FORMS INTRODUCTION
The judges and lawyers are mostly concerned with how things look, more so than what is law. This is why presentation of the paperwork HAS an impression, and words DO mean something. This is why I can't overemphasize that a review of the paperwork for any typos and errors can be extremely beneficial.
There are a number of ways to present a defense. We will focus on the paperwork and strategy for defending those actions defined as "public offenses", and will not be concerned with "crimes" as defined by the common law. Crimes defined by the common law are murder, rape, robbery or any other offense where someone get injured or damaged. Anyone who commits crimes should be punished.
The enclosed forms are used in various ways and times to effect a dismissal for a lack of a speedy trial. The lack of speedy trial motion is used as a "technicality" to get a case dismissed for reasons other than the merits of a case.
I use the demurrer as the first move in the court. It is the basis for the jurisdictional challenge but is also used to possibly take up more time when aiming towards the "technicality" remedy.
All forms are for California courts.
DEMURRER 1002-1012 p.c.
Upon the filing of the Demurrer, in open court, at the arraignment the time starts ticking. If the demurrer is denied, one can either petition for Writ of Prohibition or proceed, and appeal the issue later. The Writ is probably the proper and fastest method.
To date the Writ has not been done.
Sometimes a hearing officer, also known as a judge or commissioner, will ask if the D.A. has been served the demurrer, and maybe set the next court date for two or three weeks later. That could mean 21 days! For a misdemeanor or infraction, this could mean 24 left (in California). Many times, after the hearing on the demurrer, the hearing officer will ask one how they plea. The court's officers generally think this starts the clock, but the SECRET is that the clock started the first day of arraignment, but ONLY if one DOES NOT PLEA!
"I don't plea" was the response of one defendant and the hearing officer simply entered a plea on their behalf. Some people may object, while others may stay mute. What is the best thing to do? This is why it is important to study and understand the statute. 1002-1012 p.c.
DISCOVERY (Informal and Compel) 1054.5 p.c.
Around 15-20 days before the trial, I send out the "informal discovery". Generally the D.A. doesn't even respond. This gives me the opportunity to present to the court, at the trial right before it starts, the Motion to Compel the Discovery. If the other side has responded, I look for the facts, evidence or testimony that they have failed to send, and raise those issues with the filing of the motion. They are in the motion.
This should cause the hearing officer to reset the trial, and if the trial date is set past the speedy trial time, (an attorney would be required to inform the court of this error, BUT YOU ARE NOT) the motion to dismiss can be presented at the next date set by the hearing officer. Both the motion to compel discovery and the motion to dismiss are generally presented in court just before the start of the trial. The motion to compel, if granted, will automatically cause a continuance.
It should be noted that if the defendant requests or causes the delay, then time will automatically be waived and the motion to dismiss may be denied.
DISQUALIFICATION 170.1(a)6(c) and 170.6 p.c.
In the old days, back in the 1980's, when a hearing officer was disqualified, the court immediately brought in a different hearing officer, the way it is supposed to be. Now days they have been known to set off the hearing for two or even three weeks later, to bring in a new hearing officer. This can be of great help if one is heading for a dismissal based on the speedy trial law.
One time I filed a disqualification for cause, (170.1(a)6(c)) and three weeks later the same judge told me that he had been reinstated by a judge in another county who heard the disqualification. He then informed me that I still had my preemptory challenge, 170.6 p.c. (you only get one of these per case) and asked if I wanted to use that. I'd been appearing before this judge for 20 years. I knew that the 45 day limit would be up in two days on Sunday, and so I told him that is what I wanted to do. He accepted the "preemptory challenge", set the hearing for the next Monday, since it was 3:00 p.m. on Friday, and I filed my motion to dismiss, at the hearing on Monday. Case dismissed!
MOTION TO DISMISS 1382 p.c.
Penal Code Section 1382 covers felonies, misdemeanors and infractions. For our purposes I'm just including the parts for misdemeanors and infraction, however everyone should read the whole statute whenever they are in involved legal process. Here's part of section 1382:
The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases:
(3) Regardless of when the complaint is filed, when a defendant in a misdemeanor or infraction case is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later, if the defendant is in custody at the time of arraignment or plea, whichever occurs later, or in all other cases, within 45 days after the defendant's arraignment or entry of the plea, whichever occurs later,...
When the court entered the plea on behalf of the defendant, did that change the starting date for the time before the defendant was brought to trial?
Timing is an important strategy. Always be familiar with times and dates. The discovery will help to impeach the witness and help to raise jurisdictional challenges that may be brought on appeal, however these issues are probably best raised by the Writ of Prohibition which I mentioned earlier. I will put one of those together soon.
An attorney cannot do this process.
The attorney, being an officer of the court, is required to inform the judge if a speedy trial is going to be an issue. Also look up the word "In Propria Persona" in Black's Law Dictionary.
The accompanying forms should be used at your own risk.
They are not designed to be copied and pasted.
Do your own forms from scratch. You must use strategy, persuasion and persistence with almost every appearance.
-Zeke
