After
going through the motion
hearing and handing a copy of my formal
motion to the prosecutor's representative, and submitting
yet another copy of the motion for discovery to the DA's office, and
having only gotten a single
piece of information out of them after waiting well beyond the statutory
15 days, I waited another ten days just for good measure, then drafted
the following motion for court sanction and sent it certified mail, as
shown by these receipts.
The letter arrived at the DA's office on August 28, and the next letter they sent was drafted that very same day. A shot across their bow must have woken them up in there!
They had a duly entered motion for discovery before them in this case, and they were effectively ignoring both the motion and the deadlines that the law imposes upon them for dealing with it. They're in the position of upholding the law, but they didn't seem to feel that they were bound by it!
As you can tell by my acerbic tone in the last part of this motion, I was a bit cranky by this time.
)TRAFFIC-MUNICIPAL COURT, CITY OF SAN JOSE
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA
* On Thursday, April 27, 2000, the defendant was issued a citation forSTATEMENT OF FACTS
------------------
* On May 10, 2000, the Superior Court of California, County of Santa
Clara,
issued a "courtesy
notice" indicating a due date of July 10, 2000, and
an "amount due" of $146.00 and an "administrative fee amount" of
$159.
* On May 20, 2000, the defendant prepared an informal
request for
discovery
pursuant to the provisions of Sections
1054 et seq. of the
Penal Code, and delivered it by registered mail to the Office of
the
District Attorney of the Traffic-Municipal Court. Defendant included
a
check
in the amount of $159.00 to cover bond.
* The aforementioned informal
request for discovery was delivered to
one H. Dinh, and signed for by this individual on May 22, 2000.
* On May 26, 2000, the
court returned paperwork for the preparation of
a trial by written declaration, with no acknowledgement of the
request
for discovery. My bond
check was returned to me.
* On June 7, 2000, the 15 days allotted for a response to the informal
request for discovery pursuant to Section
1054.5(b) of the Penal Code
had elapsed, and defendant submitted a written
request for a court order
for
discovery pursuant to the provisions of this section.
* On June 18, 2000, defendant received a
reply to aforementioned request
from one L. Apodaca, Legal Process Clerk III, indicating that it
was
necessary to come to the office and schedule a motion hearing in
person.
My bond
check was once again returned to me.
* On June 30, 2000, defendant scheduled a motion hearing for July 25, 2000.
* At the motion
hearing on July 25, 2000, Mr. Robert Martinelli of the
Office of the District Attorney first attempted to try the case,
then
attested that their Office had never seen my informal
request for
discovery,
despite it having been addressed to the District Attorney at
the address indicated on the face of the citation. Mr. Martinelli
promised to review the request
for discovery with the District Attorney
and make a response.
* On August 1, 2000 defendant sent
another copy of the July 25 motion for
a
court order for discovery, via certified mail, directly to the Office
of the District Attorney in addition to having personally delivered
a
copy of the motion to Mr. Martinelli at the July 25 hearing.
* On August 16, 2000, seven days after the 15-day statutory deadline
set
forth in California Penal Code Section
1054.5(b) -- counting from the
hand delivery of the request for discovery to Mr. Martinelli, an
agent
of the Office of the District Attorney on July 25 -- and fully
86 days
after the delivery of the original informal request for discovery
on
May 22, defendant received only a
copy of both sides of the officer's
copy
of the citation, with the remaining items requested for discovery
having been ignored and unacknowledged.
MOTION
------
In accordance with Section
1054.5(b) of the Penal Code, having satisfied
the provisions in Section
1054 et seq. for making an informal request for
discovery before seeking a remedy in the courts, and having made
every
reasonable effort, via mail and by in-person appearance in the
Court of
Comissioner Heath, to obtain the materials defendant reqires to
prepare
an adequate defense, all to no avail after more than 13 weeks,
the defense
moves that the court prohibit the testimony of witnesses on behalf
of the
prosecution, or apply any other sanction deemed appropriate under
the
provisions of Section
1054 et seq. of the California Penal Code, in this
matter of the abrogation of defendant's right to reciprocal discovery
as
guaranteed in the California Constitution Article
I, Section 30(c).
If the Constitutionally-guaranteed safeguards of criminal defendants
are
not to be adhered to for an infraction, it is a short step indeed
to
a dispensation from the cherished legal principles of our Constitutional
Republic. If the Office of the District Attorney cannot be bothered
to
properly handle a simple discovery request in a simple criminal
infraction
case, I gravely fear for those falsely accused of a felony.
Please find attached an additional listing of the items requested
for
discovery pursuant to Rule
335(a) of the 2000 California
Rules of Court.
The defense thanks the court for its consideration of this matter.
DATED: _________________ /x/___________________________________________
Michael Vincent Pelletier
cc: Office of the District Attorney of San Jose
In particular, it requires that motions to compel "shall be accompanied by a separate document which sets forth each interrogatory, item or category of items, request, question, or document or tangible thing to which further response, answer, or production is requested, the response given, and the factual and legal reasons for compelling it."
I hadn't included such a document with my motion for discovery, since I wasn't aware of the rule at that time, and since it wasn't a "motion to compel discovery," but I included it with the motion for court sanction.
TRAFFIC-MUNICIPAL COURT, CITY OF SAN JOSE
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA
)
City of SAN JOSE,
) Citation No. J2525877
)
Plaintiff,
) Case No. H02313716
)
vs.
) DISCOVERY REQUEST SUMMARY
)
MICHAEL VINCENT PELLETIER ) August 25,
2000
)
Defendant
)
______________________________)
Rule
335(a) Additional Documentation
------------------------------------
The items below have been requested for discovery in the aforementioned
case against the defendant, and defense is seeking a court order
to
compel compliance with the discovery request. Pursuant to California
Court Rule
335(a) the following information is being provided for
the review of the court.
Item Requested
1. The issuing officer's training records that pertain to his instruction
certification, or continuation of traffic speed enforcement, and
to
the instruction and certification in the use of the speed measuring
device that was used to ascertain the speed of the vehicle described
in citation
J2525877.
No response has been given by the Office of the District Attorney.
The factual and legal reasons for compelling compliance with this
request:
California Vehicle Code Section 40802(c)(1)(A) reads as follows:
When radar is used, the officer issuing the citation hasIt is stipulated that radar was used in the issuance of this
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.
Item Requested:
2. A copy of the departmental operations or procedures manual used
for the
training of this RADAR operator.
No response has been given by the Office of the District Attorney.
The factual and legal reasons for compelling compliance with this
request:
To ascertain whether the operation of the radar gun used in the
issuance of this citation was in accordance with the policies and
procedures set forth by the San Jose Police Department with regard
to possible obstructions, use of audio doppler, positioning while
monitoring speed, calibration testing, and so on, and to ascertain
whether the training set forth by the San Jose Police Department
is
in compliance with applicable law.
Item Requested:
3. The officer's daily log for the day of April 27, 2000.
No response has been given by the Office of the District Attorney.
The factual and legal reasons for compelling compliance with this
request:
To observe a pattern of enforcement or speed readings, if any
exists, during the officer's speed enforcement activities at the
location and time where the citation mentioned above was issued.
As a hypothetical example, repeated measurements of exactly 47mph
--
the speed indicated on the face of the citation in question in
this
case -- over a span of time for multiple citations could be seen
as
exculpatory evidence.
Item Requested:
4. The officer's RADAR log for the day of April 27, 2000.
No response has been given by the Office of the District Attorney.
During the motion
hearing of July 25, 2000, I was informed that the
San Jose Police do not maintain radar logs. I therefore formally
revoke this request.
Item Requested:
5. The name, model, and serial number of the device used to ascertain
the
speed of the vehicle described in citation
J2525877, and the serial
numbers of the tuning forks used to test the speed-measuring device.
No response has been given by the Office of the District Attorney.
The factual and legal reasons for compelling compliance with this
request:
Different models of radar gun operate differently in the presence
of intereference, obstruction, and so on. The prosecution is
relying on technical data resulting from the operation of the
radar gun, thus the defense is entitled to use the technical
details of the operation of this device in order to construct
an adequate defense. The technical details of this device can
only be known through knowing the name, model, and serial number
of this device.
Item Requested:
6. Copies of the maintenance, certification, and calibration records,
for
the last twelve months, of the speed measuring device that was
used
to ascertain the speed of the vehicle described in citation J2525877.
No response has been given by the Office of the District Attorney.
The factual and legal reasons for compelling compliance with this
request:
California Vehicle Code Section 40802(c)(1)(D) provides:
The radar, laser, or other electronic device used toThe records requested will serve to establish whether this section
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.
Item Requested:
7. A copy of the FCC (Federal Communications Commission) license
that
authorized the issuing police agency and operator of the speed-
measuring device to lawfully operate the device on a specific
frequency or range of frequencies.
No response has been given by the Office of the District Attorney.
The factual and legal reasons for compelling compliance with this
request:
The Federal Communications Commission
is the Federally-established
regulatory body for the licensing and control of broadcasts in
the radio spectrum. Since radar is a radio broadcast on a specific
frequency, it falls under the purview of the licensing authority
of the FCC. Thus, if radar is to be operated by officers of the
San Jose Police Department, an FCC license or a specific waiver
of the license requirement is needed.
These requirements are set forth in Title
47 of the Code of
Federal Regulations.
Item Requested:
8. A copy of that portion of the RADAR unit manufacturer's operator
manual
relating to field use and operation.
No response has been given by the Office of the District Attorney.
The factual and legal reasons for compelling compliance with this
request:
This request is directly related to the reasoning for request
number 5. If the radar unit was not operated in accordance with
the manufacturer's own recommendations with respect to obstructions,
use of audio doppler, reflections, multipath, and so on, then
the alleged measured speed must be called into question. Without
the operator's manual, the defense cannot adequately prepare
a case based on these important points.
Item Requested:
9. A copy of both sides of the officer's copy of citation
J2525877.
This request was finally fulfilled on August 16, 2000.
Item Requested:
10. A copy of the applicable city, county, or state policy, ordinance,
or
law, setting forth the procedure for determining a ``safe speed''
to be noted on a citation, or a reference thereto.
Given that there is a box on
the face of the citation for both
the "posted speed" and the "safe speed," it is only reasonable
that the defense be provided with a clear understanding of how
the "safe speed" number is arrived at and how it relates to the
enforcement of the Vehicle Code section
which the defendant is
accused
of violating.
Item Requested:
11. A copy of any documentary evidence to be introduced in support
of this
citation.
No response other than the copy of both sides of the
officer's copy of the
citation
has been given by the Office of the District Attorney.
The factual and legal reasons for compelling compliance with this
request:
Article I, Section 30(c) of the California Constitution.
If it is the position of the Office of the District Attorney that
no other documentary evidence will be introduced in support of
this citation, then this request can be considered fulfilled,
and any attempts by the District Attorney to introduce any other
documentary evidence in the course of the trial will be objected
to.
The defense thanks the court for its consideration of this matter.
DATED: _________________ /x/___________________________________________
Michael Vincent Pelletier
