Peremptory Challenge, Change of Venue

You're allowed only one Peremptory Challenge per case.

A Peremptory Challenge form is available, way below, in the wallpaper area.

Where and How to File the PC Form

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.
But do not file a PC before you've been given a court date for an arraignment or a trial. (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.)

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.

If the Judge Denies Your Peremptory Challenge

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:
1. A judge told the defendant, who had made an oral PC at the beginning of her trial session, that PC's can't be verbal. When she failed to produce a written PC, her request was denied.
2. A judge told another defendant, also making an oral PC at the beginning of the trial session, that PC's are to challenge jurors and witnesses, not judges.
If a judge did that to me, I would immediately hand him a Challenge for Cause. See Section (2) below. And if that did not work, I would appeal the case.

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,

(Don't worry, this isn't true!)

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 to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein at the time and in the manner hereinbefore provided."

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!
And there may be an alternative - see Challenge for Cause, below.

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.
And again, Challenge for Cause may be an alternative.

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.
Another example of possible "cause" would be an announcement made by the judge to all in the courtroom, stating "traffic school is not an option after your trial," or a similar notice sent out to you in the mail, as formerly was done to Long Beach defendants who had pled not guilty - see Advantages of Doing a Challenge, above. For more info about traffic school, see the links at the bottom of the traffic school editorial on the Links page.
And another example would be a judge who announces, to all in the courtroom at the beginning of the trial session, that he will not hear a particular defense.

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.

The best time to file a Challenge for Cause is after you become aware of bias on the part of the judge, and before he takes any further action on your case. They are often filed at the last moment. You are less likely to succeed with a Challenge for Cause than you are with a timely-filed Peremptory Challenge.

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

To copy the forms below:

1. Highlight the text of the form you want (for technical reasons, it's in the 'wallpaper' area below).
2. Copy it into a blank word processor document [control-C, start Word, control-V],
3. If the resulting word processor document has a lot of short broken-up lines of text, try the following settings:
(a) display at "full screen,"
(b) fixed-width font such as Courier New, 10 points,
(c) all four margins set at .5 [file, page setup].

(Scroll Way Down to into the "Wallpaper" for the Forms)

B. Change of Venue
(Moving your Case to the County Seat)

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:
(b) Upon demand of the person arrested, before a 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. This subdivision applies only if the person arrested resides, or the person's principal place of employment is located, closer to the county seat than to the court or other magistrate nearest or most accessible to the place where the arrest is made.

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:

"Your Honor, I plead not guilty, and, pursuant to Penal Code Section 1462.2 and Vehicle Code Section 40502(b) I request that this case be transferred to the County Seat. I live [[[work?]]] closer to the County Seat than to this court. This is an automated enforcement ticket that was mailed to me, not handed to me by a police officer, so my appearance before this court today is the first opportunity I have had to make this request.
If your honor won't transfer it now, I request the matter be set for my motion for change of venue."
Modified version of advice from Fight Your Ticket, page 10/27 - 28 (or, in the new 12th Edition, page 181).

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),

A non-county-seat judge who ignores a proper request for transfer of a case to the county seat has "no jurisdiction" to conduct the trial.
[Emphasis added by highwayrobbery.net]

It is grounds for appeal and, per Brown, "You don't have to prove that your case was compromised by this." However, Brown warns, "if your conviction is reversed on this ground, the appeals court can order a retrial."

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.

(General format of this Change of Venue section, and case cites, are from HelpIgotaticket.com. Also, Fight Your Ticket has a number of entries about Change of Venue.)

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]]]