be provided, and it was. So, lack of discovery is out the window for THIS op.

[Jim_bo]

I thought the judge simply had the cops provide him with his notes. The "prosecutor" did NOT provide all of the discovery requested. The OP still has an appealable issue at hand.

[Zigner]

Originally Posted by Jim_bo

I thought the judge simply had the cops provide him with his notes. The "prosecutor" did NOT provide all of the discovery requested. The OP still has an appealable issue at hand.

No...the purpose of "discovery" is so that the defendant has the opportunity to review all of the "evidence" against him. The judge made sure said "evidence" was provided.
The defendant has received what he asked for. Thus, there is no basis for appeal.

[Jim_bo]

Originally Posted by Zigner

No...the purpose of "discovery" is so that the defendant has the opportunity to review all of the "evidence" against him. The judge made sure said "evidence" was provided.
The defendant has received what he asked for. Thus, there is no basis for appeal.

You could not be more wrong. The purpose of discovery is NOT just an opportunity to "review" evidence against a defendant.... it is more importantly a demand for the prosecution to turn over all possibly exculpatory evidence! I'm sure the prosecution doesn't plan on using exculpatory evidence at trial, but they have the obligation to turn it over anyway.

[Zigner]

Originally Posted by Jim_bo

You could not be more wrong. The purpose of discovery is NOT just an opportunity to "review" evidence against a defendant.... it is more importantly a demand for the prosecution to turn over all possibly exculpatory evidence! I'm sure the prosecution doesn't plan on using exculpatory evidence at trial, but they have the obligation to turn it over anyway.

You are correct. I was overly restrictive in my explanation of discovery. Discovery provides the defendant to review all evidence whether it be harmful, helpful or benign.

[Jim_bo]

Originally Posted by Zigner

You are correct. I was overly restrictive in my explanation of discovery. Discovery provides the defendant to review all evidence whether it be harmful, helpful or benign.

I agree... you were wrong (overly restrictive). Which means you were also wrong (overly restrictive) in this post as well:

Originally Posted by Zigner

In THIS case, the judge DID take in to account the failure to provide discovery. He availed himself of one of the available remedies and ordered the information to be provided, and it was. So, lack of discovery is out the window for THIS op.