8289 Version 1.006 Call me toll free: 888 476 8954 Lawyerdude. Friday, May 18, 2007. Lawyerdude1989@yahoo.com
Lawyerdude analyzes the case of California v. Kurt Albert Stapf (1994)
Filed June 27. 1994. Appellate Dept. of Superior Court of Orange County, California.
#556.01
Appeal from the Municipal Court for the Harbor Judicial District of Orange County.
Case Numbers: Criminal A8764, 8765, 8766, 8767, 8768. NBG166 954, 169 172, TW 79 781, TW 86 707, TW 84 114.
Only the duly elected prosecutor may initiate a criminal prosecution. The court may not initiate prosecution. The court actually used the word “usurpation” ! In addition, this court in dictum at the end says that bench warrants are illegal!
This case was provided by Theo Deligiannis from Anaheim, California. He surely must have researched diligently. This case is a treasure! Thanks, Theo!
All people in the U.S. have a right to a remedy! All of you have a right to benefit by the rules/ statutes/ cases of California. When one state finds/ acknowledges the “ natural law ” or the “ science of law ” then all states and people benefit. Otherwise we would have “pockets of freedom.” Pockets of freedom are unconstitutional in this county. Here is what the constitution says about pockets of freedom: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Lawyerdude says: Theo Deligiannis sent me a pdf picture of this case which I published some month ago at: http://www.lawyerdude.netfirms.com/8289c.pdf . You can’t copy and paste from a fax. Therefore on Saturday, May 19, 2007 I began the tedious task of typing and formatting this case/ commentary/ article. I finished on Tuesday, May 22, 2007. A person armed with this case can wreak havoc on the traffic courts throughout the country - because all the courts cheat in this very way! This is a blockbuster case. Thanks, Theo!
This page is http://www.lawyerdude.netfirms.com/8289.html
Related pages:
Here is a 1972 Ventura state appellate case square on point: http://www.lawyerdude.netfirms.com/8453.html This is the Pellegrino case and is cited below in this Stapf opinion.
A picture .pdf of this opinion: http://www.lawyerdude.netfirms.com/8289c.pdf
This case should be cited in every Motion to Quash. At least 15 motions to quash are listed at the following link: Http://www.lawyerdude.netfirms.com/8010.html
Hicks v Board of Supervisors: http://online.ceb.com/CalCases/CA3/69CA3d228.htm
There are also other federal cases square on point.
Here is that case about bench warrants cited herein: http://www.lawyer.gq.nu/Weitzer.html
Here is that other case about bench warrants cited herein: http://ronfox.250free.com/Copeland.html
Your constitutional right to a remedy: http://www.lawyerdude.netfirms.com/8428.html
Your right to an e-transcript in every state: http://www.lawyerdude.netfirms.com/4f4.html
Point of Law for those outside California: You can use California law!:
Those of you outside California are entitled to benefit by California’s work in searching for Natural Law. Pockets of freedom and Pockets of tyranny are unconstitutional: The Constitution says so at Section IV, clause 2:
Article IV. Clause2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Some of the rules/ statutes/ state constitutional clauses that you may want to borrow are:
1. Your right to a remedy is guaranteed under the state constitutions of 35 states; I am saying here that the other 15 states are required to give you that right: http://www.lawyerdude.netfirms.com/8428.html
2. Your right to an e-transcript in Texas pursuant to rule 4f4 from California: http://www.lawyerdude.netfirms.com/4f4.html
The various clauses of the various constitutions overlay one another thereby bolstering each other. They call this “ penumbra doctrine.” Use clauses together - such as the 4th and the 5th. The 9th amendment makes a nice combination with all of the others, but especially in this essay, with the above “No Pockets of Freedom” clause.
Amendment 9: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
You can challenge even your old case under this doctrine of separation of powers. Reason: It is jurisdictional. The court had no jurisdiction to initiate the case. Therefore there was no case - even if you pleaded guilty. That is the beauty of the defense entitled: lack of jurisdiction or “ absence of jurisdiction.” Jurisdiction in one of those things that may be challenged at any time - even after you have already paid a traffic ticket, for example.
Analysis by Lawyerdude: Highlights of this case:
An accusatory pleading is a necessary prerequisite to the court’s jurisdiction.
Only the People may file an accusatory pleading.
The court clerk is not vested with such discretion.
While the resulting procedure is certainly expeditious, it is unconstitutional.
The People conceded the merits of appellant’s position.
Reverse the portions of he 5 judgments based on the failure to appear.
Analysis by Lawyerdude: Provisions of the U.S. Constitution cited herein:
Amendment 9: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 1
Article IV. Clause2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” This is the basis for claiming and enjoying the benefits of foreign laws such as the right to an e-transcript under California rules. 1
Analysis by Lawyerdude: Provisions of 35 state constitutions cited herein:
Your right to a remedy is guaranteed under the state constitutions of 35 states; I am saying here that the other 15 states are required to give you that right: http://www.lawyerdude.netfirms.com/8428.html 1 That is the meaning of the clause that says that you are “entitled to all Privileges and Immunities of Citizens in the several States” 2
Analysis by Lawyerdude: Provisions of the California state constitution cited herein:
Article V, section 13 of the California Constitution provided that the attorney general, an officer of the executive branch of government, is the state’s chief law officer, having”direct supervision over every district attorney . . in all matters pertaining to the duties of their . . offices. . . “ 1
Separation of Powers clause of the California Constitution. Article III, section 3: “The powers of state government are legislative,
executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by
this constitution.” - California Constitution.
1
Analysis by Lawyerdude: California statutes cited herein including the one declared unconstitutional:
California Government Code section 26500 provides that “. . . [the district attorney] shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.” 1
California Penal code section 17d 1
California Penal Code section 19 defines is in the groups with PC 17. This group defines infractions, misdemeanors, and felonies.
1
California Penal Code section 19.8 1
California Penal Code Section 740 1
California Penal code section 806. 1
California Penal Code section 853.5 1
California Penal Code section 853.9 1
California Penal Code section 949 1
California Penal Code section 959 1 2
California Penal Code Section 959.1 c a is unconstitutional because it violates section 3 of Article 3 of the California constitution.
“959.1. a criminal prosecution may be commenced by filing an accusatory pleading in electronic form . . . or by a clerk of the court
with respect to complaints issued for the offenses of failure to appear, pay a fine, or comply with an order of the court.”
1
California Vehicle Code section 40000.25 1
California Vehicle code section 40508a: “Any person willfully violating his or her written promise to appear. . . in court or before a person authorized to receive a deposit of bail is guilty of a misdemeanor regardless of the disposition of the charge upon which he or she was originally arrested” 1
California Vehicle Codes section 40513a 1
California cases on which this opinion relies:
City of San Diego v Municipal Court (1980) 102 Cal App 3rd 775 at 778, 162 Cal Rptr 420. This issue is jurisdictional and therefore can be raised at any time. 1
Copeland. People v Superior Court (real party: Copeland) http://ronfox.250free.com/Copeland.html 1 (1968) 262 Cal App 2nd 283, 68 Cal Rptr 629, certiorari denied at 393 U.S. 967. I am curious to find cases on this issue: Does a warrant need to be signed? By whom? A magistrate? There is a process in the California Penal code for subsequent review pertaining to seized items. It is in 1538.5 or a subsequent section. 2
Davis v Municipal (1988) 46 Cal 3rd 64 at 76; 249 Cal Rptr. 300; 757 Pacific 2nd 11. “[The] primary purpose of the separation of powers doctrine is to prevent the combination in the hands of a single person or group of the basic or fundamental power of government.” Citations appeared in Davis. 1
Dix v Superior Court (1991) 53 Cal 3rd 442 at 451; 279 Cal rptr 823; 807 Pacific 2nd 1063. 1
Esteybar v Municipal Court (1971) 5 Cal 3rd 119 at 127 http://ronfox.250free.com/Esteybar.html 1 95 Cal Rptr 524; 485 Pacific 2nd 1140. The district attorney, a member of the executive branch of government can and should exercise discretion to decide which cases to prosecute. 2
Gonzalez. Municipal Court v Superior Court (real party: Gonzalez) (1993) 5 Cal 4th 1126 at 1131; 22 Cal Rptr 2nd 504, 857 Pacific 2nd 325. “In our common law judicial system, we rely upon a separation of roles to bring about proper results. The court’s role is to decide cases; the parties’ role is to bring cases before the courts.” 1
Hicks v Board of Supervisors (1977) http://online.ceb.com/CalCases/CA3/69CA3d228.htm 1 69 Cal App 3rd 655 at 659, 138 Cal Rptr 101. 2
People v Carlucci (1979) http://www.lawyerdude.8k.com/Carlucci.htm 1 23 Cal 3rd 249 at 257; 152 Cal Rptr 439; 590 Pacific 2nd 15. Theo also found this case. 2
People v Municipal Court [Pellegrino case from Ventura] (1972) 27 Cal App 3rd 193 at 200, 103 Cal Rptr 645, http://www.lawyerdude.netfirms.com/8453.html 1 2 3
People v Smith (1973) 53 Cal App 3rd 655 at 660; 126 Cal Rptr 195. 1
People v Smith (1975) 53 Cal App 3rd 655 at 659, 126 Cal Rptr 195; 1
People v Wallace (1985) 169 Cal App 3rd 406 at 409; 25 Cal Rptr 203. “Prosecutorial discretion, though recognized by statute in California, is founded upon constitutional principles of separation of powers and due process of law (citations omitted here). The district attorney’s unlimited discretion in the crime-charging function has been uniformly recognized.” (Citations omitted here.) Lawyerdude adds: We call this “the exclusive province of the prosecutor” and “the prosecutorial function.” 1
People v Weitzer (1969) 269 Cal App 2nd 274; 75 Cal Rptr 318. http://www.lawyer.gq.nu/Weitzer.html 1 Re: the validity of arrest warrants. This Stapf case from 1994 would seem to overrule Weitzer. Stapf opens the door for a new wave of liberating opinions promoted by brighter litigators. The defendant in Weitzer was in idiot. 2
Searna v Superior Court (1985) 40 Cal 3rd 239 at 254; 219 Cal Rptr. 420, 707 Pacific 2nd 793. This issue is jurisdictional. 1
California Rules of Court cited by Lawyerdude in his commentary herein:
4f4: http://www.lawyerdude.netfirms.com/4f4.html 1 This rule gives you a right to an e-transcript. The equal protection clause requires that the transcript be free if you are indigent. We are all indigent or we would have paid the damn ticket in the first place! 2
Certification for Publication: The opinion in the above entitled matter filed this date is certified for publication pursuant to California Rules of Court, rule 976b and it is therefore ordered published in the official reports.
Signed James (sic) A. Jackman, Presiding Judge - Sitting under assignment by the Chairperson of the Judicial Council.
William F. McDonald, Judge
Dennis S. Choate, Judge
Entered in the register of action on June 27, 1994.
Lawyerdude says: Upon transcribing I have removed footnotes by integrating them into the text. I also upgraded the grammar of Judge Jackman:
We now reverse the five judgments Commissioner Mark Sheedy of the Municipal Court of the Harbor Judicial District of Orange County. [This means that the automobile driver Kurt Stapf wins ! ]
Attorney Mark D. Sutherland and John R. Farris, Jr., appeared for winning defendant appellant driver/ motorist Kurt Stapf.
The following people appeared for the [losing appellant police/ prison industry]:
1 Elected District Attorney Michael R. Capizzi;
2 Chief Assistant District Attorney Maurice L. Evans;
3 Assistant District Attorney Wallace J. Wade;
4 Deputy District Attorney in charge of writs and appeals: Kathleen M. Harper;
5 Deputy District Attorney Gregory J. Robinson.
The following lawyers filed an Amicus Curiae (friend of the court - actually friend of the police/ prison industry) brief on behalf of the Orange County Courts:
6 County Counsel Terry C. Andrus;
7 Deputy County Counsel Edward N. Duran.
Lawyerdude says: Note very carefully that the district attorney argued this case even though the prosecutor was the court! If there was ever any doubt in your mind that the court was rigged in favor of the prosecution in traffic cases, then this alliance proves the point.
The county filed as Amicus. Were the county actually a party they would have had grounds to file as actual counsel.
Judge James Jackman announced the opinion of the court as follows:
These 5 appeals raise a single issue: May a court, pursuant to the authorization of California Penal Code section 959.1 (c) 1 institute a criminal action for the violation of Vehicle Code section 40508a against an individual who signs a promise to appeal after being stopped for a traffic offense and subsequently fails to appear for arraignment?
Vehicle code section 40508a: “Any person willfully violating his or her written promise to appear. . . in court or before a person authorized to receive a deposit of bail is guilty of a misdemeanor regardless of the disposition of the charge upon which he or she was originally arrested”
We hold today that such action by a court is improper because the constitutional separation of powers doctrine forbids courts from instituting criminal actions.
California Constitution, article III, section 3:
“The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this constitution.” - California Constitution.
This is do despite purported legislative permission given in Penal Code section 959.1 c 1. This section purports to allow a clerk of the court to file the accusatory pleading charging a failure to appear, a failure to pay a fine, or a failure to comply with an order of the court. Insofar as it authorizes courts to institute criminal prosecutions, Penal Code Section 959.1 c a is unconstitutional because it violates section 3 of Article 3 of the California constitution.
“959.1. (a) Notwithstanding Sections 740, 806, 949, and 959 or any other provision of the law to the contrary, a criminal prosecution may be commenced by filing an accusatory pleading in electronic form with the magistrate or in a court having authority to receive it. . . . (c) A magistrate or court is authorized to receive and file an accusatory pleading in electronic form if all of the following conditions are met:.. . . . .(1) The accusatory pleading is issued in the name of, and transmitted by, a public prosecutor or law enforcement agency filing pursuant to Chapter 5c (commencing with Section 853.5) or Chapter 5d (commencing with Section 853.9), or by a clerk of the court with respect to complaints issued for the offenses of failure to appear, pay a fine, or comply with an order of the court.”
Factual and Procedural History of this case.
On 5 occasions Defendant Kurt Albert Stapf was cited for violating various provisions of the Vehicle Code. On each occasion he was released after he cited a written promise to appear. He never appeared as promised. After each failure to appear, the court clerk filed a complaint against Stapf pursuant to Vehicle code section 40508a and section 959.1 c. [This is exactly what happened to Lawyerdude resulting in multiple days in jail, thousands in bail bond fees, and disbarment based on this unconstitutional filing by the court clerk. Thank you Theo! I will use this to retroactively undo my disbarment! ] When Stapf ultimately appeared the court found him guilty of 5 violations of Vehicle Code section 40508a. These appeals followed.
The following is the pertinent portion of the engrossed settled statements. They were identical for each of the 5 appeals:
“The only issue presented on appeal involves the court’s computer-generated filing of a Vehicle Code section 40508a charge. Defendant failed to appear for arraignment in violation of his signed promise to do so. In response to defendant’s failure to appear, a computer-generated failure-to-appear charge was added by the Court to the underlying offense(s). The Vehicle Code section 40508a charge was electronically added to the charge(s) listed on the citation by the clerk of court after notification that (appellant Stapf) has failed to appear.”
The underlying traffic charges were disposed of in various ways. Defendant Stapf was found guilty of some and not guilty of some and some were dismissed. In any case, those charges are not pertinent to this appeal except as opportunities for appellant’s failures to appear.
Discussion
The pivotal fact here is not how the failure-to-appear violation was charged - “computer-generated” and “electronically added” - but who charged it. The court clerk charged it, not the district attorney. The only issue is whether a court clerk may initiate an accusatory pleading that invokes the court’s jurisdiction. Penal code section 959.1 c 1 purports to permit the clerk to file but we find that statute unconstitutional in this regard.
Penal Code section 959.1 as amended in 1990 provides, in pertinent part:
“(a) Notwithstanding Sections 740, 806, 949, and 959 or any other provision of law to the contrary, a criminal prosecution may be commenced by fling an accusatory pleading in electronic form with the magistrate or in a court having authority to receive it. . .
(C) A magistrate or court is authorized to receive and file an accusatory pleading in electronic form if all of the following conditions are met:
(1) The accusatory pleading is issued in the name of, and transmitted by, a public prosecutor of law enforcement agency filing pursuant to Chapter 5c (commencing with section 853.5) or Chapter 5de (commencing with section 853.9), or by a clerk of the court with respect to complaints issues for the offences of failure to appeal, pay a fine, or comply with an order of the court.”
The italicized portion was added in 1990. The amendment was explained in the legislative counsel’s digest as follows:
“Existing law provides that a criminal prosecution may be commenced by filing an accusatory pleading in electronic form with the magistrate or in a court having authority to receive it, provided that specified conditions are met, including a condition that the accusatory pleading be issued in the name of, and transmitted by, a public prosecutor or law enforcement agency filing pursuant to specified provisions.
This bill would revise the above condition to provide that the accusatory pleading may also be issued in the name of, and transmitted by, a clerk of the court with respect to complaints issued for the offenses of failure to appeal, pay a fine, or comply with an order of the court.”
Lawyerdude adds: Note well: The criminal laws are written by persons hired by the committees; they are not written by the legislature. The legislature unconstitutionally delegates its lawmaking to a republican/ police/ prison advocate. Observe that it is simply one more agency of the police/ prison/ court industry. This case is an example of a law that was unconstitutional from its inception. Why didn’t the legislative counsel notice that the law was unconstitutional? All these folks are sworn to uphold the constitution.
An accusatory pleading is a necessary prerequisite to the court’s jurisdiction.
Lawyerdude interjects: Aha! So this amounts to a jurisdictional defect! Jurisdiction may be challenged at any time - even 20 years later!
Searna v Superior Court (1985) 40 Cal 3rd 239 at 254 (219 Cal Rptr. 420, 707 Pacific 2nd 793;
City of San Diego v Municipal Court (1980) 102 Cal App 3rd 775 at 778, 162 Cal Rptr 420;
Only the People may file an accusatory pleading.
Hicks v Board of Supervisors (1977) http://online.ceb.com/CalCases/CA3/69CA3d228.htm 69 Cal App 3rd 655 at 659, 138 Cal Rptr 101
People v Smith (1975) 53 Cal App 3rd 655 at 659, 126 Cal Rptr 195;
People v Municipal Court [Pellegrino case from Ventura] (1972) 27 Cal App 3rd 193 at 200, 103 Cal Rptr 645, http://www.lawyerdude.netfirms.com/8453.html
An accusatory pleading charging a violation of Vehicle Code section 40508a is required by Vehicle code section 40513a which provides as follows:
“If, however, the defendant violates his promise to appear in court . . . a complaint shall be filed which shall conform to the provisions of Chapter 2(commencing with section 948) of title 5, Part 2 of the Penal code.” - 49513a
There is no dispute that the “failure to appear” charges in issue originated with the court, not with the district attorney. That is a usurpation of the charging authority that is vested solely in the district attorney. See 4 Witkins and Epstein, California Criminal Law, 2nd Edition, 1989, “Introduction to Criminal Procedure” section 1789-1790.
“The parties to a criminal action are the People, in whose sovereign name it is prosecuted, and the accused . . . The prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor.” - Dix v Superior Court (1991) 53 Cal 3rd 442 at 451; 279 Cal rptr 823; 807 Pacific 2nd 1063.
Pursuant to Article V, section 13 of the California Constitution, the attorney general, an officer of the executive branch of government, is the state’s chief law officer, having”direct supervision over every district attorney . . in all matters pertaining to the duties of their . . offices. . . “
In addition, California Government Code section 26500 provides that “. . . [the district attorney] shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.”
The district attorney, a member of the executive branch of government can and should exercise discretion to decide which cases to prosecute. Esteybar v Municipal Court (1971) 5 Cal 3rd 119 at 127 http://ronfox.250free.com/Esteybar.html 95 Cal Rptr 524; 485 Pacific 2nd 1140. The court clerk is not vested with such discretion.
“Prosecutorial discretion, though recognized by statute in California, is founded upon constitutional principles of separation of powers and due process of law (citations omitted here). The district attorney’s unlimited discretion in the crime-charging function has been uniformly recognized.” (Citations omitted here.) - the court in People v Wallace (1985) 169 Cal App 3rd 406 at 409; 25 Cal Rptr 203. Lawyerdude adds: We call this “the exclusive province of the prosecutor” and “the prosecutorial function.”
The prosecutor enjoys discretion to decline to prosecute even where there is probable cause to believe an individual has committed a crime. Davis v Municipal Court (1988) 46 Cal 3rd 64 at 77; 249 Cal Rptr. 300; 757 Pacific 2nd 11. That discretion would be eliminated if the court, not the prosecutor, were allowed to commence the prosecution since only a court has the authority to dismiss a case once that case has been commenced. People v Municipal Court (Real Party: Pellegrino), above, at page 200.
“Just as the executive may not exercise judicial power, so the judiciary is prohibited from entering upon executive functions.” People v Smith (1973) 53 Cal App 3rd 655 at 660; 126 Cal Rptr 195.
The is also an apparent if not an actual conflict of interest created where the entity charged with adjudicating a criminal prosecution is also permitted to institute it.
Admittedly there is authority supporting “simplified and expeditious procedures for the adjudication of less serious traffic offenses” as mentioned in People v Carlucci (1979) http://www.lawyerdude.8k.com/Carlucci.htm 23 Cal 3rd 249 at 257; 152 Cal Rptr 439; 590 Pacific 2nd 15. It is questionable that the offense of failing to appear fits the definition of “less serious.” Although the offense of failure-to-appear is found in the growing tome [“tome” means “large book”] that is the California Vehicle code book, Section 40508 it is not a minor offense. To the contrary, it is a misdemeanor. (California Vehicle Code section 40000.25) punishable by incarceration for up to 6 months and/ or a fine of up to $1000 pursuant to California Penal Code section 19. Failure to appear may be filed as an infraction by the district attorney, or, with the consent of the defendant, the court may reduce it to an infraction pursuant to California Penal code section 17d and California Penal Code section 19.8.) See Footnote #6.
Footnote #6: Here the trial court deemed Vehicle code section 40508A to be an infraction and there was no indication that appellant district attorney’s consent was given. [Lawyerdude says: The Appellant is not the district attorney; the court has erred in its footnote.] If the “failure-to-appear” charge is left as a misdemeanor, a defendant is entitled to, among other things, a jury trial and, if indigent, court appointed counsel. [Lawyerdude adds: Let’s not forget: He is entitled to a free e-transcript! The rule is rule 4f4: http://www.lawyerdude.netfirms.com/4f4.html ]
The Legislative Counsel’s Digest indicates that the Legislature intended to transfer to the trial court the District Attorney’s authority to initiate “failure-to-appear” cases. The Legislature attempted to do so by its 1990 amendment to Penal code section 959.1 c 1. While the resulting procedure is certainly expeditious, it is unconstitutional. As noted in Davis v Municipal court, above, 46 Cal 3rd at page 76:
“[The] primary purpose of the separation of powers doctrine is to prevent the combination in the hands of a single person or group of the basic or fundamental power of government.” Citations appeared in Davis. - the court in Davis v Municipal Court.
“In our common law judicial system, we rely upon a separation of roles to bring about proper results. The court’s role is to decide cases; the parties’ role is to bring cases before the courts” (citations omitted) Municipal Court v Superior Court (real party: Gonzalez) (1993) 5 Cal 4th 1126 at 1131; 22 Cal Rptr 2nd 504, 857 Pacific 2nd 325.
The People conceded the merits of appellant’s position. County Counsel, in an amicus curiae brief on behalf of the Orange County Municipal Courts, argued that Penal Code §959.1 c 1 merely codifies the court’s inherent power to control its own proceedings, and that to find otherwise would leave the court powerless to react to a contempt of court occurring it its presence until a charge was filed by the prosecutor. Relying on authority allowing the court to order the issuance of an arrest warrant for failure to appear where no complaint charging that offence has been filed (see footnote 7) amicus concludes that the accusatory pleading is ever necessary so long as the offence occurs in the presence of the magistrate. We decline to approve such a potentially extreme proposition.
Lawyerdude says: Aha! I have been saying that bench warrants are a violation of the 4th amendment and the corresponding provision in the state constitution. The court here agrees with me! If a crime has happened then let the court notify the prosecutor. To do otherwise denies equal protection. The crime that would be alleged is Penal Code 166, Failure to Obey a Court Order. PC 166 is an attempt to change the rules of play. Observe that failure to pay a civil judgment results in no PC 166 prosecution except in the case of a restraint order. Note also that the PC 166 accusation in a restraint order would be for an act. By comparison, in all other cases it is for an omission. It is only recently that the police/ prison industry has started prosecuting for an omission. The most glaring example is prosecution for failure to pay income tax or a traffic fine.
Footnote 7: Amicus places primary reliance upon a 1973 opinion by the Attorney General, 56 Opinions of the California Attorney General 165, authority which is “advisory only and does not carry the weight of law.” Mallett v Superior Court (1992) 6 Cal App 4th 1853 at 1869; 8 cal Rptr 2nd 829. That opinion relied upon two appellate court opinions: People v Superior Court (real party: Copeland) http://ronfox.250free.com/Copeland.html (1968) 262 Cal App 2nd 283, 68 Cal Rptr 629, certiorari denied at 393 U.S. 967; and People v Weitzer (1969) 269 Cal App 2nd 274; 75 Cal Rptr 318. http://www.lawyer.gq.nu/Weitzer.html Both cases concerned the validity of arrest warrants and neither opinion addressed the instant issue which is: whether a defendant may be prosecuted for failing to appear where the offense was charged by the court clerk and not the prosecutor.
Disposition
Reverse the portions of he 5 judgments based on the failure to appear.
Signed: James A. Jackman, Presiding Judge, sitting under assignment by the Chairperson of the Judicial Council.
We concur:
Signed: William F. McDonald, Judge
Signed: Dennis S. Choate, Judge
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20. List of my 200 most popular web pages according to Google. http://www.lawyerdude.8k.com/5733.html
21. My winning argument regarding the 1st amendment where I argued the Law to the jury without interruption: http://www.lawyerdude.netfirms.com/5918.html
22. Raid at the Good Nite Inn based on mistake of law by District Attorney: http://www.lawyerdude.netfirms.com/brosnan.html
23. My ongoing battle with the mistaken, oppressive, and political state bar: http://www.lawyerdude.8k.com
24. Lawyerdudes’s biographical page: http://www.lawyerdude.8m.com/mystory.html
25. My LSD story and brief: http://www.lawyerdude.8m.com/5431.html
26. How to work well with Lawyerdude: http://www.lawyerdude.8k.com/contract.html
27. My most important page. My top 10 lists: http://www.lawyerdude.8m.com/5459.html
28. My ideas. My 10 proposed amendments to the bill of rights: http://www.lawyerdude.8m.com/5123.html
29. My home page: http://www.lawyerdude.8m.com Or my mirror site: http://www.lawyerdude.netfirms.com
My biggest fattest briefs:
30. My “state bar acts are unconstitutional!” brief: http://www.lawyerdude.8k.com/3789.html
31. My 100 page LSD brief: http://www.circuitlawyer.8m.com/1170.html Use this for your drug case!
32. My collection of “right to drive” briefs: http://www.lawyerdude.8k.com/right2drive.html
33. Lawyerdude's briefs: http://www.circuitlawyer.8m.com
More Lawyerdude links and Recommended Reading list
34. Lawyerdude’s traffic page: http://www.lawyerdude.8m.com/5259.html
35. Lawyerdude's library. A prioritized reading list. A list of books that farm folk and an enlightened populace should read. Some of these books justify weekly or monthly review - like your Bible - for your own defense. http://www.lawyerdude.netfirms.com/library.html
36. List of links to the Latest uploads from Lawyerdude: http://www.circuitlawyer.8m.com/5673.html
37. Lawyerdude's Contemporary Constitutional Issues: http://www.circuitlawyer.8m.com/5693.html
38. Lawyerdude's links page: http://www.lawyerdude.8m.com/links.html
39. Lawyer’s Manifesto: http://www.lawyerdude.8k.com/5753.html