Mr. MC
1234 Mother Copper Dr.,
Copper, CA 91234
Tel: (123) 123-1234
Defendant
in Pro Per
SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SANTA
CLARA
PALO ALTO BRANCH
THE
PEOPLE OF THE STATE )
OF
CALIFORNIA, )
Case No. 1-12-TR-123456
)
Plaintiff, ) NOTICE
OF MOTION FOR
)
Vs. ) CHANGE OF VENUE TO
)
Mr. MC ) COUNTY SEAT; DECLARATIONS;
)
Defendant ) POINTS AND AUTHORITIES
__________________________
)
TO:
PLAINTIFF., THE PEOPLE OF THE STATE OF CALIFORNIA, AND
TO THE DISTRICT ATTORNEY FOR THE WITHIN-NAMED COUNTY:
PLEASE TAKE NOTICE that on
the date set for arraignment herein, April 12, 2009 at 10:00 a.m. in Department 12 of the above-entitled
Court at 720 Grant Avenue,
Palo Alto, California, Defendant will move the Court for an order
transferring the place of trial in this action to the Court at the Santa Clara Branch, California.
This
motion is made on the ground that Defendant, upon having been arrested for the
offense charged, requested that the court at which he directed to appear be
specified as the court at the county seat, and that pursuant to Section
40502(b) of the Vehicle Code, the said court is therefore the proper court for
trial of this action.
This
motion is based on the pleadings, records, and files in the action, the
accompanying Declaration and Points and Authorities, and on oral and
documentary evidence to be presented at the hearing on the motion.
DATED:
___________________________
Mr. MC
Defendant
in Pro Per
DECLARATION
I,
Mr. MC, declare:
1. I am
the Defendant in the above-entitled action.
2.
On May
1, 2007, I was driving my vehicle towards the northbound direction on Lawrence
Expressway in Sunnyvale, CA, when I was stopped by Officer Copper of the San
Jose California Highway Patrol. Officer Copper got out of the vehicle and
indicated the intention to cite me for a Vehicle Code violation. I immediately
told Officer Copper that I desired to have the court at which I would be
directed to appear be the one at the county seat, pursuant to Section 40502(b)
of the Vehicle Code. Officer Copper told me she did not understand what “County
Seat” is.
3. The
county seat at Santa Clara,
California is closer, and more accessible than to this court at 270 Grant Avenue, Palo Alto, California.
4. Officer Copper
then prepared a traffic citation or Notice to Appear
in which the court at which I was directed to appear was, contrary to my
requests, the Palo Alto
court. I was then handed the citation book so that I could sign the citation and
promise to appear.
5. I
then signed my name on the citation, promising to appear as directed, and wrote
the words: “COUNTY SEAT PLEASE!”
I declare under penalty of perjury under
the laws of the State of California that the foregoing is true and correct.
DATED:
___________________________
Mr. MC
Defendant
in Pro Per
POINTS AND
AUTHORITIES
ARGUMENT
I.
WHEN
A NOTICE TO APPEAR IS ISSUED BY A PEACE OFFICER FOR VIOLATION OF THE VEHICLE
CODE, THE OFFICER MUST SPECIFY THE PLACE FOR APPEARANCE AS THE COURT AT THE
COUNTY SEAT, IF SO DEMANDED BY THE PERSON CITED.
When a peace officer cites a person for
violation of 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:
Section 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 allege to have
been committed…[Emphasis added]
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…” [Emphasis added]
Whichever
court is so demanded is the proper court for trial. Here, defendant requested
that the court at the county seat be the place, but the citing officer did not comply.
II.
WHEN
THE ARRESTING OFFICER HAS REFUSED TO COMPLY WITH 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 for trial, it may nevertheless be tried there, “unless
the defendant, at the time be 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 commented 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. In this county, that is Santa Clara.
DATED:
___________________________
Mr. MC
Defendant
in Pro Per