Quote Quoting Michael 95842

View Post

The ticket was issued on 5-27-12
It said to appear on 8-15-12

OK.... So I presume you have read PC 1050 in its entirety and if so, you had to have gotten the impression that it may not fully apply to infraction simply because more often than not, a defendant is self representing, meaning no defense attorney, and the case will often proceed without the presence of a prosecuting attorney.

If we were to look at subsection (b):

(b) To continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary and (2) within two court days of learning that he or she has a conflict in the scheduling of any court hearing, including a trial, an attorney shall notify the calendar clerk of each court involved, in writing, indicating which hearing was set first. A party shall not be deemed to have been served within the meaning of this section until that party actually has received a copy of the documents to be served, unless the party, after receiving actual notice of the request for continuance, waives the right to have the documents served in a timely manner.

Regardless of the proponent of the motion, the prosecuting attorney shall notify the people's witnesses and the defense attorney shall notify the defense's witnesses of the notice of motion, the date of the hearing, and the witnesses' right to be heard by the court.

You can see from the portion I underlined that it is typically handled by defense attorney or prosecuting attorney. Well, you are obviously aware of the fact that there was not going to be a prosecuting attorney on your case and so the notice requirement, by your expectation, fall on the officer's shoulders...

However, the officer is not the prosecuting attorney, he is not allowed to lodge objections during the trial and similarly he is precluded from filing motions. And when we know the prosecuting attorney isn't involved, who needs to file a motion for a continuance then? Who gets to write the affidavits, who must file the declarations??? For your case, I am sure your answer is "I don't care if nobody files it"... You would simply want your case to be dismissed...

It simply doesn't work that easy... The legislature made notice of this and not only in cases where the notice requirement but in cases where the good cause requirement was not met... And not only for infractions but in all three categories of criminal matters, (felonies, misdemeanors and infractions).

If you scroll down to subsection 1050(l) you can see that it briefly but distinctly states:

(l) This section is directory only and does not mandate dismissal of an action by its terms.

You'll see below how this is not really a provision the coexisted with and as long as PC 1050 has. It is the result of a recent amendment (2003). But for now, what does this mean? It means that now that your trial has been concluded there is really little to no relief that the court can provide you.

Subsection (c) establishes the type of remedy available in this case:

(c) Notwithstanding subdivision (b), a party may make a motion for a continuance without complying with the requirements of that subdivision. However, unless the moving party shows good cause for the failure to comply with those requirements, the court may impose sanctions as provided in Section 1050.5.

It doesn't say the court must dismiss the case for failure of a party to meet the requirements for good cause and timely notice. It doesn't even say that the court must deny that party's motion. It simply says that the court "MAY" impose sanctions upon the party for failing to comply. So should the officer be sanctioned because the law prohibits him from filing motions and with him being a witness he is technically prohibited from communicating with a party to the action. Additionally, should he be sanctioned because the district attorney chooses not to participate in infraction trials? You can answer yes to all of the above, I honestly highly doubt the court will agree with you and so I simply don't see it happening. A recent case in the topic clearly states:


OK, so you say "subsections (d) & (e) says the court was supposed to hold a hearing to determine whether there is good cause for the continuance, and if there is a failure to show good cause for either (or both) the failure to give notice and the reason for the delay"

(d) When a party makes a motion for a continuance without complying with the requirements of subdivision (b), the court shall hold a hearing on whether there is good cause for the failure to comply with those requirements. At the conclusion of the hearing, the court shall make a finding whether good cause has been shown and, if it finds that there is good cause, shall state on the record the facts proved that justify its finding. A statement of the finding and a statement of facts proved shall be entered in the minutes. If the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted.

(e) Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause.

From Ferrer:

Normally, the prosecutor's failure to show good cause would require the trial court to deny the motion for a continuance under section 1050, subdivisions (d) and (e). (� 1050, subd. (d) ["If the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted."]; � 1050, subd. (e) ["Continuances shall be granted only upon a showing of good cause."]; People v. Harvey (1987) 193 Cal.App.3d 767, 771 [238 Cal.Rptr. 516].)

However, as we explain below, other statutory provisions effectively limit the trial court's authority to deny a request for a continuance.

In particular, in 2003 the Legislature passed Assembly Bill No. 1273 (2003-2004 Reg. Sess.) (Assembly Bill No. 1273), which added subdivision (l) to section 1050. (Stats. 2003, ch. 133, � 1.) The provision states: "This section is directory only and does not mandate dismissal of an action by its terms." (� 1050, subd. (l).) Moreover, while a court may impose sanctions under section 1050.5 if a party fails to show good cause for failure to provide notice (� 1050, subd. (c)), including the imposition of fines or the filing of a report with a disciplinary committee (� 1050.5, subd. (a)), Assembly Bill No. 1273 also amended section 1050.5, subdivision (b), to read: "The authority to impose sanctions provided for by this section shall be in addition to any other authority or power available to the court, except that the court or magistrate shall not dismiss the case." (Italics added; Stats. 2003, ch. 133, � 2; see also Henderson, supra, 115 Cal.App.4th at p. 935.)

Now, had there been an issue with the continuance where it would have caused your case to go beyond the statutory limit of 45 days from the arraignment, then the likely outcome would have been a dismissal.

Again from Ferrer:

Courts have concluded that, where a prosecutor requests a continuance but fails to show good cause, it is improper to deny a continuance and dismiss an action due to the prosecutor's inability to proceed where the requested continuance would not violate the time limits in section 859b or section 1382, as applicable. (Henderson, supra, 115 Cal.App.4th at p. 939 [� 859b]; Rubaum, at pp. 934-935 [� 1382].)

Also...

Instead, we conclude the Legislature did not intend for a dismissal to result unless the requested continuance results in violation of a statutory time limit (such as � 859b or � 1382) or defendant's constitutional right to a fair trial (see Henderson, supra, 115 Cal.App.4th at p. 940).

From what you posted in your first post and later confirmed by dates, the court allowed the officer's request for a continuance and rescheduled the case for another <undisclosed> date, <though presumably, a date within the 45 day statutory period i.e. before September 29th, 2012>. When you were unable to appear on that date, the court -I assume- granted you a continuance on the condition that you would now have to waive time since that delay caused by your request for a continuance would put the case past the 45 day statutory deadline so to grant you the time, you had to waive time...

But even then, your continuance was granted based upon a verbal request, was it not? Or did you have to submit a written motion with points and authorities, an affidavit, and proof of service on the other party? Were you required to show good cause as to the delay or its reason, or the failure to provide for the written notice? Or was your statement that you "will be out of town" sufficient for the court!

Let me go back to that last line in the last case law citation I posted above, which states: " unless the requested continuance results in violation of a statutory time limit (such as � 859b or � 1382) or defendant's constitutional right to a fair trial "...

The officer's continuance did not result in a violation of your statutory time limit (although yours did and as a result, you had to waive time), but did it violate your constitutional right to a fair trial?

Meaning, come trial time, did you have a defense plan that suffered because of the delay? A defense witness that could no longer appear or evidence that had spoiled by then? Not for a speeding case. And even then, based on what you posted, it does not seem that you provided any defense at all to the speeding charge. It sounds like your only defense was the officer not showing up and that seemed to fail miserably. You only argued your apparent discontent with the delay and the lack of notice.

Sorry, I simply don't see how you're going to get much of anything on appeal. (Probably the reason why your legal plan has been standoffish)!