IN THE SUPER IOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LAKE

DEPARTMENT NO. A

O JUDGE

HON.

THE PEOPLE OF THE STATE OF CALIFORNIA,

�UPERIOR COURT COL!�JTY OF LAVE

)

) ) ) ) ) ) )

Plaintiff, vs.

SEP 2 6 Z011

) )

Defendant .

Case No. Pages 1 t o 18 Volume No. 1

)

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T R A F F I C

A P P E A L

July 21,

2011

A P P E A R A N C E S For t he People:

For the Defendant:

GERHARD W. LUCK District At torney BY: (No Appearance) Deput y District Att orney 2 5 5 Nort h Forbes Lakeport , CA 9 54 53 (707) 263-2251

IN PRO PER

1

Thursday,

July 21,

2011

2 3

THE COURT:

-- excuse me,

4

Come on forward.

5

And you've both been sworn?

6

THE DEFENDANT:

7

OFF ICER:

8

THE COURT:

9

Yes.

Yes, sir. Okay.

Officer, state your name and

department; and please proceed.

10 11

All right.

OFFICER:

Your Honor, Officer

with the

California Highway Patrol.

12

On March 29th of this year a t approximately 2: 05 i n the

13

afternoon,

14

I was parked on the south shoulder of Highway 20 east of Grove

15

Street, I was facing in an easterly direction inside of the

16

Lucerne area.

17 18

I was on uniform patrol in a marked CHP patrol vehicle.

The radar unit I was using was calibrated at the start of shift and at the end of shift and it was functioning properly.

19

I observed the subject vehicle, which is a white colored

20

four door BMW, travelling westbound on Highway 20 towards my

21

location at a high rate of speed.

22

of the subject vehicle at 50 miles an hour, activated my patrol

23

vehicle's radar unit and obtained a solid tone and doppler reading

24

of 5 1 miles an hour on the vehicle.

I visually estimated the speed

25

After the vehicle travelled past my location, I

26

activated my emergency lights and made a U-turn in preparation for

27

an enforcement stop.

I contacted the driver after the enforcement

28

stop, Mr.

and advised him for the reason of the stop.

--

1

At that time he did not have a driver's l icense in

2

possession, so he was cited for travelling 51 miles an hour in a

3

3 5 zone and for also not having a driver's license in possession.

4 5

THE COURT:

In terms of training, experience,

calibration.

6

Yeah, I have the traffic radar certificate,

OFFICER:

7

and the radar unit was calibrated at San Diego State University on

8

February 2nd of 2010.

9

years,

10

I've been radar certified for over 11

Your Honor, and all my records and everything are up to

date; and I was recertified earlier this year.

11

THE COURT:

Would you pass the -- whatever the documents

12

you have there to the bailiff, he'll let the defendant look at

13

them.

The one you're handing him right now is what?

14 15

OFFICER:

University of San Diego.

16 17

THE COURT:

THE COURT:

OFFICER:

23

THE COURT: evidence.

And in terms of -- did you have more than

Just that,

Your Honor.

All right.

Okay.

That's received into

And any calibrations on the day of the ticket? OFFICER:

here today,

Yes,

Your Honor.

I don't have that with me

but yes.

THE COURT: 28

was marked for

one document or just that?

22

26

1

identification and received into evidence)

20

25

Be marked as Petitioner's first in

(Petitioner's Exhibit

19

24

Okay.

order, be received.

18

21

This is the traffic radar certificate from the

All right.

traffic survey from that area.

Judicial notice is taken of the

--

1 2

Go ahead and state again as specifically as you can the spot of that ticket.

3

OFFICER:

It was on Highway 20 and I was just east of

4

Grove Street, which is on the west end of Lucerne,

5

near Foothill Boulevard.

6 7 8 9 10

Your Honor,

And the posted speed limit there according

THE COURT: to the OFFICER: south shoulder,

Is 35 miles an hour zone,

Your Honor, and

THE COURT:

I

and I was on the

was facing the --

Judicial notice is taken of the speed

11

surveys on the bench and particularly one that is associated with

12

that area of Lucerne.

13 14

Sir, you have the right to ask the officer questions, you can testify in your own, you can do both.

15

THE DEFENDANT:

16

THE COURT:

17

THE DEFENDANT:

18

THE COURT:

Go ahead.

Your Honor, is the survey present?

Yes. May I see it.

Sure.

We're going to pass this matter while

19

the defendant takes a chance to peruse the survey.

20

another case while you're looking at those.

21

Officer, maybe to save time, if you're able to pick out the survey

22

and point to him which one of the many that are in there,

23

save a little time.

24 25 26 27 28

We'll call

(Not audible) .

might

(A recess was taken) THE COURT:

We're back on the record in the matter of this is TR

The officer and the

defendant have both been sworn. You've had a chance to review together the speed surveys

1

that are on file with this Court that were judicially noticed for

2

that area.

3

Let me ask both the defendant and the Officer,

4

the officer to basically point out the one that applied, to speed

5

up the search.

That was done to your satisfaction, sir?

6

THE DEFENDANT:

7

THE COURT:

8

I asked

Yes, sir,

Okay.

Your Honor.

That's the defendant who answered

that.

9

Okay.

And I'm not clear because I sometimes pay strict

10

attention, sometimes I wander off in my mind to other places; but

11

Officer, did you state what you were driving and uniform that

12

night?

13

OFFICER:

14

THE COURT:

15

OFF ICER:

16

THE COURT:

17

Okay.

Yes,

Your Honor.

What -- okay. Full uniform. You already stated that.

And Mr.

go ahead and ask questions of

18

the officer, you can also testify on your own, you can do both.

19

Go ahead.

20 21

THE DEFENDANT:

Your Honor,

I'd like to motion for a

dismissal .

22

THE COURT:

23

THE DEFENDANT:

And the grounds of what? The grounds that the traffic survey is

24

out of date, section 408 02 of the Vehicle Code requires that the

25

survey be conducted within five years prior to the date of the

26

violation.

27

conducted January 3 1st,

28

My violation was March 23rd,

THE COURT:

200 5.

All right.

2011, the survey was

1

THE DEFENDANT:

2

THE COURT:

3

Six years prior.

There's also exceptions to that within the

code section, as you read it further.

4

THE DEFENDANT:

5

THE COURT:

Cor rect.

I'm going to pass this.

Bailiff, if you

6

pass it back to the officer and defendant, I want you guys to

7

point out which one you were looking at and which area it applies

8

to.

9 10 11

THE DEFENDANT:

What would you like me to point out,

Officer -- I'm sorry, Your Honor? THE COURT:

No, no, I j ust want to know which

12

one -- that book is pretty thick.

13

THE DEFENDANT:

14

THE COURT:

Survey is right here.

Okay.

It's been pulled from the book or the

15

binder and it's got a cover sheet January 31st,

16

on that same date related to a subtitle LAK-20-16. 00/19. 4 0 Lucerne

17

Speed Zone Survey.

18 19

And Officer, I'm assuming that references Lake County Highway 20 and those are mile markers?

20

OFFICER:

21

THE COURT:

22

OFFICER:

24

THE COURT:

26 27 28

Yes,

Your Honor.

And is that the area in fact where in fact

you cited him on radar or you saw -- got him on the 51 on radar?

23

25

200 5, lodged here

Yes. Okay.

And the subsection out of 408 02 that

you're referencing is which? THE DEFENDANT:

I'm not exactly sure which subdivision,

I believe it may be (b) , which defines a speed trap. THE COURT:

All right.

Officer, what's your response to

1

that motion?

2

OFFICER:

3

speed trap.

4

road.

5

you'd like.

Your Honor,

don't believe it fits into a

I mean, where I'm parked is j ust alongside of the

It is around a corner.

6

I

THE COURT:

Okay.

I can show you on the survey, if

The speed trap is kind of a technical

7

definition, it has little or nothing to do with whether or not

8

your car is visible.

9

date -- or allegedly out of date.

He's raising a defense related to the out

of

There are some exceptions

10

there, if you want time for your office to check on that to see if

11

in fact he's correct or incorrect.

12

There's other sections that extended u p to I believe

13

seven years and then ten years, but I'm not hearing a clear

14

response from CHP on the issue.

15 16

So I'm going t o take that under subm ission but bring you back on another day while you're both here under oath.

17

Do you have any other questions of the officer?

18

THE DEFENDANT:

Your Honor, there was no evidence

19

supporting the seven year extension for Officer

20

witness.

21

THE COURT:

22

THE DEFENDANT:

23

THE COURT:

as a

Well, we'll -I just

I'm asking you not -- not to further argue

24

that point.

25

response -- they may actually agree with you, okay, but I'm -- I'm

26

not submitting it on that today.

You can, but that's your response to any

27

I'm asking you to proceed with any other --

28

THE DEFENDANT:

Okay.

7

1 2

THE COURT:

-- further factual questions you have for

the officer.

3

THE DEFENDANT:

4

THE COURT:

I do,

Your Honor.

Go ahead, because some days on traffic we

5

come back it's really crowded and they don't get done by 5: 00, so

6

we have 4 5 minutes.

7

then see if there's a response on the timing of the speed trap.

8

THE DEFENDANT:

9

THE COURT: own, you can do both.

12

I'm going to question Officer

Yes, go ahead.

Q.

You can also testify on your

Go ahead.

THE DEFENDANT:

13 14

Okay.

as a witness.

10 11

Let's go ahead with all other aspects and

Officer

Okay. how far back was I when your radar

first picked me up?

15

A.

Approximately 250 to 300 feet.

16

Q.

How far ahead of me was the closest vehicle in front of

18

A.

I don't recall.

19

Q.

Okay.

17

20 21 22

me?

vehicle in question would be -A.

I remember there being a vehicle in front of you but I

don't recall that.

23

Q.

Okay.

24

A.

No.

25

Q.

Okay.

26

Was I in danger of hitting that vehicle, the

Was I in danger of hitting any other vehicle?

As I recall there were no pedestrians in the

roadway; is that correct?

27

A.

No.

28

Q.

There were pedestrians in the roadway?

1

A.

No.

2

Q.

Okay.

3

THE COURT:

Bailiff, if you could hand me back the open

4

binders -- no, leave it open, I want it open on that spot.

5

you.

6 7

Q.

BY THE DEFENDANT:

Thank

Did it look like any time my car was

out of control and about to leave the roadway, Officer

8

A.

No.

9

Q.

All right.

10

A.

I'd have to refer to my ticket, if that's all right,

11

sir.

12

THE COURT:

13

OFFICER:

14 15 16

Q.

It was clear and dry and the traffic was

BY THE DEFENDANT:

Is there anything inherently unsafe

about the weather that day? A.

No.

18

Q.

Okay.

What was the -- I'm sorry,

what was the

visibility like?

20

A.

Clear.

21

Q.

Clear.

22

Yes, go ahead.

moderate.

17

19

What was the weather like that day?

And is there anything inherently unsafe about

the visibility that day?

23

A.

No.

24

Q.

Okay.

25

A.

The widths of the road I believe are 12 feet in each

26 27 28

And what was the width of the roadway?

lane. Q.

Okay.

And what was the -- what is the surface condition

of the roadway in that section of Highway 20?

1

A.

It's asphalt paved.

2

Q.

Asphalt paved.

3

Is there anything inherently

unsafe about the surface of the roadway and/or the width?

4

A.

No.

5

Q.

Okay.

6

A.

Yes.

7

Q.

Excellent.

8

You cited me with 22350; is that correct?

Could you read 22350 for me, Officer

I have it right here, if you need it.

9 10

Okay.

THE COURT:

That's not a question.

Go on to the next

question.

11

THE DEFENDANT:

12

Q.

Okay.

Not a problem.

So 22350 states that, No person shall drive a vehicle

13

upon a roadway -- I'm sorry, a highway at a speed greater than is

14

reasonable or prudent having due regard for weather, visibility,

15

the traffic on, and the surface .and width of, the highway, and in

16

no event at a speed which endangers the safety or persons

17

or

I'm sorry,

18

safety of persons or property.

Is that the correct definition?

19

A.

I didn't understand it, could you read it once more.

20

Q.

Yes.

No person shall drive a vehicle upon a highway at

21

a speed greater than is reasonable or prudent having due regard

22

for weather, visibility, the traffic on,

23

of, the highway, and in no event at which -- at a speed which

24

endangers the safety or

and the surface and width

of persons or property.

25

A.

And what was your question?

26

Q.

Is that the correct section that you cited me for?

27

A.

Yes.

28

Q.

Okay.

Section doesn't say anything about a posted speed

1

limit, does it, Officer

2

A.

No.

3

Q.

And the section I'm referring to now is 22351(b), The

4

speed of any vehicle upon a highway in excess of the prima facie

5

speed limits in section 22352 or established as authorized under

6

this code is prima facie unlawful unless the defendant establishes

7

by competent evidence that the speed in excess of said limits did

8

not constitute a violation of the basic speed law at the time,

9

place, under the conditions then existing.

10 11

12

Does that sound right to you? A.

answer that correctly.

13 14

I'd have to look in the Vehicle Code to be able to

THE DEFENDl\NT:

THE COURT:

16

THE DEFENDANT:

17

THE COURT:

18

THE DEFENDANT:

19

OFFICER:

20

THE DEFENDANT:

21

OFFICER:

22

THE DEFENDANT:

23

OFFICER:

24

THE DEFENDANT:

26

Your Honor,

would he be able

to look at the vehicle for that section?

15

25

Yes, sir.

Q.

We can certainly loan a copy. Certainly.

Is that a current 2011 or is that -I believe so.

Which, 22 --

Okay.

Okay.

22351(b) 22351, speed law violations. Excuse me. Yeah, that sounds correct. Okay.

So does your testimony qualify as competent evidence,

Officer

27

A.

Yes.

28

Q.

Excellent.

Did you not testify there was nothing

1

inherently unsafe about the weather that day, Officer

2

A.

Yes.

3

Q.

Did you not testify that there was nothing inherently

4

unsafe about the visibility at the speed I was travelling that

5

day?

6

A.

Yes.

7

Q.

Did you not testify there was nothing inherently unsafe

8

about the surface and the width of the road at the speed I was

9

travelling that day?

10

A.

Yes.

11

Q.

Did you not testify that I was not in danger of hitting

12

any vehicles?

13

A.

Yes.

14

Q.

Did you not testify I was not in danger of hitting a

15

pedestrian?

16

A.

Yes.

17

Q.

Did you not testify that my vehicle was in control -- or

18

I'm sorry, did you not testify that I was in control of my vehicle

19

and not in danger of leaving the roadway?

20

A.

Yes.

21

Q.

So what property could I have possibly damaged?

22

A.

At 51 miles an hour in that area at any point,

although

23

there wasn't a pedestrian on the roadway or a vehicle pulling out,

24

in my opinion it is way too fast and that's why you were cited.

25 26

Q.

Okay.

Does your -- I have to ask you again, does your

testimony qualify as competent evidence?

27

A.

Yes.

28

Q.

Okay.

Given your competent testimony as evidence of my

1

speed as it relates to the conditions at the time and place of the

2

violation,

3

the -- or the conditions in the survey but the exact conditions

4

you testified to specified in 22351(b) ,

5

is your case?

not the average conditions that that roadway sees, but

6

No further questions,

7

THE COURT:

8

Okay.

No,

OFFICER:

Your Honor?

Any further testimony at this stage,

Your Honor.

All right.

10

THE COURT:

11

THE DEFENDANT:

12

THE COURT:

13

THE DEFENDANT:

Matter is continued to --

Your Honor.

Yes. Would I be able to withdraw that motion,

that previous motion?

15

THE COURT:

16

THE DEFENDANT:

17

THE COURT:

18

where

Officer?

9

14

I have to ask you,

Which motion? The motion to dismiss the original --

You could, but you might as well hang in

there.

19

THE DEFENDANT:

20

THE COURT:

Well, the only reason I ask

You might be right.

I'm only

21

hesitant -- hesitating because my memory is that that particular

22

one was extended,

23

to extend --

but I'm not sure.

24

THE DEFENDANT:

25

THE COURT:

In other words, there's ways

Right. the five year old -- and I see my

26

Stickies all over it from the previous case.

27

withdraw it, you can; but I'd rather put it on another date

28

because the CHP may look at it and agree with you that it hasn't

If you want to

1

been updated or they might disagree.

2

THE DEFENDANT:

This is true.

3

live in

4

that and get a judgment today,

5

THE COURT:

6

If I can withdraw

I'd be more than willing to do so.

Well, I would rather have the answer so if

it's out of date that they get up to date surveys -THE DEFENDANT:

8

THE COURT:

9

THE DEFENDANT:

Absolutely. on file. I believe the section that refers to the

10

extensions 1s either 4 08 02,

11

but --

12

THE COURT:

13

THE DEFENDANT:

15

The reason I ask is I

, it's 120 miles from here.

7

14

So --

I can't remember which subdivision,

I don't think it's in that,

it's --

It's one of those sections right there

in either two, three or four, eight zero two, three or four. THE COURT:

Well, why don't we do it this way, I'll take

16

it under submission and instead of having you drive back they can

17

respond by letter, you get -- they carbon copy you in and then you

18

can respond by letter to what they submitted and then you can put

19

your written argument

20

make a ruling based on -- you know, if they send a letter saying

21

he's right, dismiss the matter, that ends it.

22

letter saying it's been extended or under here, blah-blah-blah,

23

you then have your second argument that I partially heard, you can

24

point that out in your letter if in fact it keeps go ing.

your argument in writing and then I'll

25

How about that procedure?

26

THE DEFENDANT:

27 28

No,

Your Honor,

I'd like to withdraw

that motion then and have a judgment today. THE COURT:

Okay.

If they send a

1 2

THE DEFENDANT: suppose.

3

THE COURT:

4

another date.

5

fine.

6 7

10

Yeah, I don't want to do that.

We'll set

If you want to appear by phone or letter, that's

If you don't want to, that's fine also. This matter is continued -- today is the 21st, are you

actually in town here tomorrow?

8 9

It's the easiest way to do it, I

THE DEFENDANT:

No, I'm not.

I'm willing to appear in

person, it's just -- it's better that way.

So whatever work� with

the Court.

11

THE COURT:

It's up to you.

You've -- because you've

12

testified already, the evidence is 90 percent in if not 100

13

percent in.

14

THE DEFENDANT:

15

THE COURT:

Okay.

You can appear b y phone and save yourself

16

the drive.

17

lot less gas and, you know -- August 4 th -- no, I wouldn't even be

18

here.

19

formal

20

appear by phone,

21

fine.

Now, Court Call costs you a little bit of money but a

August 18th.

But I would ask the CHP to give a

at three o'clock, August 18 th. set it up.

Again,

if you want to

If you want to be here in person,

22

I want a CHP letter responding to his objection to the

23

evidence under the traffic survey, a copy sent to the defendant,

24

no later than August 1st, okay, postmarked by August 1st.

25

fact you folks agree with him, then fine, then the dates get

26

vacated, nobody appears and it gets dismissed.

27

disagrees, you supply whatever additional information is either in

28

this binder or in the records from surveys so that he has a copy

If in

If your office

1

to look at.

2 3

All right.

THE DEFENDANT:

asking CH P for a different survey or are we -No, I'm asking to respond either legally -­

4

THE COURT:

5

THE DEFENDANT:

6

THE COURT:

7

Is -- what we're doing here is you're

Oh. or factually to your objection that this

is an out of date survey.

8

THE DEFENDANT:

9

THE COURT:

Okay.

Okay?

And that they send you that,

postmark

10

it no later than August 1st and,

11

you get a copy.

12

testimony, it would be at three o'clock on the 18th of -- 18 th of

13

August.

14

what I have.

you know, we get the original,

And if -- if there's going to be any other

If neither of you show, then it's under submission on Okay.

15

THE DEFENDANT:

16

THE COURT:

Okay.

If there's no l etter from CHP,

17

his objection is good and it will be dismissed.

18

letter that agrees with him, same thing.

19

disagrees, then you both can appear,

20

guys.

21

THE DEFENDANT:

I'll assume

If there's a

If there's a letter that

or not appear, it's up to you

May I look at the survey to -- or I'm

22

sorry, not the survey, the Vehicle Code, I can look up the section

23

if that's --

24 25

THE COURT:

It's 4 : 30, I'm releasing -- my staff has not

had a break --

26

THE DEFENDANT:

27

THE COURT:

28

THE DEFENDANT:

Okay. and I'm releasing them. Okay.

1 2

THE COURT: this time.

All right.

THE DEFENDANT:

4

THE COURT:

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

We're in recess at

Exhibit is received, the traffic radar certification.

3

5

All right.

Okay.

As well as the judicially noticed form.

(The proceedings were concluded)

1

STATE OF CAL IFORN IA

2

COUNTY OF LAKE

ss.

3 4 5 6

CERTIFICATE OF REPORTER

7

USING ELECTRONIC RECORDING

8 9

I,

, a Certified Shorthand Reporter

10

of the State of California, do hereby certify that the foregoing

11

pages, numbered 1 to 18 , volume No.

12

correct transcription to the best of my ability of the recorqing

13

of the proceedings recorded on the 21st day of July,

14

matter entitled PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff,

15

versus

16

criminal files of the Superior Courts,

1,

inclusive, are a true and

Defendant, No. TR

18 19

21 22 23 24 25 26 27 28

Dated this 23rd day of September,

in the

State of California.

17

20

20 11, in the

20 11.