Archive for May, 2010

Since my last post, I appeared in court today, which was my second  court appearance for my California stop sign ticket. I personally have used this what I am describing below on several California traffic tickets and speeding tickets, namely cell phone tickets, commuter lane tickets, red light tickets, red light camera tickets and seat belt tickets. It also works for other California misdemeanors and infractions, almost any administrative type hearing.

Look at my last blog post for recap and audio. To recap my dance steps, I appeared in court April 27, 2010 and requested a ‘Verified Complaint’. When I appeared in court today, the bailiff (sheriff) handed me the ‘verified complaint’, as I came up to the bench (I don’t think that was proper service, but that will be for later research and blog post-follow us on caticketbusters).

 It almost looked legal! (We have had several courts and types of supposed verified complaints, some not filed, some not signed by the DA, some not signed by the court clerk-all are necessary. But they all have been missing something else. The Magistrates signature with his indorsement!)

Penal Code 872 (a) States: “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.”

Penal codes 738, 739, 872 and 1382 all work in tandem and spell out the proper procedures to follow, and if all the steps are not followed, the ‘fake verified complaint’ is nothing more than mere paper, hearsay, and a fraud upon the court. If you respond or answer to it, then you have accepted it as a verified complaint and just like the NTA, it now has become your charging instrument. DON’T DO IT.

It’s obvious that I will need to research the correct steps for a true verified complaint from legal cites. So stay tuned for near future blog post on that.

Because the Commissioner was taking the ‘verified complaint’ as authentic (because she said it was signed by the DA to the Court Clerk, under penalty of perjury, that it was a Verified Complaint. I had to challenge her and tell her it was a Fraud upon the Court. You can hear in the tape I ticked her off with that (and of course,  the Commissioner is suppose to know more than I, the layman student of due process law). We always really wonder, are they just playing dead or silly stupid, or do they really DON’T KNOW? Which is scarier than ever. propecia cost Is it better they deceive us or be incompetent, remember it’s our due process rights we are talking about. All the California speeding and traffic tickets stuff is just that, but for them to play possum or not know is scary!

I have included the audio/video below, so you can get the feel for the understanding, or shall I say, lack of understanding, of even the courts (or commissioners) position or legal understanding of the penal code, rules of the court, and our the ‘verified complaint’. Now it’s time to Demurr.

The sole function of a demurrer is to challenge the legal sufficiency of a pleading. Blacks Law Dictionary states “that a demurrer is a pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief and for the defendant to frame an answer”. So it is an answer or type of plea but challenges ‘it’.  In this case the it is the ‘verified complaint’.

 Wikipedia states: A ‘demurrer’ is a pleading in a lawsuit that objects to an earlier pleading filed by an opposing party. The word ‘demur’ means to object; a ‘demurrer’ is the document that makes the objection. Typically, the defendant will demur to the complaint, but it is also possible for plaintiff to demur to an answer. The demurrer challenges the “legal sufficiency” of a claim, cause of action, or defense. If a cause of action in a complaint does not state a cognizable claim or if it does not state all the required elements, then the complaint can be knocked out with a demurrer. A demurrer is filed near the beginning of a case during the pleading phase.

I was not even sure I would receive a verified complaint, and if I had not (also within the 10 days time frame the Commissioner gave the DA from my first court appearance-but they did-halfway) I would have requested a dismissal for ‘non-prosecution’ of my case.

I prepared a demur (general type) with tons of pages and cites, so if I did get one, some DA would have to spend a lot of time to answer it.  Or if he doesn’t then that will be my new request for dismissal!

You have to listen to our banter, the Commissioner and I. She gave the DA 10 days to respond to the demur, and we start our dance about the codes and more importantly the facts and time frames. She sees so many defendants that she cannot keep them straight, and same goes for the facts of my case. She had the facts and steps wrong and I had to reiterate several times the actual occurrence of events.

Penal Code 1006 “Upon the demurrer being filed, (presented in court, upon arraignment) the argument upon the objections presented thereby must be heard immediately, unless for exceptional cause shown, the court shall grant a continuance. Such continuance shall be for no longer time than the ends of justice require, and the court shall enter in its minutes the facts requiring it.”     

I reappear on June 7, 2010 for hopefully my last dance. It is not bad, recurring defendants are first in line, I show up at 8:30 and am gone by 8:45. This Commissioner is the most nice I have had in a long time, versus the bully’s I hear students tell me about who yell at them and talk with contempt and down to the defendants. I love it when they yell at me/us ‘this is an infraction, Sir, you do not get a verified complaint for an infraction. Little do they know when they deal with a caticketbuster student, they do!

Again, I personally have used this on several California speeding tickets and traffic tickets, namely cell phone tickets, commuter lane tickets, red light tickets, red light camera tickets and seat belt tickets. It also works for other California misdemeanors and infractions, almost any administrative type hearing or public infraction. I will pick up with my next court appearance and let you know what happened!

Ronald Cupp PhD

Forgot on my last post, several students commented on the Commissioner’s comments and understanding of the illustrious and Illusive ‘Verified Complaint’ on my current traffic ticket, namely the California stop sign ticket. I personally have used this on several California speeding tickets and traffic tickets, namely cell phone tickets, commuter lane tickets, red light tickets, red light camera tickets and seat belt tickets. It also works for other California misdemeanors and infractions, almost any administrative type hearing.

I have included the audio below, so you can get the feel for the understanding, or shall I say, lack of understanding, of even the courts (or commissioners) position or legal understanding of the penal code, rules of the court, and our the ‘verified complaint’.

In this instance (and several others in Sonoma County who have reported similar stories like this), the Commissioner states, and in her helping tone and explanation, tries to coax me not to use my legal and justified rights to a request for a verified complaint.  Also to waive time and plead not guilty for me!

First, so you can see our position, the code states (which code?? Well several of them-853.9  sub-paragraph (b), of the penal code which by the way, is printed on the infamous NTA or notice to appear-your ticket-in fine print on the bottom of your ticket, that the court wants you to accept as the ‘complaint’ to which you MAY plead because it is approved by the Judicial Counsel,  California Motor Vehicle Code 40513 (a) & (b) (note the MAY plea verse, doesn’t mean you have to plea with the NTA).

The actual code states this:

Penal Code 853.9. (a) Whenever written notice to appear has been prepared, delivered, and filed by an officer or the prosecuting attorney with the court pursuant to the provisions of Section 853.6 of this code, an exact and legible duplicate copy of the notice when filed with the magistrate, in lieu of a verified complaint, shall constitute a complaint to which the defendant may plead “guilty” or nolo contendere.

If, however, the defendant violates his or her promise to appear in court, or does not deposit lawful bail, or pleads other than “guilty” or “nolo contendere” to the offense charged, a complaint shall be filed which shall conform to the provisions of this code and which shall be deemed to be an original complaint; and thereafter proceedings shall be had as provided by law, except that a defendant may, by an agreement in writing, subscribed by him or her and filed with the court, waive the filing of a verified complaint and elect that the prosecution may proceed upon a written notice to appear.

(b) Notwithstanding the provisions of subdivision (a) of this section, whenever the written notice to appear has been prepared on a form approved by the Judicial Council, an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea and, if the notice to appear is verified, upon which a warrant may be issued. If the notice to appear is not verified, the defendant may, at the time of arraignment, request that a verified complaint be filed.

Vehicle Code 40513. (a) Whenever written notice to appear has been prepared, delivered, and filed with the court, an exact and legible duplicate copy of the notice when filed with the magistrate, in lieu of a verified complaint, shall constitute a complaint to which the defendant may plead “guilty” or “nolo contendere.”

If, however, the defendant violates his or her promise to appear in court or does not deposit lawful bail, or pleads other than “guilty” or “nolo contendere” to the offense charged, a complaint shall be filed that shall conform finasteride 1mg to Chapter 2 (commencing with Section 948) of Title 5 of Part 2 of the Penal Code, which shall be deemed to be an original complaint, and thereafter proceedings shall be had as provided by law, except that a defendant may, by an agreement in writing, subscribed by him or her and filed with the court, waive the filing of a verified complaint and elect that the prosecution may proceed upon a written notice to appear.

(b) Notwithstanding subdivision (a), whenever the written notice to appear has been prepared on a form approved by the Judicial Council, an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea and, if the notice to appear is verified, upon which a warrant may be issued. If the notice to appear is not verified, the defendant may, at the time of arraignment, request that a verified complaint be filed. In the case of an infraction violation in which the defendant is a minor, the defendant may enter a plea at the arraignment upon a written notice to appear. Notwithstanding any other provision of law, in the case of an infraction violation, no consent of the minor is required prior to conducting the hearing upon a written notice to appear.

In both of these instances, it states that the Defendant (you or infraction violator) MAY plead ‘guilty or nolo-contendere, if you WANT TO ACCEPT THE NTA as your complaint; and also ‘the defendant may, at the time of arraignment, request that a verified complaint be filed. There ya go BABY, in black and white.

So now let’s hear the song and dance the Commissioner tells us, after she’s done all the legal research (and she’s sick of it), and that I should have filed the motion for request for a verified complaint beforehand (even thou it says ‘at the time of arraignment in the code) but she will take my ‘oral’ motion over the bench, then on to the night fable tale (like mom use to tell when we went to sleep) about the “officer used to sign his name on the ticket and the people could not read his signature, then because it was printed and not signed it did not constitute a valid verified complaint, blah blah blah (my head is beginning to spin with all the story jargon and not down to the right that I get to request a ‘verified complaint at my arraignment’. So as you listen to the audio, also catch the attempt to get me to waive time (we never do). Also about the ‘not guilty’ plea they wanted to enter on my behalf (for another long discussion and California traffic ticket blog post)!

Again, I personally have used this on several California speeding tickets and traffic tickets, namely cell phone tickets, commuter lane tickets, red light tickets, red light camera tickets and seat belt tickets. It also works for other California misdemeanors and infractions, almost any administrative type hearing or public infraction. I will pick up with my next court appearance and let you know what happened!

Ronald Cupp PhD

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