speeding case appeal

[mlang2005]

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

Hi guys I have read through some post but can’t seem to find what I’m looking for.

I was charged with 22349(B) I went to traffic court to contest the ticket.

Officer (chp) testified as usual to using radar he did mention his 24hr training and that he performed the internal check at the beginning and at the end of the shift. He did not indicate he had made a visual estimation of speed. (Presumably because he was oncoming and it was at night).

Defense motioned for dismissal due to lack of evidence
supporting the accuracy of the radar defense stated:
1. Prosecution presented no competent proof as requested that the radar unit was certified as being accurate, no manufactures certification of accuracy or recent shop visit for function and accuracy testing. (Wisconsin v Hanson. Sup. 1978)

2. Prosecution presented no competent proof as requested to show that the radar was properly calibrated/tested for accuracy before and after the citation. (Wisconsin v Hanson. Sup. 1978)

3. Prosecution presented no competent proof as requested showing officers 24 hour minimum radar training certification. (Wisconsin v Hanson. Sup. 1978)

Motion denied.

Defense objected to the witness testimony regarding the use of radar with out proper foundational evidence. Over ruled

The officer had nothing except the ticket.

This occurred in CA and without a prosecutor.
Conviently the court does not do any kind of transcript or recording??? is that legal??


this was a two lane road with a 55 speed limit. No speed trap that I can argue (unless u guys can think of an argument)

officer did mention in court since it was my birthday that day but had started the ticket before he realized it he wrote me for 65 however he noted on the ticket radar at 70.

My question is do you guys know of any CA statute or case law supporting my position of asking radar be accurate and tested. Or is the Wisconsin sup case enough.

I know cvc 40802 has requirements for calibration/testing but I am not sure if they apply to 22349(b) seems like they should by reasoning.

Any ideas or strategies for appeal are welcome Thanks!

* one additional note. The citing officer was unable to provide one shred of real evidence that I requested, however the judge did present a document from a binder on his bench that was claimed to be a calibration certificate for the radar, I objected to the judge introducing material evidence for the peoples case. I was overruled on that issue as well and he said " your welcome to appeal". (Judge acting as prosecuter? supra ca v carlucci)
not sure I can make that case since no evidence was actually admitted. but I am thinking of including the event in the appeal, chances are nobody is going to make any changes to my proposed statment anyway.


So what do you guys think?
Prejudical error?
Lack of evidence?
Judge acting as prosecuter? supra ca v carlucci It felt very apparent that the judge and officer/witness are working together.


There is no evidence entered on the trial according to the recipt I have.What is the name of your state (only U.S. law)?

 

[Billy_Tompson]

I would need to see the transcript...

 

[mlang2005]

I called the court the clerk claims there is no transcript for traffic court nor is there a recording.

 

[FlyingRon]

Wisconsin has no bearing on this case. Not only is it not sufficient, it's irrelevant.

 

[mlang2005]

That’s why I am looking for a similar case in CA. If there is one why would it not be relevant?

 

[FlyingRon]

That’s why I am looking for a similar case in CA. If there is one why would it not be relevant?

Because the Wisconsin Supreme Court means nothing to the California judiciary.
(I was answering your question "Or is the Wisconsin sup case enough.").

The testimony of the officer that he had been trained, is sufficient (he has first hand knowledge he completed the course, unlike the radar unit calibration itself which someone else had to do). Unless you can show that there is some credible reason to dispute that, it's going to be assumed it happened.

I think you'd have a better case on appeal with the judge acting as prosecutor depending on just how it went down.

 

[antrc170]

CA does not have to recognize any WI cases for judicial precedence.

Few traffic courts are courts of record (meaning they are transcribed). In VA for example, district courts are the first courts of record which is where traffic appeals go.

In many traffic courts the regular officers present keep their radar certifications (as well as vehicle calibrations for pace) in binders at the court. (Stafford Co. VA, Valley Brook OK) You asked for the proof and were provided with such. The judge may have ease of access, doesn't mean he was acting in any capacity other than judge. He could have easily have handed the binder to the officer, who would pull the paper, give it to the judge, who would give it to you.

 

[mlang2005]

agreed the judge could have gave it to the officer but it was not how it happend. can a witness or judge introduce material evidence? I was under the assumption that only a prosecuter or defense could introduce evidence that the judge then could choose to admit or not.

 

[mlang2005]

material/foundation evidence

 

[FlyingRon]

Few traffic courts are courts of record (meaning they are transcribed). In VA for example, district courts are the first courts of record which is where traffic appeals go.

Which is pretty much why your appeal from a General District Court is just a Trial de Novo.

In many traffic courts the regular officers present keep their radar certifications (as well as vehicle calibrations for pace) in binders at the court. (Stafford Co. VA, Valley Brook OK) You asked for the proof and were provided with such. The judge may have ease of access, doesn't mean he was acting in any capacity other than judge. He could have easily have handed the binder to the officer, who would pull the paper, give it to the judge, who would give it to you.

That's my point. If you or the officer mentioned the certificate and the judge says "I've got it right here" that's one thing. If he were to bring it up himself, or in certain other circumstances, you might have a case.

 

[antrc170]

Which is pretty much why your appeal from a General District Court is just a Trial de Novo.


That's my point. If you or the officer mentioned the certificate and the judge says "I've got it right here" that's one thing. If he were to bring it up himself, or in certain other circumstances, you might have a case.

??? I think that we agree on these points flyingron. I think the OP doesn't understand it.

 

[mlang2005]

The officer testified then I motioned for dismissal due to lack of foundation. The Judge asked me "what do you want". I responded "documentation that supports the accuracy of the radar in use and documentation showing the officers training. The Judge then asked the officer "Do you have any of the documents? The officer replied "I do not have it with me" The judge then said "I have some radar calibration certificates what is the number for the unit" he then opened a binder pulled out a cert. handed it to the clerk, I objected to the judge providing evidence for the prosecution, Judge overruled, the clerk then handed me the document.

It seems to me that a judge helping the prosecution case by providing evidence would not be consistent with the Carlucci opinion stating:
"the conduct of the court, including it’s questioning of witnesses, is fair and properly limited in scope.

And :
“In the absence of a prosecuting attorney the citing officer routinely takes the stand and gives a narrative description of the events leading to the issuance of the citation. The defendant will then have full opportunity to cross-examine the officer and then may himself testify, and present such other evidence as may be probative and relevant. Under these circumstances we are satisfied that a trial judge should, within proper limits, be permitted to ask questions for the purpose of clarifying ambiguities and to insure that justice is done both to the accused and to the People, all this without jeopardizing the court's ability to act in a judicious, independent, detached, and neutral manner.


[52] In approving this practice, however, we caution that the trial court must not undertake the role of either prosecutor or defense counsel. We have recognized that "It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as possible, the appearance of impropriety." (People v. Rhodes (1974) 12 Cal. 3d 180, 185 [115 Cal. Rptr. 235, 524 P.2d 363], italics in original.) It is fundamental that the trial court in the conduct of infraction hearings must refrain from advocacy and remain circumspect in its comments on the evidence, treating litigants and witnesses with appropriate respect and without demonstration of partiality or bias. (People v. Campbell (1958) 162 Cal. App. 2d 776, 787 [329 P.2d 82]; People v. Huff (1955) 134 Cal. App. 2d 182, 187-188 [285 P.2d 17]; McCartney v. Commission on Judicial Qualifications, supra, 12 Cal. 3d at p. 533.)


I don’t see how providing, introducing and admitting evidence on prosecutions behalf is within "proper limits.

 

[I_Got_Banned]

Wisconsin decisions are not binding in California.

There is a BIG difference between “requested” evidence and “REQUIRED” evidence; just because you requested it does not make it a requirement.

40802 does NOT apply to 22349(b) citations.

I find it interesting that 40802, and in addition to a calibration certificate, it also requires the officer to produce a copy of his training certificate AND a copy of an engineering survey justifying the speed limit, and yet the only claim that you're hanging your hat on is that he must produce a calibration certificate?There is NO requirement for the officer to produce a calibration certificate for a maximum speed citation. And there are no California cases that will support your claim.

Your Carlucci citation is far from being on point. In Carlucci, the appellate addressed the question of whether a judge should be “permitted to ask questions for the purpose of clarifying ambiguities and to insure that justice is done both to the accused and to the People, all this without jeopardizing the court's ability to act in a judicious, independent, detached, and neutral manner.”

The issue here does not revolve around the judge “asking questions”, instead, you're making an issue of the fact that the judge provided you with a document which you insisted that it must be produced (simply because you requested it) in spite of the FACT that it is NOT REQUIRED.

(Without reading/hearing the transcript), it sounds to me like the judge had been satisfied that the speed estimate was sufficiently accurate to support a conviction regardless of whether the Radar was calibrated or not (and rightfully so), and that he simply looked for the certificate to merely satisfy you. So even if you are able to show that the judge's action was outside the scope of his duty, thereby suggesting that the calibration certificate should have been excluded (all while it is NOT even required to begin with), the outcome would still be the same.

Why? Because the standard for a review of an appeals case is not to look for evidence that will clear you, instead, it is to review the record and the evidence in a light most favorable to the prosecution and that which supports a conviction.

Still not convinced? Then read “People v. Lowe, 130 Cal. Rptr. 2d 249 - Cal: Appellate Div., Superior 2002 “, it covers most if not all the issues you're raising here. People v. Lowe, 105 Cal. App. 4th Supp. 1 - Google Scholar

The officer testified then I motioned for dismissal due to lack of foundation. The Judge asked me "what do you want". I responded "documentation that supports the accuracy of the radar in use and documentation showing the officers training. The Judge then asked the officer "Do you have any of the documents? The officer replied "I do not have it with me" The judge then said "I have some radar calibration certificates what is the number for the unit" he then opened a binder pulled out a cert. handed it to the clerk, I objected to the judge providing evidence for the prosecution, Judge overruled, the clerk then handed me the document.

It seems to me that a judge helping the prosecution case by providing evidence would not be consistent with the Carlucci opinion stating:
"the conduct of the court, including it’s questioning of witnesses, is fair and properly limited in scope.

And :
“In the absence of a prosecuting attorney the citing officer routinely takes the stand and gives a narrative description of the events leading to the issuance of the citation. The defendant will then have full opportunity to cross-examine the officer and then may himself testify, and present such other evidence as may be probative and relevant. Under these circumstances we are satisfied that a trial judge should, within proper limits, be permitted to ask questions for the purpose of clarifying ambiguities and to insure that justice is done both to the accused and to the People, all this without jeopardizing the court's ability to act in a judicious, independent, detached, and neutral manner.


[52] In approving this practice, however, we caution that the trial court must not undertake the role of either prosecutor or defense counsel. We have recognized that "It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as possible, the appearance of impropriety." (People v. Rhodes (1974) 12 Cal. 3d 180, 185 [115 Cal. Rptr. 235, 524 P.2d 363], italics in original.) It is fundamental that the trial court in the conduct of infraction hearings must refrain from advocacy and remain circumspect in its comments on the evidence, treating litigants and witnesses with appropriate respect and without demonstration of partiality or bias. (People v. Campbell (1958) 162 Cal. App. 2d 776, 787 [329 P.2d 82]; People v. Huff (1955) 134 Cal. App. 2d 182, 187-188 [285 P.2d 17]; McCartney v. Commission on Judicial Qualifications, supra, 12 Cal. 3d at p. 533.)


I don’t see how providing, introducing and admitting evidence on prosecutions behalf is within "proper limits.

You can twist it however which way you want... In reality, YOU made an issue of the calibration requirement, YOU insisted that a certificate must be produced, YOU requested to review the document and when the judge produced it to you for your review you're now crying foul?

There is nothing inherently wrong with documents being held on file with the court. In fact that is how traffic and engineering surveys (and OBVIOUSLY calibration certificates) are maintained in most if not all California courts.

From People v. Ellis, 33 Cal. App. 4th Supp. 25 - Cal: Court of Appeals 1995 http://scholar.google.com/scholar_case?q=engineering+survey+examine&hl=en&as_sdt=4,5&case=17558790731088287978&scilh=0

... we hold that the prosecution satisfies this burden if it lodges a certified copy of the survey with the court and the court takes judicial notice of the survey. The defendant then under Evidence Code section 455 would have the right to examine the survey in order to substantiate his/her challenge. Thus, the defendant has the burden of explicitly asking for the survey. In addition to requesting the survey, the defendant has the burden of proving its inadequacy. (People v. Smith, supra.)" (Id. at p. 10.)​

In this case, there was no need to produce the calibration certificate, there was no need to lay proper foundation for its existence and there was no need for the court to take judicial notice of the same.