Admin. Procedures Act and Rule4.111 (a)

Hello everyone,

I've been missing in action of late due to my busy schedule, however, I wanted to update everyone on my driving with a suspended license case. Just to bring those not familiar, this ticket was issue in 9/2004 and this will be my 11 appearance on this matter. The first couple of continuances were requested by me as I didn't have the financial resources to get my license in good standing, and I needed to learn more about the law. The court suggested a 3rd continuance after I filed my version of the APA motion that Cyril authored based on the commissioner having reservations about allowing me to proceed in pro per (even though I filled out the forms to relieve the Pub. defender) after initially being assigned to the Public Defenders office. Also at this 4th appearance the judge ruled that none of my do***ents were filed since I wasn't the attorney of record, the public defender was.

5th appearance 2/17/05; Oral motion to relieve the public defender. Motion denied. Commissioner strongly suggested that I get a licensed attorney and continued the matter.

6th appearance 3/23/05; Trial readiness conference vacated, reason my MTD (APA) was ruled not filed by new judge because I wasn't the attorney of record. I argued that the previous judge denied my oral motion to dismiss the Public def. and therefore I should be allowed to proceed. The DA's office objected and the matter was continued.

7th appearance 4/14/05; Oral motion to relieve the public defender granted. MTD calendared.

8th appearance 5/19/05; matter continued, DA stated that the court doesn't hear motions on Wed.; I objected, stated that the court set this date not the defendant and I had drove 60 miles to get to the court and taken a day off of work.

9th appearance 6/24/05; (different Judge) went to court prepared to argue the APA motion. However, I hadn't noticed that the clerk had erroneously stamped my motion as received and not filed and the DA stated that they were not prepared to oppose. I pointed out that the motion was served and filed long in advance of 10 days which court rule 4.111(a) stipulated and strongly objected to another continuance especially since this was a calendared motion. The fact that I had the clerk calendar it was evidence that it was filed and not merely received and furthermore, all the DA had to do is look at the court records to realize that the motion was scheduled for that day. Also, the DA claimed that they didn't have a copy of my MTD in their files, the commission stated that if there were no objections if I made a copy of the motion and hand brought it back into the courtroom and the DA acknowledged receipt he would consider it filed and it would be heard on 7/29. I made a copy of the motion at Kinkos and brought it back within 10 minutes. Judge continued the matter.

To my surprise the DA had filed an amended complaint of CVC 14601.3 commonly known as Habitual Traffic violator. I objected on the grounds that amended the complaint 7 months after my first appearance was untimely citing penal code 1382 or 1385. I stated that there had been no new evidence presented or witness interviewed to warrant mending the complaint. Judge accepted the amended complaint and ruled that my MTD would be heard at the next appearance.

10th appearance 7/29/05; While I was waiting for my case to be called I noticed a huddle of 4 or 5 DAs at their table and periodically each time a different one would look up in my direction. At first I thought it was my imagination. Just prior to my case being called all of the DAs except one vacated the courtroom. When I stepped to the podium I stated that I have an unchallenged MTD and I am asking the court to grant my motion. He looked to the DA who was fumbling thru some paperwork. I then asked the court was it inclined to entertain verbal opposition to my motion. Judge stated Yes. At this point the DA stood up and stated that my MTD was not filed or received by his office. I then began to remind the court of the events of my last appearance, which the judge remembered. And then the judge asked the DA to look into my file and see if the motion was in there somewhere. There was a pause and then the DA stated that he didn't have my file in court. Case was set over for after the lunch break. After the break my case is called 1st and the same DA stands up and loudly proclaims "The People are ready to oppose". I looked to the judge and asked. “Is the court inclined to entertain oral opposition to my motion to dismiss?

The judge replied if the People are ready then yes. The DA then arrogantly reasserted that he was ready to oppose. I glanced over at the DA and noticed that he had this little smirk on his face as he unbuttoned his jacket. So I asked the court, “ The DA is proclaiming readiness, but he is no where near ready to oppose my motion, is the court inclined to tell him why or should I?” The judge looking puzzled asked what do you mean. I replied, “Well your honor, Calif. Court Rule 4.111 (a) stipulates the procedure for filing pretrial motions and opposition and it clearly states that I am required to file any pretrial motions and serve them on the opposition 10 days prior to the court date, and any opposition is to be filed 5 day prior to the court date, which provides me enough time to file my response to the opposition 2 days before the court date. This rule is in place to promote fairness in the courtroom. The DA waived their right to oppose when they failed respond in writing 5 days prior to the court date. The judge responded by stating that I was correct and then instructed the DA to file his written opposition by 8/19, and for me to file my reply to the opposition by 8/28. He then mentioned that my proof of service was insufficient, however if the prosecution would acknowledge receipt of the MTD and there were no objections the motion would be heard on 9/2/05. I asked the judge, “do I need to refile and serve this motion on them again. The judge replied with, “ No, I am not going to make you refile, they have acknowledged receipt and the court also has it, we will hear this matter on 9/2/05. All parties agreed.

11th appearance 9/2/05; The DA called my name and pulled me out of the courtroom, which has become standard practice at every appearance. The DA started the conversation by saying, “I don’t understand why you are fighting this charge, you pled guilty to these same charges before.”

“I pled guilty before out of ignorance”
She then pulls the APA motion out of my file and says, well your citing all of these things from the Calif. Govt. Code and I’m not familiar with it. I responded with are you asking me for legal advise? I’m really not very comfortable discussing anything with you in light of the fact that your office has aggravated the charge to Habitual Traffic Violator for some reason. Evidently she was unaware of this, and she stated that she didn’t know why that was done because to her knowledge her office never does that. She then offered to drop the CVC 14601.3 charge of Habitual traffic violator, which I replied, I’m really not looking for any favors from your office, I can get that dismissed on my own. I then told her that it’s not personal, but I am just irritated by her office’s tactics and repeatedly not being prepared. We then went back into the court.

Since the prosecution again failed to oppose, I opened with asking the court to dismiss the case because my motion stands unchallenged. The DA stated that I had filed a few motions and that she was unclear of which motion was being heard. Now this got me upset because I can see that they are trying to get another continuance. So I replied, “…that’s inaccurate your honor, the DA has the same if not better access to the court records than I do. If there was any confusion in regards to which motion was being heard, all she had to do was type my last name or case # in the court records and see what the title of the motion was and then locate it in my file.” Again I demanded for a dismissal citing the prosecutions failure to respond. The judge insisted on revisiting the irregularities of my proof of service, which I replied with, “your honor we covered this at the last appearance. The evidence of it is that you ordered them to respond in writing by 8/19/05, which they have failed to do. We can’t have a hearing on this matter because of their failure to respond. The judge then asked the DA how quickly they could get their opposition filed, which I objected to, citing that they had waived their right to oppose by not complying with the instructions that they file by 8/19. The judge overruled my objection and the DA stated that she could have her response in by 1:30 pm so that the case could be heard the same day. Again I objected, “…surely the court is not going to allow the DA to file opposition and serve it on me in open court and proceed today without affording me the opportunity to reply.” The judge agreed with me an set the hearing for 9/30. I then asked the judge to sanction the DA’s office $1500 on two grounds, 1) for intentionally and willfully attempting to deceive the court, and 2) for repeatedly bringing me into court under the threat of arrest while not adhering to the court instructions to file a written response to my MTD.

Question. Should the case be dismissed if they don’t offer written opposition? I can’t find a court rule that spells out how the court should act when opposition to a MTD is not offered. Should I Motion for Sanctions on Riverside County DA’s office or on the individual attorney? I’m thinking the DA’s office itself.