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If you haven't already done so, please read the Home page
If
you want to get a different judge, there are two kinds of challenges
you can make - Peremptory, and For Cause. (Note: When you have
successfully
challenged a judge, you don't get to choose who - or where - the new
judge will be.)
(1) Peremptory Challenge (pronounced
pur-emptory, not pre-emptory) Fight Your Ticket, says: "You don't
have to prove that the judge is unfair or biased, you just have to
believe it. You may have heard that a particular judge is unfair
or rude, sides with police officers over defendants, metes out heavy
fines, or worse." In other words, it doesn't matter what your reason is; with a Peremptory Challenge the only thing that matters is that you did it on time. In some circumstances
(explained below) you can do a Peremptory Challenge at the very
last minute (even verbally), just before your trial begins. But do not file a PC before
you've been given a
court date (for an arraignment or a trial or a Trial by Declaration). (If you
are not 100% sure as to what is happening or
what you are supposed to do on the date you have upcoming -- is it for an arraignment, a trial,
or something else? -- read the big
green Terminology Box near the top of
the Handling Your Ticket section on the Your
Ticket page.)
A Peremptory Challenge form is available, way below, in the wallpaper area.
If you're doing it on the court date... If you are making your challenge on the day of your court appearance, hand it to the bailiff when your case is called. Or you can do it verbally - tell the judge that you move to disqualify him under 170.6. But I have encountered a judge who says PC's can't be done verbally, so you may need to quote 170.6(a)(2), which says, "(2) Any party... may establish this prejudice by an oral or written motion..." Be sure to do it right after your case is
called, before any testimony is taken, because 170.6(a)(2) also says, "In no event shall any Judge... entertain the motion if it be made... after swearing in the first witness or the giving of
any evidence or after trial of the cause has otherwise commenced.
In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be
followed as nearly as may be."
You
may be tempted to wait until after the officer has had a chance to
voluntarily dismiss your case -
some officers wait until the last moment to do that (when the photo is
really blurry, or there is some other defect in the ticket). But
you are taking a chance, as the judge could say that the case has
already begun and it is now too late to do your PC. I saw
one defendant (successfully) make his verbal challenge as he was
walking through the gate - he didn't want to give the officer (who was
already sitting up at the table) any chance to commence his testimony! If you're doing it ahead of your court date... If you are filing a written 170.6 before the date of your court
appearance, give it to the window clerks at the courthouse. You can do it in
person, or by mail. If you do it in person, ask the clerk to date
stamp an extra copy. Keep that copy, and bring it to your court
appearance. Why? Read what one defendant experienced:
"I went to arraignment
and the judge stated he did not see my challenge form in the file. Thank
goodness I had a copy with a file stamp." If you file it
by mail, do it by Certified Mail, Return Receipt requested, and also
enclose an extra copy of the challenge, a stamped self-addressed
envelope, and a note asking the clerks to return a date stamped copy to
you in the envelope. Bring both
the green Return Receipt postcard and
the date-stamped copy to your court appearance.
What Happens After You File If you have filed a written 170.6 before the date of your court appearance, some
judges may notify you by mail of their decision (denying or granting the
170.6). Others may make you show up for your appointed court date, and tell you their decision only then.
The most
common reason for a PC to be denied is that it was "untimely" - not
filed on time. But I have often seen judges deny PC's for other
reasons having no basis in law. Some examples:
Further
Reading on Peremptory Challenge Fight Your Ticket
has a detailed discussion of Peremptory Challenge and its deadlines,
in Chapter 10. In earlier
editions of FYT, much of the discussion is in the footnotes at the
end of that chapter. For a very detailed discussion of Peremptory Challenge and its deadlines, go to a law library and read Sections 17.13 through 17.16 in Chapter 17 , "Disqualification of Judge," in the CEB book California Criminal Law Procedure and Practice, by criminal defense attorney Alex Landon.
Advantages of Doing a Challenge (Be Sure to Read This) (A) If you have heard*
that the judge who would ordinarily hear your case never grants reduced fines and/or
"Second Offender" 12-hour traffic school (assuming you need it), getting another judge will
almost always improve your chances. And since you are going to be
appearing in court anyway (to ask the judge for the reduced fine and/or
the 12-hour school), I
suggest that you make that appearance a trial,
not an arraignment. Why? At a trial, the police
have to show up - see paragraph (B) below. Also, at a trial, the
judge will look at the photo of the driver, and maybe he won't be
convinced, beyond a reasonable doubt, that it looks like you.
Case dismissed. *One way to learn what a
particular judge does is to go observe one of his trial sessions.
For suggestions as to what to do while you're there, see the purple box
in Section 3 of the Your Ticket page. (B) Moving your trial to
another judge takes away the economies of scale cities enjoy when
prosecuting multiple red light camera cases during a single trial
session. It will cost them far more to send an officer to your
lone trial session (especially if it's in a different courthouse) than
they will get as their portion of your fine
(should you lose), so maybe they will decide not to send an officer to your
trial. If an officer doesn't show up, you win -
automatically. (Note that on a red light camera ticket, any officer will
suffice - it doesn't have to be the one who signed your ticket.) (C) If you asked for a trial and got a "Trial Date" letter or a "Notice of Trial After Written Plea" containing a statement similar to this one formerly found in a notice from the Long Beach courts,
you should file a Peremptory
Challenge. And if it is too late to file a PC, you could try a
Challenge for Cause - the prejudice being that by pre-determining your
penalty, the court has pre-judged your case. One pro tem
expressed the proper stance for the court to take: "After-trial traffic
school is discretionary - depending
upon what we find during the trial. It won't be denied just
because you asked for a trial - that would be discouraging your right
to a trial."
(Judge Pro Tem Damon R.
Swank, Culver City, 12-18-03). For more info about traffic
school, see the links at the bottom of the traffic school editorial on
the Links page. (D) Moving your case to another courtroom may improve your chances of there being a stenographer present at your trial. (E) Also see "Possible Causes" in the "Challenge for Cause" subsection, below.
General Notes about Challenges If
you wish to use the forms below, you will need to add the
name of the
judge, the name of the court, and the division number. If
you are already in court and are making a Peremptory Challenge, you can
do it verbally. When you have successfully
challenged a judge, you don't get to choose who (or where) the new
judge will be. The general rule is that you get only one Peremptory
Challenge per case, but you can Challenge for Cause repeatedly if during your trial the judge's behavior provides new "cause." You can file a
challenge before
or at arraignment in order to get a different arraignment judge, but I don't recommend it if you are planning to
plead not guilty and ask for a trial. By keeping your one PC in
reserve, if the trial judge turns out to be the same one who arraigned
you, you won't be
stuck with him! 170.6(a)(2) says, "The fact that a judge, court commissioner, or referee has presided
at or acted in connection with a pretrial conference or other hearing,
proceeding, or motion prior It should be noted that if you have been given an "assigned
for all purposes" slip prior to arraignment, you cannot wait until your
trial date to file your Peremptory Challenge. An "assigned for all purposes" slip given to you prior to
your Trial by Declaration would raise another question: Can you
do a PC on the judge to whom your Trial de Novo is assigned? I
think so, so long as it is your first PC. However, there is no
statutory law (a section of the Penal Code, Code of Civil Procedures,
etc.) or case law (published rulings made by an appeals court)
addressing this unusual situation, so you will need to be prepared for
an argument. Perhaps you will make some case law! What about two
PCs? Can you do two PCs, one of the judge to whom your Trial by
Declaration was assigned, and a second one, of the judge to whom your
Trial de Novo is assigned? After all, they are two separate
trials.... This is another unusual situation not addressed by
statutory or case law. See also the section (above) entitled: "Where and How to File the Form."
(2) Challenge for
Cause If it's too late for you to file a Peremptory Challenge, you may still be
able to file a Challenge for Cause, which can be filed at the last minute.
Challenges for Cause are governed by Section
170.3(c)of the Code
of Civil Procedures. In a Challenge for Cause, it does matter
what your reason is - you will have to state it. There is an example, way below, in the wallpaper area.
Possible Cause An example of
possible "cause" would be the showing of a police-produced public
relations videotape about red light cameras, as has occurred before arraignment and trial sessions in some cities. Even
if you're just planned to file only a Peremptory Challenge, you may
want to take a blank Challenge for Cause form with you to court, just
in case you need it. Fight Your Ticket says that a Challenge for Cause is heard by a judge different than the one who has been assigned to your case. If you are filing a Challenge for Cause ahead of time (not on your court date), file it at the clerk's window. but if something develops on the day of your trial, or even during the trial session, you may need to file your Challenge for Cause with the judge who is hearing your case. You can do it verbally, if necessary. See also the section (above) entitled: "Where and How to File the PC Form." For further reading on Challenge for Cause, read Fight Your Ticket, and go to a law library and read Sections 17.27 through 17.34 in Chapter 17, "Disqualification of Judge," in the CEB book California Criminal Law Procedure and Practice, by criminal defense attorney Alex Landon.
(3) Forms
Added 10-25-06, revised 7-23-07 If you live or work closer to the county seat (the city which is the capital of the county) than to the city that is the location of the court named on your ticket, CVC 40502(b) allows you to ask that your case be moved to the county seat. 40502. The place specified in the notice to appear
shall be any of the following: Rules of Court 4.150 - 4.155 also apply.
When a "live" officer who has pulled you over is starting to write you a ticket, right then is the
time you are supposed to ask to be sent to the County
Seat. But with a red light camera ticket, your first opportunity
to make the request will be at arraignment*. You could say: The courts have held that once you make the demand, if you meet the residency
or employment qualification, the jurisdiction shifts to the court at the county
seat (Smith v. [Glendale]
Municipal Court, 167 Cal.App.2d 534). Example: A Fremont ticket would move to a court in Oakland, the capital of Alameda County. Example: A Hawthorne ticket would move to one of the courts within the
boundaries of the City of LA. If you live in the San Fernando Valley, you
could ask for Van Nuys court (Van Nuys is part of the City of LA, not a
separate city). *I know of one defendant who submitted his
request for Change of Venue by mail - and it was granted! See the suggested
form, below, in the wallpaper area. What if the local judge refuses to grant your request? According to Brown, who cites Smith (above), Drawbacks of Requesting Change of Venue While Change of Venue can work in your favor (if, for instance you were flashed in Lancaster, far away from LA), it
can also work against you. The judge can send the ticket to any court in the
county seat (e.g., San Pedro or West LA instead of Van Nuys or LA Metro) per People v. Beltran, 124
Cal.App.3d 335. (San Pedro is part of the City of LA, not a separate city.) I can foresee that another drawback to doing a Change of Venue could be
that you might not be able to combine it with a Trial by
Declaration. I know of no one who has tried such a
combination. At the very least it would be tricky. When I
get more details, I will post them here.
Scroll down for examples.
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Peremptory Challenge
----------------
________________________________
(Name and address of Defendant)
________________________________
________________________________
________________________________
Defendant in Pro Per
IN THE SUPERIOR COURT OF CALIFORNIA
[[[county name]]] SUPERIOR COURT
____________ COURTHOUSE
People of the State of California) Case No. __________
Plaintiff,
) (Div. _____)
vs.
)
) PEREMPTORY CHALLENGE
____________________________, ) (Code of Civil
Defendant.
) Procedures 170.6)
_________________________________)
I, ___________________________, declare:
1. I am
the defendant in the above-entitled action.
2. That Commissioner ____________, the court commissioner
before whom the trial of the aforesaid action is pending (or to
whom it is assigned) is prejudiced against my interest so that I
believe that I cannot have a fair and impartial trial or hearing
before such court commissioner.
WHEREFORE, Defendant requests ex parte, per CCP Section 170.6,
that said Commissioner be disqualified from hearing the
above-entitled matter.
I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
Dated: ___________
[[[sig]]]_________________________
[[[typed name]]], Defendant in Pro Per
Challenge for Cause
----------------
________________________________
(Name and address of Defendant)
________________________________
________________________________
________________________________
Defendant in Pro Per
IN THE SUPERIOR COURT OF CALIFORNIA
[[[county name]]] SUPERIOR COURT
____________ COURTHOUSE
People of the State of California) Case No. _________
Plaintiff,
) (Div. _____)
vs.
) MOTION AND AFFIDAVIT
) TO DISQUALIFY JUDGE
____________________________, ) FOR CAUSE
Defendant.
) (Code of Civil
_________________________________) Procedures 170.3(c))
I, ___________________________, declare:
1. I am
the defendant in the above-entitled action.
2. That on
___________________, the date set for my trial or arraignment
in said action and approximately 5 (five) minutes after the hour set for me to
appear for trial or arraignment and approximately 10 (ten) minutes before the
judge took the bench, I was present in Division 3 when courtroom personnel
showed a five-minute-long videotape. That said showing was made on a
full-sized television set in a manner which was clearly intended to be, and which
in fact was, visible and audible to the public assembled in the
courtroom. That the subject of said videotape was red light cameras
("cameras"). That said videotape was produced and provided by
the City of ______ (the "City"). That said videotape
included footage of members of the general public indicating their
approval of the cameras, but did not include balancing interviews with members of
the public having a differing opinion. That
as to the reliability of the cameras and of the evidence obtained
there from, the videotape included the following assertions of reliability, but did
not include, discuss or mention differing opinions.
(i)
"...proven all over the world."
(ii)
"...triggers the camera and flash
only if a vehicle is detected crossing the limit line after the light
has turned red."
(iii)
"The entire process is secure and is
conducted in a judicially-approved manner, maintaining the chain of
custody of the evidence."
3. That as to the
foundational requirements for the operation of the
cameras, the videotape included the following statements and
images asserting the City's compliance, but did not include, discuss or
mention differing opinions.
(i)
"Aside from public notification, a
formal public hearing was conducted as required by law."
(ii)
Announcer says: "The City's Police Department was required to post signs indicating that photo
enforcement was in use," while image on screen is of a warning sign on
a street in the City.
(iii)
Announcer says: "The police
department was also required to issue warning notices to violators for
a period of 30 days before actual enforcement began," while image is of a citation marked "Warning Notice."
4. That said
action against me is based solely upon evidence produced by a red light camera
operated by the City. That hearing of the action has been assigned
"for all purposes" to Commissioner ___________, who regularly presides in
Division 3. That based upon the court's having permitted the
showing of said videotape containing the above-enumerated one-sided, unbalanced
and conclusory assertions bearing on questions properly answered
only at trial, I entertain a doubt that said commissioner, before whom
the trial or arraignment in the aforesaid action is pending, will be able
to be impartial.
WHEREFORE, Defendant requests ex
parte, per CCP Section 170.3(c), that said Commissioner proceed no
further and that another commissioner or judge be assigned to hear this
proceeding.
I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
Dated: ___________
[[[sig]]]________________________
[[[typed name]]], Defendant in Pro Per
Change of Venue
----------------
[[[The Change of Venue request below consists of four parts - the Application, a Memorandum of Points and Authorities, a Declaration, and a Proof of Service. If you are doing your COV request by mail, send it in at least a couple weeks before any due date (the "respond by" deadline, or an arraignment date you've set up) so that the court has time to send you a reply. If you get no response from them, you will still need to take action, or appear, by whatever due date you have. Or, if you want to guarantee getting a response (although it still may not be the positive response you hoped for) you could send this COV in, combined with a not guilty plea and a check for the bail. In that case, you would add "PLEA OF NOT GUILTY AND" to the title below, and "enters a plea of NOT GUILTY and" after "hereby" in the first sentence. If you are entering a not guilty plea and there are some dates that you would not be available for trial, note the same.]]]
________________________________
(Name and address of Defendant)
________________________________
________________________________
________________________________
Defendant in Pro Per
IN THE SUPERIOR COURT OF CALIFORNIA
[[[county name]]] SUPERIOR COURT
____________ COURTHOUSE
People of the State of California) Case No. _______
Plaintiff,
) (Div. _____)
vs.
)
) APPLICATION TO TRANSFER
____________________________, ) ACTION TO COUNTY SEAT
Defendant.
) (Vehicle Code 40502(b))
_________________________________)
PLEASE TAKE NOTICE that Defendant ________________ hereby
applies to this Court for an Order, pursuant to California Vehicle Code
Section 40502(b), to transfer this action to the court in the County Seat of __________ County,
located at: [[[full address of traffic court at the County Seat]]].
This action results from an
alleged traffic violation, to wit: California Vehicle Code Section 21453
(red light automated enforcement).
This Application is made on the
ground that Defendant lives [[[works]]] closer to the County Seat
than to this Court. Had Defendant
been cited by a "live" police officer for this offense Defendant would
have at
the time of the traffic stop requested to appear at the County Seat, in
accordance with CVC 40502(b). However, Defendant received notice
of this alleged violation via the U.S. mail (it is a red light camera
ticket), so this Application to this Court is the first opportunity
has had to exercise his or her right to request appearance at the County Seat.
This Application is further based upon the Points and
Authorities attached hereto, the Declaration of the Defendant attached hereto, all papers and records on file with this court,
and upon all oral arguments at the time of any hearing on this matter.
Dated: ___________
[[[sig]]]_______________________
[[[typed name]]], Defendant in Pro Per
[[[CHANGE OF VENUE, CONT'D, NEW PAGE]]]
POINTS AND AUTHORITIES IN SUPPORT OF TRANSFER
ARGUMENT
I. WHEN A NOTICE TO APPEAR IS ISSUED BY A PEACE OFFICER FOR VIOLATION OF THE VEHICLE CODE, THE PLACE FOR APPEARANCE
MUST BE THE COURT AT THE COUNTY SEAT, IF SO DEMANDED BY THE PERSON CITED.
When a peace officer cites a person for violation of the Vehicle Code and issues a Notice to Appear, the place
for appearance is governed by Section 40502 of that Code, which states in pertinent part:
"40502. [Place to Appear] The place specified in the Notice to Appear shall be…
"(b) Upon demand of the person arrested, before a municipal court judge or other magistrate having jurisdiction of the
offense at the county seat of the county in which the offense is alleged to have been committed…"
Subdivisions (a) and (c) of Section 40502 respectively name the “nearest or most accessible” magistrate or a “person
authorized to receive a deposit of bail” as other places that may be specified as the place to appear. With respect
to these two choices, the decision lies within the arresting officer’s discretion. Subdivision (b), however, requires
the place to appear to be the county seat whenever 1) the arrested person’s residence or business address is closer
to the county seat than to the nearest municipal or justice court, and 2) the arrested person demands that the place
to appear be the county seat. In Smith v. Municipal Court (1959) 167 Cal.App.2d 534, 538, the similar wording of
former Section 739(c) of the Vehicle Code was construed to require that “[i]f a demand therefore is made by the
arrestee, the officer must specify as the place of appearance a municipal court within the judicial district at the
county seat or at the demand of the arrestee, before a magistrate in the judicial district…"
II. WHEN A DEFENDANT HAD NO PRIOR OPPORTUNITY TO MAKE A DEMAND FOR APPEARANCE AT THE COUNTY SEAT COURT, THE
ACTION MUST BE TRANSFERRED THERE FROM THE NON-COUNTY-SEAT COURT WHEN SUCH TRANSFER IS REQUESTED AT ARRAIGNMENT.
Section 1462.2 of the Penal Code states that “Except as provided by the Vehicle Code,” the proper court for
the trial of a misdemeanor is in the judicial district in which the offense is alleged to have occurred. The
fact that this section specifically refers to the Vehicle Code shows that the Legislature contemplated provision
of Vehicle Code Section 40502 as determining trial venue for Vehicle Code offenses where a Notice to Appear is
issued. Section 1462.2 states that when the action is commenced in a court other than the proper court for trial, it
may nevertheless be tried there, “unless the defendant, at the time he pleads, requests an order transferring
the action or proceeding to the proper court.” It continues, “If after such request it appears that the action or
proceeding was not commenced in the proper court, the court shall order the action or proceeding transferred to
the proper court.” The proper time for making the motion is therefore immediately following a not-guilty plea at
arraignment. In Smith, the court stated that the respondent court “was without discretion to deny
the motion to transfer (167 Cal.App.2d at 541).
The court at the “county seat” is a court located within the city limit of the city in which the seat of government
of the county is located. Government Code Section 23600. See also People v. Beltran (1981) 124 Cal.App.3d 335.
Dated: ___________
[[[sig]]]_______________________
[[[typed name]]], Defendant in Pro Per
[[[CHANGE OF VENUE, CONT'D, NEW PAGE]]]
DECLARATION OF ____________________
I, ____________________, declare:
1. I am the defendant in the above-entitled action; the facts stated herein are
within my own personal knowledge and, if called to testify thereto, I
could and would competently do so.
2. My
residence [[[ or, My principal place of employment ]]]] is located at [[[ address ]]]] in [[[city]]], California.
I declare, under penalty of perjury of the State of California,
that the foregoing is true and correct.
Dated: ___________
[[[sig]]]_______________________
[[[typed name]]], Declarant
[[[CHANGE OF VENUE, CONT'D, NEW PAGE]]]
PROOF OF SERVICE BY MAIL - CCP SECTION 1013a(3)
I, [[[ not the defendant ]]]] declare as follows: I am employed in
or reside in the County of ________, State of CALIFORNIA where this
mailing will occur; I am over
the age of eighteen (18) years and not a party to the cause; my
residence [[[[ business ]]] address is [[[ address ]]].
On ______, ______, I served the within APPLICATION TO TRANSFER
ACTION TO COUNTY SEAT
on the interested parties in this action by placing true copies thereof
in a separate sealed envelope, with the postage thereon fully prepaid, in the United States Postal
Service mailbox at [[[ city ]]], County of [[[ ]]], California, the said envelopes being addressed to:
Commissioner ____________ , (Certified Mail, with Return Receipt)
c/o Clerk, Superior Court
Division 5
AnyTown Judicial District
600 E. Broadway
AnyTown, CA 91205
City Prosecutor
501 AnyTown Civic Center
AnyTown, CA 91205
I am aware that service made pursuant to Code of Civil Procedure Section
1013a(3) upon motion of a party served shall be presumed invalid if the
postal cancellation date or postage meter date on the envelope is more
than one day after the date of deposit for mailing contained in the
affidavit.
I certify and declare under penalty of perjury under the laws of
the State of CALIFORNIA that the foregoing is true and correct.
Executed on __________, at ____________, CALIFORNIA.
[[[sig]]]_____________________
[[[server's name, typed]]]
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