Archive for September, 2010

OK, now lets have some fun!  This another big step in beating your California Traffic Ticket. You know from my previous video blog post that there are six (6) types of pleas only (see video and blog post PC 1016). But did you know about a ‘demurrer’? A demurrer is a challenge to the sufficiency of something like a ‘complaint’, cause of action, or defense; in this case the NTA or the supposedly ‘Verified Complaint’. So, as an example, when you demurrer you are not challenging the ‘facts’ per say of the case, but that there is something that lacks one or more of the legal requirements for them to prosecute you or some legal requirement is missing in the prosecution’s case.

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 propecia merck be knocked out with a demurrer. A demurrer is filed near the beginning of a case during the pleading phase.

At common law, a demurrer was the most common pleading by which a defendant would challenge legal sufficiency in criminal or civil cases, but today the pleading is abolished in many jurisdictions, including the federal court system (though some jurisdictions, including California and Virginia, retain it). In criminal cases, a demurrer was considered a common law due process right, to be heard and decided before the defendant was required to plead “not guilty”, or make any other pleading in response, without having to admit or deny any of the facts alleged.

A demurrer is not a challenge to the ultimate merits of a case or claim. When ruling on a demurrer, a judge is required by law to assume as true facts alleged in the complaint, even if those facts would later be challenged. Historically, however, a party filing a demurrer often had to admit the facts in the complaint and waive the right to later challenge those facts. . . . .

Ok, here is the specific Penal Codes that we can use to effect your challenge!

1002.  The only pleading on the part of the defendant is either a demurrer or a plea.

1003.  Both the demurrer and plea must be put in, in open Court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.

1004.  The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof either:

   1. If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, or, if any information or complaint that the court has no jurisdiction of the offense charged therein;

   2. That it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information;

   3. That more than one offense is charged, except as provided in Section 954;

   4. That the facts stated do not constitute a public offense;

   5. That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.

1005.  The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the accusatory pleading or it must be disregarded.

1006.  Upon the demurrer being filed, 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.

So, what does all this mean? In plain English – by the numbers:

PC 1002 states that you can only Demurrer or Plea,

PC 1003 states that both the demurrer and plea must be put in, in open court, at your arraignment. (I have had Commissioners state that I should have filed it previous and served the DA, but again they were wrong).

PC 1004 states you can demurrer at any time PRIOR to the entry of a plea under #2(and in our case when we challenge the sufficiency of the Notice To Appear) because it does not comply with Penal Code Sections 950-952 and #5 constitutes legal justification or legal bar to the prosecution. Remember we are still attempting NOT TO PLEA and this is just another step that really throws them off.

PC 1005 states it must be in writing (signed of course!), and must specify the grounds for the objection (we have an awesome set of demurrer’s on our site!).

PC 1006 states (a) it must be filed, and it must be heard immediately!!!!! (I have never had one heard immediately, I have had them accepted over the bench and scheduled for hearing, or scheduled for contected traffic court, or given the DA 10 days to respond-but never heard. I have never even seen them look at our demurrer. Procedural error on their part).  And (b) If the court determines that it needs time (grants a continuance) it must state in it’s minutes the facts requiring the continuance. (Have never seen that also, so another procedural error, two at one time).

A Commissioner can overrule or deny your demurrer but you need to challenge them. Our demurrer has won us many, many, many cases, as it is very detailed and they are supposed to read and rule on it.

Again, I personally have used this on several Traffic tickets in California including speeding tickets, cell phone tickets, commuter lane tickets, red light tickets, red light camera tickets and seat belt tickets to tie them up and use their own rules of court against them. Remember  It  works for all California infractions,  to have them treated for our purposes, to hold them to the Misdemeanor laws and rules of court!

I have included the video below, so you can hear the reading of the code itself.

Ronald Cupp PhD

Categories : Legal, Penal Code
Comments (6)

Discovery-how sweet it is. What this means is that they (the court-DA-Peace Officers) must supply you with EVERYTHING that they could possibly want to use as evidence when they charge and prosecute you with a California Traffic Ticket.

The actual codes are below;

1054.  This chapter shall be interpreted to give effect to all of the following purposes:

   (a) To promote the ascertainment of truth in trials by requiring timely pretrial discovery.

   (b) To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested.

California Penal Code

   (c) To save court time in trial and avoid the necessity for frequent interruptions and postponements.

   (d) To protect victims and witnesses from danger, harassment, and undue delay of the proceedings.

   (e) To provide that no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.

1054.1.  The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows buy meridia online it to be in the possession of the investigating agencies:

   (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.

   (b) Statements of all defendants.

   (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.

   (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.

   (e) Any exculpatory evidence.

   (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.

So what does all this mean. Nothing, and then a lot. What we do is file a motion at our first appearance for the discovery (forms in our site). It does a couple of things.

First, it gets the District Attorney involved, second it makes them supply you with EVERYTHING that they can possibly use against you. EXAMPLES: So if they did not supply you with the traffic study that they used to determine the speed limit in an area; the radar or laser specification and tests before they decided to use it in the police force; traffic study’s before they authorized the use of a red light camera ticket; or the complete copy of the ticket (NTA) which had the officers notes on the back, then: they can’t use any of it and you can get your dismissal.

Most importantly we are using this as a mechanism to force the DA or entangle who is doing what in how they are prosecuting you. We are trying to take this out of a purely Administrative Hearing into a proper prosecuting venue with the DA on one side, you on the other, and now the Commissioner who has to properly judge the hearing and not just Administratively rule over you.

The DA wants nothing to do with this, they have real crime to fight. They will tell you they do not get involved in contested traffic cases (will that is too bad, the law says they are supposed to). They will try and have the CHP or local jurisdiction that cited you supply you with a copy of the ticket, not acceptable. By the way, I have the most awesome letter when they do this. It forces them to show which codes or laws that state that they are not to prosecute you, or to give you which Penal Codes and to show WHO is to prosecute you. Of course they can’t, there is none. It is suppose to be the DA!

So now you have filed a motion that they must hear or rule on, and you have effectively tied up another part of the Judicial System and put mud in their tracks to slow them down.

Again, I personally have used this on several California cell phone tickets and traffic tickets, namely speeding tickets, commuter lane tickets, red light tickets, red light camera tickets and seat belt tickets to tie them up and use their own rules of court against them. Remember  It  works for all California infractions,  to have them treated for our purposes, to hold them to the Misdemeanor laws and rules of court!

I have included the video below, so you can hear the reading of the code itself.

Ronald Cupp PhD

Comments (2)

This is a very small code, but very important. I have linked it with Government Code 100 which correlates with this. In all my papers fighting my California Traffic Tickets I list both.

California Penal Code

The actual Penal Code is listed below, and I italic and underlined the important part!

684.  A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense.

Government Code:

100.         (a) The sovereignty of the state resides in the people thereof, and all writs and processes shall issue in their name.

  (b) The style of all process shall be “The People of the State of California,” and all prosecutions shall be conducted in their name and by their authority.

So what? Who cares about this? Well, either your ticket is civil or criminal. If you ask the Commissioner, he will tell you it is criminal propecia 5mg (I do, by the way, ask them for the record). Let’s play doctor with a scalpel and just cut out the cancer.

When you go to court, they want to prosecute you with the Notice To Appear (hereafter NTA, because it was approved by the Judicial Council), but on the NTA it lists either the CHP (or other City) and they are ‘governmental agencies’, and are actual government corporations, NOT THE PEOPLE OF THE STATE OF CALIFORNIA! 

So ask the Commissioner, where on the charging instrument does it show the people of the State of California.

So, on the face of the prosecuting instrument, the NTA is deficient. (see my other video and blog post on PC 1002-1006,  Demurr’s and how to challenge the legal sufficiency of this instrument).

 Now try and get the commissioner to go along with this.  They won’t, but it is an important ingredient in our recipe for getting your dismissal. These 26 words are very important.

Again, I personally have used this 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 to tie them up and use their own rules of court against them. Remember  It  works for all California infractions,  to have them treated for our purposes, to hold them to the Misdemeanor laws and rules of court!

I have included the video below, so you can hear the reading of the code itself.

Ronald Cupp PhD

This is a key penal code in the California Traffic Ticket defense. Why? Because at the very beginning it states that ‘every plea shall be entered or withdrawn by the defendant himself or herself in open court.’ Wow! How powerful is that.

Here is the actual penal code;

1018.  Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant’s counsel. No plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel and unless the court shall find that the defendant understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court, to the court, that he or she does not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice.

How does this help you? buy prescription pills style=”text-decoration: underline;”>Remember our attach plan is to NOT plea. So when you appear in open traffic court for arraignment (that means you are read your charges and asked how you plea.), you follow our recipe and start in motion your rights and the legal steps to go around it. What that does is that the court still does not have jurisdiction over you.

They don’t like that. What 90% of them do is to process you, and in the court minutes put you down as a ‘NG’ or not guilty, so that they can have control over you. You did not plea, so they cannot do that. You are also considered ‘arraigned’ which starts several other legal side steps to get your dismissal.

What we do is just smile and take our court paper(s) out, look them over. If they did that, then we file a motion to ‘remove the court entered plea under PC 1018’ (easy form on our site). You do this BEFORE you show up for the next hearing (there are time California time constraints so go to our site for instructions).

So the court thinks you are returning to contested traffic court (sometimes the Officer shows up), and normally what happens is that the Commissioner starts court and lets the Officer speak (testify against you) and then when the Commissioner looks at you and says ‘Your turn, What do you have to Say?’. Your response is that you are not there to argue the case yet, but to remove the ‘court entered plea’. The court hearing was for nothing, you are back at square one, and they still have no jurisdiction or control over you.

You then continue on with our recipe or legal chess match!

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 to tie them up and use their own rules of court against them. Remember  It  works for all California infractions,  to have them treated for our purposes, to hold them to the Misdemeanor laws and rules of court!

I have included the video below, so you can hear the reading of the code itself.

Ronald Cupp PhD

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Comments (2)
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