writing an Appeal Opening Brief

[NickT916]

im currently at the stage of writing an opening brief, i have been dealing this with right turn on red camera ticket for almost a year now, im trying to do everything i can to fight it. Basically im now at the final stages of when i write the opening brief, the other side writes a reply to my opening brief, and then i write a final reply and then the judge decide on the final judgment.

here is what my brief kinda looks like, i was wondering if anyone maybe has something to add, i couldnt find any laws to back up my statements, is there such laws that the officer is obligated to provide certificates and other papers, when asked by the defendant? What about a law about the judge assisting the other side during the case? Basically ill be taking my chance with my opening brief and hoping the other party doesnt reply, without any laws to back my brief up, seems like thats the only way i might win this appeal. any suggestions please?


                                SUPERIOR COURT OF CALIFORNIA
                 County of Sacramento
                 720 Ninth Street Room 101
                 Sacramento, CA 95814-1380
                 (916)874-5403
___________________________________   
   THE PEOPLE OF THE STATE OF    )                APPELLATE DIVISION    #XXXXXXXXXXXXX
   CALIFORNIA                 )                SUPERIOR COURT    #XXXXXXXXXXX
   Plantiff/Respondent              )
vs.                               )   
   NICK XXXXXXXXXXXX                   )                 NOTICE OF APPELLANTS
   Defendant/Appellant              )                 OPENING BRIEF
___________________________________

DISTRICT ATTORNEY               NICK XXXXXXXXXXXXX
Attn: Writs & Appeals               6925 XXXXXXXXXXXX DR
901 G Street                  XXXXXXXXXXXX, CA XXXXX
Sacramento, CA 95815   

   
Notice of Appeal was filed for the following reasons.

      -Officer did not present a city permit for the camera after being asked by the defendant.

      -Office did not present the paperwork to show when the camera was installed when asked by the defendant

      -Officer failed to provide a valid permit of certificate to be able operate and review the Red light camera system.

      -When the defendant asked for such paperwork from the officer directly, the Judge in this case stepped in and asked the Defendant to provide evidence that the officer needs to provide such paperwork as evidence, therefore, the Judge assisted the officer with this case and thus removing himself from an impartial Judge. By doing so the Judge violated the Defendants rights.

      -Officer  J.Schafinst  Badge #285 was not the officers at the scene during the alleged violation, thus being the witness againt the Defendant in court without any paperwork or certificates asked by the Defendant, makes this officer illegible to be a witness against the defendant in this case.


   CONCLUSION

With the information given and the way this case was handled, the Defendant asks for the case to be dismissed, due to lack of needed information asked to be provided by the Defendant and the fact that the Judge assisted the officer in this case during the Defendants cross examination, and removing himself from an impartial Judge and Violating the Defendants rights.


   NICK XXXXXXX
   ______________________
     Defendant/Appellant

[spielz]

1. In my case i objected to the judge helping the officer. this preserved the argument on appeal ""The hearing required must be a fair one, that is, one before a tribunal which meets at least currently prevailing standards of impartiality." Kwong Hai Chew v. Colding, N.Y. (1953) 73 S.Ct. 472, 344 U.S. 590

I raised questions from the statue. Mine was fail to yield at an uncontrolled intersection.
so they had to prove the elements in the charge, they could not prove it was an intersection (The DA was involved and they still lost).

So first in my appeal I attacked the ticket (Is your complaint verified? pursuant to vehicle code ___
Second I argued fail to provide discovery request. Under discovery rule ___
Third impartial judge argument ( If objected in first case)  Kwong Hai Chew v. Colding, N.Y. (1953) 73 S.Ct. 472, 344 U.S. 590 [/b]
Forth- Affidavit of person who had vehicle on this day  (you already admitted you were the driver, going forward limit talking as much as possible).

Your appeal does not quote the law that's what this game is all about. That's what the judge wanted to know, what law requires the officer to provide any of those document?

Answer your honor, for the record I object to judge acting for the prosecution as far my discovery request under ________it states these items are discoverable and failure to provide hinders me from defending against this charge a clear violation of due process under cal. cont.____.

Quote the law

[Djehuty-M]

Opening Appeal Brief (body of appeal)


PRELIMINARY STATEMENT

Trial Judge Name:  Defendant-Appellant does not remember

Trial Case Number: Van Nuys Courthouse: 0000000

   Defendant-Appellant JOHN DOE appeals the lower court’s order of (on or about) December 10, 2007, finding him guilty of an alleged Vehicle Code violation.

STATEMENT OF SUBJECT MATTER JURISDICTION

   This is an appeal by Appellant JOHN DOE from a judgment of the Superior Court of the State of California for the County of Los Angeles.

   Jurisdiction of the Appellate Division of the Superior Court of the County of Los Angeles is pursuant to California Code of Civil Procedure § 901 and Los Angeles County Court Rules 11.0(b)(1): “The Appellate Division of the Superior Court has jurisdiction over all appeals arising from all misdemeanor, infraction and limited civil cases in Los Angeles County…”

ISSUES PRESENTED FOR REVIEW

I. Does not a verified complaint have to be filed when a defendant pleads “not guilty” and “requests a verified complaint” in order to confer jurisdiction on the Court?

II. Is an officer’s testimony alone sufficient evidence that an offense was actually committed?

III. Does not Prosecution bear the duty of proving every element of a charge in order to convict?

STANDARD OF REVIEW

   The Standard of Review herein is controlled by the Due Process Clause of Article 1 § 7 of the California Constitution and California Code of Civil Procedure § 1060.

STATEMENT OF THE CASE

   The nature of the action or proceeding: Defendant-Appellant JOHN DOE was tried and convicted for allegedly violating a provision of the Vehicle Code despite (1) NO VERIFIED COMPLAINT being filed in response to Plaintiff-Appellant’s “not guilty” plea at arraignment and requesting the filing of a verified complaint in accordance pursuant to Vehicle Code section 40513(a), and (2) no evidence being presented to corroborate or substantiate the State’s witness (a police office who is paid to carry out the laws of the State and thus who had a direct interest in the outcome of the case).

   The relief sought on appeal: Defendant-Appellant JOHN DOE request the Higher Court to overturn the conviction and to dismiss the charges originally brought against Defendant-Appellant and refund Defendant-Appellant’s money (penalties) if relevant in the matter; or, in the alternative, to grant Defendant-Appellant new trial (trial de novo).

STATEMENT OF MATERIAL FACTS

   Defendant-Appellant was detained and cited for allegedly committing a Vehicle Code violation by a law enforcement officer of the L.A.P.D.

   At Defendant-Appellant’s arraignment, Defendant-Appellant pled “not guilty” and requested the filing of a verified complaint which Defendant-Appellant never received.

   However, on or about December 10, 2007, Defendant-Appellant was given a trial for the Vehicle Code offense and was subsequently convicted predicated upon sole testimony from the witness-police officer. Basically, the judicial officer took the government official’s (officer’s) word/testimony over Defendant-Appellant word/testimony despite the officer failing to prove EVERY element of the Vehicle Code section allegedly violated that is required by the prosecution in a criminal proceeding.

   JUDGMENT OR RULING OF THE SUPERIOR COURT

   The lower Court found the Defendant-Appellant “guilty” of violating the Vehicle Code despite (1) non-waiver of verified complaint which was requested, (2) the police officer’s mere statements as evidence of Defendant-Appellant committing a Vehicle Code violation, and (3) the officer NOT proving all elements of the offense.
   
ARGUMENT

I.

A VERIFIED COMPLAINT MUST BE FILED WHEN A DEFENDANT PLEADS “NOT GUILTY” AND REQUEST THE FILING OF A VERIFIED COMPLAINT

   According to the California Court of Appeals, when a defendant pleads “not guilty” and does not waive the filing of a verified complaint, the Court lacks jurisdiction:

"Defendant who was cited for and charged with failure to yield right-of-way and who pleaded not guilty and did not waive filing of complaint was not brought within jurisdiction of court." Anger v. Municipal Court of City and County of San Francisco (App. 1 Dist. 1965) 237 Cal.App.2d 69

"Defendant who was charged with traffic offense, pleaded not guilty and did not waive filing of complaint was not brought within jurisdiction of court until filing of verified complaint." Gavin v. Municipal Court of San Diego Judicial Dist. (App. 4 Dist. 1960)
184 Cal.App.2d 712

   Does a Court have jurisdiction despite a pleading of “not guilty” and non-waiver of a verified complaint?
II.

OFFICER’S TESTIMONY IS INSUFFICIENT TO PROVE THAT AN OFFENSE WAS ACTUALLY COMMITTED

   On the day of trial, the peace officer was the sole witness for the State. The California Court of Appeal clearly elucidated that an officer’s mere statement alone cannot justify or prove that someone actually committed an offense:

"Police officer’s mere statement that such a traffic “violation” was committed or made is insufficient to prove that it was actually done." People v. Sterritt (1976) 65 Cal.App.3d Supp. 1; People v. Ellis (1995) 33 Cal.App.4th 25; People v. Earnest (1995) 33 Cal.App.4th Supp. 18

   Is an officer’s mere statements that an offense was committed sufficient evidence to prove that an offense was actually committed?

III.

PROSECUTION EVEN IN TRAFFIC CASE BEARS THE DUTY OF PROVING EVERY ELEMENT OF A CHARGE OR OFFENSE

   On the day of trial, the Prosecution (assumingly the Officer as the City Attorney was not present) failed to prove every element of the Vehicle Code offense Defendant-Appellant was alleged to have committed.

   It is Black letter law that “Prosecution bears burden of proving every element of a charge”:

"In criminal trials …  [A] State must prove every ingredient of an offense beyond a reasonable doubt, and may not shift the burden of proof to the defendant." Sundstrom v. Montana, 442 U.S. 510

"A 'not guilty' plea puts government to its proof on all elements. U.S. v. Zeull, 725 F.2d 813; U.S. v. Roberts, 613 F.2d 379, 383

   The officer failed to prove every single element of the offense during cross- examination at the trial. In fact, the trial judge prevented Defendant-Appellant from asking all of his questions (during cross-examination) as part of his defense in the trial which has to be a clear-cut violation of the principles of Due Process secured under U.S.Amend.14.

CONCLUSION

   In the interest of justice and with just cause having been shown herein, the decision/judgment of the lower court entered on December 10, 2007, finding Defendant-Appellant’s guilty of committing a Vehicle Code offense should be overturned and Defendant-Appellant should be granted a new trial (trial de novo).

The foregoing is Defendant-Appellant’s just prayer for relief with this appeal. May this Court grant Defendant-Appellant’s appeal in the great interest of justice.

DATED: April 10, 2008

                  BY: ________________________________
                         John Doe, Defendant-Appellant

[spielz]

Exactly.