Is Notice Appeal form CR-142 Mandatory? or NOLO Press form TR-155 ok for APPEAL?

[avrfan]

Sometimes the only winning move is not to play.

Could you please elaborate on this statement... its too general too broad to see how it applies to my case.

Thanks

 

[I_Got_Banned]

I beg to differ with you (a stranger to me with no obvious credentials besides possibly a history of heckling people on this board).

(Well, who did you expect to find on here? Friends? Relatives? And if any of them were willing to discuss any of this with you, why would you be here posting about it?

My credentials are my knowledge, and the information I provide. Or would you expect me to post a copy of my degrees below each post? Anyhow, if you are able to find any information that contradicts anything that I posted, I welcome the challenge. Otherwise, understand that your inability or unwillingness to answer and clarify the issues I am inquiring about is simply your way of saying I am onto something that further supports my claims and assumptions here. You can keep fooling yourself into believing you are not wasting your time. I am not sold on your idea not do I feel that you have a legitimate appeal. But by all means, carry on as you please. If that to you is heckling people, then please refrain from replying with your pretentious and ignorant comments and I would have nothing to correct or heckle you about.

I reference a well respected book written and published in California by Nolo Press and it clearly states that a person has a right to request COV and that it is a god grounds for appeal, usually the result being a retrial no dismissal. You do not know the details of my request for COV and reasons for it, and besides if the done properly the judge had no jurisdiction in presiding over my case, which means his decision should be reversed on that grounds alone.

The book you are referring to also advises people to move for a dismissal if/when the DA fails to respond to their discovery request all while the same statute that is cited in that chapter straight up, outright prohibits a dismissal under the described criteria. You don't believe me, follow along for a minute; page 154, right column, bottom paragraph states, and I quote:

If your discovery request is ignored for over 15 days, you can make a written motion to dismiss the case or to preclude the officer who cited you from testifying.​

Bullsh**! Here is the relevant code section:

1054.5.
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(a)*No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.

(b)*Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, 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.

(c)*The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.​

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For starters, the DA neither investigated nor prepared the case against the defendant. So where and how can anyone justify a responsibility upon the DA to provide information that he/she does not have or is unaware of its existence?

Furthermore, and for justice to prevail, there is no need to dismiss the case and there is no need to preclude the officer from testifying. If there is an easier step that would likely satisfy the defendant's request and get the case moving as it should be, then “immediate disclosure of any evidence that the officer has should solve both issues” sounds like it might meet both goals.

But wait, read subsection ( c) above and you will see that the court is prohibited for dismissing the case UNLESS (1) it has exhausted all other options AND (2) there is good cause to presume that the defendant's statutory rights have been violated. And prohibiting the officer from testifying and/or dismissing the case is not even close to “exhausting all other options”.

All this means that a dismissal as a result of the DA's failure to respond to discovery is a rare, almost extinct occurrence. But what would you as a defendant prefer to read? (a) That you will likely be provided with the items you requested in discovery and as such your only a few minutes from a conviction? Or (b) would you rather read that your case has potential for a dismissal?... And which book would you spring the $22.44 for faster if you had to?

This is not a mistake, it is not an error or an oversight. It is simply a clear and underhanded attempt to sell books. Go ahead buy and brag about your “ well respected book written and published in California by Nolo Press”... I somehow am of the impression that this is not the first time you've had the wool pulled over you eyes.

No, I am not done yet... Simply starting a new post...

 

[I_Got_Banned]

Continued from above:

I really do liked that quote of yours so much, I would like to post it again:

I reference a well respected book written and published in California by Nolo Press and it clearly states that a person has a right to request COV and that it is a god grounds for appeal, usually the result being a retrial no dismissal. You do not know the details of my request for COV and reasons for it, and besides if the done properly the judge had no jurisdiction in presiding over my case, which means his decision should be reversed on that grounds alone.

As I said before, the only reason why you requested a change of venue, was to simply make it more of a challenge for the officer to appear. Its true that I don't know the details of your case or the reason why you requested a COV; but unless you correct me, I am free to assume that your reasons are the same whiny reasons that everybody claims (I live/work closer to this courthouse but not the other) all while the real reason is simply an attempt to try yet another hurdle hoping the officer will not appear. To correct me, what do you respond with? You cite your “ well respected book written and published in California by Nolo Press”... And what might that book say about a “Change Of Venue”???

I don't need to look deep to not only prove my point as being valid in your case, but to also prove that you are a hypocrite complaining about my credentials when in reality I have correctly and perfectly proven that I know more than you are willing to disclose.

In that book, the section discussing the request for a Change Of Venue is titled as:

Making the Place of Trial Inconvenient for the Officer

Man was I way off about my assessment of your case which I know nothing about, or what???

Further in his analysis he provides a list of benefits as to why this is a good choice... Some of these are laughable, but you still bought into them...

Making such a demand will result in the following advantages:

• The officer is less likely to show up at a court miles away from his usual place of duty; if he doesn’t show up for trial, your case will almost surely be dismissed. (See Chapter 10.)

• The police officer will most likely be a total stranger to the judge. This puts him on a more equal footing with you. In his hometown court, there is a good chance that the officer knows the judge, having often appeared before her. Going to the county seat evens your odds a little.

• The ticket might get lost. Sending a ticket to the county seat court goes against the usual procedure, and a confused clerk faced with the problem of properly routing your ticket may misplace it. Even if it turns up much later, you may be able to get the charge dismissed on the grounds that you have
been denied the right to a speedy trial.​

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Anyone who's licensed to practice law, who is to be considered an officer of the court, who can publish a random comment that would imply that a judge would make such a biased ruling based on him being the testifying cop's homeboy (LOL) i.e. is familiar with the cop who's testifying, is undermining the court's authority and condoning a lack of trust in the legal justice system. Not because such distrust is warranted, but only as a way to sell books.

But that is not all. While he provides a case law citation (Smith v. Municipal Court 1959), he neglects to tell you that:

1) Not only was the vehicle code enumerated differently back in 1959 (the referenced case speaks of a CVC section 739 whereas nowadays, it is referred to as CVC 40502), but the language of the code section is different. And so the manner with which the mandate is interpreted is different.
2) The other relevant code sections are under Penal Code sections 1462 and 1462.2 both of which have also been reworded ever since the legislature introduced “infractions” as a new category of offenses whereas back in 1959, they were considered to be misdemeanors. And...
3) I quote Smith which cites both PC 1462 and PC 1462.2 as follows:

Section 1462 of the Penal Code confers jurisdiction on each*municipal*court*within a county of all misdemeanors committed within the county in which such*municipal court*is established with certain exceptions which are not pertinent here.

Section 1462.2 of the Penal Code so far as is pertinent here reads as follows:

"Except as otherwise provided in the Vehicle Code, the proper*court*for the trial of criminal cases amounting to misdemeanor shall be determined as follows: If there is a*municipal*court*... having jurisdiction of the subject matter of the case, established in the district within which the offense charged was committed, such*court*is the proper*court*for the trial of the case; ... [emphasis added.]"​

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And since California did away with municipal courts back in the early 1980s, there have been some jurisdictional changes since that case was tried appealed and reversed.
And all together then there have been several statutory and jurisdictional changes since Smith in 1959 and you'd be hard pressed to be able to figure out the similarities and/or differences and articulate those in a manner that is likely to benefit your case.

So go ahead and brag about your book. I truly am sorry that reality is obviously too harsh for you to live through, and so you opt to create this fake unreal world around you. Actually, I lied, I have no sympathy for you at all.

I can offer you the correct and pertinent information. I don't make up the laws, or the policies, I simply help you find and correctly interpret them. I cannot and will not sit here making up crap as I go along just to please you and make you feel fuzzy on the inside. If "fuzzy" is what you're looking for, PM demurringdude and he'll be more than happy to oblige. After all, he's the one who fed you enough bull to get you started on this frivolous and useless appeal you're on.

But before you do, let me reference that I am unable to reply to his erroneous advice which he provided in that thread simply because it was closed because you and he hijacked it to a point where the mods would no longer allow your indiscretion, disrespect and disregard for the person who started it or to those who posted advising you not to continue your discussion there. At first, he criticizes my advice about my statement saying that the charge can in fact be changed in court and under some specific circumstances, whereas he believes it cannot be done. Well, I don't need to remind you that subsequent to his making such a claim, your case ended with a conviction of a different code subsection after as you claim "it was changed in court".

I asked you several questions about that particular process but all you could do in reply is to whine about me not being helpful. Did I hit a sore spot with my questions? Do you realize now or have you always known that the same questions I am asking you are the same reasons that your appeal is groundless, and that your conviction is righteous? But I digress...

Then you start posting in that thread and it gets to a point where he's asking you questions about your case. You had already indicated that you lost a TBD and are getting ready for a TDN. And he's asking you questions about when you entered your plea, whether you had waived time or not... etc, all while he knows that once you elect to go the TBD route, the 45 day speedy trial clock is no longer ticking, and there can be no such claim regarding any perceived violation of the defendant's speedy trial provisions. Here is case law to prove it: [People v. Benhoor, 177 Cal. App. 4th 1308 - Cal: Court of Appeal, 2nd Appellate Dist., 7th Div. 2009 ~ http://scholar.google.com/scholar_case?case=465075591169582466&q=benhoor&hl=en&as_sdt=4,5]

Again... Inaccurate, incorrect, misleading... But you liked his responses because he was feeding you the lines you wanted to hear regardless of how unhelpful they are to you or your case. And you have the nerve to ask me to be constructive? Suit yourself...

Unless you can provide actual guidance towards winning this appeal, then please refrain.

I cannot and do not do miracles, nor can I change a panel of judges to become a bunch of ignorant yes-men.... That is what you would need to "win this appeal".

Otherwise, I welcome any constructive criticisms and guidance in actually exercising rights, and holding the courts to the laws that govern their conduct.

If you weren't so closed minded and hard headed, you might even begin to try and utilize my posts to your advantage. You might use my objections to try and hone your skills or to try and find ways to overcome the valid and pertinent points I am making. Instead, you came here with a groundless appeal, I offered you pages and pages of advice, and you will leave here with just as groundless an appeal as you came with. You're not looking for help, or constructive advice... You're looking for cheerleaders. I can do real, I cannot and will not condone your attempt to waste the courts time just because you're too stubborn to understand that you were simply found GUILTY.

As for you holding the court to the laws that govern them, let's do a quick and final review of why you are here... You are here because you failed to stop at a red light... It isn't really that complicated. “Red means STOP, Green means Go”... that is the law and since you're incapable of complying with that simple provision, may I suggest that you are under-qualified to try and hold any one or any thing to the laws that he/she or it govern.

You're on your own now...

 

[avrfan]

Yes many of your assumptions are wrong

Yes you are very ****y with you assumptions and my lack of pointing them out or responding to them should not be taken as an admission of being correct. Actually majority were wrong.

Going back very far in this thread i observed you had a knee jerk reaction to one of my statements and blasted me for it and amazingly you appeared in the right due to your way with words. I later realized i was right and in fact you were mistaken.

I am sure this isn't the first time you've gotten into dramatics with someone on these boards. your username says you got banned, it makes me wonder why. It seems you are seeking it out, provoking things. Please do show more constraint.

To help You understand my motives and position on these cases and matters... Think of the founding fathers and principles this country was built on. Liberty Justice Freedom Checks and Balances, Presumption of Innocence, right to Trial before Jury of Peers (100% absent in traffic court) Those fundamental Ideals are my motivation.

I want to mention that i have witnessed police misconduct and I have also seen cases of racial / economic profiling and discrimination from police officers. I appreciate all they do right but i feel strongly when they mistreat the public or act without integrity. Same goes for the courts prosecutors and judges. I believe that people placed in position of authority over others should be held to a higher standard of conduct. It is crucial Else The Rest of the world looks at the usa and sees us as hypocrites when we preach to the world about freedom and justice and encourages public contempt for the law.

Your points about Nolo Press are not entirely on point. I will address that later As i am Posting from a cellphone at the moment. Lets say its not a perfect book and i do not prescribe to every suggestion nor strategy it suggests but it is still an excellent foundation of introductory Knowledge and.guidance. if it were perfect I wouldn't be on these boards. I give them feedback Via email at [email protected] you should as well.

I believe the strategy of making issue of the lack of prosecution has other political motivations besides selling books and in fact i know of a very well documented case from fremont california where the defendant was acquitted using those lack of discovery issues. It was complicated but it worked as part of his overall strategy. I am not that sophisticated or skillful so i pass on that approach. If i find the link i will post it here. Its all documented online with photocopies of all the documents filed.

Ultimately i would like to converse with persons on this board who share my objective in getting traffic case Dismissed and anyone who can help me do that with my current case is asked and thanked kindly for their assistance.

Re: my appeal Status, the Clerk said to file my election of record by friday ill be ok. I decided to hire a licensed court reporter and have her file the transcription for me at the court. That will bypass the proposed statement process and move on to filing my brief(s).

Did anyone find it odd that CR-142 elections for form of record does not provide a clear option for engaging your own CSR(Court Reporter) for transcribing the audio record of the trial?

CR-142 is written such that it appears the appellant is required to pay the court their transcription rates(probably very high) vs hiring your own Reporter.

 

[Zigner]

There certainly are odd things we find about you...