Red Light Wrong Subsection charged 21453(c) Red Arrow (need advice on in court...

[avrfan]

Trial is Tues May 28th 8am. This violation occurred in Contra Costa County of California. The officer cited for 21453(c) which says"

A driver facing a steady red arrow signal shall not enter the intersection to make the movement indicated by the arrow and, unless entering the intersection to make a movement permitted by another signal, shall stop at a clearly marked limit line, but if none, before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection, and shall remain stopped until an indication permitting movement is shown​

I already know about the City of Hawthorne cases that were dismissed for being incorrectly cited for Red Arrow (21453c) instead of Circular Red Light (21453a)
I found little information about those cases that would help me in deciding how to best argue the technical error, most of those cases were dismissed automatically without any effort by the defendent besides refusing traffic school if they plead guilty.

I am going before a very biased an unfair judge, he does everything he can to assist the prosecution to get convicitions, eliciting beneficial testimony from the officer, helping him make a good case against the defendent. So I really need to be on my game.
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It was suggested that I submit a photo into evidence showing the stoplight is round circular and not a red arrow, THEN argue the technical error based on subsection (c) of 21453c. For example simply saying to the judge "submit your photo into evidence. Quote the 21453(c) to the court and refer to the picture. 'There ain't no arrow judge.' This cop misperceived or is confusing this with another case."

I had considered presenting it to the officer at cross examination but I think that is wrong procedure, has to be during my testimony portion of the trial I think, not sure.
----
I know that once you submit the photo you have an explain it and answer questions from the judge, this forfeits the right to remain silent (5th amendment) so then you have to be very cautious how you answer the judges questions. I also would like to prevent the judge from eliciting more testimony from the officer to support a conviction.

What are the forums thoughts on how to best approach this?

Dave

 

[Sloop John D]

Based on your other post, I'm assuming you already filed and lost your trial by written declaration...

What did you argue in your written declaration? Why did the court find you guilty?

 

[demurringdude]

To avoid having to give testimony authenticating the photo, have someone else take the photo and come to court to authenticate it. You are correct that if you authenticate your own photo (which you must do), you will be giving testimony. Is that really a big deal though? Your photo is going to be the trump card, so why worry about self-incrimination. Hard to see how you could self incriminate anyway, if you were incorrectly charged. Don't let that desire get in the way of your winning strategy.

Since you know the judge is hostile, make sure you approach this as if it is going to go to appeal. Make sure you walk out of your trial with the things that make your appeal an automatic win. I think that would be:

1. Evidence that the light is round.

2. Proof that you correctly entered that evidence at your trial.

3. Proof that you moved for dismissal based on the incorrect charge.

Regarding 1. - make sure your evidence is really indisputable. Not just one photo of some light somewhere. Make a video showing everything, including the street signs, etc and take some stills from that as well. Don't leave it open for the judge to say "I'm not sure what I'm seeing here".

Regarding 2. - Don't just wave your evidence in the air. State clearly "I am entering this in evidence." Give the evidence to the bailiff to give to the judge. Call your authenticating witness and elicit the correct authentication. Ask if the court has any objections to the evidence. Get an exhibit number assigned to it.

Regarding 3. Make sure the hearing is being recorded and that you will get a copy. Ask the judge this, not the clerk. Ask the judge to order the clerk to make you a copy of the recording. If its not being recorded, ask the judge if you can make a recording. When he says no, say you will make copious notes. And make them. Don't be rushed. When they hand you the form at the end that records the outcome, make sure it is correct and shows that you entered evidence and moved for dismissal. If incorrect, insist on going back before judge for correction.

You can introduce your evidence at any time. I would suggest that you question the officer about the light after he gives his evidence. Hopefully he will get it wrong, and you make your motion right there to dismiss. If he gets it right, you can enter your evidence right then, or you can wait until you give evidence. Pros and cons to each approach that need more consideration.

They can't change the charge after you have entered your plea, so be sure to object to that if they try. Also object if the police officer tries to get into a huddle with the judge about which section should apply. He is there as a witness only.

Good luck!

 

[avrfan]

Based on your other post, I'm assuming you already filed and lost your trial by written declaration...

What did you argue in your written declaration? Why did the court find you guilty?

hi DemurringDude,

Update July 3 2013: I was late like 2 minutes to court and the officer didn't show but judge called my case first and then put it aside. When
I showed, the recalled the case but refused to dismiss it, instead reset for trial on Friday July 5th 830am. Hopefully officer doesn't
show but I should be prepared again in case he doesn't.

Re: On my TBWD, I only wrote "I stand by my plea of not guilty for the charge."

p.s. sorry for the late reply, I had lost my place on the web, so many tabs opened... finally found my way back to this excellent forums.

Thanks
avrfan

 

[Zigner]

Re: On my TBWD, I only wrote "I stand by my plea of not guilty for the charge."

Had you actually submitted evidence with your TBWD, you might have been done at that point.

 

[avrfan]

To avoid having to give testimony authenticating the photo, have someone else take the photo and come to court to authenticate it. You are correct that if you authenticate your own photo (which you must do), you will be giving testimony. Is that really a big deal though? Your photo is going to be the trump card, so why worry about self-incrimination. Hard to see how you could self incriminate anyway, if you were incorrectly charged. Don't let that desire get in the way of your winning strategy.

Since you know the judge is hostile, make sure you approach this as if it is going to go to appeal. Make sure you walk out of your trial with the things that make your appeal an automatic win. I think that would be:

1. Evidence that the light is round.

2. Proof that you correctly entered that evidence at your trial.

3. Proof that you moved for dismissal based on the incorrect charge.

Regarding 1. - make sure your evidence is really indisputable. Not just one photo of some light somewhere. Make a video showing everything, including the street signs, etc and take some stills from that as well. Don't leave it open for the judge to say "I'm not sure what I'm seeing here".

Regarding 2. - Don't just wave your evidence in the air. State clearly "I am entering this in evidence." Give the evidence to the bailiff to give to the judge. Call your authenticating witness and elicit the correct authentication. Ask if the court has any objections to the evidence. Get an exhibit number assigned to it.

Regarding 3. Make sure the hearing is being recorded and that you will get a copy. Ask the judge this, not the clerk. Ask the judge to order the clerk to make you a copy of the recording. If its not being recorded, ask the judge if you can make a recording. When he says no, say you will make copious notes. And make them. Don't be rushed. When they hand you the form at the end that records the outcome, make sure it is correct and shows that you entered evidence and moved for dismissal. If incorrect, insist on going back before judge for correction.

You can introduce your evidence at any time. I would suggest that you question the officer about the light after he gives his evidence. Hopefully he will get it wrong, and you make your motion right there to dismiss. If he gets it right, you can enter your evidence right then, or you can wait until you give evidence. Pros and cons to each approach that need more consideration.

They can't change the charge after you have entered your plea, so be sure to object to that if they try. Also object if the police officer tries to get into a huddle with the judge about which section should apply. He is there as a witness only.

Good luck!

hi DemurringDude,

Can you clarify some more about what you meant by the officer "getting it wrong" about the stop light.

Do you mean that during officer testimony, he fails to indicate the light was a red arrow? Nolo Press book on Fight Your Ticket says that if the officer simply states something it becomes evidence that a judge can use to convict me, even if it is not true. For example if the officer says "THE STOP LIGHT HAD A RED ARROW", then I guess it is enough to convict me of this charge cvc 21453(c).

If he fails to mention the light shape during his testimony, should I ask him about the shape of the red light during cross examination? or should I just motion for acquittal because insufficient evidence was presented? If the officer says it was round red, I can motion for acquittal without the photo evidence.

But if the officer says it was red arrow, I would enter the photo(s) into evidence? Then motion for acquittal? Doesn't this seem like I would be speaking out of order in the court or interrupting his testimony? Will the judge get upset or ignore me or could I be in contempt?

So if I take the photo and then enter it into evidence. I call the witness to authenticate the photo is actual photo of the stop light in question? and this simple move prevents me from giving up my right to 5th amendment?

Thanks
avrfan

 

[avrfan]

Had you actually submitted evidence with your TBWD, you might have been done at that point.

Yes, I totally realize this in hindsight. I was travelling and residing about 2000 miles away from place of violation so I could not easily go back and take a photograph of the intersection or appear for trial, that is why I opted for the TWBD. I also didn't realize that I was charged improperly until after I requested the trial denovo, I went back to the intersection and studied the lights and took photos. After reading the officers statement I noticed he mentioned a "Red Arrow", it was then I realized that I was charged improperly and thus found this forum in my quest for information.

 

[demurringdude]

hi DemurringDude,

Can you clarify some more about what you meant by the officer "getting it wrong" about the stop light.

Do you mean that during officer testimony, he fails to indicate the light was a red arrow?

Yes

Nolo Press book on Fight Your Ticket says that if the officer simply states something it becomes evidence that a judge can use to convict me, even if it is not true. For example if the officer says "THE STOP LIGHT HAD A RED ARROW", then I guess it is enough to convict me of this charge cvc 21453(c). [

Yes, but you are going to refute that evidence with your better evidence i.e. photos/videos.

If he fails to mention the light shape during his testimony, should I ask him about the shape of the red light during cross examination? or should I just motion for acquittal because insufficient evidence was presented? If the officer says it was round red, I can motion for acquittal without the photo evidence.

In theory, if he doesn't mention it then he has not established one of the elements of the case. But if you move for dismissal based on that, the judge will likely just recall him and ask him about it. So you should ask him. If he says round, then you don't really need to do anything with your own evidence, because the court will be forced to accept the only evidence it has. You must move to dismiss though, nobody will do it for you.

Doesn't this seem like I would be speaking out of order in the court or interrupting his testimony? Will the judge get upset or ignore me or could I be in contempt?

Don't worry about it. Speak up. The judge has to give you more leeway than if you were a lawyer. He can't ignore you if you make a motion, so be sure to make it, even if you have to basically talk over the top of everyone else.

So if I take the photo and then enter it into evidence. I call the witness to authenticate the photo is actual photo of the stop light in question? and this simple move prevents me from giving up my right to 5th amendment?

Exactly.

 

[avrfan]

How to ensure my right to remain silent...

ok, I guess I will try this defense. It sounds pretty good to me. I just feel insecure as this judge usually ignores every motion I have attempted in the past.

Should I have my witness besides me from the start or call the witness when I enter the photo into evidence?

If the judge asks me to explain the photo or something like "What is the photo of?" or "Is this a photo of the stoplight?" and I answer him with anything, then I forfeit my right to remain silent? I guess should tell him "I have a witness here to authenticate the photograph" and "I wish to remain silent?"

I just have never taken the 5th amendment or even seen a case where a person has done this so I'm a bit insecure about how to properly do this.

Thanks
avrfan

 

[demurringdude]

Should I have my witness besides me from the start or call the witness when I enter the photo into evidence?

Call him at the time.

If the judge asks me to explain the photo or something like "What is the photo of?" or "Is this a photo of the stoplight?" and I answer him with anything, then I forfeit my right to remain silent? I guess should tell him "I have a witness here to authenticate the photograph" and "I wish to remain silent?"

You are not giving up your right to remain silent by exercising your right to represent yourself as your own attorney. You just have to be careful not to "testify". So at the start, you can just say "I will not be testifying today , Your Honor, I am only speaking to represent myself". If the judge asks you to testify, refuse. If you start answering questions like you are a witness, you give up your right.

I just have never taken the 5th amendment or even seen a case where a person has done this so I'm a bit insecure about how to properly do this.

The other side will not be in court to challenge anything you do, so this is like scoring an open goal. But you do actually have to put the ball in the net, nobody is going to do it for you. If you screw it up, and stand there not kicking the ball into the net, nobody will tell you until after the whistle. Not wishing to be pessimistic, a pro-se defendant always has a good chance of not putting the ball in the net. You might want to hire an attorney. Otherwise, you will need to get familiar with rules of evidence, and its quite complicated. Nobody can script it out for you exactly, because things will inevitably come up that you will not have foreseen.

I recommend reading up the rules of evidence at the very least. Its easy for you to mess that up if the judge is hostile.

 

[FlyingRon]

You can ask questions during cross. You can not argue or introduce evidence of your own then. You bring that up in your direct testimony.

 

[avrfan]

Trial Update: GUILTY! Judge Amended 21453(c) Red Arrow to 21453(b) Circular Red

Brief summary of what occured at my Trial today.

1. I stated "I am not hear to testify, only speaking as my own attorney" - Judge smirked and made slight laugh.
2. Officer testified, lied and made errors in his testimony, also had a copy of his written statement used for the TBWD.
3. Officer said he was behind me in the parking lot but he was actually on the cross street.
4. I forgot to ask officer to verify I asked for the County Seat at time of citation.
5. He verbally stated he charged me with 21453(a) but when I cross examined he admitted that the charge was 21453(c)
6. I presented the photos into evidence, judge accepted.
7. Police officer authenticated the photos.
8. I motion for acquittal under pc1118
9. Judge denies motion, finds guilty.
10. I object. I state that the evidence does not support the charge.
11. Judge says "The evidence does not support section (c) but it does support conviction of section (a) or (b).
12. I said, "I object, the rules of the court say that any pretrial motions must be made 10 days prior and rules of court require officer amend using form TR-100"
13. Judge explains that in general I am guilty of 21453 which covers all different cases of red light violations.
14. Judge amends charge to 21453(b) and dismisses 21453(c) and finds me guilty and reduce fine from $528 to $273
15. Judge told me I can file an appeal if I want.
16. I request traffic school, judge allows me for $53 additional.

I can't believe what happened! I could not stop the judge! He did not care that the evidence did not support original charge of "cvc21453(c) Red Arrow" He stated that the evidence does not support section (c) but the evidence is sufficient to support a conviction for section (b) and so he dismissed count 1 for cvc21453(c) and changed the charge to 21453(b) and he

I believe I made a mistake of being too obvious with pointing out that the original charge was incorrect. I should have allowed him to convict me on 21453(c) then the decision would have been easily overturned in an appeal.

It appears that because the judge changed the charge to 21453(b) Red Circular, and the officer testified that I rolled through it at 10-15mph, the evidence and testimony of the officer supports a conviction on this "Amended charge"

I thought there were rules of the court regarding notice to amend a charge etc. There was no such notice until mid-trial when I motioned for acquittal under PC1118, the judge denied the motion and changed the charge on me and found me guilty of the other section.

All the discussions I have seen so far assume the judge wrongfully convicts a person for 21453(c) Red Arrow. Then it supposedly is an easy appeal. I never seen an example in Nolo Press Fight Your ticket or in online forums of where a person appeals after the judge amends the charge to something else based on the evidence.

Anybody have this happen to them and on what would I base the appeal?

Thanks
avrfan

 

[demurringdude]

Well, you got rolled. Traffic court can pretty lawless. You might as well appeal though. Appeals are just a matter of filling out the forms, you generally don't need to show up.
This exact thing happened to someone else on this forum in the last year or two. A search might be useful

 

[avrfan]

Well, you got rolled. Traffic court can pretty lawless. You might as well appeal though. Appeals are just a matter of filling out the forms, you generally don't need to show up.
This exact thing happened to someone else on this forum in the last year or two. A search might be useful

Have you seen any good threads on the FreeAdvice forums for filing an appeal? I have never done an appeal but it
appears you have to have some kind of good legal basis for the appeal. It also seems that I have to produce some
kind of account of the trial based on my transcript of the recording. The judge who presided has a chance to submit
his "version" of what occurred at the trial and then some final version is approved for submittal to the appeal board.
Supposedly I could appear at that hearing and sometimes the judge will try to have his version replace the defendants.
That presents another challenge since he already has shown extreme bias and partiality. I really hope that is not
how it goes. That would equate to being rolled on twice by the same judge on one case.

Dave

 

[demurringdude]

The good news is that you have a winnable appeal. Any attorney could win that for you no problem. Your trial started with you pleading not guilty to Charge X and you ended up convicted on Charge Y. Easy appeal win for you. Doesn't really matter what the trial judge says happened in court, because that outcome is not correct no matter what happened in court. You just need your citation X and your guilty verdict Y and you are good to go.

The bad news? If you don't do it correctly you will lose, regardless of having strong grounds. The system is set up so you have to hit all the magic buttons correctly or you lose, and nobody is going to cut you any slack. So you need to decide at the outset if you want to spend the time researching how to do appeals, and then doing a good job of it. You will probably find that on a free forum like this nobody is going to have time to walk you through it step by step. Its not that difficult, but it is not trivial either. Hit the books! Good luck.