Enrique Meyers

1 4107 S. Budlong Ave.

Los Angeles California [90037]
2

4 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

5 SECOND APPELLATE DISTRICT

6 DIVISION __________

7 _________

8 Meyers Court Case No:

9 Petitioner, in pro per.
10 Citation No:
11 vs. PETITION FOR WRIT
12 OF PROHIBITION
13 Los Angeles County Superior Court Date:
14 Respondent. Time:
15 Word Count:
16
TERM
17

18

19
FOR THE SECOND APPELLATE DISTRICT: To the honorable presiding Justice and the
20
honorable associate Justices of the Court of Appeal of the State of California, for the Second Appellate
21
District, GREETINGS:
22
The petitioner, Meyers, hereinafter Petitioner, is hereby moving this Honorable Court for a Writ of
23
Prohibition directed to Respondent, Los Angeles Metropolitan Superior Court division 70 to QUASH
24
NOTICE TO APPEAR #333333 for lack of jurisdiction. Petitioner has no right of appeal from the
25

Page 1 of 38
 1 Commissioner and Superior Courts denial of Petitioner verified Motion to dismiss at arraignment and

2 does not have a plain, speedy, and adequate remedy at law other than the relief sought in this petition.

3 This writ of Prohibition is an appropriate remedy to arrest the proceedings of a court or inferior tribunal

4 when there is no plain, speedy, and adequate remedy in the ordinary course of the law and when the

5 proceedings of the court or other inferior tribunal are without or in excess of its jurisdiction. Petitioner

6 has met his obligation to appear in court under Titus in Special Appearance (see: Titus infra) and after

7 refusing to enter a plea, the Municipal court Commissioner Ruben entered a plea of not guilty for the

8 accused, in which Petitioner objected and as a result, the plaintiff has chosen not to prosecute by not

9 filing a verified complaint to establish the jurisdiction of the court, with which Petitioner may consider

10 plea other than "guilty", "nolo contendere" or "not guilty" as required by C.V.C., Section 40513(a) and

11 (b), Penal Code Sections 740, 949, 950, 959, 691(d), 691(e), Civil Code, Section 3531, (see also:Ralph v.

12 Police Court, 84 C.A.2d 257, and Grafft v. Merrill Lvnch, Pierce, Fenner & Beane, 273 C.A.2d 379,

13 Bradley v. Lacey, 53 Cal.App.4th 883, 61 Cal.Rprtr.2d 919 [March 1997.].)

14 Titus v. Superior Court (1972) 23 Cal.App.3d 792, 797-798 [100 Cal.Rptr. 477]

15 Stating:

16 "A 'special appearance' is made when the defendant appears in court for sole purpose of

17 objecting to lack of jurisdiction over his person without submitting to such jurisdiction."

18 (Emphasis added.)

19 Petitioner is unquestionably entitled to relief from the unlawful judgment by both the Commissioner and

20 the Superior court.

21

22

23

24

25

Page 2 of 38
 1 BRIEF STATEMENT OF THE CASE

2 Prior to the initial arraignment and to this date March 8 th, 2011, Petitioner has not been served with a

3 Accusatory complaint so that a plea of "guilty or "nolo contendere" or "not guilty" may be considered by

4 him, nor has Petitioner waived the filing of the Accusatory Complaint.

5 Therefore through lack of proper procedure the plaintiff in this matter has deliberately chosen not to

6 prosecute this case hence fails to establish jurisdiction. By not filing a ‘verified complaint” there is no

7 valid charging document before Petitioner to consider entering plea to, nor is a commissioner authorized

8 to enter a not guilty plea on behalf of the accused Petitioner without violation of constitutional

9 procedural protections, specifically, in part, where California Vehicle Code (CVC hereinafter) 40513

10 sections (a) and (b) mandates that any accused may reserve the right not to enter a plea at all for the

11 purpose to be served with a verified complaint to challenge the charging document and reserve all rights.

12 In August on the 27 day of 2010, as Petitioner1 can best recall, was charged with CVC Violations of:

13 a). 14601. (a)- Driving When Privilege Suspended or Revoked.

14 b). 16028 (a)- Driving without proof of insurance.

15 c). 4000(a) (1) -No Evidence of Current Registration, and;

16 d). 4462.5 - Unlawful Display of Evidence of Registration.

17 Petitioner was handcuffed arrested and held in custody on four misdemeanors and afterwards made a

18 request for a verified complaint under California Vehicle code section 40513 (a) and (b) by mail on two

19 separate dates. On arraignment before the magistrate court Petitioner provided Commissioner with a

20 Motion asking for the complaint and information to be verified by oath, inter alia. The Commissioner

21 denied the Petitioner’s motion following his review and went forward to assume jurisdiction entering a

22 plea of not guilty for the Petitioner and against Petitioner’s objections. On the day, under constructive

23 custody, that Petitioner was, charged as a general appearance, to appear before the Superior court,

24 Petitioner again made a request for a verified complaint under special appearance and was denied

25 1
Petitioner’s Copy of the Notice to Appear was taken and not returned to him from
the deputy of the court at Petitioner’s first arraignment.

Page 3 of 38
 1 against his objections of Courts lack of jurisdiction. Petitioner then filed a Writ of Prohibition and on

2 02/91/2011 with the Superior court of Appeals pleading extended facts surrounding those in the

3 Motions including further arguments and on 02/07/2011 the Petitioner’s Writ of Prohibition was denied

4 without opinion. Petitioner hoped that the Superior Court of Appeals would order a response from the

5 Respondent to show cause so to argue and show the facts that surround the matter as described herein

6 and the attached APPENDIX, Exhibits. The absence of jurisdiction is a crucial matter, that of a definite

7 potential of causing an egregious effect against Petitioner’s naturally inherited and inalienable rights not

8 to be held in jeopardy of trial. Because the court lacks jurisdiction, following judgments and proceedings

9 are absolutely null and void respectively. Accordingly, the Court should issue a writ of prohibition and

10 grant Petitioner relief, barring the Superior Court from further proceedings by quashing the notice to

11 appear under the principles of fair play and justice and a stay from further proceedings of the Superior

12 Court until a determination can be made by this court. Due to the fact under the present conditions it is

13 Petitioner firm belief from experience with the arresting officers in this case, that the arresting officer

14 will change his statements as to probable cause for the arrest petitioner plead his Writ of Prohibition to

15 state what was necessary to be heard on the merits. Since then other statements from the officer has

16 been made for the record.

17
STATEMENT OF JURISDICTION
18

19 CALIFORNIA CONSTITUTION ARTICLE 6 JUDICIAL SEC. 10.

20 The Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in

21 habeas corpus proceedings. Those courts also have original jurisdiction in proceedings for extraordinary

22 relief in the nature of mandamus, certiorari, and prohibition. The appellate division of the superior

23 court has original jurisdiction in proceedings for extraordinary relief in the nature of mandamus,

24 certiorari, and prohibition directed to the superior court in causes subject to its appellate jurisdiction.

25

Page 4 of 38
 1

3 ISSUES PRESENTED

4 This Original Petition presents four issues for the Court’s review:

5 1. CALIFORNIA VEHICLE CODE 40513 (b) REQUIRES THAT IF A NOTICE TO

6 APPEAR IS NOT VERFIED THE DEFENDANT MAY REQUEST THAT A VERIFIED

7 COMPLAINT BE FILLED.

8 2. DURING ARREST FOLLOWING A TRAFFIC STOP, CAN AN ACCUSED WAIVE A

9 VERIFIED COMPLAINT WITHOUT MIRANDA WARNINGS WHEN A SIMPLE

10 COMPLAINT CHECK BOX SCHEME GUISED AS A NOTICE TO APPEAR

11 MANDATES OTHERWISE?

12 3. CVC 40513 IS UNCONTITUTIONAL AND A VIOLATION OF THE SEPREATION OF

13 POWERS CLAUSE

14

15

16 PROCEDRUAL HISTORY

17 To this date February 8th,, 2011, Affiant has not been served with a verified complaint so that a plea of

18 "guilty or "nolo contendere" or "not guilty" may be considered by him, neither has Affiant waived the

19 filing of the Verified Complaint.

20 Therefore through lack of proper procedure the plaintiff in this matter has deliberately chosen not to

21 prosecute this case and establish the jurisdiction of this court.

22 By not filing a verified complaint there is no valid charging document before Petitioner to consider

23 entering plea to, nor does the commissioner have the authority to enter a not guilty plea on behalf of the

24 accused specifically where California Vehicle Code (CVC hereinafter) 40513 sections (a) and (b)

25

Page 5 of 38
 1 mandates that any accused "may" reserve the right not to enter a plea at all for the purpose to be served

2 with a verified complaint to challenge the charging document and reserve all rights.

3 Prior to the date where Petitioner were to appear before Traffic Court Division 61, of the Los Angeles

4 Metropolitan Court on October 15th of 2010, Petitioner requested an extension and was granted to

5 appear on December 23rd of 2010 at 1:30. p.m.2

6 On November 29th of 2010, Petitioner served, by Certificate Of Service through United States Postal

7 Mail Box and mailed by a non-party to action, to the Commissioner’s office 3 and the District Attorney's

8 Office4 a Request for Wavier of Court fees and Cost 5, and Notice of Motion and Motion by the accused for

9 Verified Complaint and Notice of Unconscionable Contract: Points and Authorities in Support thereof6.

10 (Motion1 hereinafter)

11 On December 22nd of 2010, after not receiving an expected affirmation from the Clerk’s Office that

12 Petitioner’s Fee Waiver and Motion1 had been received, Petitioner then sent by U.S. Postal Service with

13 Return Receipt and Express overnight mail7, the same Fee Waiver and Motions, hereinafter Motion1.

14 Petitioner thought to try again and did so assuming that the lack of the Clerks response to Petitioner’s

15 service of Motions may have been due to unrecognizable Rules or other codes of Court procedure.

16 It was intended by Petitioner also that Motion1 were only to be received and filed on or before the hour

17 of 1:30 p.m. of December 23rd, 2010 when Petitioner was to appear in court.

18 The U.S. Postal Services had assured Petitioner that the service would be made before 12:00 p.m. of

19 December 23rd, 2010.

20

21

22
2
See: Exhibit “A”: Requested for Extension (1 page)
23 3
See: Exhibit “B”: Certificate Of Service for Commissioner Office (1 page)
4
See: Exhibit “C”: Certificate Of Service for District Attorney's Office (1 page)
24 5
See: Exhibit “D”: Request for Wavier of Court fees and Cost. (2 pages).
6
See: Exhibit “E”: Notice of Motion and Motion by the accused for Verified Complaint and Notice of
25 Unconscionable Contract: Points and Authorities in Support thereof. (12 pages. Div. 61. Date:11/26/2010.)
7
See: Exhibit “F”: U.S. Postal Service with Return Receipt and Express overnight mail. (1 page)

Page 6 of 38
 1 However, although the Motion1 and Fee Waiver did reach the Court House at approximately 10:00 a.m.,

2 they were left and not signed until 8:22 am on December 27, 2010 by T YOUNG according to the U.S.

3 Postal Service Track and Confirm Records.8

4 Upon Petitioner’s arrival in Court, he made several attempts to have the Motion1 filed with the Clerk’s

5 office who gave the name of Rene to Petitioner.

6 Then later while in the court room, waiting for the judge to call, Petitioner was transferred from Division

7 61 to Division 60. Upon arrival in Division 60, Petitioner asked the Clerk of the Court who gave a name

8 of Yolanda to Petitioner, to submit his Motion1 for filing.

9 Eventually it was both Clerks, of who decided to refuse to file Motion1, gave different statements for

10 refusal. That were premised on unfounded reasons which neither Clerk ever provided Petitioner with

11 any reference to Rules that would allow the Clerks to refuse to file Petitioner’s Motions. In which

12 Petitioner only whishes were simply to establish a record on the 23rd day of December, 2010 of his

13 previous efforts to provide proper submission of his motions and fee waiver to the court.

14 However, Petitioner was directed by Division 60 Clerk Yolanda?, to return to Court on the 28th day of

15 December, 2010 at 10:00 a.m., in which Petitioner made his appearance bringing along with him

16 witnesses in the Court of Commissioner Ruben?.

17 On the 28th, day of December 2010, Petitioner was called by the Commissioner where Petitioner

18 immediately informed the court, that Petitioner appearance was special one under Titus9 so to challenge

19 the jurisdiction of the court and not waiving the filing of a verified complaint.

20 Petitioner at that time provided both the Prosecuting Attorney and the Court Commissioner with his

21 Motion dated 12/28/201010 (Motion2 hereinafter) at which point the Commissioner received and

22

23 8
See: Exhibit “G”: U.S. Postal Service Track and Confirm Records. (1 page).
9
Titus v. Superior Court (1972) 23 Cal.App.3d 792, 797-798 [100 Cal.Rptr. 477] Stating:
24 "A 'special appearance' is made when the defendant appears in court for sole purpose of objecting to lack of jurisdiction over his
person without submitting to such jurisdiction." (Emphasis added.)
25 10
See: Exhibit “H”: Notice of Motion and Motion by the accused for Verified Complaint (December 22nd of 2010).

Page 7 of 38
 1 sometime afterwards, recessed so to examine Petitioner Motion2. Petitioner’s Motion2 offered the

2 prosecutor and additional 10 days to file a verified complaint.

3 (See also Exhibit “I”11, Return Receipt. Were it was a few days after the 28 th of December 2010, that

4 Petitioner had received the Return Receipt)

6 Upon the Commissioners return to the bench, the Commissioner denied Petitioner Motion2 at which

7 point Petitioner objected, and then the commissioner went forward to enter a plea of not guilty for

8 Petitioner against Petitioner’s objections, stating that the commissioner could not enter any plea on

9 behalf of Petitioner against his objections. The Commissioner then went forward to set a date of January

10 10, 2010 at 8:00 a.m., for Petitioner to appear to Division 70 in the Superior Court of the Los Angeles

11 County, Metropolitan Division.

12

13 On the 10th day of January, 2010 sometime following the Petitioner’s arrival at the court, he was called

14 by the judge. At which point, Petitioner immediately told the court that his appearance was a special one

15 under Titus and provided the Court with his request for a verified complaint further informing the court

16 that Petitioner has not waived such filing to be submitted by the Prosecutor.

17 The court then refused Petitioner motion2 and stated the record had shown that Petitioner had pleaded

18 not guilty.

19 Petitioner objected to the Judge's denial of his Motion2, and objected to that of the judge acceptance of

20 the Commissioners plea of not guilty entered by the Commissioner for Petitioner. However, the Court

21 did agree the Petitioner has a Motion for suppression of evidence after hearing Petitioner’s argument

22 that if the Notice to Appear was a verified complaint it would be a violation of both Miranda, and his

23 right not to be compelled to be a witness against himself for the fact the Petitioner signature was given

24 under duress since the code provides that Petitioner will go directly to jail if he did not signed. (See:

25
11
See: Exhibit “I”:United States Postal Service Return Receipt ().

Page 8 of 38
 1 Attached entitled: “NOTARIZED AFFIDAVIT IN SUPPORT OF PETITION FOR WRIT OF

2 PROHIBITION”).

3 On February 03rd, 2011 Petitioner file a Writ Of Prohibition with the APPELLATE DIVISION OF THE

4 SUPERIOR COURT12 and it was denied without opinion on February 07th, 201113.

5 On February 08th, 2011, Petition was provided with a WITNESS INTERVIEW FORM containing a

6 hearsay statement from the arresting officer.14

10

11

12

13

14

15

16

17

18

19

20

21

22
12
See: Exhibit “J:: PETITION FOR WRIT OF PROHIBITION (February, 03, 2011).
23
13
See: Exhibit “L”: DENIAL OF WRIT OF PROHIBITION (February, 07, 2011).
24
14
See: Exhibit “M”: WITNESS INTERVIEW FORM (February, 08, 2011).
25

Page 9 of 38
 1

3 STATEMENT OF FACTS

5 Petitioner was pulled over by the Los Angeles police for several California Vehicle Code violations where

6 the officer alleges that he ran Petitioner’s license plates. During the time of arrest Petitioner was asked

7 the usual questions: proof of insurance, Driver license, and proof of Registration. For no reason given by

8 either officer, petitioner was pulled from his car by police hand cuffed and told by the officer that he was

9 under arrest for “stealing a registration tag”. Petitioner was then searched by the officers who removed

10 from his pockets all items of property placing them on the hood of Police vehicle and immediately

11 afterwards petitioner was placed in the back seat of the officers patrol car. Petitioner never gave his

12 consent to search his vehicle whereas the officers proceed to search nor did either officer request

13 permission from petitioner for the same. The arresting officer attempted to provoke Petitioner to anger

14 with degrading statements sought to impress upon the Petitioner mind that Petitioner did not deserve

15 any dignity.

16 Petitioner informed the officer that his rights were being violated where there was no cause for the

17 custodial arrest nor the officer’s verbal threats and physical abusive conduct. The officer exclaimed that

18 he had rights also. Following the search of Petitioner’s car, the officer then removed the petitioner from

19 the patrol vehicle and walked the petitioner to the front of it then demanded of Petitioner to sign a

20 Notice to Appear, at which point the petitioner refused and demanded of the officer to take him to jail.

21 Petitioner, while sometime after being returned and replaced in the back seat of the patrol car, the

22 arresting police officer’s partner then began to “talk” to petitioner, among other things, stated that

23 Petitioner should just sign the ticket. For fear of further threats and physical abuse from the arresting

24 officer, the Petitioner then signed the Notice to Appear whereas, at that point in time the petitioner was

25 free to walk home after Petitioner’s car was impounded. As soon as Petitioner returned home Petitioner

Page 10 of 38
 1 contacted the Police Department and filed a complaint, where he gave a recorded statement and pictures

2 were taken of his wrist with deep handcuff indentations, (still today Petitioner has nerve damage in his

3 right arm) while still visible. Due to the facts that actually transpired during the events of arrest and

4 under the present conditions it is Petitioner firm belief from experience with the arresting officers in this

5 case, that the arresting officer will change his statements as to probable cause and reasonable suspicion.

6 Thus, for this reason the Petitioner pleads his Writ of Prohibition to state what was necessary and what

7 is necessary now to be heard on the merits. In the light of following Petitioner’s first Appeal in the

8 Superior Court, statements from the arresting officer have been made for the record to the city

9 prosecutor’s “Interviewer”. Although hearsay and untruthful to the actual facts, the officers statements

10 are attached hereto. Petitioner’s has divulged extra statement of facts herein in accord, but will restrain

11 from other facts due to matters that would further deprive this petitioner to a fair and just outcome.

12 Whereas the petitioner has to provide the City attorney with a copy of this Writ and petitioner has

13 witnessed where the Prosecutor has written notes for his “Interviewer” to provide to the Police Officer

14 prior to given his statement to the “interviewer” while in court on the 8th day of February, 2011.

15

16 ARGUMENT

17 CALIFORNIA VEHICLE CODE 40513 (b) REQUIRES THAT IF A NOTICE TO APPEAR IS NOT

18 VERFIED THE DEFENDANT MAY REQUEST THAT A VERIFIED COMPLAINT BE FILLED.

19 The issue here is that the court is not authorized to go forward and force the Petitioner to trial where

20 the courts lacks jurisdiction to do so in accordance with California Vehicle Code (CVC hereinafter)

21 40513. It has been long held that a complaint and information must be verified:

22 “To render a valid judgment, a court must have jurisdiction over the subject matter and

23 of the person of the defendant. Jurisdiction of the subject matter is derived from the

24 law; it neither can be waived nor conferred by consent of the accused. Inherent in

25 subject matter jurisdiction is the power to inquire into the facts, to apply the law and to

Page 11 of 38
 1 declare the punishment.” (21 Am.Jur.2d, §§ 376, 379, pp. 398-399, 400.) Burris v.

2 Superior Court , 43 Cal.App.3d 530, id at 537.

3 In Ralph v. Police Court, the court stated:

4 “Thus it is quite apparent that whether the arrested person is taken immediately before

5 a magistrate, or is given a five-day notice to appear and pleads not guilty and does not

6 waive the requirement, a complaint under section 1426 of the Penal Code "must" be filed.

7 Unless waived, as provided by statute, the filing of such complaint is essential to the

8 jurisdiction of the police court. That has been the law of this state for many years. It was

9 stated as follows in the case of In re Williams, 183 Cal. 11, 12 [190 P. 163]: "It goes

10 without saying that it is essential to the jurisdiction of a police court to put a person upon

11 trial for a public offense that there should be on file therein a complaint charging such

12 person with the commission of such offense." (See, also, People v. Brussel, 122 Cal.

13 App.Supp. 785 [7 P.2d 403].)

14 It is also the law in other jurisdictions. The rule, supported by many authorities, is stated as follows in

15 22 Corpus Juris Secundum pages 456, 457, section 303:

16 "The term 'complaint' is a technical one descriptive of proceedings before magistrates. It

17 is and has been defined to be the preliminary charge or accusation against an offender,

18 made by a private person or an informer to a justice of the peace or other proper officer,

19 charging that accused has violated the law. It has also been defined as a preliminary

20 charge before a committing magistrate; . . . The complaint is the foundation of the

21 jurisdiction of the magistrate, and it performs the same office that an indictment or

22 information does in superior courts." (See, also, cases collected 16 C.J. ? 492 p. 286.)”

23 Ralph v. Police Court, 84 CalApp2d 257 id at 259 (1948)

24 As it follows:

25

Page 12 of 38
 1 A notice to appear that is filed with the court serves as a verified complaint to which the

2 defendant-motorist may plead guilty or no contest. CVC §40513(a).

3 If the defendant violates his or her promise to appear or enters a plea other than guilty or no

4 contest, a verified complaint conforming to the requirements of California Penal Code (PC hereinafter)

5 §§948–964 must be filed, unless the defendant executes a written waiver of this requirement and an

6 election to proceed on the notice to appear. CVC §40513(a).

7 Notwithstanding CVC §40513(a), if the notice to appear was prepared on a form approved by the

8 Judicial Council, a duplicate copy of that notice filed with the court constitutes a verified complaint to

9 which the defendant may enter any plea, i.e., a plea of guilty, a plea of no contest, or a plea of not guilty.

10 CVC §40513(b).

11 The notice to appear may be filed in place of a formal, verified complaint even if the defendant

12 pleads not guilty and the case proceeds to trial. People v Barron (1995) 37 Cal. App. 4th Supp 1, 3–5, 44

13 Cal. Rptr. 2d 348. See Heldt v Municipal Court (1985) 163 Cal. App. 3d 532, 537–539, 209 CR 579

14 (notice to appear also constitutes valid complaint under PC §853.9).

15 If the notice is verified, a warrant may be issued on it. If it is not verified, the defendant may

16 request at the time of arraignment that a verified complaint be filed. CVC §40513(b).

17 There is no right to a verified complaint when the citation is issued, thus signed by the accused

18 on a form approved by the Judicial Council. See People v Barron, supra, 37 Cal. App. 4th Supp. at 3–5. A

19 defendant who contends that the notice to appear is defective must raise the issue before trial by filing a

20 demurrer. See PC §§1004(2), 1012; People v Gomper (1984) 160 Cal. App. 3d Supp 1, 8–9, 207 Cal. Rptr.

21 534." (See also : California Judges Bench Guides, Benchguide 82 - Traffic Court Proceedings) "

22 "Before the enactment of subdivision (b), a number of reported decisions held that a trial court does not

23 have jurisdiction to proceed if the defendant purports to enter a not guilty plea upon a citation-

24 complaint."People v. Gomper (1984) 160 Cal.App.3d Supp. 1 ,7 [207 Cal.Rptr. 534]).

25

Page 13 of 38
 1 Here, the anomaly lies in the proposition that if “[a] statute does not trump the Constitution" [see People

2 v. Ortiz (1995) 32 Cal.App.4th 286 id at 295 FN2] then how is a "...traffic misdemeanor" of a public

3 offense, prosecuted in a criminal action, without availability of a verified complaint and information

4 constitutional ? [See also Cal Gov. Code §26500]

5 Specifically where all Crimes and public offenses include:

6 1. Felonies;

7 2. Misdemeanors; and

8 3. Infractions.

9 (see: Penal Code section 16)

10 In PC 691§(c) initially defines the word "accusatory pleading" so to be used as an aid to clarify the

11 meaning and intent of legislators as guidelines and what direction of procedures are required by the

12 arraigning court. With who is ultimately left to decide whether the instrument conforms to the

13 requirements of section 740 in lawful relation to that required in 40513 (b) as a verified complaint in all

14 proceedings akin to those of public offenses.

15 However, as mentioned in the above preceding case and Judges Bench Guides, Bench guide 82

16 for Traffic Court Proceedings, precondition constraint to any questions by a defendant that arise from

17 the complaint at arraignment. Hence, the court is to rebuff any questions as if they derive from merely a

18 minor procedural matter.

19

20 Which tends allow and magistrate to ignore also, that any arraignment would inherently include, the

21 accused rights as described in PC 871 and 872.

22 Section 872.

23 "(a) If, however, it appears from the examination that a public offense has been

24 committed, and there is sufficient cause to believe that the defendant is guilty, the

25 magistrate shall make or indorse on the complaint an order, signed by him or her, to the

Page 14 of 38
 1 following effect: “It appearing to me that the offense in the within complaint mentioned

2 (or any offense, according to the fact, stating generally the nature thereof), has been

3 committed, and that there is sufficient cause to believe that the within named A. B. is

4 guilty, I order that he or she be held to answer to the same. [Citation]”

6 PC section 807 defines a magistrate as "an officer having power to issue a warrant for the arrest

7 of a person charged with a public offense.”

8 “ A magistrate has the additional function, limited by statute, of determining whether there is sufficient

9 or probable cause to hold an accused for trial." (People v. Uhlemann (1973) 9 Cal.3d 662, 667 [108

10 Cal.Rptr. 657, 511 P.2d 609]; Pen. Code, ? 871, 872.)(People v. Columbia Research Corp. (1980) 103

11 Cal.App.3d Supp. 33 , 38 [163 Cal.Rptr. 455] )

12

13 There remains that quiescent mouse, PC section 959.1.(a). For the uninitiated, this section

14 provides that "Notwithstanding Sections 740, 806, 949, and 959 or any other law to the contrary a

15 criminal prosecution may be commenced by filing an accusatory pleading in electronic form with the

16 magistrate or in a court having authority to receive it." It seems that if this section stands for any

17 purpose at all, it will bar the argument that misdemeanors related to traffic are somehow to be afforded

18 disparate treatment from that governing misdemeanors generally.

19 However it has been said that "The whole statutory pattern makes it clear that the "notice to appear"

20 referred to in CVC section 853.9, subdivision (b) means nothing more nor less than a "citation" or

21 "ticket" signed by the citee and incorporating his promise to appear in court." Gomper (supra), id at p. 6.

22 The obvious purpose that an accused is entitled to information is that the principles of burden

23 rest on the complainant at the outset of the action to manifest evidence that the arrest is based on

24 reasonable suspicion to support probable cause.

25

Page 15 of 38
 1 "The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave

2 offenses, and to relieve the accused of the degradation and the expense of a criminal trial. Many an

3 unjustifiable prosecution is stopped at that point, where the lack of probable cause is clearly disclosed."

4 (Jaffe v. Stone, 18 Cal.2d 146, 150 [114 P.2d 335, 135 A.L.R. 775].)

6 The list of cases with Gomper, Heldt and Barron (supra) would suggest that there is no right to a verified

7 complaint regardless if an accused "during the time of his arraignment request that a verified be filed."

8 (Id, at CVC section 40513, subdivision (b))

10 The Gomper court has pointed out that procedurals errors will not permit a jurisdictional claim. "The

11 California Constitution and the Penal Code make it abundantly clear that, except in extraordinarily

12 compelling cases, judgments are not to be reversed for procedural errors. (Cal. Const., art. VI, § 13; Pen.

13 Code, §§ 960, 1258, 1404 and 1469.) fn. 6" (Id, at p. 9)"

14

15 However, in all, Gomper, Heldt, and Barron, the defendant's had provided the courts with a plea

16 whereas the Petitioner in this matter did not (See: Petitioners Affidavit in support of Writ of Prohibition)

17

18 California Penal Code - Section 1404. States:

19 "Neither a departure from the form or mode prescribed by this Code in respect to any pleading or

20 proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the

21 defendant, or tended to his prejudice, in respect to a substantial right."

22

23 Thus, if Petitioner's right to a verified complaint is not granted in accord with 40513(b) which states in

24 part:"during the time of his arraignment request that a verified be filed." indicates that the notice to

25 appear is not just a notice as the court Gomper describes, but contains a mandatory implicit language

Page 16 of 38
 1 that is determined to be a waiver of the right upon the accused signing the notice to appear without fully

2 understanding the potential adverse implications prior to waving their rights.

4 Moreover, the Constitution does not require a preliminary hearing; it is mostly a legislative construct:

5 "As the preliminary hearing itself is not constitutionally required, it follows that there are

6 no constitutionally-required procedures governing the admissibility of hearsay at

7 preliminary hearings." Peterson v. California, 604 F.3d 1166, 1169 (2010).

9 However there is a constitutional right to a probable cause hearing: Peterson citing "Whitman reasoned,

10 the preliminary hearing itself is not constitutionally mandated. Id. at 271 ("[O]ther than the probable

11 cause hearing held to justify continued detention of the accused [analyzed under the Fourth

12 Amendment], there exists no federal constitutional right to a preliminary hearing to determine whether

13 a case should proceed to trial." (Emphasis in original)); see also Ramirez v. Arizona, 437 F.2d 119, 119-20

14 (9th Cir.1971) ("The Federal Constitution does not secure to a state court defendant a right to a

15 preliminary hearing."). “(Ibid.)

16

17 To arrive at the point of the necessity in probable cause hearings, following a traffic stop in Ohio a Mr.

18 Pyle was arrested and taken into custody apparently at some point followed an interrogation in which he

19 was not provided his Miranda warnings.

20 Upon the end, Ohio Supreme court long winded opinion the court held that Pyle was not protected by

21 the procedural safeguards provided under Miranda due to the fact that his charge was a misdemeanor:

22 "In the great majority of misdemeanor cases (traffic offenses), the offense has taken place in the

23 presence of the arresting officer. Nearly all interrogation occurs, as in the instant case, at or near the

24 scene of the infraction, not in any coercive atmosphere created by the law enforcement authorities." The

25 State of Ohio v. Pyle 19 Ohio St. 2d 64, 67 (1969)

Page 17 of 38
 1

2 However, by a single dissenting opinion Justice Duncan stated, in part:

3 "Although the practical result of the application of the rule of Miranda v. Arizona, 384 U. S. 436, may be

4 an added strain on the physical facilities and manpower of law enforcement agencies, I cannot agree that

5 the rule is inapplicable to misdemeanors. As I understand that case, the Supreme Court of the United

6 States has provided certain procedural safeguards to secure the privilege against self-incrimination,

7 guaranteed by the Fifth Amendment to the United States Constitution. A reading of the Miranda case

8 does not reveal facts from which I can conclude that misdemeanors are outside the scope of these

9 procedural safeguards. Contrary to the view of the majority, I believe that, since the Miranda decision

10 does not specifically exclude misdemeanors, they are to be included." (Id, at P.69)

11

12 Years later, the courts agreed with Justice Ducan. Following an argument, the Petitioner in McCarty

13 sought of the Court to consider that "law enforcement would be more expeditious and effective in the

14 absence of a requirement that persons arrested for traffic offenses be informed of their rights". The court

15 in McCarty went on to say:

16 "The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or

17 trick captive suspects into confessing, to relieve the "`inherently compelling pressures' " generated by

18 the custodial setting itself, " which work to undermine the individual's will to resist,' " and as much as

19 possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact,

20 whether particular confessions were voluntary. Those purposes are implicated as much by in-custody

21 questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of

22 felonies." Berkemer, Sheriff of Franklin County, Ohio v. McCarty, 468 U.S. 420 (1984) Id at P. 433.

23

24 Thus, if petitioner does not have the right to a verified complaint which as suggested in the above cases

25 [Gommper, Heldt, Barron] implicitly waives his right to a probable cause hearing at the arraignment

Page 18 of 38
 1 stage before being slated over to trial, at what point in the administrative proceedings, or executive

2 proceedings for a better word, did he waive his right?

4 Where there was only one time that this Petitioner was read his rights, being at his arraignment where I

5 was denied both: the right to a verified complaint and my request for a probable cause hearing.

6 Furthermore a plea of not guilty was entered into the Clerk's check box records by the commissioner,

7 against my objections. I still have refused to offer any plea till this day and any day afterwards in this

8 matter.

9 DURING ARREST FOLLOWING A TRAFFIC STOP, CAN AN ACCUSED WAIVE A VERIFIED

10 COMPLAINT WITHOUT MIRANDA WARNINGS WHEN A SIMPLE COMPLAINT CHECK BOX

11 SCHEME GUISED AS A NOTICE TO APPEAR MANDATES OTHERWISE?

12 Assuming arguendo that the court having subject matter jurisdiction in a misdemeanor case rebuffs a

13 defendant’s position to consider the constitutionality of the States refusal to issue an accusatory pleading

14 that would provide a defendant with information with allegations of reasonable cause to believe the

15 defendant committed the offense charged.

16

17 The higher courts would ultimately disagree. Starting with the court In People v. Superior Court

18 (Mendella), Mendella was charged with both felony and misdemeanor counts. The court was face with

19 Petitioner's argument that "where such joinder of felony and misdemeanor offenses occurs, the

20 misdemeanor must be prosecuted in accordance with the procedures provided for prosecution of

21 felonies in superior courts, not merely by written complaint, as is the case in inferior courts.."

22

23 The petitioner, Menlinda also asserted that: "misdemeanor charges which are slated for trial in superior

24 court must be subject to judicial scrutiny for the same reasons." In agreeing in favor with Petitioners

25 position, on the principle, the court states:

Page 19 of 38
 1 "....the prosecution of the misdemeanor in question was subject to the general rules applicable to all

2 misdemeanors triable in superior court. Filing the verified complaint in the superior court was

3 insufficient to give that court jurisdiction inasmuch as prosecution of a case in the superior court must

4 "be conducted under an information, as a prerequisite to the issuance of which the accused is entitled ...

5 to a preliminary examination and commitment, ... [a procedure] which is applicable alike to the

6 misdemeanor with which petitioners are charged, as well as to all others, jurisdiction to try which is

7 vested in the superior court." (Mendella citing: Gardner v. Superior Court (1912) 19 Cal,app. 548 at pp.

8 551-552.)

9 California has supported this standard of law until People v. Barron (1995) 37 Cal.App.4th Supp. 1 , 44

10 Cal.Rptr.2d 348.

11 "The complaint is the foundation of the jurisdiction of the magistrate, and it performs

12 the same office that an indictment or information does in superior courts." (See, also,

13 cases collected 16 C.J. ? 492 p. 286.)

14 However, the statutory scheme under CVC 40513 for standards of a court review of the State’s

15 accusatory pleading compounds a pervasive language, creating two classes of misdemeanors thus, avoids

16 materials facts that normally provides objective determinations to be made by the court, which also had

17 normally allowed the court to arrive at a reasonable conclusion in support of probable cause that lead to

18 the arrest. Whereas, there no such requirement according to 40513(b) that would bind the court to

19 entertain an accused request for a verified complaint, nor following thereafter, should the court

20 entertain a probable cause hearing base on the same grounds that the request for a verified complaint

21 need not be filed.

22

23 It has been long held that a complaint and information must be verified under oath:

24 “To render a valid judgment, a court must have jurisdiction over the subject matter and

25 of the person of the defendant. Jurisdiction of the subject matter is derived from the law;

Page 20 of 38
 1 it neither can be waived nor conferred by consent of the accused. Inherent in subject

2 matter jurisdiction is the power to inquire into the facts, to apply the law and to declare

3 the punishment.” (21 Am.Jur.2d, §§ 376, 379, pp. 398-399, 400.) Burris v. Superior

4 Court , 43 Cal.App.3d 530, id at 537.

6 Apparently, the California Judicial Council would disagree in the substantial principles of the

7 constitution intended to safeguard the rights of the people to the same extent of rights they themselves

8 are protected by:

9 The requirement of probable cause has roots that are deep in our history. The general

10 warrant, in which the name of the person to be arrested was left blank, and the writs of

11 assistance, against which [James Otis inveighed, both perpetuated the oppressive

12 practice of allowing the police to arrest and search on suspicion see: Quincy's Miss.Rep.

13 1761-1772, Appendix, p. 469.].

14

15 Hence the California Council writes out a blank check to the executive office to usurp the powers of the

16 courts as understood in the following..

17 These Americas divulge from history, information that reveals similar situation when

18 Police control took the place of judicial control, since no showing of "probable cause"

19 before a magistrate was required. The practice was eventually declared illegal by the

20 House of Commons in 1766. 16 Hansard, Parl.Hist.Eng. 207.

21 It was later further established in Draper v. United States, 358 U. S. 307.

22 "On the other hand, good faith on the part of the arresting officers is not enough.

23 Probable cause exists if the facts and circumstances known to the officer warrant a

24 prudent man in believing that the offense has been committed."

25

Page 21 of 38
 1 The court in Henry also citing: Stacey v. Emery, 97 U. S. 642, 97 U. S. 645. And see

2 Director General v. Kastenbaum, 263 U. S. 25, 263 U. S. 28; United States v. Di Re,

3 supra, at 332 U. S. 592; Giordenello v. United States, supra, at 357 U. S. 486 (Henry v.

4 United States. Id at p. 102)

6 The Fourth Amendment right against unreasonable searches and seizures, made

7 applicable to the States by the Fourteenth Amendment, "protects people, not places,"

8 and therefore applies as much to the citizen on the streets as well as at home or

9 elsewhere. Terry v. Ohio, 392 U. S. 1 (1968)( id at Pp. 392 U. S. 8-9.)

10

11 Mere conclusory assertions are not enough.

12 Byars v. United States, 273 U.S. 28 (1927) (affiant stated he "has good reason to believe

13 and does believe" that defendant has contraband materials in his possession);

14 Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely stated his

15 conclusion that defendant had committed a crime). See also Nathanson v. United States,

16 290 U.S. 41 (1933).

17

18 The courts have also

19 “held insufficient an affidavit which merely asserted that the police had ''reliable

20 information from a credible person'' that narcotics were in a certain place, and held that

21 when the affiant relies on an informant's tip he must present two types of evidence to the

22 magistrate. First, the affidavit must indicate the informant's basis of knowledge--the

23 circumstances from which the informant concluded that evidence was present or that

24 crimes had been committed--and, second, the affiant must present information which

25 would permit the magistrate to decide whether or not the informant was trustworthy.

Page 22 of 38
 1 ( Aguilar v. Texas, 8 U.S. 108 (1964).)

3 The courts have went on to say:

4 Section 872 of the Penal Code provides in substance that if it appears from the

5 preliminary examination that a public offense has been committed, "and there is

6 sufficient cause to believe the defendant guilty thereof," the magistrate must make an

7 order holding him to answer. "Sufficient cause" within the meaning of section 872 is

8 generally equivalent to that "reasonable or probable cause" required to justify an arrest.

9 (See People v. Green (1969) 70 Cal.2d 654, 663, fn. 7 [75 Cal.Rptr. 782, 451 P.2d 422];

10 Perry v. Superior Court (1962) 57 Cal.2d 276, 283 [19 Cal.Rptr. 1, 368 P.2d 529]; People

11 v. Nagle (1944) 25 Cal.2d 216, 222 [153 P.2d 344].) " 'Sufficient cause' and 'reasonable

12 and probable cause' means such a state of facts as would lead a man of ordinary caution

13 or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the

14 accused (People v. Nagle, 25 Cal.2d 216, 222 [153 P.2d 344] ...." (Rogers v. Superior

15 Court (1955) 46 Cal.2d 3, 7-8 [291 P.2d 929].)

16

17

18 The Supreme courts has sought to maintain the principles of due process through protection of a mans

19 rights from the conception of suspicion in a officers mind and subject those thoughts to procedural

20 constraints that would obviously lead to tyranny, or despotism , for a better word, if the mandates were

21 not in place before hand.

22 Although the at one time in common law, warrantless arrests of persons who had committed a breach of

23 the peace or a felony were permitted. Since the courts has held and supported this cause in which

24 misdemeanors are not to be held to any lesser standard of those principles.

25

Page 23 of 38
 1 The complaint must contain information under oath describing the nature of events that protect the

2 defendant in a case where the officer decides to change his testimony to reflect a different turn of events

3 in an arbitrary manner to appear as though his suspicion was based on probable cause or the statements

4 that ultimately may not have derived from reasonable suspicion.

5 "An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning

6 information possessed by the affiant but not disclosed to the magistrate." Whiteley v.

7 Warden, 401 U.S. 560 (1971).

9 People v. Slaughter (1984) 35 Cal.3d 629, 637-638. ("‘Within the framework of his limited role, ... the

10 magistrate may weigh the evidence, resolve conflicts, and give or withhold credence to particular

11 witnesses. [Citation.] In other words, in assisting him in his determination of 'sufficient cause,' the

12 magistrate is entitled to perform adjudicatory functions akin to the functions of a trial judge. Yet the

13 proceeding is not a trial, and if the magistrate forms a personal opinion regarding the guilt or innocence

14 of the accused, that opinion is of no legal significance whatever in view of the limited nature of the

15 proceedings.‘ ( People v. Uhlemann, supra, 9 Cal.3d 662, 667, fn. omitted.)

16

17 In short, the magistrate is not a trier of fact. He does not decide whether defendant committed the crime,

18 but only whether there is ‘'some rational ground for assuming the possibility that an offense has been

19 committed and the accused is guilty of it.'‘ ( People v. Orin (1975) 13 Cal.3d 937, 947 [120 Cal.Rptr. 65,

20 533 P.2d 193].)

21

22 If the record shows strong and credible evidence of defendant's guilt, the magistrate may reasonably

23 assume the possibility of his guilt. Thus in many cases he will not find it necessary to resolve all conflicts

24 in the evidence, in order to find probable cause to hold the defendant for trial. The magistrate's power to

25 decide factual disputes exists to assist him in his determination of sufficient cause (People v. Uhlemann,

Page 24 of 38
 1 supra, 9 Cal.3d 662, 667); if he can determine that issue without resolving factual conflicts, he may do

2 so.")

3 It is has become predominantly clear that the petitioner waived those rights at the outset of his initial

4 arrest, hence was in custody for all intent and purposes to be protected under Miranda. Hence forth

5 40513 is unconstitutional and the courts are to know this.

7 It is just as important for the court to realize, the fact that officers will shift their initial cause for

8 suspicion to later suit the prosecution’s case once an accused is bounded over to trial. If a defendant

9 where not able to secure a predisposition, though prior to the anticipated testimony, by means of

10 probable cause hearing based on his sworn testimony, that the officer claimed against the accused for

11 the arrest, would be also to say that the defendant was deprived of evidence just as well as

12 confrontation?

13 On this precise point the petitioner, again:

14 An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning

15 information possessed by the affiant but not disclosed to the magistrate. "Yet the State

16 concedes, as on the record it must, that at every stage in the proceedings below petitioner

17 argued the insufficiency of the warrant as well as the lack of probable cause at the time of

18 the arrest. "Whiteley v. Warden, 401 U.S. 560 (1971).

19 At all stages of criminal proceeding when there are rights that a defendant are faced with, the state is

20 obligated to assure that those rights are knowingly and intelligently waived.

21

22 According to the courts the Petitioner does not have the right to a verified complaint; hence they must

23 submit that Petitioner was to be informed of the waiver of that right prior to signing the notice to appear.

24 A violation of the Sixth Amendment right to confrontation can be denied also where it occurs where the

25 government introduces “testimonial” out-of-court statements against the accused and where there has

Page 25 of 38
 1 been no prior opportunity of cross-examination, overruling the”indicia of reliability” test set forth in

2 Ohio v. Roberts (1980) 448 U.S. 56, which allowed such statements if they were reliable. (Crawford v.

3 Washington (2004) 541 U.S. 36) Voilation of the right to confrontation.

5 In returning to Peterson v. California, 604 F.3d 1166, 1169 (2010) the petitioner will further illustrate

6 that the Confrontation clause is violated when that petitioner was not provided information and verified

7 complaint against him.

9 As the procedural history of facts before the 9th Circuit went:

10 "Peterson was charged in 2005 with two felonies and several misdemeanors for health

11 and safety violations arising out of his ownership and operation of an automobile

12 dismantling site. Pursuant to Prop. 115, at the preliminary hearing, the prosecution

13 called only one witness, the investigating officer, who testified to the hearsay statements

14 of other witnesses. The magistrate found probable cause to hold Peterson for trial. After

15 a pre-trial hearing, the superior court excluded certain evidence for which the State

16 failed to establish a proper chain of custody and, on that basis, granted a pre-trial motion

17 to dismiss the two felony counts. A jury convicted Peterson on certain of the remaining

18 misdemeanor counts."Peterson v. California, 604 F.3d 1166, 1168 (2010).

19

20 On the misdemeanors Patterson contended that the statute "Prop 115 deprives him of his Sixth

21 Amendment right to confront the witnesses against him at a preliminary hearing."

22 The court in disagreeing with Peterson stated on its first point that

23 "As the preliminary hearing itself is not constitutionally required, it follows that there are

24 no constitutionally-required procedures governing the admissibility of hearsay at

25 preliminary hearings.”

Page 26 of 38
 1

2 On the court's second disagreement with Peterson, it was opinioned that:

3 "..[T]he United States Supreme Court has repeatedly stated that the right to

4 confrontation is basically a trial right. The right to confrontation is basically a trial right.

5 It includes both the opportunity to cross-examine and the occasion for the jury to weigh

6 the demeanor of the witness. A preliminary hearing is ordinarily a much less searching

7 exploration into the merits of a case than a trial, simply because its function is the more

8 limited one of determining whether probable cause exists to hold the accused for trial."

10 The court followed, citing:

11 Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); see also

12 Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (holding

13 that "the right to confrontation is a trial right" and "[n]ormally the right to confront one's

14 accusers is satisfied if defense counsel receives wide latitude at trial to question

15 witnesses" (emphasis in original)); California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930,

16 26 L.Ed.2d 489 (1970) ("[I]t is th[e] literal right to `confront' the witness at the time of

17 trial that forms the core of the values furthered by the Confrontation Clause[.]").

18 Similarly, in Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987),

19 the Supreme Court held that the defendant's exclusion from a hearing to determine the

20 competency of two child witnesses did not violate his confrontation right. Id. at 735, 744.

21 107 S.Ct. 2658

22

23 The Court reasoned that exclusion from the hearing did not interfere with the defendant's opportunity

24 for effective cross-examination 1170*1170 because he was able to examine the witnesses at trial. Id. at

25 740, 107 S.Ct. 2658. “

Page 27 of 38
 1 Thus, under the Supreme Court's Confrontation Clause jurisprudence, Peterson was entitled to confront

2 witnesses against him at trial, which he did. He was not constitutionally entitled to confront them at his

3 preliminary hearing. Id, at 1169-1170. (Emphasis added)

5 However, it is clear that the defendant, in a misdemeanor case, has the right to probable cause hearing:

6 "Even if the Fourth Amendment challenge had not been waived, we would reject it on the

7 merits because the Fourth Amendment allows for a determination of probable cause

8 based on hearsay testimony.”

9 The Peterson court citing: " Gerstein v. Pugh, 420 U.S. 103, 120, 95 S.Ct. 854, 43 L.Ed.2d

10 54 (1975) (holding that a full adversarial hearing, including confrontation and cross-

11 examination, is not required for a determination of whether probable cause exists under

12 the Fourth Amendment to detain an arrestee pending trial)." (id, at 1171).

13 In this matter, although the state can submit hearsay testimony at a probable cause hearing, dependant

14 on the reliability of the source, it still remains that the defendant is entitled to a probable cause as a

15 right.

16 It would defy logic that a defendant at a probable cause hearing could not confront the witness, hence it

17 would also defy logic that a defendant cannot use testimony derived from a probable cause hearing at his

18 trial. So, it definitely defies logic that a defendant can waive his right to a probable cause hearing without

19 being made aware of the waiver of that right before hand.

20

21 This disparity can be seen between California and N.Y. Where some simple infractions, defendants are

22 provided with due process protections that mandate that a complainant must subscribe and verify his

23 signature, based upon personal knowledge or upon information and belief.

24

25

Page 28 of 38
 1 The accusatory part must designate the offense and the factual part must allege facts of

2 an evidentiary nature (C.P.L. 100.15(1),(2), and (3)): People v. Dumas, 68 N.Y. 2d 729,

3 506 N.Y.S.2d 319, 497 N.E.2d 686 (Ct. of Apps.1986)

5 As a secondary and equally important requirement,

6 the information must contain allegations of fact that provide reasonable cause to believe

7 the defendant committed the offense charged and that the charges are supported by non-

8 hearsay allegations that establish each element.   C.P.L. 100.40(1)(b), (c);  People v. Hall,

9 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 (Ct. of Apps.1979);  People v. Cea, 141

10 Misc.2d 234, 533 N.Y.S.2d 239 (N.Y.Crim.Ct.1988).

11

12 The burden of proof need only be a prima facie case, and need not be “beyond a

13 reasonable doubt” (People v. Henderson, 92 N.Y.2d 677, 685 N.Y.S.2d 409, 708 N.E.2d

14 165 (Ct. of Apps.1999)).  

15 The allegations must not be conclusory.  People v. Hoffman, 180 Misc.2d 382, 692

16 N.Y.S.2d 592 (App.Term 2nd Dept.1999).   Failure to comply with any of the above

17 requirements is considered a jurisdictional defect, and therefore the information should

18 be dismissed as defective on its face.  People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d

19 927, 511 N.E.2d 71 (Ct. of Apps.1987).

20

21 Under the California State Constitution rights are seen as protecting.

22 ARTICLE 1. DECLARATION OF RIGHTS SEC. 24.

23 Rights guaranteed by this Constitution are not dependent on those guaranteed by the

24 United States Constitution. In criminal cases the rights of a defendant to equal

25 protection of the laws, to due process of law, to the assistance of counsel, to be personally

Page 29 of 38
 1 present with counsel, to a speedy and public trial, to compel the attendance of witnesses,

2 to confront the witnesses against him or her, to be free from unreasonable searches and

3 seizures, to privacy, to not be compelled to be a witness against himself or herself, to not

4 be placed twice in jeopardy for the same offense, and to not suffer the imposition of cruel

5 or unusual punishment, shall be construed by the courts of this State in a manner

6 consistent with the Constitution of the United States. This Constitution shall not be

7 construed by the courts to afford greater rights to criminal defendants than those

8 afforded by the Constitution of the United States, nor shall it be construed to afford

9 greater rights to minors in juvenile proceedings on criminal causes than those afforded

10 by the Constitution of the United States.

11 This declaration of rights may not be construed to impair or deny others retained by

12 the people.

13

14 Under the federal rules of procedure state in part and reads: Rule 58 (b) (1):

15 Charging Document.

16 The trial of a misdemeanor may proceed on an indictment, information, or complaint..."

17 Furthermore the courts procedures are also designed to protect the integrity of the magistrate

18 proceedings as:

19 (g) Recording the Proceedings.

20 The preliminary hearing must be recorded by a court reporter or by a suitable recording

21 device.

22

23 The court has also put to test the compelling of statements where one is accused, although he is

24 subjected to procedural requirements that mandate a waiver of immunity.

25

Page 30 of 38
 1 In one similar analogy and disturbing case based on the complaint against several officers, as

2 the court goes on to say:

3 ”the officers "were not discharged merely for refusal to account for their conduct as

4 employees of the city. They were dismissed for invoking and refusing to waive their

5 constitutional right against self-incrimination. They were discharged for refusal to

6 expose themselves to criminal prosecution based on testimony which they would give

7 under compulsion, despite their constitutional privilege. Three were asked to sign

8 waivers of immunity before the grand jury. Sanitation Men v. Commissioner of

9 Sanitation, 392 U.S. 280 (1968) at 283.

10

11 The court held to the principals of compelling of statements by signature to be viewed as also:

12 "the precise and plain impact of the proceedings against petitioners, as well as of § 1123

13 of the New York Charter, was to present them with a choice between surrendering their

14 constitutional rights or their jobs. Petitioners as public employees are entitled, like all

15 other persons, to the benefit of the Constitution, including the privilege against self-

16 incrimination. Gardner v. Broderick, supra; Garrity v. New Jersey, supra. Cf. Murphy v.

17 Waterfront Commission, 378 U. S. 52, at 378 U. S. 79 (1964).

18 At the same time, petitioners, being public employees, subject themselves to dismissal if

19 they refuse to account for their performance of their public trust, after proper

20 proceedings, which do not involve an attempt to coerce them to relinquish their

21 constitutional rights. (at P.p. 284-285).

22

23

24 CVC 40513 IS UNCONTITUTIONAL AND A VIOLATION OF THE SEPREATION OF

25 POWERS CLAUSE

Page 31 of 38
 1 Please take note: the Petitioner has not clearly articulated the points below, however reserves this for the

2 potential that the state court do have an invested interest in preserving CVC 40513(b). He will expand on

3 this principle at the federal Level if the State chooses, again not to order a response from the opposing

4 party in this matter..

5 Petitioner further demonstrates on the merits of his claim that the California Judicial Council violated

6 the separation of powers established in the California constitution on two independent grounds. The

7 court violated the separation of powers.

8 “CVC 40513(b) form prepared and approved by the Judicial Council” diverges from three functions of

9 the Branches of government, Executive, Legislative and Judiciary. However, the California Judiciary

10 Council creates a fourth Branch where it has reconstructed the power of the executive to take the power

11 of the judiciary functions of the magistrate, and the power to propose a legislative function where the

12 judiciary function are to vote on what rules should govern the intent of legislation.

13 Hence, where the constitutional function of the Judiciary is to check the Legislation and the Executive

14 Branches. In this case, it would be the validity of probable cause, but the California Judiciary Council has

15 taken it upon themselves to pass that power over to the executive branch founded primarily of its own

16 proposal to the judiciary to set out new guidelines in governing statutory intent, is in gross dereliction of

17 it's duty by "expansive" view of the Constitution and the Bill of Rights, where they have actually

18 weakened a number of fundamental guarantees as described in the above preceding citations. It appears

19 that this would not be a commandeering claim, where the NTA is prepared for the executive office to

20 administer officers oath functions and reliance on it's own enforcement without the check and balance

21 from an independent judiciary prepared by the Judiciary Council created by the Legislative branch with

22 only administrative powers.

23 (i) In accepting jurisdiction without a lawful complaint so to conform to:

24 Implementation Requirements and Costs.

25

Page 32 of 38
 1 “The proposed changes impose no specific implementation costs on the courts. Each court can choose

2 whether to authorize submission of electronic NTAs based on its ability to cover the cost of such a

3 process. There are also no costs imposed on the California Highway Patrol, which already uses a system

4 for electronic submission of NTAs that complies with the proposal. Other law enforcement agencies may

5 need to reprogram their systems for electronic submission of NTAs in order to comply with the proposed

6 requirements." JUDICIAL COUNCIL OF CALIFORNIA ADMINISTRATIVE OFFICE OF THE COURTS October 27, 2005

7 Report)

8 Below briefly describes how this offering to the State wide system is premised on Marketing scheme to

9 streamline Juries deliberation, arguments and reading of the Jury Instruction to be completed in one

10 day along with creating an state wide autonomous or non independent Judiciary a in combination with

11 saving coast while utilizing an assembly line type of transaction relations with the public that

12 revolutionizes creating revenue for highest paying official at the expense of the people and their rights.

13 This is not only that the people of the state foot the bill of the initial coast to implement the Marketing

14 scheme through their own tax dollars, but to finance the way they are treated in a manner that they will

15 eventually be fined for tickets from a system that they paid for. Which inevitably means that if one court

16 does not comply, the others will provide peer pressure.

17

18 Encouraging Trial Court Innovation.

19 “Throughout most of their history, trial courts have operated as autonomous entities.

20 The implementation of trial court funding requires courts to view themselves as part of

21 the statewide judicial system. This transition means that trial courts must achieve the

22 common good as defined from a statewide perspective. Only by encouraging coordinated

23 efforts and managing technology options can the Judicial Council achieve its technology-

24 dependent strategic objectives and the state realize an optimal return on its technology

25 investment. While acknowledging that state and local priorities are unlikely to coincide

Page 33 of 38
 1 completely, the tactical plan ensures that all courts are capable of providing basic

2 services and strives to maintain as much flexibility as possible in determining how those

3 services are best provided at the local level."

4 T A C T I C A L P L A N F O R C O U R T T E C H N O L O G Y AD O P T E D B Y T H E JU D I C I A L CO

5 U N C I L O F CA L I F O R N I A JANUARY 2 6 , 2 0 0 0.)

7 Due to the amount of revenue generated (received by the government) from the traffic system it is to

8 argue against this showing a double standard in the appearance of justice for the sake of judicial

9 economy. In Municipal Court v. Superior Court, 199 Cal.App.3d 19, 244 Cal.Rptr. 591 (Feb. 1988), The

10 court in Sinclair agrees , where this argument was presented:

11 Despite these benefits to the judicial system, persons charged with crimes are accorded by the United

12 States and California Constitutions a privilege not to testify against themselves. A sacrifice of judicial

13 economy and certainty of the facts is inherent in the privilege against self-incrimination. Municipal

14 Court v. Superior Court (Sinclair) (1988) 199 Cal. App. 3d 19 [244 Cal.Rptr. 591]

15 Hence, today’s state judiciary procedures with legislation commonly weighs against the peoples interest

16 in the guise of "public interest," conforming the courts to act non-autonomously as an Constitutional

17 independent review of rights balance against the people in favor of the goal to save cost. There isn't any

18 independent judiciary with regard to the fair plays of justice when the unwitting public is exploited

19 through physiological public relations as sought to control the masses fathered in by Edward Berneys,

20 the nephew of Sigmund Freud.

21 "The conscious and intelligent manipulation of the organized habits and opinions of the

22 masses is an important element in democratic society. Those who manipulate this

23 unseen mechanism of society constitute an invisible government which is the true ruling

24 power of our country. ...We are governed, our minds are molded, our tastes formed, our

25 ideas suggested, largely by men we have never heard of. This is a logical result of the way

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 1 in which our democratic society is organized. Vast numbers of human beings must

2 cooperate in this manner if they are to live together as a smoothly functioning society.

3 ...In almost every act of our daily lives, whether in the sphere of politics or business, in

4 our social conduct or our ethical thinking, we are dominated by the relatively small

5 number of persons...who understand the mental processes and social patterns of the

6 masses. It is they who pull the wires which control the public mind." ( see also:

7 http://video.google.com/videoplay?docid=6718420906413643126# )

9 (See also : for a complete understanding and Milgram experiment on obedience to

10 authority figures was a series of social psychology experiments conducted by Yale

11 University psychologist Stanley Milgram, which measured the willingness of study

12 participants to obey an authority figure who instructed them to perform acts that

13 conflicted with their personal conscience. Milgram first described his research in 1963 in

14 an article published in the Journal of Abnormal and Social Psychology, and later

15 discussed his findings in greater depth in his 1974 book, Obedience to Authority: An

16 Experimental View.)

17

18 In which not only provides the state with a new bag of tricks, but the additional pleasure of adding a

19 totally new light to view, all co-joined, within the narrow spectrum of color found in prism of stare

20 decisis.

21 Where also, the Police now can play a physiological game of Statutory “Three Card Molly “, with targeted

22 suspects as the statutory amendments roll in for each possible mistake a person can make.

23 And

24 (ii) Separately, in expressly redefining the legislative Statute CVC 40513 drawing from it's intended

25 purpose. When one branch usurps the powers of another, co-equal branch, it constitutes a violation of

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 1 the federal constitutional guarantee of a republican form of government and thereby respectively

2 creating a fourth and autonomous branch against those guarantees and assurances to the individual

3 citizen, of which Petitioner is one of the true sovereigns.

4 The California judiciary Council has so diluted the statutory meaning of Verified Complaint that it

5 actually renders the words meaningless and the statute vague, ambiguous and unconstitutional.

6 Thus, it doesn’t take much to see the proof. Whereas, this Petitioner is a living example, who faces up to

7 four years for being late on his payments to the DMV and the Courts of California. Which penalties

8 include…..wait for it………… paying for his own trial, probation and the original fines, plus penalty

9 assessments. Petitioner harmed no man, was not a danger to anyone, nor a danger to the fictional

10 "public interest" left necked without due process to be afforded.

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12

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14

15 REQUEST FROM THE COURT

16 PRAYER FOR RELEIF.

17 Whereas, the Law recognizes that:

18 It is impossible for court to plead on behalf of a the accused when there is no constitutional complaint

19 before him and he has not waived it by writing as required by CVC 40513, Penal Code Sections 740, 949,

20 950, 959, 691(d) and 691 (e) before him to plead to (see Civil Code, Section 3531), and many important

21 particulars such as

22 1) the nature and cause of the accusation, the essential elements of the charge, and

23 2) Without such information, this accused can not respond in an intelligent, informed and

24 legally correct manner, whatever that response may be;

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 1 No prosecuting attorney has signed an accusatory pleading before an officer who can administer oaths

2 to initiate court's Jurisdiction over Petitioner (see Ralph v. Police Court, Supra, Gavin V. Municipal

3 Court. 184 C.A.2d 712, Anger v. Municipal Court. 237 C.A. 2d 69, Penal Code. Sections 949, 691 (d), (e)).

4 So for the magistrate to enter any plea for the accused, in the least, there is no discretion authorized

5 under Constitutions of this State and the United States to which his judgment maybe considered other

6 than void.

7 The established doctrine in this state is that it is the plaintiff upon whom rests the duty to use diligence

8 at every stage of the proceeding to expedite his case to a final determination. It is true that the defendant

9 may bring about a trial of a case, but he is under no legal duty to do so. His presence in the case is

10 involuntary and his attitude toward it is quite different from that of the plaintiff; he is put to defense

11 only, and can be charged with no neglect for failing to do more than meet the plaintiff step by step."

12 Grafft v. Merrill Lynch, 273 Cal.App.2d 379 (1969), and Petitioner has met the plaintiff (whoever that

13 may be) step by step, by appearing in court as he agreed to in the notice to appear, by appearing in court

14 as promised on the "NOTICE TO APPEAR NO. A255030".

15 It is, the would be Plaintiff who has chosen to not prosecute Petitioner by not filing a lawful complaint,

16 therefore depriving the court of any Jurisdiction. Petitioner also reserves all rights under the

17 Constitution of California and of the United States, The Bill of Rights including but not limited to the

18 Ninth Amendment of the Same Bill of Rights.

19 Wherefore, under these circumstances Petitioner prays and moves this court to QUASH THE NOTICE

20 TO APPEAR #A255030 and prohibit the Court to proceed for lack of jurisdiction.

21 Finally, if the Court has any concerns about the relief requested, it should stay further proceedings in the

22 Superior court and set and file the case for full briefing and oral argument.

23 I, Enrique B. Meyers, the undersigned, declare that the facts stated herein are true and to the best of my

24 recollection and knowledge under the penalty of perjury.

25

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 1 Verified by my hand:

3 ___________________________________________________

4 Enrique B. Meyers,

6 ______________________

7 Date

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