Appeal to Appellate Court #33

The District Attorney declared that Nancy’s points of appeal were moot,  quoted  the Commissioner’s ruling word for word, and now listed the Issues of Appeal as his  first step to dispute  their legitimacy.

IV

ISSUES ON APPEAL

The people argue that any issues presented by this appeal are moot based on the Court’s dismissal of the matter.

The defendant appeals her conviction on two grounds.

1. The Court lacked jurisdiction because the charge, Vehicle Code section 22107, for which for which the defendant was convicted was “not properly before the court” bacause the citation had been altered.

2. Vehicle Code sectiion 22107 was “misapplied to the defendant” by the court because there was no evidence of another vehicle to be affected by defendant’s lack of signal.

V

THE CITATION WAS NOT ILLEGALLY ALTERED

The defendant claims that court’s  ”Notice of  Correct Violation,” changing the citation to Vehicle Code section 22107 from Vehicle Code section 22106, prior to arraignment constituted an “illegal alteration” pursuant to Vehicle Code section 40500(d) which somehow causes a lack of jurisdiction.  Her reliance is misplaced.

The defendant cites no authority for her lack- of -jurisdiction argument. A quick perusal of  Vehicle Code section 40500(d) indicates no such authority. In fact, the penalty for a violation is a misdemeanor prosecution-not a withdrawal of jurisdiction. Surely, if the legislature had so intended they would have said so -see for example the radar speed trap statutes, Vehicle Code section 40801 et. seq. where the legislature specifically declares that a violation leaves a court without jurisdiction to hear the case.

Obviously, the sin which Vehicle Code section 40500(d) was aimed at correcting was the unwarranted dismissal of traffic tickets  by friends or relatives of the defendant.

On the contrary, the People have the right to amend a complaint or pleading at any time.

See Penal Code section 1009.

In this case the citation was amended, the defendant was given proper notice and subsequently arraigned on the amended citation. The fact  was explained in detail to the defendant at her hearing on the motion to dismiss on April 19, 2005.

At page 17, line 13 the Court said:

THE HEARING OFFICER: There was a clerical error by whomever processed this at the police department and they shouldn’t have used that red ink and striken the original code section that was on the original ticket.  But I don’t think that is a material matter that prejudices you and consequently would justify a dismissal of the case.

Again at page 19, the Court stated at line 18:

The prejudice issue as to you being prejudiced as a result of that change is going to be the basis for my decision here. And the reason I don’t think that you’ve been prejudiced is that you were arraigned on the amended charge. You were given plenty of an opportunity to prepare for trial based on that challenge, and I don’t see how you’ve been prejudiced by that inappropriate striking in red ink the notice to appear or the code section on the notice to appear…

And finally at page 25 , line 12:

I don’t think you’ve been prejudiced by that whatsoever. The issue is whether or not they have the right, if you want a further description, I would read the Vehicle Code section to you. So you had every opportunity to understand what the charges were.

You plead not guilty. And I don’t see any prejudice at all. I’m not going to dismiss the ticket.

Clearly on the trial date the matter was properly before the court.

Appellant CatSeen a lot of movies where the D.A. can file a new charge or change it, but never the police. Could  Hollywood be wrong?

Posted on July 24th, 2010 by paula
Filed under: Uncategorized