7363 v 1.000     Patrick on your right to demand a formal complaint.

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From Patrick paradoxmagnus @ Yahoo.com

Sent: Feb 15, 2006 7:02 PM To: law-discuss@yahoogroups.com

One should DEMAND a VERIFIED COMPLAINT to be safe.

PENAL CODE 853.9. (a) Whenever written notice to appear has been prepared,

delivered, and filed by an officer or the prosecuting attorney with the court

pursuant to the provisions of Section 853.6 of this code, an exact and legible

duplicate copy of the notice when filed with the magistrate, in lieu of a

verified complaint, shall constitute a complaint to which the defendant may

plead "guilty" or "nolo contendere."

     If, however, the defendant violates his or her promise to appear in court,

or does not deposit lawful bail, or pleads other than "guilty" or "nolo

contendere" to the offense charged, a complaint shall be filed which shall

conform to the provisions of this code and which shall be deemed to be an

original complaint; and thereafter proceedings shall be had as provided by law,

except that a defendant may, by an agreement in writing, subscribed by him or

her and filed with the court, waive the filing of a verified complaint and elect

that the prosecution may proceed upon a written notice to appear.

     (b) Notwithstanding the provisions of subdivision (a) of this section,

whenever the written notice to appear has been prepared on a form approved by

the Judicial Council, an exact and legible duplicate copy of the notice when

filed with the magistrate shall constitute a complaint to which the defendant

may enter a plea and, if the notice to appear is verified, upon which a warrant

may be issued. If the notice to appear is not verified, the defendant may, at

the time of arraignment, request that a verified complaint be filed.

 

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file\

=853.9

And last time I check, the STATE was NOT using the REQUIRED NTA.

http://www.courtinfo.ca.gov/forms/documents/tr130.pdf

 

Without a VALID COMPLAINT there are JURISDICTIONAL issues.

  "In Ralph v. Police Court (1948) 84 Cal.App.2d 257 [190 P.2d 632], and Rupley

v. Johnson (1953) 120 Cal.App.2d 548, 551-552 [261 P.2d 318], it was held that a

defendant cited for and charged with violating a Vehicle Code section, who

pleads not guilty thereto and does not waive the filing of a complaint, is not

brought within the jurisdiction of the court until a verified complaint charging

him with the offense in question has been filed. (To the same effect, see dictum

in [237 Cal.App.2d 73] People v. Agnew (1952) 110 Cal.App.2d Supp. 837, 840 [242

P.2d 410].) The decisions in the above-cited cases were based upon the

provisions of former Vehicle Code, section 739.1, which are now contained

without material change in Vehicle Code, section 40513. Said decisions are

accordingly controlling of the construction to be accorded the latter section.

(Gavin v. Municipal Court (1960) 184 Cal.App.2d 712, 714 [7 Cal.Rptr. 732].)"

Anger v. Municipal Court, 237 Cal.App.2d 69 (1965)

  http://login.findlaw.com/scripts/callaw?dest=ca/calapp2d/237/69.html

Of course they will use your FAILURE to ASSERT your RIGHT to a VERIFIED

COMPLAINT as a WAIVER and try to CLAIM "harmless error", if you let them.

  "As Witkin points out in California Criminal Procedure, section 24, page 28,

"jurisdiction" is a term of multiple meanings. In such cases as Anger v.

Municipal Court, supra, 23 Cal.App.2d 69, it was manifestly not a question of

subject-matter jurisdiction nor of jurisdiction over the person. The defendant

there was voluntarily before the court. What that court was talking about was

jurisdiction to act in accordance with statutory requirements. See the examples

supplied by Witkin, op. cit., supra, at page 32. This is simply a mode of

describing the principle that a court is obliged to act within certain statutory

constraints; it is hazardous to rely on cases employing the word "jurisdiction"

in this sense. See Witkin, op. cit., supra, page 733 for examples of defects of

jurisdiction or due process that are of such magnitude as to require reversal

per se. The instant cases are not of this magnitude.

  Remedies Available to a Defendant

 

  The message conveyed byPeople v. Wilson, supra, 60 Cal.2d 139, is that, in

general, such errors must be attacked before trial. The thrust of appellants'

argument herein is that the citation-complaint does not conform either to the

requirements of Penal Code section 853.9, subdivision (b) or to the general

requirements of Penal Code section 950 governing formal complaints. Penal Code

section 1004, subdivision 2 provides that the defendant may demur to the

complaint before entry of a plea when it "does not substantially conform to the

provisions of Sections 950 and 952 ...." Penal Code section 1012 in turn

provides that such objections can be taken only by demurrer, and "failure so to

take it shall be deemed a waiver thereof"--except for objections to the

jurisdiction of the court, a possibility we have already disposed of above. It

might be arguable that a pretrial motion to dismiss should be available in an

unusual case, but that issue is not before us. The provisions of Penal Code

section 1007 highlight the policy of the law favoring liberal amendment: "If the

demurrer is sustained ... the court must, if the defect can be remedied, permit

the filing of an amended complaint within such time not exceeding 10 days as it

may fix." (Italics added.) [3] If the trial court erroneously overrules the

demurrer or denies leave to amend, the defendant's remedy is by pretrial writ

proceedings. [160 Cal.App.3d Supp. 9] If the writ is erroneously denied, then in

accordance withPeople v. Wilson, supra, 60 Cal.2d 139,there is no appellate

remedy available, unless the appellant can show that he has suffered prejudice.

Such a showing is hard to imagine in cases of this kind. [2b] At all events, the

present appellants did not get over the first hurdle of challenging the error

before trial, by demurrer or otherwise.

 

  The Law Favors Disposition Upon the Merits, Not Upon Procedural Niceties

 

  The California Constitution and the Penal Code make it abundantly clear that,

except in extraordinarily compelling cases, judgments are not to be reversed for

procedural errors. (Cal. Const., art. VI, ? 13; Pen. Code, ?? 960, 1258,

1404 and 1469.) fn. 6" People v. Gompper (1984) 160 Cal.App.3d Supp. 1 , 207

 

 

http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/160/supp1.html&search=1\

20

 

Just like they do with everything, ASSENT means CONSENT.

 

Patrick in California

 

"Machiavelli would be PROUD, Houdini would be AMAZED and Mark Twain would say

"I told you so."--PKM

 

--- In law-discuss@yahoogroups.com, Daniel Quackenbush <dquack@... wrote:

 

 Patrick, the prosecution is not required to file another complaint unless the

defendant makes a request for it (even if a request is made, the law may have

changed where a new complaint is not required if the cop signed the ticket under

penalty of perjury). Pleading "not guilty" makes no difference if the defendant

doesn't request a new complaint. The traffic ticket is the complaint in most

circumstances, and the California legislature has said that for the traffic

ticket to be a complaint, the "uniform traffic ticket and summons" must be used.


 

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