[Names of attorneys]

1 [Attorneys' business address]

2
[Court name]
3

4
) Case No.: [Case number]
5 [Plaintiff's name], )
) [Pleading title]
6 Plaintiff, )
)
7 vs. )
)
8 [Defendant's name], )
)
9 Defendant )

10

11 Introduction

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13 Defendant demurs to this action under California Penal Code (CPC) §1004.2 and 1004.5.

14 The accusatory pleadings are insufficient because they do not conform to the

15 provisions of CPC §950 et. seq. and California Government Code (CGC) §100. California

16 Vehicle Code (CVC) §40513 allows a defendant to elect to waive due process and make a

17 plea, but the defendant refuses to waive any due process rights and demands proper

18 proceedings under the law.

19

20 Furthermore, because The Notice to Appear has not been verified and no verified

21 complaint has been filed and the defendant demands filing of a verified complaint, CVC

22 §40513 requires the filing of a new verified complaint in this circumstance. The

23 triggering of that filing requirement constitutes a legal bar to all further

24 proceedings under the Notice to Appear and the court must sustain this demurrer to the

25 present action. Any further proceedings would be outside the law, without

26 jurisdiction and would constitute a serious violation of due process. Therefore, the

27 court has a duty to sustain this demurrer under CPC §§1004.2 and 1004.5

28

29 Argument

30

31 Infractions are public offenses and public offenses are prosecuted as criminal

32 actions. CPC §§16, 683. Part 2 of the CPC applies to all criminal actions unless

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 1 specifically excluded. CPC §685. That includes §950 et. seq. regarding the

2 sufficiency of accusatory pleadings. Therefore, the present action is a criminal

3 action subject to the due process requirements of statutory and constitutional law.

5 Insufficiency of Pleadings and Proceedings

6 The Notice to Appear does not meet these requirements. §950 requires several

7 elements, all of which are missing except the name of the defendant.
“The accusatory pleading must contain:
8 1. The title of the action, specifying the name of the court to which
the same is presented, and the names of the parties;
9 2. A statement of the public offense or offenses charged therein.” CPC §950
10
CPC §684 requires that criminal actions be prosecuted “in the name of the people of
11
the State of California.” CGC §100 requires that the style of all process shall be
12
"The People of the State of California." Nothing resembling this language appears on
13
the Notice to Appear.
14

15

16 CPC §959.3 requires that a complaint be sworn to before an officer entitled to

17 administer oaths. The signature of an arresting officer on a Notice to Appear at the
18 scene of an alleged offense is not sworn to before another officer who administers an
19 oath.
20

21 CPC §988 requires that at the arraignment the accusatory pleading itself is read to
22 the defendant and a true copy must be provided to him. Traffic courts do not
23 generally adhere to this procedure.
24

25 Requirement to File Verified Complaint

26 The proceedings of the court in this case clearly do not meet the due process
27 requirements of the statutes or the constitution. The legislature has made provisions
28 under CVC §40513 to allow defendants in such cases to voluntarily waive due process
29 rights, but protects those rights if the defendant does not clearly intend to waive
30 those rights. Otherwise, these proceedings would be violative of due process and
31 therefore prohibited by law. §40513 achieves this by allowing the defendant to plea,
32

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 1 but mandating the filing of a new verified complaint unless the defendant pleads

2 guilty or nolo contendere.

“If, however, the defendant violates his or her promise to appear
3 in court or does not deposit lawful bail, or pleads other than
“guilty” or “nolo contendere” to the offense charged, a complaint
4 shall be filed that shall conform to Chapter 2 (commencing with
Section 948) of Title 5 of Part 2 of the Penal Code, which shall be
5 deemed to be an original complaint, and thereafter proceedings shall
be had as provided by law…” CVC §40513(a)
6

7 Clearly, the legislature intends to ensure that normal criminal procedure is followed

8 unless the defendant affirmatively waives that right. The defendant in this case does

9 not waive that right.

10

11 Furthermore, the defendant may also trigger the requirement to proceed on a verified

12 complaint by requesting it at the arraignment.

“If the notice to appear is not verified, the defendant may, at the time
13 of arraignment, request that a verified complaint be filed.” CVC §40513(b)
14

15 Here the legislature has provided a mechanism for the defendant to affirmatively
16 assert his due process rights and require the court and the prosecution to follow
17 proper criminal procedure. This demurrer constitutes the assertion of those rights,
18 and the court must comply and require the prosecution to file a verified complaint
19 before any action may proceed.
20

21 Termination of the First Action

22 The direct consequence of invoking the filing requirement is that the first action –
23 i.e. the action inititiated by the filing of the Notice to Appear - immediately
24 becomes null and void, and the court loses jurisdiction to proceed further with it.
25 It would be absurd for the court to allow the present action to proceed when the law
26 requires that a new complaint be filed. The legislature made it clear that the new
27 complaint is to be deemed an “original complaint”. Therefore, it is a new action, not
28 a continuation of the original action.
29

30 Furthermore, allowing the current action to proceed would relieve the prosecution of
31 the requirement to file a verified complaint. The original action would proceed,
32 avoiding the provisions of CVC §40513 altogether. The violations of due process would

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 1 be allowed to stand in the face of the defendant’s refusal to accept them. This is

2 also absurd and in direct conflict with the statutes and the constitution.

4 The only reasonable interpretation of the law, therefore, is that the first action

5 must terminate as a matter of law when the new filing requirement arises.

6 Consequently, the court loses jurisdiction to proceed on the first action, and must

7 dismiss it.

9 The court also lacks jurisdiction with regard to the new complaint before it is filed.

10 Therefore, the court is, at the present time, completely without jurisdiction in this

11 matter, and is barred from proceeding.

12

13

14

15 Conclusion

16

17 The due process rights of the people are guaranteed by both statute and the state and

18 federal constitutions in all actions, including infractions. This includes the right

19 to proper proceedings and sufficiency of the accusatory pleading. The defendant has

20 shown that the proceedings in this case are insufficient and violative of due process.

21 The defendant has also shown that the requirement for the filing of a new complaint

22 has arisen and necessarily terminates the first action under the Notice to Appear.

23 Because the pleadings are insufficient and there is legal bar to further proceeding,

24 the conditions of CPC §§1004.2 and 1004.5 have been met. For these reasons, the court

25 has a duty to sustain this demurrer to the present action as a matter of law, and is

26 without jurisdiction to proceed further.

27
Dated this [Date]
28 ____________________________
[Attorneys' address]
29 [Attorneys' names]
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