FREMONT-NEWARK-UNION CITY JUDICIAL DISTRICT
COUNTY OF ALAMEDA, STATE OF CALIFORNIA

                              )
City of FREMONT,              ) Citation No. F86666
                              )
Plaintiff,                    ) Case No. 0015018867
                              )
vs.                           ) PLEADING
                              )
CAREN BETH PELLETIER          )
                              )
Defendant                     )
______________________________)
 

STATEMENT

On the 17th day of JUNE, 1999, at approximately 6:30pm, the
defendant was travelling South-West on Stevenson Boulevard in the
number 1 lane. The sky was clear and bright with late-afternoon
summer sun, the road was smooth and free of any significant surface
defects. The defendant's vehicle was the only one in the immediate
vicinity. The defendant was cited by City of Fremont police
officer P. M. DeJoy operating a "speed trap" as defined under the
California Vehicle Code (CVC) 40802 subsection (b), and upheld in
[13 Cal,App.4th Supp. I 1992 the People vs. Goulet] and
furthermore, with clear disregard for California's long standing
Prima Facie "Safe for Conditions" Basic Rule principles and
precedence.

The city used radar to enforce this alleged violation of CVC 22350;
to wit, exceeding an illegally posted 35 mph maximum prima facie
speed limit sign in a zone where state law and the evidence
establishes that this section of highway should be posted with a 40
or 45 mph maximum speed limit. In addition, the Defendant's
attempts to exercise her right to discovery of facts germane to the
defense of her case was subjected to various forms of bureaucratic
obstruction and inveiglement, running directly contrary to the
spirit and intent of California Penal Code (CPC) Sections 1054 et
seq., and of the California Constitution Article I (Declaration of
Rights), Section 30, subsection (c).

SUMMARY OF ISSUES

a) The defendant's right to meaningful discovery was denied by
the failure of the Office of the District Attorney and the
Fremont Police to respond in a timely fashion, or at all, to
informal requests for discovery. Subsequently, the Fremont
Police failed to respond in any way to a court-issued subpoena
duces tecum which was served in person by the spouse of the
Defendant (Michael V. Pelletier) to a records clerk at the
Fremont Police Department on the 6th of SEPTEMBER, 1999. The
District Attorney's office only responded to the informal
request four days after the subpoena was served on the Fremont
Police Department. Details are presented in a subsequent list
of supporting facts.

b) No evidence has been presented the Officer DeJoy has completed
(successfully or otherwise) a radar operator course (approved,
certified, or otherwise) of not less than 24 hours, pursuant
to CVC §40802(c)(1)(A), which states:

When radar is used, the officer issuing the citation has
successfully completed a radar operator course of not
less than 24 hours on the use of police traffic radar,
and the course was approved and certified by the
Commission on Peace Officer Standards and Training.

The prosecution proved that the officer complied with
subparagraphs (A) and (B) and that an engineering and
traffic survey has been conducted in accordance with
subparagraph (B) of paragraph (2). The prosecution
proved that, prior to the officer issuing the notice to
appear, the officer established that the radar, laser, or
other electronic device conformed to the requirements of
subparagraph (D). [refer to issue (e)]

The prosecution proved the speed of the accused was
unsafe for the conditions present at the time of alleged
violation unless the citation was for violation of
Section 22349, 22356, or 22406.

e) No evidence has been presented that the radar device used the
measure the speed of the accused met, at the time of the
alleged violation, the minimal operational standards of the
National Traffic Highway Safety Administration, and has been
calibrated within three years prior to the date of the alleged
violation by an independent certified radar repair and testing
or calibration facility, pursuant to CVC §40802(c)(1)(D),
which states:

The radar, laser, or other electronic device used to
measure the speed of the accused meets or exceeds the
minimal operational standards of the National Traffic
Highway Safety Administration, and has been calibrated
within the three years prior to the date of the alleged
violation by an independent certified laser or radar
repair and testing or calibration facility.

f) Since the prosecution has failed to establish any of the
applicable criteria under CVC §40802(c)(1), CVC §40802(a) is
thus applicable as the definition of a "speed trap," to wit:

(a) A "speed trap is either of the following:
(1) [not applicable to the facts of this case]
(2) A particular section of a highway with a prima facie
speed limit that is provided by this code or by local
ordinance under subparagraph (A) of paragraph (2) of
subdivision (a) of Section 22352, or established under
Section 22354, 22357, 22358, or 22358.3, if that prima
facie speed limit is not justified by an engineering and
traffic survey conducted within five years prior to the
date of the alleged violation, and enforcement of the
speed limit involves the use of radar or any other
electronic device that measures the speed of moving
objects. This paragraph does not apply to a local
street, road, or school zone.

h) In light of issues (b) through (g) above, the section of
Stevenson Blvd in question can be considered to meet the
applicable definition of a "speed trap."

i) This citation contains many elements of the original 1923
California prohibition against speed traps. The officer was
hiding from the view of approaching motorists behind bushes
and signs (as established in Exhibit A, a photograph of the
section of highway at issue), which is similar to the original
"billboard" metaphor. The opinion of the day was that an
officer patrolling in plain view enforcing all traffic laws
was in the best interest of the public. They called this
tactic of "hiding from view" in an area with a low accident
expectancy just because it is an easy place to write citations
en masse, a "Greater Evil than the violation of the law
itself".

R. E. Fleming v. Superior Court, 196 Cal. P348
"The legislature concluded that the public safety, the
obvious purpose of numerous regulations contained in
the act, would be best served by requiring traffic
officers to spend their hours of duty in patrolling
the public highways; that the presence of such
officers upon the highways would constitute a far
greater deterrent to excessive speed, and would insure
more universal observance of the many rules of the
road than would a concealment of said officers in said
speed traps off the highway."

Beamer, 133 Cal. App. 2d, 68
"It is obvious that section 751 was passed to meet a
particular evil existing in 1923 of enforcement
officers physically marking a portion of a highway and
then, while in hiding, "clocking" the suspect car as
it passed over the marked area."

No evidence as to the speed of a vehicle upon a highway
shall be admitted in any court upon the trial of any
person in any prosecution under this code upon a charge
involving the speed of a vehicle when the evidence is
based up on obtained from or by the maintenance or use of
a speedtrap.

In any prosecution under this code upon a charge
involving the speed of a vehicle, any officer or other
person shall be incompetent as a witness if the testimony
is based upon or obtained from or by the maintenance or
use of a speed trap.

In any prosecution under this code of a charge involving
the speed of a vehicle, where enforcement involves the
use of radar or other electronic devices which measure
the speed of moving objects, the prosecution shall
establish, as part of its prima facie case, that the
evidence or testimony presented is not based upon a
speedtrap as defined in paragraph (2) of subdivision (a)
of Section 40802.

Every court shall be without jurisdiction to render a
judgement of conviction against any person for a
violation of this code involving the speed of a vehicle
if the court admits any evidence or testimony secured in
violation of, or which is inadmissible under this
article.

o) No operating manual for the radar unit or training course
documentation, which were informally requested and later
subpoenaed, have been provided, preventing the defense from
clearly establishing that the operation of a radar unit
through trees, signs, and other obstructions, as shown in
Exhibit B (a photograph from Albany Common towards the
location of the alleged offense, approximating Officer DeJoy's
view during operation of the radar unit), would result in
unreliable speed readings due to reflections and other
interference, particularly in the number 1 lane in which the
defendant's vehicle was travelling, as indicated on the
reverse of the officer's copy of the citation.

p) No evidence has been presented of an FCC license to operate
this radar unit on the applicable radio spectrum, nor that a
license is unnecessary for the operation of this radar unit.

q) The speed limit on the section of Stevenson Blvd at issue to
35mph is not in accordance with other comparable roads, the
parameters established in California law, or the guidelines
set forth in Sections 2B-10 and 4B-12 of the Federal Manual of
Uniform Traffic Control Devices.

SUPPORTING FACTS

a) The following is a chronology of events illustrating a pattern
of delay and denial resulting in the abrogation of the
defendant's constitutional right to discovery in this case.
Documents that should already be in the court's file for this
case will not be attached as exhibits.

1) The citation was issued on 17 JUNE, 1999.

2) A request for a continuance in the matter was mailed to the
District Attorney's Office on 29 JUNE 1999, and received on 2
JULY 1999 by an unknown person whose signature is illegible
and who failed to fill out box 5 of the return receipt, as
established in exhibits C and D.

3) An informal request for discovery was mailed to the Fremont
Police Department on 7 JULY 1999 and received by a Mr. or Ms.
McCuin on 9 JULY 1999, as shown by Exhibits E and F.

4) A copy of this request was also mailed to the Fremont District
Attorney on 7 JULY 1999, and was received on 9 JULY 1999 by
apparently the same unknown person as in Exhibit D, as
established by Exhibits G and H.

5) The informal request, as indicated in the introduction to the
request itself, was made pursuant to CPC §1054 et seq., which
provides that the prosecuting attorney shall disclose to the
defendant all relevant real evidence seized or obtained as a
part of the investigation of the offenses charged, and any
exculpatory evidence [ §1054.1(c) and (e) ].

6) A letter prepared and printed on 2 JULY 1999, but not sent
until 7 JULY 1999 as established by the postmark shown on
Exhibit J, was a response to the request for a continuance
which seemed to assume that a trial by written declaration was
being requested, and included a Trial by Written Declaration
form. It was received by the defendant on 8 JULY 1999, one
day after the informal discovery request was mailed to the
Fremont Police and the Office of the District Attorney.

7) A letter mailed 13 JULY 1999, received by the defendant on 14
JULY 1999, indicated that the request for discovery sent in
(3) was being returned, and that no action could be taken
until the $136.00 bail had been posted. No reply to the
request sent to the Fremont Police Department in (4) was ever
received.

8) The TR-205 form filled out to indicate that a statement could
not be made absent discovery, another copy of the request for
discovery, a personal check for the $136.00 bail, and a letter
requesting a continuance in light of the delay in handling of
discovery, was sent on 21 JULY 1999.

9) In response to the defendant's request in (7), a letter was
sent by the court on 26 JULY 1999 granting the requested
continuance to 23 AUGUST 1999, and enclosed were two blank
subpoena forms signed and sealed by Deputy Clerk Jerry Brown.
These forms were apparently intended for the use of the
defendant in the discovery process. This was apparently done
in lieu of the DA's office or the Fremont Police making any
response to the informal request for discovery, in violation
of the spirit of CPC §§1054 et seq.

10) After puzzling over the legalese and proper procedures for
use of these subpoena forms, on 19 AUGUST 1999 the defendant
filled out the form as a subpoena duces tecum for Officer
DeJoy, attached the original informal request for discovery
listing the documents required, and set a due date for the
documents 20 days later, for the end of day on 6 SEPTEMBER
1999, in order to allow the Fremont PD ample time to collect
and deliver the requested records. The subpoena was
personally served by the defendant's spouse on 19 AUGUST 1999,
and the subpoena's proof of service was signed by a Fremont
Police Department records clerk, as reflected in the copy of
the subpoena and proof of service provided later that day to
the District Attorney's office, which should be in the case
file.

11) Along with the proof of service and copy of the subpoena, a
continuance request was provided to Deputy Clerk Brown at the
Fremont District Court, requesting the allowance of 30 days
subsequent to the due date for the subpoena, resulting in a
date of 7 OCTOBER 1999, pursuant to the requirements of CPC
§1054.7.

12) On 20 AUGUST 1999, a letter granting the continuance requested
in (11) was sent, along with a copy of a TR-205 form with the
7 OCTOBER due date on it.

13) And finally, on 24 AUGUST 1999, a full 48 days after the
initial informal request for discovery and 34 days after the
informal request including the bail was sent, the letter
attached as Exhibit K was sent by Senior Deputy District
Attorney Landswick.

Point by point, DA Landswick willfully refused to provide any other
information aside from what was already on the officer's copy of
the citation.

He dismisses the request for Officer DeJoy's training records,
saying that they are "irrelevant," seemingly unaware of the
provisions of CVC §40802(c)(1)(A), as discussed in item (b) of the
aforementioned summary of issues.

In response to the request for information about the calibration
records of the radar gun in question, he simply asserts that the
device is new, providing no evidence of that assertion, nor any
indication that the device is somehow calibrated and properly
functioning simply as a result of being less than 8 months old.

Radar guns are usually calibrated daily through the use of tuning
forks, as might have been established by the Fremont PD
departmental operations or procedures manual had they been provided
in accordance with the discovery request ("None," according to DA
Landswick), but there is no evidence that this was done, or done
properly, or that officer DeJoy was properly trained to perform
this calibration check. And finally, the "Calibration Date" on
the back of the officer's copy of the citation has been left blank.

In item 10, Senior Deputy DA Landswick seems to indicate that the
citation itself is the only documentary evidence that the
prosecution has to offer in this case. If this is the entire
extent of the City of Fremont's case, it must be dismissed for want
of evidence, particularly in light of (j) in the statement of
issues.

And most egregiously, the Fremont Police Department never responded
to any request for discovery, even the court-ordered subpoena duces
tecum, in clear violation of the defendant's constitutional right
to discovery as expressed in Article I of the California
Constitution, and in clear disregard of CPC §1331 which states:

Disobedience to a subpoena, or a refusal to be sworn or
to testify as a witness, may be punished by the Court or
magistrate as a contempt. A witness disobeying a subpoena
issued on the part of the defendant, unless he show good cause
for his nonattendance, is liable to the defendant in the sum of
one hundred dollars, which may be recovered in a civil action.

c) No evidence was provided regarding an engineering and traffic
survey for the section of highway in question. A germane case
citation to this point is as follows:

People v Ellis, (1995) 33 Cal. App, 4th 525

"Since the summary contained none of the raw data
collected during the survey, how could the defendant have
shown that the survey was inadequate?"

"Allowing a defendant to attack the adequacy of an engineering and traffic survey if the document is not
available for his or her use at trial."

"We find that the summary of the survey produced by the
people is inadequate to meet their burden under Vehicle
Code section 40803."

q) California law provides in CVC §22358.5:

"It is the intent of the Legislature that physical
conditions such as width, curvature, grade and surface
conditions, or any other condition readily apparent to a
driver, in the absence of other factors, would not
require special downward speed zoning, as the basic rule
of section 22350 is sufficient regulation as to such
conditions.

"Further studies have shown that establishing a speed
limit at less than the 85th percentile (Critical Speed)
generally results in an increase in accident rates."

Informal observations of traffic along Stevenson Blvd indicate
that 40 to 45 mph seems to be the preferred speed of traffic
for that road. In the absence of any information regarding
any engineering and traffic survey, radar or duty logs
indicating typical traffic speeds or enforcement patterns, or
any evidence of formal measurement of the 85th percentile speed
of traffic along Stevenson Blvd, the defense can only
speculate on the motives for the seemingly low 35 mph speed
limit.

Assuming that the presence of the curve in the road leading
into the intersection of Civic Center Drive was used as
justification, this runs directly counter to the above-cited
section of the California Vehicle Code.

The curve and the trees on the median pose some limits to the
line of sight to the signal approaching the intersection of
Civic Center Drive. However, as can be discerned in Exhibit
A, the sign warning of the upcoming light and just to the
right of that, beneath the branches of the tree, the signal
lights themselves are both visible, this from four tenths of
a mile distant, per Exhibit L. Exhibit M, a photo looking
toward this intersection from Albany Common, from about 500
feet distant, will aid in grasping the visual context of
Exhibit A.

The Federal Manual of Uniform Traffic Control Devices, in §4B-
12, item 1, (a copy of which is Exhibit N) provides for
minimum distances for continuous visibility of at least two
signal faces in an approach to a signal-controlled
intersection. For a 85th percentile speed of 40 mph, this
distance is 390 feet, while for 45 mph, the minimum distance
is 460 feet. Since signals for Civic Center Drive are visible
from approximately 4/10 of a mile away, or 2,112 feet, and
are clearly visible from about 500 feet away at Albany Common,
this requirement is unquestionably met regardless of the
presence of the curve in the road and the traffic signal at
Civic Center Dr. This means that no reduction in what seems to
be a 40 to 45 mph 85th percentile speed is supported by any
credible evidence.
 
 

CONCLUSION

This case is characterized by an egregious disregard by the
District Attorney's office and the Fremont Police Department for
proper procedures, the discovery rights of the defendant, and the
burden of proof required of the City of Fremont.

Under the requirements outlined in People v. Ellis, to comply with
CVC §40803 the state must supply a copy of the raw data to allow
the defendant to attack the adequacy of an engineering and traffic
survey. In failing to provide such data, even a summary thereof,
the City has not met its burden of proof, and under the "speed
trap" law, this case must be dismissed.

The only documentary evidence that has been provided -- the
officer's copy of the citation -- was obtained through the operation
of a speed trap, as established in part (h) of the summary of
issues. As such this evidence, as meager and inadequate as it is
to prove a violation of CVC §22350, cannot be admissible as
established in (j), Officer DeJoy cannot be a compotent witness in
this case as established in (k), and the Fremont District Court is
without jurisdiction to convict the defendant in this case as
established in (m).

Therefore, the defense asks that the case be dismissed.

DATED:____________   ______/s_____________________________
                    Caren Beth Pelletier