writ of prohibition
TRANSCRIPT
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Enrique Meyers4107 S. Budlong Ave.Los Angeles California [90037]
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION __________
_____
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TERM
FOR THE SECOND APPELLATE DISTRICT: To the honorable presiding Justice and
the honorable associate Justices of the Court of Appeal of the State of California, for the
Second Appellate District, GREETINGS:
The petitioner, Meyers, hereinafter Petitioner, is hereby moving this Honorable Court for
a Writ of Prohibition directed to Respondent, Los Angeles Metropolitan Superior Court
division 70 to QUASH NOTICE TO APPEAR #333333 for lack of jurisdiction. Petitioner
has no right of appeal from the Commissioner and Superior Courts denial of Petitioner
Meyers
Petitioner, in pro per.
vs.
Los Angeles County Superior Court
Respondent.
Court Case No:
Citation No:
PETITION FOR WRIT
OF PROHIBITION
Date:
Time:
Word Count:
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verified Motion to dismiss at arraignment and does not have a plain, speedy, and adequate
remedy at law other than the relief sought in this petition.
This writ of Prohibition is an appropriate remedy to arrest the proceedings of a court or
inferior tribunal when there is no plain, speedy, and adequate remedy in the ordinary
course of the law and when the proceedings of the court or other inferior tribunal are
without or in excess of its jurisdiction. Petitioner has met his obligation to appear in court
under Titus in Special Appearance (see: Titus infra) and after refusing to enter a plea, the
Municipal court Commissioner Ruben entered a plea of not guilty for the accused, in
which Petitioner objected and as a result, the plaintiff has chosen not to prosecute by not
filing a verified complaint to establish the jurisdiction of the court, with which Petitioner
may consider plea other than "guilty", "nolo contendere" or "not guilty" as required by
C.V.C., Section 40513(a) and (b), Penal Code Sections 740, 949, 950, 959, 691(d), 691(e),
Civil Code, Section 3531, (see also:Ralph v. Police Court, 84 C.A.2d 257, and Grafft v.
Merrill Lvnch, Pierce, Fenner & Beane, 273 C.A.2d 379, Bradley v. Lacey, 53 Cal.App.4th
883, 61 Cal.Rprtr.2d 919 [March 1997.].)
Titus v. Superior Court (1972) 23 Cal.App.3d 792, 797-798 [100 Cal.Rptr. 477]
Stating:
"A 'special appearance' is made when the defendant appears in court for sole
purpose of objecting to lack of jurisdiction over his person without submitting
to such jurisdiction." (Emphasis added.)
Petitioner is unquestionably entitled to relief from the unlawful judgment by both the
Commissioner and the Superior court.
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BRIEF STATEMENT OF THE CASE
Prior to the initial arraignment and to this date March 8th, 2011, Petitioner has not been
served with a Accusatory complaint so that a plea of "guilty or "nolo contendere" or "not
guilty" may be considered by him, nor has Petitioner waived the filing of the Accusatory
Complaint.
Therefore through lack of proper procedure the plaintiff in this matter has deliberately
chosen not to prosecute this case hence fails to establish jurisdiction. By not filing a
‘verified complaint” there is no valid charging document before Petitioner to consider
entering plea to, nor is a commissioner authorized to enter a not guilty plea on behalf of
the accused Petitioner without violation of constitutional procedural protections,
specifically, in part, where California Vehicle Code (CVC hereinafter) 40513 sections (a)
and (b) mandates that any accused may reserve the right not to enter a plea at all for the
purpose to be served with a verified complaint to challenge the charging document and
reserve all rights.
In August on the 27 day of 2010, as Petitioner1 can best recall, was charged with CVC
Violations of:
a). 14601. (a)- Driving When Privilege Suspended or Revoked.
b). 16028 (a)- Driving without proof of insurance.
c). 4000(a) (1) -No Evidence of Current Registration, and;
d). 4462.5 - Unlawful Display of Evidence of Registration.
Petitioner was handcuffed arrested and held in custody on four misdemeanors and
afterwards made a request for a verified complaint under California Vehicle code section
40513 (a) and (b) by mail on two separate dates. On arraignment before the magistrate
1 Petitioner’s Copy of the Notice to Appear was taken and not returned to him from the deputy of the court at Petitioner’s first arraignment.
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court Petitioner provided Commissioner with a Motion asking for the complaint and
information to be verified by oath, inter alia. The Commissioner denied the Petitioner’s
motion following his review and went forward to assume jurisdiction entering a plea of not
guilty for the Petitioner and against Petitioner’s objections. On the day, under
constructive custody, that Petitioner was, charged as a general appearance, to appear
before the Superior court, Petitioner again made a request for a verified complaint under
special appearance and was denied against his objections of Courts lack of jurisdiction.
Petitioner then filed a Writ of Prohibition and on 02/91/2011 with the Superior court of
Appeals pleading extended facts surrounding those in the Motions including further
arguments and on 02/07/2011 the Petitioner’s Writ of Prohibition was denied without
opinion. Petitioner hoped that the Superior Court of Appeals would order a response from
the Respondent to show cause so to argue and show the facts that surround the matter as
described herein and the attached APPENDIX, Exhibits. The absence of jurisdiction is a
crucial matter, that of a definite potential of causing an egregious effect against
Petitioner’s naturally inherited and inalienable rights not to be held in jeopardy of trial.
Because the court lacks jurisdiction, following judgments and proceedings are absolutely
null and void respectively. Accordingly, the Court should issue a writ of prohibition and
grant Petitioner relief, barring the Superior Court from further proceedings by quashing
the notice to appear under the principles of fair play and justice and a stay from further
proceedings of the Superior Court until a determination can be made by this court. Due to
the fact under the present conditions it is Petitioner firm belief from experience with the
arresting officers in this case, that the arresting officer will change his statements as to
probable cause for the arrest petitioner plead his Writ of Prohibition to state what was
necessary to be heard on the merits. Since then other statements from the officer has
been made for the record.
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STATEMENT OF JURISDICTION
CALIFORNIA CONSTITUTION ARTICLE 6 JUDICIAL SEC. 10.
The Supreme Court, courts of appeal, superior courts, and their judges have original
jurisdiction in habeas corpus proceedings. Those courts also have original jurisdiction in
proceedings for extraordinary relief in the nature of mandamus, certiorari, and
prohibition. The appellate division of the superior court has original jurisdiction in
proceedings for extraordinary relief in the nature of mandamus, certiorari, and
prohibition directed to the superior court in causes subject to its appellate jurisdiction.
ISSUES PRESENTED
This Original Petition presents four issues for the Court’s review:
1. CALIFORNIA VEHICLE CODE 40513 (b) REQUIRES THAT IF A NOTICE
TO APPEAR IS NOT VERFIED THE DEFENDANT MAY REQUEST THAT
A VERIFIED COMPLAINT BE FILLED.
2. DURING ARREST FOLLOWING A TRAFFIC STOP, CAN AN ACCUSED
WAIVE A VERIFIED COMPLAINT WITHOUT MIRANDA WARNINGS
WHEN A SIMPLE COMPLAINT CHECK BOX SCHEME GUISED AS A
NOTICE TO APPEAR MANDATES OTHERWISE?
3. CVC 40513 IS UNCONTITUTIONAL AND A VIOLATION OF THE
SEPREATION OF POWERS CLAUSE
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PROCEDRUAL HISTORY
To this date February 8th,, 2011, Affiant has not been served with a verified complaint so
that a plea of "guilty or "nolo contendere" or "not guilty" may be considered by him,
neither has Affiant waived the filing of the Verified Complaint.
Therefore through lack of proper procedure the plaintiff in this matter has deliberately
chosen not to prosecute this case and establish the jurisdiction of this court.
By not filing a verified complaint there is no valid charging document before Petitioner to
consider entering plea to, nor does the commissioner have the authority to enter a not
guilty plea on behalf of the accused specifically where California Vehicle Code (CVC
hereinafter) 40513 sections (a) and (b) mandates that any accused "may" reserve the right
not to enter a plea at all for the purpose to be served with a verified complaint to
challenge the charging document and reserve all rights.
Prior to the date where Petitioner were to appear before Traffic Court Division 61, of the
Los Angeles Metropolitan Court on October 15th of 2010, Petitioner requested an
extension and was granted to appear on December 23rd of 2010 at 1:30. p.m.2
On November 29th of 2010, Petitioner served, by Certificate Of Service through United
States Postal Mail Box and mailed by a non-party to action, to the Commissioner’s office3
and the District Attorney's Office4 a Request for Wavier of Court fees and Cost5, and
Notice of Motion and Motion by the accused for Verified Complaint and Notice of
2 See: Exhibit “A”: Requested for Extension (1 page)3 See: Exhibit “B”: Certificate Of Service for Commissioner Office (1 page)4 See: Exhibit “C”: Certificate Of Service for District Attorney's Office (1 page)5 See: Exhibit “D”: Request for Wavier of Court fees and Cost. (2 pages).
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Unconscionable Contract: Points and Authorities in Support thereof6. (Motion1
hereinafter)
On December 22nd of 2010, after not receiving an expected affirmation from the Clerk’s
Office that Petitioner’s Fee Waiver and Motion1 had been received, Petitioner then sent
by U.S. Postal Service with Return Receipt and Express overnight mail7, the same Fee
Waiver and Motions, hereinafter Motion1.
Petitioner thought to try again and did so assuming that the lack of the Clerks response to
Petitioner’s service of Motions may have been due to unrecognizable Rules or other codes
of Court procedure.
It was intended by Petitioner also that Motion1 were only to be received and filed on or
before the hour of 1:30 p.m. of December 23rd, 2010 when Petitioner was to appear in
court.
The U.S. Postal Services had assured Petitioner that the service would be made before
12:00 p.m. of December 23rd, 2010.
However, although the Motion1 and Fee Waiver did reach the Court House at
approximately 10:00 a.m., they were left and not signed until 8:22 am on December 27,
2010 by T YOUNG according to the U.S. Postal Service Track and Confirm Records.8
Upon Petitioner’s arrival in Court, he made several attempts to have the Motion1 filed
with the Clerk’s office who gave the name of Rene to Petitioner.
Then later while in the court room, waiting for the judge to call, Petitioner was
transferred from Division 61 to Division 60. Upon arrival in Division 60, Petitioner asked
6 See: Exhibit “E”: Notice of Motion and Motion by the accused for Verified Complaint and Notice of Unconscionable Contract: Points and Authorities in Support thereof. (12 pages. Div. 61. Date:11/26/2010.)7 See: Exhibit “F”: U.S. Postal Service with Return Receipt and Express overnight mail. (1 page)8 See: Exhibit “G”: U.S. Postal Service Track and Confirm Records. (1 page).
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the Clerk of the Court who gave a name of Yolanda to Petitioner, to submit his Motion1
for filing.
Eventually it was both Clerks, of who decided to refuse to file Motion1, gave different
statements for refusal. That were premised on unfounded reasons which neither Clerk
ever provided Petitioner with any reference to Rules that would allow the Clerks to refuse
to file Petitioner’s Motions. In which Petitioner only whishes were simply to establish a
record on the 23rd day of December, 2010 of his previous efforts to provide proper
submission of his motions and fee waiver to the court.
However, Petitioner was directed by Division 60 Clerk Yolanda?, to return to Court on the
28th day of December, 2010 at 10:00 a.m., in which Petitioner made his appearance
bringing along with him witnesses in the Court of Commissioner Ruben?.
On the 28th, day of December 2010, Petitioner was called by the Commissioner where
Petitioner immediately informed the court, that Petitioner appearance was special one
under Titus9 so to challenge the jurisdiction of the court and not waiving the filing of a
verified complaint.
Petitioner at that time provided both the Prosecuting Attorney and the Court
Commissioner with his Motion dated 12/28/201010 (Motion2 hereinafter) at which point
the Commissioner received and sometime afterwards, recessed so to examine Petitioner
Motion2. Petitioner’s Motion2 offered the prosecutor and additional 10 days to file a
verified complaint.
(See also Exhibit “I”11, Return Receipt. Were it was a few days after the 28 th of December
2010, that Petitioner had received the Return Receipt)
9 Titus v. Superior Court (1972) 23 Cal.App.3d 792, 797-798 [100 Cal.Rptr. 477] Stating:"A 'special appearance' is made when the defendant appears in court for sole purpose of objecting to lack of jurisdiction over his person without submitting to such jurisdiction." (Emphasis added.)
10See: Exhibit “H”: Notice of Motion and Motion by the accused for Verified Complaint (December 22nd of 2010).
11 See: Exhibit “I”:United States Postal Service Return Receipt ().
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Upon the Commissioners return to the bench, the Commissioner denied Petitioner
Motion2 at which point Petitioner objected, and then the commissioner went forward to
enter a plea of not guilty for Petitioner against Petitioner’s objections, stating that the
commissioner could not enter any plea on behalf of Petitioner against his objections. The
Commissioner then went forward to set a date of January 10, 2010 at 8:00 a.m., for
Petitioner to appear to Division 70 in the Superior Court of the Los Angeles County,
Metropolitan Division.
On the 10th day of January, 2010 sometime following the Petitioner’s arrival at the court,
he was called by the judge. At which point, Petitioner immediately told the court that his
appearance was a special one under Titus and provided the Court with his request for a
verified complaint further informing the court that Petitioner has not waived such filing to
be submitted by the Prosecutor.
The court then refused Petitioner motion2 and stated the record had shown that
Petitioner had pleaded not guilty.
Petitioner objected to the Judge's denial of his Motion2, and objected to that of the judge
acceptance of the Commissioners plea of not guilty entered by the Commissioner for
Petitioner. However, the Court did agree the Petitioner has a Motion for suppression of
evidence after hearing Petitioner’s argument that if the Notice to Appear was a verified
complaint it would be a violation of both Miranda, and his right not to be compelled to be
a witness against himself for the fact the Petitioner signature was given under duress
since the code provides that Petitioner will go directly to jail if he did not signed. (See:
Attached entitled: “NOTARIZED AFFIDAVIT IN SUPPORT OF PETITION FOR WRIT OF
PROHIBITION”).
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On February 03rd, 2011 Petitioner file a Writ Of Prohibition with the APPELLATE
DIVISION OF THE SUPERIOR COURT12 and it was denied without opinion on February
07th, 201113.
On February 08th, 2011, Petition was provided with a WITNESS INTERVIEW FORM
containing a hearsay statement from the arresting officer.14
12 See: Exhibit “J:: PETITION FOR WRIT OF PROHIBITION (February, 03, 2011).
13 See: Exhibit “L”: DENIAL OF WRIT OF PROHIBITION (February, 07, 2011).
14 See: Exhibit “M”: WITNESS INTERVIEW FORM (February, 08, 2011).
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STATEMENT OF FACTS
Petitioner was pulled over by the Los Angeles police for several California Vehicle Code
violations where the officer alleges that he ran Petitioner’s license plates. During the time
of arrest Petitioner was asked the usual questions: proof of insurance, Driver license, and
proof of Registration. For no reason given by either officer, petitioner was pulled from his
car by police hand cuffed and told by the officer that he was under arrest for “stealing a
registration tag”. Petitioner was then searched by the officers who removed from his
pockets all items of property placing them on the hood of Police vehicle and immediately
afterwards petitioner was placed in the back seat of the officers patrol car. Petitioner
never gave his consent to search his vehicle whereas the officers proceed to search nor
did either officer request permission from petitioner for the same. The arresting officer
attempted to provoke Petitioner to anger with degrading statements sought to impress
upon the Petitioner mind that Petitioner did not deserve any dignity.
Petitioner informed the officer that his rights were being violated where there was no
cause for the custodial arrest nor the officer’s verbal threats and physical abusive
conduct. The officer exclaimed that he had rights also. Following the search of Petitioner’s
car, the officer then removed the petitioner from the patrol vehicle and walked the
petitioner to the front of it then demanded of Petitioner to sign a Notice to Appear, at
which point the petitioner refused and demanded of the officer to take him to jail.
Petitioner, while sometime after being returned and replaced in the back seat of the
patrol car, the arresting police officer’s partner then began to “talk” to petitioner, among
other things, stated that Petitioner should just sign the ticket. For fear of further threats
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and physical abuse from the arresting officer, the Petitioner then signed the Notice to
Appear whereas, at that point in time the petitioner was free to walk home after
Petitioner’s car was impounded. As soon as Petitioner returned home Petitioner contacted
the Police Department and filed a complaint, where he gave a recorded statement and
pictures were taken of his wrist with deep handcuff indentations, (still today Petitioner
has nerve damage in his right arm) while still visible. Due to the facts that actually
transpired during the events of arrest and under the present conditions it is Petitioner
firm belief from experience with the arresting officers in this case, that the arresting
officer will change his statements as to probable cause and reasonable suspicion. Thus,
for this reason the Petitioner pleads his Writ of Prohibition to state what was necessary
and what is necessary now to be heard on the merits. In the light of following Petitioner’s
first Appeal in the Superior Court, statements from the arresting officer have been made
for the record to the city prosecutor’s “Interviewer”. Although hearsay and untruthful to
the actual facts, the officers statements are attached hereto. Petitioner’s has divulged
extra statement of facts herein in accord, but will restrain from other facts due to matters
that would further deprive this petitioner to a fair and just outcome. Whereas the
petitioner has to provide the City attorney with a copy of this Writ and petitioner has
witnessed where the Prosecutor has written notes for his “Interviewer” to provide to the
Police Officer prior to given his statement to the “interviewer” while in court on the 8 th
day of February, 2011.
ARGUMENT
CALIFORNIA VEHICLE CODE 40513 (b) REQUIRES THAT IF A NOTICE TO APPEAR IS
NOT VERFIED THE DEFENDANT MAY REQUEST THAT A VERIFIED COMPLAINT BE
FILLED.
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The issue here is that the court is not authorized to go forward and force the Petitioner
to trial where the courts lacks jurisdiction to do so in accordance with California Vehicle
Code (CVC hereinafter) 40513. It has been long held that a complaint and information
must be verified:
“To render a valid judgment, a court must have jurisdiction over the
subject matter and of the person of the defendant. Jurisdiction of the
subject matter is derived from the law; it neither can be waived nor
conferred by consent of the accused. Inherent in subject matter
jurisdiction is the power to inquire into the facts, to apply the law and to
declare the punishment.” (21 Am.Jur.2d, §§ 376, 379, pp. 398-399, 400.)
Burris v. Superior Court , 43 Cal.App.3d 530, id at 537.
In Ralph v. Police Court, the court stated:
“Thus it is quite apparent that whether the arrested person is taken
immediately before a magistrate, or is given a five-day notice to appear and
pleads not guilty and does not waive the requirement, a complaint under
section 1426 of the Penal Code "must" be filed. Unless waived, as provided
by statute, the filing of such complaint is essential to the jurisdiction of the
police court. That has been the law of this state for many years. It was
stated as follows in the case of In re Williams, 183 Cal. 11, 12 [190 P. 163]:
"It goes without saying that it is essential to the jurisdiction of a police court
to put a person upon trial for a public offense that there should be on file
therein a complaint charging such person with the commission of such
offense." (See, also, People v. Brussel, 122 Cal. App.Supp. 785 [7 P.2d 403].)
It is also the law in other jurisdictions. The rule, supported by many authorities, is stated
as follows in 22 Corpus Juris Secundum pages 456, 457, section 303:
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"The term 'complaint' is a technical one descriptive of proceedings before
magistrates. It is and has been defined to be the preliminary charge or
accusation against an offender, made by a private person or an informer to a
justice of the peace or other proper officer, charging that accused has
violated the law. It has also been defined as a preliminary charge before a
committing magistrate; . . . The complaint is the foundation of the
jurisdiction of the magistrate, and it performs the same office that an
indictment or information does in superior courts." (See, also, cases
collected 16 C.J. ? 492 p. 286.)” Ralph v. Police Court, 84 CalApp2d 257 id at
259 (1948)
As it follows:
A notice to appear that is filed with the court serves as a verified complaint to
which the defendant-motorist may plead guilty or no contest. CVC §40513(a).
If the defendant violates his or her promise to appear or enters a plea other than
guilty or no contest, a verified complaint conforming to the requirements of California
Penal Code (PC hereinafter) §§948–964 must be filed, unless the defendant executes a
written waiver of this requirement and an election to proceed on the notice to appear.
CVC §40513(a).
Notwithstanding CVC §40513(a), if the notice to appear was prepared on a form
approved by the Judicial Council, a duplicate copy of that notice filed with the court
constitutes a verified complaint to which the defendant may enter any plea, i.e., a plea of
guilty, a plea of no contest, or a plea of not guilty. CVC §40513(b).
The notice to appear may be filed in place of a formal, verified complaint even if the
defendant pleads not guilty and the case proceeds to trial. People v Barron (1995) 37 Cal.
App. 4th Supp 1, 3–5, 44 Cal. Rptr. 2d 348. See Heldt v Municipal Court (1985) 163 Cal.
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App. 3d 532, 537–539, 209 CR 579 (notice to appear also constitutes valid complaint
under PC §853.9).
If the notice is verified, a warrant may be issued on it. If it is not verified, the
defendant may request at the time of arraignment that a verified complaint be filed. CVC
§40513(b).
There is no right to a verified complaint when the citation is issued, thus signed by
the accused on a form approved by the Judicial Council. See People v Barron, supra, 37
Cal. App. 4th Supp. at 3–5. A defendant who contends that the notice to appear is
defective must raise the issue before trial by filing a demurrer. See PC §§1004(2), 1012;
People v Gomper (1984) 160 Cal. App. 3d Supp 1, 8–9, 207 Cal. Rptr. 534." (See also :
California Judges Bench Guides, Benchguide 82 - Traffic Court Proceedings) "
"Before the enactment of subdivision (b), a number of reported decisions held that a trial
court does not have jurisdiction to proceed if the defendant purports to enter a not guilty
plea upon a citation-complaint."People v. Gomper (1984) 160 Cal.App.3d Supp. 1 ,7 [207
Cal.Rptr. 534]).
Here, the anomaly lies in the proposition that if “[a] statute does not trump the
Constitution" [see People v. Ortiz (1995) 32 Cal.App.4th 286 id at 295 FN2] then how is a
"...traffic misdemeanor" of a public offense, prosecuted in a criminal action, without
availability of a verified complaint and information constitutional ? [See also Cal Gov.
Code §26500]
Specifically where all Crimes and public offenses include:
1. Felonies;
2. Misdemeanors; and
3. Infractions.
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(see: Penal Code section 16)
In PC 691§(c) initially defines the word "accusatory pleading" so to be used as an aid to
clarify the meaning and intent of legislators as guidelines and what direction of
procedures are required by the arraigning court. With who is ultimately left to decide
whether the instrument conforms to the requirements of section 740 in lawful relation to
that required in 40513 (b) as a verified complaint in all proceedings akin to those of public
offenses.
However, as mentioned in the above preceding case and Judges Bench Guides,
Bench guide 82 for Traffic Court Proceedings, precondition constraint to any questions by
a defendant that arise from the complaint at arraignment. Hence, the court is to rebuff
any questions as if they derive from merely a minor procedural matter.
Which tends allow and magistrate to ignore also, that any arraignment would inherently
include, the accused rights as described in PC 871 and 872.
Section 872.
"(a) If, however, it appears from the examination that a public offense has
been committed, and there is sufficient cause to believe that the defendant
is guilty, the magistrate shall make or indorse on the complaint an order,
signed by him or her, to the following effect: “It appearing to me that the
offense in the within complaint mentioned (or any offense, according to the
fact, stating generally the nature thereof), has been committed, and that
there is sufficient cause to believe that the within named A. B. is guilty, I
order that he or she be held to answer to the same. [Citation]”
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PC section 807 defines a magistrate as "an officer having power to issue a warrant
for the arrest of a person charged with a public offense.”
“ A magistrate has the additional function, limited by statute, of determining whether
there is sufficient or probable cause to hold an accused for trial." (People v. Uhlemann
(1973) 9 Cal.3d 662, 667 [108 Cal.Rptr. 657, 511 P.2d 609]; Pen. Code, ? 871, 872.)
(People v. Columbia Research Corp. (1980) 103 Cal.App.3d Supp. 33 , 38 [163 Cal.Rptr.
455] )
There remains that quiescent mouse, PC section 959.1.(a). For the uninitiated, this
section provides that "Notwithstanding Sections 740, 806, 949, and 959 or any other law
to the contrary a criminal prosecution may be commenced by filing an accusatory
pleading in electronic form with the magistrate or in a court having authority to receive
it." It seems that if this section stands for any purpose at all, it will bar the argument that
misdemeanors related to traffic are somehow to be afforded disparate treatment from that
governing misdemeanors generally.
However it has been said that "The whole statutory pattern makes it clear that the "notice
to appear" referred to in CVC section 853.9, subdivision (b) means nothing more nor less
than a "citation" or "ticket" signed by the citee and incorporating his promise to appear in
court." Gomper (supra), id at p. 6.
The obvious purpose that an accused is entitled to information is that the principles
of burden rest on the complainant at the outset of the action to manifest evidence that the
arrest is based on reasonable suspicion to support probable cause.
"The purpose of the preliminary hearing is to weed out groundless or unsupported
charges of grave offenses, and to relieve the accused of the degradation and the expense
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of a criminal trial. Many an unjustifiable prosecution is stopped at that point, where the
lack of probable cause is clearly disclosed." (Jaffe v. Stone, 18 Cal.2d 146, 150 [114 P.2d
335, 135 A.L.R. 775].)
The list of cases with Gomper, Heldt and Barron (supra) would suggest that there is no
right to a verified complaint regardless if an accused "during the time of his arraignment
request that a verified be filed." (Id, at CVC section 40513, subdivision (b))
The Gomper court has pointed out that procedurals errors will not permit a jurisdictional
claim. "The California Constitution and the Penal Code make it abundantly clear that,
except in extraordinarily compelling cases, judgments are not to be reversed for
procedural errors. (Cal. Const., art. VI, § 13; Pen. Code, §§ 960, 1258, 1404 and 1469.) fn.
6" (Id, at p. 9)"
However, in all, Gomper, Heldt, and Barron, the defendant's had provided the courts with
a plea whereas the Petitioner in this matter did not (See: Petitioners Affidavit in support
of Writ of Prohibition)
California Penal Code - Section 1404. States:
"Neither a departure from the form or mode prescribed by this Code in respect to any
pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has
actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial
right."
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Thus, if Petitioner's right to a verified complaint is not granted in accord with 40513(b)
which states in part:"during the time of his arraignment request that a verified be filed."
indicates that the notice to appear is not just a notice as the court Gomper describes, but
contains a mandatory implicit language that is determined to be a waiver of the right
upon the accused signing the notice to appear without fully understanding the potential
adverse implications prior to waving their rights.
Moreover, the Constitution does not require a preliminary hearing; it is mostly a
legislative construct:
"As the preliminary hearing itself is not constitutionally required, it follows
that there are no constitutionally-required procedures governing the
admissibility of hearsay at preliminary hearings." Peterson v. California, 604
F.3d 1166, 1169 (2010).
However there is a constitutional right to a probable cause hearing: Peterson citing
"Whitman reasoned, the preliminary hearing itself is not constitutionally mandated. Id. at
271 ("[O]ther than the probable cause hearing held to justify continued detention of the
accused [analyzed under the Fourth Amendment], there exists no federal constitutional
right to a preliminary hearing to determine whether a case should proceed to trial."
(Emphasis in original)); see also Ramirez v. Arizona, 437 F.2d 119, 119-20 (9th Cir.1971)
("The Federal Constitution does not secure to a state court defendant a right to a
preliminary hearing."). “(Ibid.)
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To arrive at the point of the necessity in probable cause hearings, following a traffic stop
in Ohio a Mr. Pyle was arrested and taken into custody apparently at some point followed
an interrogation in which he was not provided his Miranda warnings.
Upon the end, Ohio Supreme court long winded opinion the court held that Pyle was not
protected by the procedural safeguards provided under Miranda due to the fact that his
charge was a misdemeanor:
"In the great majority of misdemeanor cases (traffic offenses), the offense has taken place
in the presence of the arresting officer. Nearly all interrogation occurs, as in the instant
case, at or near the scene of the infraction, not in any coercive atmosphere created by the
law enforcement authorities." The State of Ohio v. Pyle 19 Ohio St. 2d 64, 67 (1969)
However, by a single dissenting opinion Justice Duncan stated, in part:
"Although the practical result of the application of the rule of Miranda v. Arizona, 384 U.
S. 436, may be an added strain on the physical facilities and manpower of law
enforcement agencies, I cannot agree that the rule is inapplicable to misdemeanors. As I
understand that case, the Supreme Court of the United States has provided certain
procedural safeguards to secure the privilege against self-incrimination, guaranteed by
the Fifth Amendment to the United States Constitution. A reading of the Miranda case
does not reveal facts from which I can conclude that misdemeanors are outside the scope
of these procedural safeguards. Contrary to the view of the majority, I believe that, since
the Miranda decision does not specifically exclude misdemeanors, they are to be
included." (Id, at P.69)
Years later, the courts agreed with Justice Ducan. Following an argument, the Petitioner
in McCarty sought of the Court to consider that "law enforcement would be more
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expeditious and effective in the absence of a requirement that persons arrested for traffic
offenses be informed of their rights". The court in McCarty went on to say:
"The purposes of the safeguards prescribed by Miranda are to ensure that the police do
not coerce or trick captive suspects into confessing, to relieve the "`inherently compelling
pressures' " generated by the custodial setting itself, " which work to undermine the
individual's will to resist,' " and as much as possible to free courts from the task of
scrutinizing individual cases to try to determine, after the fact, whether particular
confessions were voluntary. Those purposes are implicated as much by in-custody
questioning of persons suspected of misdemeanors as they are by questioning of persons
suspected of felonies." Berkemer, Sheriff of Franklin County, Ohio v. McCarty, 468 U.S.
420 (1984) Id at P. 433.
Thus, if petitioner does not have the right to a verified complaint which as suggested in
the above cases [Gommper, Heldt, Barron] implicitly waives his right to a probable cause
hearing at the arraignment stage before being slated over to trial, at what point in the
administrative proceedings, or executive proceedings for a better word, did he waive his
right?
Where there was only one time that this Petitioner was read his rights, being at his
arraignment where I was denied both: the right to a verified complaint and my request for
a probable cause hearing. Furthermore a plea of not guilty was entered into the Clerk's
check box records by the commissioner, against my objections. I still have refused to offer
any plea till this day and any day afterwards in this matter.
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DURING ARREST FOLLOWING A TRAFFIC STOP, CAN AN ACCUSED WAIVE A VERIFIED
COMPLAINT WITHOUT MIRANDA WARNINGS WHEN A SIMPLE COMPLAINT CHECK
BOX SCHEME GUISED AS A NOTICE TO APPEAR MANDATES OTHERWISE?
Assuming arguendo that the court having subject matter jurisdiction in a misdemeanor
case rebuffs a defendant’s position to consider the constitutionality of the States refusal to
issue an accusatory pleading that would provide a defendant with information with
allegations of reasonable cause to believe the defendant committed the offense charged.
The higher courts would ultimately disagree. Starting with the court In People v. Superior
Court (Mendella), Mendella was charged with both felony and misdemeanor counts. The
court was face with Petitioner's argument that "where such joinder of felony and
misdemeanor offenses occurs, the misdemeanor must be prosecuted in accordance with
the procedures provided for prosecution of felonies in superior courts, not merely by
written complaint, as is the case in inferior courts.."
The petitioner, Menlinda also asserted that: "misdemeanor charges which are slated for
trial in superior court must be subject to judicial scrutiny for the same reasons." In
agreeing in favor with Petitioners position, on the principle, the court states:
"....the prosecution of the misdemeanor in question was subject to the general rules
applicable to all misdemeanors triable in superior court. Filing the verified complaint in
the superior court was insufficient to give that court jurisdiction inasmuch as prosecution
of a case in the superior court must "be conducted under an information, as a prerequisite
to the issuance of which the accused is entitled ... to a preliminary examination and
commitment, ... [a procedure] which is applicable alike to the misdemeanor with which
petitioners are charged, as well as to all others, jurisdiction to try which is vested in the
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superior court." (Mendella citing: Gardner v. Superior Court (1912) 19 Cal,app. 548 at
pp. 551-552.)
California has supported this standard of law until People v. Barron (1995) 37 Cal.App.4th
Supp. 1 , 44 Cal.Rptr.2d 348.
"The complaint is the foundation of the jurisdiction of the magistrate, and it
performs the same office that an indictment or information does in superior
courts." (See, also, cases collected 16 C.J. ? 492 p. 286.)
However, the statutory scheme under CVC 40513 for standards of a court review of the
State’s accusatory pleading compounds a pervasive language, creating two classes of
misdemeanors thus, avoids materials facts that normally provides objective
determinations to be made by the court, which also had normally allowed the court to
arrive at a reasonable conclusion in support of probable cause that lead to the arrest.
Whereas, there no such requirement according to 40513(b) that would bind the court to
entertain an accused request for a verified complaint, nor following thereafter, should the
court entertain a probable cause hearing base on the same grounds that the request for a
verified complaint need not be filed.
It has been long held that a complaint and information must be verified under oath:
“To render a valid judgment, a court must have jurisdiction over the subject
matter and of the person of the defendant. Jurisdiction of the subject matter
is derived from the law; it neither can be waived nor conferred by consent of
the accused. Inherent in subject matter jurisdiction is the power to inquire
into the facts, to apply the law and to declare the punishment.” (21
Am.Jur.2d, §§ 376, 379, pp. 398-399, 400.) Burris v. Superior Court , 43
Cal.App.3d 530, id at 537.
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Apparently, the California Judicial Council would disagree in the substantial principles of
the constitution intended to safeguard the rights of the people to the same extent of rights
they themselves are protected by:
The requirement of probable cause has roots that are deep in our history.
The general warrant, in which the name of the person to be arrested was left
blank, and the writs of assistance, against which [James Otis inveighed, both
perpetuated the oppressive practice of allowing the police to arrest and
search on suspicion see: Quincy's Miss.Rep. 1761-1772, Appendix, p. 469.].
Hence the California Council writes out a blank check to the executive office to usurp the
powers of the courts as understood in the following..
These Americas divulge from history, information that reveals similar
situation when Police control took the place of judicial control, since no
showing of "probable cause" before a magistrate was required. The practice
was eventually declared illegal by the House of Commons in 1766. 16
Hansard, Parl.Hist.Eng. 207.
It was later further established in Draper v. United States, 358 U. S. 307.
"On the other hand, good faith on the part of the arresting officers is not
enough. Probable cause exists if the facts and circumstances known to the
officer warrant a prudent man in believing that the offense has been
committed."
The court in Henry also citing: Stacey v. Emery, 97 U. S. 642, 97 U. S. 645.
And see Director General v. Kastenbaum, 263 U. S. 25, 263 U. S. 28; United
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States v. Di Re, supra, at 332 U. S. 592; Giordenello v. United States, supra,
at 357 U. S. 486 (Henry v. United States. Id at p. 102)
The Fourth Amendment right against unreasonable searches and seizures,
made applicable to the States by the Fourteenth Amendment, "protects
people, not places," and therefore applies as much to the citizen on the
streets as well as at home or elsewhere. Terry v. Ohio, 392 U. S. 1 (1968)( id
at Pp. 392 U. S. 8-9.)
Mere conclusory assertions are not enough.
Byars v. United States, 273 U.S. 28 (1927) (affiant stated he "has good
reason to believe and does believe" that defendant has contraband materials
in his possession); Giordenello v. United States, 357 U.S. 480 (1958)
(complainant merely stated his conclusion that defendant had committed a
crime). See also Nathanson v. United States, 290 U.S. 41 (1933).
The courts have also
“held insufficient an affidavit which merely asserted that the police had
''reliable information from a credible person'' that narcotics were in a
certain place, and held that when the affiant relies on an informant's tip he
must present two types of evidence to the magistrate. First, the affidavit
must indicate the informant's basis of knowledge--the circumstances from
which the informant concluded that evidence was present or that crimes had
been committed--and, second, the affiant must present information which
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would permit the magistrate to decide whether or not the informant was
trustworthy.
( Aguilar v. Texas, 8 U.S. 108 (1964).)
The courts have went on to say:
Section 872 of the Penal Code provides in substance that if it appears from
the preliminary examination that a public offense has been committed, "and
there is sufficient cause to believe the defendant guilty thereof," the
magistrate must make an order holding him to answer. "Sufficient cause"
within the meaning of section 872 is generally equivalent to that "reasonable
or probable cause" required to justify an arrest. (See People v. Green (1969)
70 Cal.2d 654, 663, fn. 7 [75 Cal.Rptr. 782, 451 P.2d 422]; Perry v. Superior
Court (1962) 57 Cal.2d 276, 283 [19 Cal.Rptr. 1, 368 P.2d 529]; People v.
Nagle (1944) 25 Cal.2d 216, 222 [153 P.2d 344].) " 'Sufficient cause' and
'reasonable and probable cause' means such a state of facts as would lead a
man of ordinary caution or prudence to believe and conscientiously
entertain a strong suspicion of the guilt of the accused (People v. Nagle, 25
Cal.2d 216, 222 [153 P.2d 344] ...." (Rogers v. Superior Court (1955) 46
Cal.2d 3, 7-8 [291 P.2d 929].)
The Supreme courts has sought to maintain the principles of due process through
protection of a mans rights from the conception of suspicion in a officers mind and subject
those thoughts to procedural constraints that would obviously lead to tyranny, or
despotism , for a better word, if the mandates were not in place before hand.
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Although the at one time in common law, warrantless arrests of persons who had
committed a breach of the peace or a felony were permitted. Since the courts has held
and supported this cause in which misdemeanors are not to be held to any lesser standard
of those principles.
The complaint must contain information under oath describing the nature of events that
protect the defendant in a case where the officer decides to change his testimony to
reflect a different turn of events in an arbitrary manner to appear as though his suspicion
was based on probable cause or the statements that ultimately may not have derived from
reasonable suspicion.
"An insufficient affidavit cannot be rehabilitated by testimony after issuance
concerning information possessed by the affiant but not disclosed to the
magistrate." Whiteley v. Warden, 401 U.S. 560 (1971).
People v. Slaughter (1984) 35 Cal.3d 629, 637-638. ("‘Within the framework of his limited
role, ... the magistrate may weigh the evidence, resolve conflicts, and give or withhold
credence to particular witnesses. [Citation.] In other words, in assisting him in his
determination of 'sufficient cause,' the magistrate is entitled to perform adjudicatory
functions akin to the functions of a trial judge. Yet the proceeding is not a trial, and if the
magistrate forms a personal opinion regarding the guilt or innocence of the accused, that
opinion is of no legal significance whatever in view of the limited nature of the
proceedings.‘ ( People v. Uhlemann, supra, 9 Cal.3d 662, 667, fn. omitted.)
In short, the magistrate is not a trier of fact. He does not decide whether defendant
committed the crime, but only whether there is ‘'some rational ground for assuming the
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possibility that an offense has been committed and the accused is guilty of it.'‘ ( People v.
Orin (1975) 13 Cal.3d 937, 947 [120 Cal.Rptr. 65, 533 P.2d 193].)
If the record shows strong and credible evidence of defendant's guilt, the magistrate may
reasonably assume the possibility of his guilt. Thus in many cases he will not find it
necessary to resolve all conflicts in the evidence, in order to find probable cause to hold
the defendant for trial. The magistrate's power to decide factual disputes exists to assist
him in his determination of sufficient cause (People v. Uhlemann, supra, 9 Cal.3d 662,
667); if he can determine that issue without resolving factual conflicts, he may do so.")
It is has become predominantly clear that the petitioner waived those rights at the outset
of his initial arrest, hence was in custody for all intent and purposes to be protected under
Miranda. Hence forth 40513 is unconstitutional and the courts are to know this.
It is just as important for the court to realize, the fact that officers will shift their initial
cause for suspicion to later suit the prosecution’s case once an accused is bounded over to
trial. If a defendant where not able to secure a predisposition, though prior to the
anticipated testimony, by means of probable cause hearing based on his sworn testimony,
that the officer claimed against the accused for the arrest, would be also to say that the
defendant was deprived of evidence just as well as confrontation?
On this precise point the petitioner, again:
An insufficient affidavit cannot be rehabilitated by testimony after issuance
concerning information possessed by the affiant but not disclosed to the
magistrate. "Yet the State concedes, as on the record it must, that at every
stage in the proceedings below petitioner argued the insufficiency of the
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warrant as well as the lack of probable cause at the time of the arrest.
"Whiteley v. Warden, 401 U.S. 560 (1971).
At all stages of criminal proceeding when there are rights that a defendant are faced with,
the state is obligated to assure that those rights are knowingly and intelligently waived.
According to the courts the Petitioner does not have the right to a verified complaint;
hence they must submit that Petitioner was to be informed of the waiver of that right
prior to signing the notice to appear.
A violation of the Sixth Amendment right to confrontation can be denied also where it
occurs where the government introduces “testimonial” out-of-court statements against the
accused and where there has been no prior opportunity of cross-examination, overruling
the”indicia of reliability” test set forth in Ohio v. Roberts (1980) 448 U.S. 56, which
allowed such statements if they were reliable. (Crawford v.
Washington (2004) 541 U.S. 36) Voilation of the right to confrontation.
In returning to Peterson v. California, 604 F.3d 1166, 1169 (2010) the petitioner will
further illustrate that the Confrontation clause is violated when that petitioner was not
provided information and verified complaint against him.
As the procedural history of facts before the 9th Circuit went:
"Peterson was charged in 2005 with two felonies and several misdemeanors
for health and safety violations arising out of his ownership and operation of
an automobile dismantling site. Pursuant to Prop. 115, at the preliminary
hearing, the prosecution called only one witness, the investigating officer,
who testified to the hearsay statements of other witnesses. The magistrate
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found probable cause to hold Peterson for trial. After a pre-trial hearing, the
superior court excluded certain evidence for which the State failed to
establish a proper chain of custody and, on that basis, granted a pre-trial
motion to dismiss the two felony counts. A jury convicted Peterson on
certain of the remaining misdemeanor counts."Peterson v. California, 604
F.3d 1166, 1168 (2010).
On the misdemeanors Patterson contended that the statute "Prop 115 deprives him of his
Sixth Amendment right to confront the witnesses against him at a preliminary hearing."
The court in disagreeing with Peterson stated on its first point that
"As the preliminary hearing itself is not constitutionally required, it follows
that there are no constitutionally-required procedures governing the
admissibility of hearsay at preliminary hearings.”
On the court's second disagreement with Peterson, it was opinioned that:
"..[T]he United States Supreme Court has repeatedly stated that the right to
confrontation is basically a trial right. The right to confrontation is basically
a trial right. It includes both the opportunity to cross-examine and the
occasion for the jury to weigh the demeanor of the witness. A preliminary
hearing is ordinarily a much less searching exploration into the merits of a
case than a trial, simply because its function is the more limited one of
determining whether probable cause exists to hold the accused for trial."
The court followed, citing:
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Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968);
see also Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d
40 (1987) (holding that "the right to confrontation is a trial right" and
"[n]ormally the right to confront one's accusers is satisfied if defense
counsel receives wide latitude at trial to question witnesses" (emphasis in
original)); California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 26 L.Ed.2d
489 (1970) ("[I]t is th[e] literal right to `confront' the witness at the time of
trial that forms the core of the values furthered by the Confrontation
Clause[.]"). Similarly, in Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658,
96 L.Ed.2d 631 (1987), the Supreme Court held that the defendant's
exclusion from a hearing to determine the competency of two child
witnesses did not violate his confrontation right. Id. at 735, 744. 107 S.Ct.
2658
The Court reasoned that exclusion from the hearing did not interfere with the defendant's
opportunity for effective cross-examination 1170*1170 because he was able to examine
the witnesses at trial. Id. at 740, 107 S.Ct. 2658. “
Thus, under the Supreme Court's Confrontation Clause jurisprudence, Peterson was
entitled to confront witnesses against him at trial, which he did. He was not
constitutionally entitled to confront them at his preliminary hearing. Id, at 1169-1170.
(Emphasis added)
However, it is clear that the defendant, in a misdemeanor case, has the right to probable
cause hearing:
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"Even if the Fourth Amendment challenge had not been waived, we would
reject it on the merits because the Fourth Amendment allows for a
determination of probable cause based on hearsay testimony.”
The Peterson court citing: " Gerstein v. Pugh, 420 U.S. 103, 120, 95 S.Ct.
854, 43 L.Ed.2d 54 (1975) (holding that a full adversarial hearing, including
confrontation and cross-examination, is not required for a determination of
whether probable cause exists under the Fourth Amendment to detain an
arrestee pending trial)." (id, at 1171).
In this matter, although the state can submit hearsay testimony at a probable cause
hearing, dependant on the reliability of the source, it still remains that the defendant is
entitled to a probable cause as a right.
It would defy logic that a defendant at a probable cause hearing could not confront the
witness, hence it would also defy logic that a defendant cannot use testimony derived
from a probable cause hearing at his trial. So, it definitely defies logic that a defendant
can waive his right to a probable cause hearing without being made aware of the waiver
of that right before hand.
This disparity can be seen between California and N.Y. Where some simple infractions,
defendants are provided with due process protections that mandate that a complainant
must subscribe and verify his signature, based upon personal knowledge or upon
information and belief.
The accusatory part must designate the offense and the factual part must
allege facts of an evidentiary nature (C.P.L. 100.15(1),(2), and (3)): People v.
Dumas, 68 N.Y. 2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (Ct. of
Apps.1986)
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As a secondary and equally important requirement,
the information must contain allegations of fact that provide reasonable
cause to believe the defendant committed the offense charged and that the
charges are supported by non-hearsay allegations that establish each
element. C.P.L. 100.40(1)(b), (c); People v. Hall, 48 N.Y.2d 927, 425
N.Y.S.2d 56, 401 N.E.2d 179 (Ct. of Apps.1979); People v. Cea, 141 Misc.2d
234, 533 N.Y.S.2d 239 (N.Y.Crim.Ct.1988).
The burden of proof need only be a prima facie case, and need not be
“beyond a reasonable doubt” (People v. Henderson, 92 N.Y.2d 677, 685
N.Y.S.2d 409, 708 N.E.2d 165 (Ct. of Apps.1999)).
The allegations must not be conclusory. People v. Hoffman, 180 Misc.2d
382, 692 N.Y.S.2d 592 (App.Term 2nd Dept.1999). Failure to comply with
any of the above requirements is considered a jurisdictional defect, and
therefore the information should be dismissed as defective on its face.
People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (Ct. of
Apps.1987).
Under the California State Constitution rights are seen as protecting.
ARTICLE 1. DECLARATION OF RIGHTS SEC. 24.
Rights guaranteed by this Constitution are not dependent on those
guaranteed by the United States Constitution. In criminal cases the rights
of a defendant to equal protection of the laws, to due process of law, to the
assistance of counsel, to be personally present with counsel, to a speedy and
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public trial, to compel the attendance of witnesses, to confront the witnesses
against him or her, to be free from unreasonable searches and seizures, to
privacy, to not be compelled to be a witness against himself or herself, to not
be placed twice in jeopardy for the same offense, and to not suffer the
imposition of cruel or unusual punishment, shall be construed by the courts
of this State in a manner consistent with the Constitution of the United
States. This Constitution shall not be construed by the courts to afford
greater rights to criminal defendants than those afforded by the Constitution
of the United States, nor shall it be construed to afford greater rights to
minors in juvenile proceedings on criminal causes than those afforded by the
Constitution of the United States.
This declaration of rights may not be construed to impair or deny others
retained by the people.
Under the federal rules of procedure state in part and reads: Rule 58 (b) (1):
Charging Document.
The trial of a misdemeanor may proceed on an indictment, information, or
complaint..."
Furthermore the courts procedures are also designed to protect the integrity of the
magistrate proceedings as:
(g) Recording the Proceedings.
The preliminary hearing must be recorded by a court reporter or by a
suitable recording device.
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The court has also put to test the compelling of statements where one is accused,
although he is subjected to procedural requirements that mandate a waiver of immunity.
In one similar analogy and disturbing case based on the complaint against several
officers, as the court goes on to say:
”the officers "were not discharged merely for refusal to account for their
conduct as employees of the city. They were dismissed for invoking and
refusing to waive their constitutional right against self-incrimination. They
were discharged for refusal to expose themselves to criminal prosecution
based on testimony which they would give under compulsion, despite their
constitutional privilege. Three were asked to sign waivers of immunity
before the grand jury. Sanitation Men v. Commissioner of Sanitation, 392
U.S. 280 (1968) at 283.
The court held to the principals of compelling of statements by signature to be viewed as
also:
"the precise and plain impact of the proceedings against petitioners, as well
as of § 1123 of the New York Charter, was to present them with a choice
between surrendering their constitutional rights or their jobs. Petitioners as
public employees are entitled, like all other persons, to the benefit of the
Constitution, including the privilege against self-incrimination. Gardner v.
Broderick, supra; Garrity v. New Jersey, supra. Cf. Murphy v. Waterfront
Commission, 378 U. S. 52, at 378 U. S. 79 (1964).
At the same time, petitioners, being public employees, subject themselves to
dismissal if they refuse to account for their performance of their public trust,
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after proper proceedings, which do not involve an attempt to coerce them to
relinquish their constitutional rights. (at P.p. 284-285).
CVC 40513 IS UNCONTITUTIONAL AND A VIOLATION OF THE SEPREATION OF
POWERS CLAUSE
Please take note: the Petitioner has not clearly articulated the points below, however
reserves this for the potential that the state court do have an invested interest in
preserving CVC 40513(b). He will expand on this principle at the federal Level if the State
chooses, again not to order a response from the opposing party in this matter..
Petitioner further demonstrates on the merits of his claim that the California Judicial
Council violated the separation of powers established in the California constitution on two
independent grounds. The court violated the separation of powers.
“CVC 40513(b) form prepared and approved by the Judicial Council” diverges from three
functions of the Branches of government, Executive, Legislative and Judiciary. However,
the California Judiciary Council creates a fourth Branch where it has reconstructed the
power of the executive to take the power of the judiciary functions of the magistrate, and
the power to propose a legislative function where the judiciary function are to vote on
what rules should govern the intent of legislation.
Hence, where the constitutional function of the Judiciary is to check the Legislation and
the Executive
Branches. In this case, it would be the validity of probable cause, but the California
Judiciary Council has taken it upon themselves to pass that power over to the executive
branch founded primarily of its own proposal to the judiciary to set out new guidelines in
governing statutory intent, is in gross dereliction of it's duty by "expansive" view of the
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Constitution and the Bill of Rights, where they have actually weakened a number of
fundamental guarantees as described in the above preceding citations. It appears that this
would not be a commandeering claim, where the NTA is prepared for the executive office
to administer officers oath functions and reliance on it's own enforcement without the
check and balance from an independent judiciary prepared by the Judiciary Council
created by the Legislative branch with only administrative powers.
(i) In accepting jurisdiction without a lawful complaint so to conform to:
Implementation Requirements and Costs.
“The proposed changes impose no specific implementation costs on the courts. Each court
can choose whether to authorize submission of electronic NTAs based on its ability to
cover the cost of such a process. There are also no costs imposed on the California
Highway Patrol, which already uses a system for electronic submission of NTAs that
complies with the proposal. Other law enforcement agencies may need to reprogram their
systems for electronic submission of NTAs in order to comply with the proposed
requirements." JUDICIAL COUNCIL OF CALIFORNIA ADMINISTRATIVE OFFICE OF THE COURTS October
27, 2005 Report)
Below briefly describes how this offering to the State wide system is premised on
Marketing scheme to streamline Juries deliberation, arguments and reading of the Jury
Instruction to be completed in one day along with creating an state wide autonomous or
non independent Judiciary a in combination with saving coast while utilizing an assembly
line type of transaction relations with the public that revolutionizes creating revenue for
highest paying official at the expense of the people and their rights. This is not only that
the people of the state foot the bill of the initial coast to implement the Marketing scheme
through their own tax dollars, but to finance the way they are treated in a manner that
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they will eventually be fined for tickets from a system that they paid for. Which inevitably
means that if one court does not comply, the others will provide peer pressure.
Encouraging Trial Court Innovation.
“Throughout most of their history, trial courts have operated as autonomous
entities. The implementation of trial court funding requires courts to view
themselves as part of the statewide judicial system. This transition means
that trial courts must achieve the common good as defined from a statewide
perspective. Only by encouraging coordinated efforts and managing
technology options can the Judicial Council achieve its technology-
dependent strategic objectives and the state realize an optimal return on its
technology investment. While acknowledging that state and local priorities
are unlikely to coincide completely, the tactical plan ensures that all courts
are capable of providing basic services and strives to maintain as much
flexibility as possible in determining how those services are best provided at
the local level."
T A C T I C A L P L A N F O R C O U R T T E C H N O L O G Y AD O P T E D B Y T H E JU D
I C I A L CO U N C I L O F CA L I F O R N I A JANUARY 2 6 , 2 0 0 0.)
Due to the amount of revenue generated (received by the government) from the traffic
system it is to argue against this showing a double standard in the appearance of justice
for the sake of judicial economy. In Municipal Court v. Superior Court, 199 Cal.App.3d 19,
244 Cal.Rptr. 591 (Feb. 1988), The court in Sinclair agrees , where this argument was
presented:
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Despite these benefits to the judicial system, persons charged with crimes are accorded
by the United States and California Constitutions a privilege not to testify against
themselves. A sacrifice of judicial economy and certainty of the facts is inherent in the
privilege against self-incrimination. Municipal Court v. Superior Court (Sinclair) (1988)
199 Cal. App. 3d 19 [244 Cal.Rptr. 591]
Hence, today’s state judiciary procedures with legislation commonly weighs against the
peoples interest in the guise of "public interest," conforming the courts to act non-
autonomously as an Constitutional independent review of rights balance against the
people in favor of the goal to save cost. There isn't any independent judiciary with regard
to the fair plays of justice when the unwitting public is exploited through physiological
public relations as sought to control the masses fathered in by Edward Berneys, the
nephew of Sigmund Freud.
"The conscious and intelligent manipulation of the organized habits and
opinions of the masses is an important element in democratic society. Those
who manipulate this unseen mechanism of society constitute an invisible
government which is the true ruling power of our country. ...We are
governed, our minds are molded, our tastes formed, our ideas suggested,
largely by men we have never heard of. This is a logical result of the way in
which our democratic society is organized. Vast numbers of human beings
must cooperate in this manner if they are to live together as a smoothly
functioning society. ...In almost every act of our daily lives, whether in the
sphere of politics or business, in our social conduct or our ethical thinking,
we are dominated by the relatively small number of persons...who
understand the mental processes and social patterns of the masses. It is they
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who pull the wires which control the public mind." ( see also:
http://video.google.com/videoplay?docid=6718420906413643126# )
(See also : for a complete understanding and Milgram experiment on
obedience to authority figures was a series of social psychology experiments
conducted by Yale University psychologist Stanley Milgram, which measured
the willingness of study participants to obey an authority figure who
instructed them to perform acts that conflicted with their personal
conscience. Milgram first described his research in 1963 in an article
published in the Journal of Abnormal and Social Psychology, and later
discussed his findings in greater depth in his 1974 book, Obedience to
Authority: An Experimental View.)
In which not only provides the state with a new bag of tricks, but the additional pleasure
of adding a totally new light to view, all co-joined, within the narrow spectrum of color
found in prism of stare decisis.
Where also, the Police now can play a physiological game of Statutory “Three Card Molly
“, with targeted suspects as the statutory amendments roll in for each possible mistake a
person can make.
And
(ii) Separately, in expressly redefining the legislative Statute CVC 40513 drawing from
it's intended purpose. When one branch usurps the powers of another, co-equal branch, it
constitutes a violation of the federal constitutional guarantee of a republican form of
government and thereby respectively creating a fourth and autonomous branch against
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those guarantees and assurances to the individual citizen, of which Petitioner is one of the
true sovereigns.
The California judiciary Council has so diluted the statutory meaning of Verified
Complaint that it actually renders the words meaningless and the statute vague,
ambiguous and unconstitutional.
Thus, it doesn’t take much to see the proof. Whereas, this Petitioner is a living example,
who faces up to four years for being late on his payments to the DMV and the Courts of
California. Which penalties include…..wait for it………… paying for his own trial, probation
and the original fines, plus penalty assessments. Petitioner harmed no man, was not a
danger to anyone, nor a danger to the fictional "public interest" left necked without due
process to be afforded.
REQUEST FROM THE COURT
PRAYER FOR RELEIF.
Whereas, the Law recognizes that:
It is impossible for court to plead on behalf of a the accused when there is no
constitutional complaint before him and he has not waived it by writing as required by
CVC 40513, Penal Code Sections 740, 949, 950, 959, 691(d) and 691 (e) before him to
plead to (see Civil Code, Section 3531), and many important particulars such as
1) the nature and cause of the accusation, the essential elements of the
charge, and
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2) Without such information, this accused can not respond in an intelligent,
informed and legally correct manner, whatever that response may be;
No prosecuting attorney has signed an accusatory pleading before an officer who can
administer oaths to initiate court's Jurisdiction over Petitioner (see Ralph v. Police Court,
Supra, Gavin V. Municipal Court. 184 C.A.2d 712, Anger v. Municipal Court. 237 C.A. 2d
69, Penal Code. Sections 949, 691 (d), (e)).
So for the magistrate to enter any plea for the accused, in the least, there is no discretion
authorized under Constitutions of this State and the United States to which his judgment
maybe considered other than void.
The established doctrine in this state is that it is the plaintiff upon whom rests the duty to
use diligence at every stage of the proceeding to expedite his case to a final
determination. It is true that the defendant may bring about a trial of a case, but he is
under no legal duty to do so. His presence in the case is involuntary and his attitude
toward it is quite different from that of the plaintiff; he is put to defense only, and can be
charged with no neglect for failing to do more than meet the plaintiff step by step." Grafft
v. Merrill Lynch, 273 Cal.App.2d 379 (1969), and Petitioner has met the plaintiff (whoever
that may be) step by step, by appearing in court as he agreed to in the notice to appear,
by appearing in court as promised on the "NOTICE TO APPEAR NO. A255030".
It is, the would be Plaintiff who has chosen to not prosecute Petitioner by not filing a
lawful complaint, therefore depriving the court of any Jurisdiction. Petitioner also reserves
all rights under the Constitution of California and of the United States, The Bill of Rights
including but not limited to the Ninth Amendment of the Same Bill of Rights.
Wherefore, under these circumstances Petitioner prays and moves this court to QUASH
THE NOTICE TO APPEAR #A255030 and prohibit the Court to proceed for lack of
jurisdiction.
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Finally, if the Court has any concerns about the relief requested, it should stay further
proceedings in the Superior court and set and file the case for full briefing and oral
argument.
I, Enrique B. Meyers, the undersigned, declare that the facts stated herein are true and to
the best of my recollection and knowledge under the penalty of perjury.
Verified by my hand:
___________________________________________________
Enrique B. Meyers,
______________________
Date