VC 22348(B) - Notice of Motion to Compel Discovery

[mcshiny]

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

So I got cited for VC 22348(B), which is exceeding 100 MPH. I made an informal request for discovery and sent letters to both the district attorney's office and the agency that cited me, which was the California Highway Patrol. I did this at the end of Sept. A few days ago, I got a letter from the DA's office saying that pursuant to Government Code 26500, "the district attorney is the public prosecutor, except as otherwise provided by law. The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses." They said they construed this to mean that they do not have to show up on traffic infractions. OK, I am fine with that. They also go on to say that they are not the proper agency to get my discovery from and that I should contact CHP instead. I always thought the DA's office were obligated to give me discovery and thought I had seen a code section that required it, but whatever...

It has now been approximately 20 days since I sent my request for discovery and I have yet to receive anything from the CHP's office. I am now thinking of writing up a notice of motion to compel the CHP's office to give me my discovery. I have a few questions before I do that.

1) Is there a formal way to do this? Or is this informal like the request for discovery? I would assume I would want to do this on pleading paper.

2) If they don't give me discovery at all, would this actually benefit me in getting my case dismissed? Am I entitled to discovery and if they don't provide it to me, I can ask for a dismissal?

3) Is it true that I can't just send my notice of motion to compel discovery to the CHP office but I actually have to serve it on them through a third party? Seeing that I am in Northern California and the CHP office is located in Southern California, this makes it a little difficult for me to find someone to do this for me.

Any and all help is much appreciated.What is the name of your state (only U.S. law)?

 

[demurringdude]

You were right - the DA is required to provide your discovery. Discovery is done by the parties in the case - which are you and the people of the state of California (represented by the DA). The CHP is not a party, and doesn't have to do anything.

No doubt the DA does not have any of the things you are asking for, and will have to ask the CHP for it, but that does not mean you have to do that work for them.

You should follow up with the DA formally. Make sure you can prove in court that you served discovery. The letter you got back from the DA looks like good proof that you did not get any.

If you don't get your discovery, the case is not automatically dismissed (although you can and should move for that). However, at trial you can object to any evidence being introduced if you asked for it in discovery and didn't get it (and you have proof of that). That would likely mean there is no case, unless all they need is the officer's testimony.

Regarding service, you can get a third party (your wife etc) to mail the motion, and then that person fills out a proof-of-service form. You don't have to drive down there.

 

[Zigner]

You were right - the DA is required to provide your discovery. Discovery is done by the parties in the case - which are you and the people of the state of California (represented by the DA). The CHP is not a party, and doesn't have to do anything.

As has been discussed ad nauseam in this forum, this is not true.

 

[demurringdude]

McShiny,

Take a look at California Penal Code 1054. It has all the details you were looking for.

Apparently Zigner has some other info, but he's keeping it secret.

 

[I_Got_Banned]

3) Is it true that I can't just send my notice of motion to compel discovery to the CHP office but I actually have to serve it on them through a third party? Seeing that I am in Northern California and the CHP office is located in Southern California, this makes it a little difficult for me to find someone to do this for me.

Simply serving the CHP with a "motion to compel" will not accomplish anything for you. The motion must be filed with the court, served upon the DA, and you can serve it on the CHP if you so choose.

After the motion is heard in court, and assuming the court chooses to act on your motion, then the court will issue the order to the DA to comply with discovery.

With that being said, and although you can file your motion by mail (or even by fax depending on the local court rules for that particular court), the fact still remains that you MAY have to appear in court to argue your motion. With you being in NorCal while the court is in SoCal, not sure how you're gonna do that.

 

[I_Got_Banned]

Apparently Zigner has some other info, but he's keeping it secret.

That "secret", is posted in many threads all over this forum. You just have to search for "California AND Discovery".

 

[CdwJava]

McShiny,

Take a look at California Penal Code 1054. It has all the details you were looking for.

Apparently Zigner has some other info, but he's keeping it secret.

PC 1054 et seq requires the prosecuting attorney to turn over the information if he is in possession of it or "knows it to be in the possession of the investigating agencies." Since the DA does not have to attend traffic court trials as a prosecuting attorney, AND since state law requires citations to be filed ONLY with the court and not with any other agency (including the DA or a city/county attorney), the DA is not necessarily going to be required to turn over anything. Most DAs officers in CA are not going to have any knowledge of a traffic citation or even what agency might have issued it as they do not tend to go through their office. Since they do not have the discovery, and do not know what agency or officer might have issued a citation, they cannot be expected to provide such discovery.

The OP is going to have to seek discovery through the court if the CHP is not coughing it up. PC 1054.5(b) covers this.

None of it is pretty, and obviously the whole thing is subject to two opposing viewpoints due to the failure of the legislature to clearly articulate whether or not a living, breathing prosecutor is required for any traffic case, but the reality is that the courts have tended to rule that no prosecutor is required.

- Carl

 

[demurringdude]

Carl - thank you for that. But I don't see how a prosecutor can claim to be unaware of the existence of any evidence, and simultaneously be prosecuting you (I know he doesn't have to physically be there to prosecute you). If "The People" are claiming to be unaware of any evidence, the case should not be proceeding.

 

[CdwJava]

Carl - thank you for that. But I don't see how a prosecutor can claim to be unaware of the existence of any evidence, and simultaneously be prosecuting you (I know he doesn't have to physically be there to prosecute you). If "The People" are claiming to be unaware of any evidence, the case should not be proceeding.

There is no statute that I am aware of that requires a prosecutor, only a prosecution. Jim_bo frequently points out sections he believes require a prosecutor and believes that PC 1054 et seq compels a DA to provide discovery even if he does not have it, but a literal read of the section indicates that is not what it says. We disagree, of course. And I tend to believe that since there is no defense attorney trump card motion to dismiss due to no prosecuting attorney that it has to be lawful. if having a prosecutor were required, the defense bar would have grabbed onto this decades ago, and the state would probably have converted traffic infractions to civil matters way back when.

By statute, the ONLY place we are required to file citations is to the court. Ergo, the DA is not in the loop and will have no knowledge of any discovery info. In my county, such requests for discovery are forwarded by the DA's office to the court and to the agency if the request has that information such that the DA can forward the request to the proper agency.

As a note to reinforce this fact, let us say you are in a city where the city attorney pursues certain misdemeanor violations or infractions. They are filed through the city attorney and not the DA. How would seeking discovery through the DA help with that when the prosecutor in such an instance is not the DA?

I don't pretend to know under what legal theory such prosecutions are brought about, but since no nuclear option for a 100% victory rate has been discovered by the defense bar in this state that it is pretty clear law that a prosecutor is not required.

If the OP wants to compel discovery, he will have to go through the court.

- Carl

 

[demurringdude]

Yes, I follow that. I accept that it is unclear whether a prosecutor should be there, and I also know that they rarely are there, and that their absence in the courtroom is no silver bullet, or any kind of bullet at all.

But present or absent, they are still "The People", and have burdens that go with that. They are notionally prosecuting you, even though they aren't there. It can't be the case that nobody is prosecuting you, and so nobody needs to respond to you.

Otherwise surely you could simply move for dismissal on the grounds that The People have informed you that they are not aware of any evidence against you?

I understand all your no doubt correct suggestions for how to really get the discovery in practice, but the OP wants the discovery to fail, so he just wants to do the minimum required by law, which I would have thought is just to serve the DA.

 

[CdwJava]

But present or absent, they are still "The People", and have burdens that go with that. They are notionally prosecuting you, even though they aren't there. It can't be the case that nobody is prosecuting you, and so nobody needs to respond to you.

That is why there is a remedy through the court to compel discovery.

I read a lot in the codes about "a prosecution" or "the prosecution," but I have yet to read where prosecution in a traffic infraction must be conducted by an individual rather than pursued by a process overseen by the court.

Otherwise surely you could simply move for dismissal on the grounds that The People have informed you that they are not aware of any evidence against you?

You are assuming that there is some statute that requires an individual attorney to represent "the people."

I understand all your no doubt correct suggestions for how to really get the discovery in practice, but the OP wants the discovery to fail, so he just wants to do the minimum required by law, which I would have thought is just to serve the DA.

Since PC 1054 only covers that information the DA is in possession of or has a reason to believe that the investigating agency is in possession of, it would seem that the DA is exempt from having to HUNT for information it knows nothing about. If the DA is not required to be CC'd on traffic citations, it would seem to imply that the state does not intend for them to be the prosecuting agency or to hold any discovery information. The fact that some DAs might research such requests and get the info on the defendant's behalf that does not mean they have a legal requirement to do so. Most do as in my county, they forward the request to the court and/or the agencies involved. We fill these and respond with some frequency. Only when they ask for items we can NOT provide (such as copyrighted manuals or items prohibited by law such as an officer's complaint record) do we not fulfill them in their entirety.

 

[demurringdude]

As has been discussed ad nauseam in this forum, this is not true.

What you no doubt intended to say is that you and some others on this forum have a different interpretation of the law, and you have had some inconclusive discussions with others on this forum who didn't agree with you.

That doesn't mean that what I said is "Not True". After reading the Ad Nauseam threads, I still think my reading of the law is correct.

It won't become "True" or "Not True" until it gets argued in a grown-up court and ruled on.

In the meantime, we just disagree.

 

[mcshiny]

If I don't do a motion to compel discovery, and say I just play the cards that I am dealt with: I have sent discovery requests to both DA and CHP offices; DA says they don't have the discovery and that I need to contact CHP for it. CHP has yet to respond with anything. If I show up at my court trial and I say I never received discovery despite having sent requests for it, will I have done wrong by not filing a motion to compel discovery? Will they hold that against me and say "You should have filed a motion to get it and tried harder if it's that important to you. Since you didn't, it's your fault and we will proceed"? I'm just wondering how important it is to compel discovery. I guess I am hedging my bets that maybe they will dismiss my case if I'm not given my discovery and am wondering just how hard I must try to get discovery in order for them to throw out the case. I understand that this is a long shot. =)

And does anyone know how long it takes for a Trial by Written Declaration to be ruled on? A week? Just wondering, because my court trial is coming up and I have yet to send in my TBWD. I still have the option of postponing my court trial and I am thinking of whether I should do that so I can send in my TBWD on time. Any help is appreciated.

 

[wheelie]

discovery ignored

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?

 

[I_Got_Banned]

Any ideas?

Sure... You can begin by starting your own thread.