-- Name and Address Here

MUNICIPAL COURT OF SONOMA

SONOMA COUNTY JUDICIAL DISTRICT,

THE PEOPLE OF THE STATE )

OF CALIFORNIA, ) Case No. --Case #--

)

Plaintiff, ) NOTICE OF MOTION FOR

) DISMISSAL, OR IN THE

- vs - ) ALTERNATIVE DISCLOSURE,

) FOR FAILURE TO PROVIDE

MICHAEL R. CLEMENTS ) DISCOVERY; DECLARATION;

) POINTS AND AUTHORITIES

Defendant. )

)

____________________________________)

TO: PLAINTIFF, THE PEOPLE OF THE STATE OF CALIFORNIA, AND TO THE DISTRICT ATTORNEY FOR SONOMA COUNTY:

Please take notice that defendant moves the court for an order dismissing the above-entitled case, or in the alternative, for an order for disclosure of discovery and other sanctions.

This motion is made on the ground that the People, upon having been served with an Informal Discovery Request under Penal Code sections 1054 et seq., have failed and refused to respond to the same for at least 30 days.

This motion is based on the pleadings, records and files in this action, the accompanying Declaration and Points and Authorities, and on oral and documentary evidence to be presented at the hearing on the motion.

DATED: February 5, 1997

___________________________________

MICHAEL R. CLEMENTS

Defendant in Pro Per DECLARATION

I, MICHAEL CLEMENTS, declare:

1. I am the defendant in the above-entitled action.

2. On June 15, 1996, I received the Notice to Appear herein. On January 2, 1997, I sent the municipal court a copy of an Informal Discovery Request, a copy of which is attached hereto, as Exhibit "A."

3. More than 30 days have elapsed since I caused the said request to be mailed, and I have received no response to the same from anyone.

I declare under penalty of perjury under the laws of State of California that the foregoing is true and correct.

DATED: February 5, 1995

___________________________________

MICHAEL R. CLEMENTS

Defendant in Pro Per POINTS AND AUTHORITIES

INTRODUCTION

In this traffic-infraction case, the People have failed to comply with a "Proposition 115" discovery request under Penal Code section 1054.5. The following argument will show that the provisions of Penal Code sections 1054 through 1054.7 do indeed apply to traffic-infraction cases, and that the Court should impose the sanction of dismissal, or in the alternative should order disclosure and require the district attorney to pay monetary sanctions to the defendant.

ARGUMENT

I. THE PROVISIONS OF PENAL CODE SECTIONS 1054 THROUGH 1054.7 DO APPLY TO INFRACTION PROCEEDINGS.

Penal Code sections 1054 through 1054.7 (as added by Proposition 115, effective June 6, 1990) provide for discovery "in criminal cases." P.C. 1054(e). This has been held to include misdemeanor prosecutions. Hobbs v. Municipal Court (1991) Cal.App.3d, 284 Cal.Rptr. 655. It also includes infraction prosecutions by virtue of Penal Code section 19.7, which states in pertinent part, "Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions..." Such exceptions do exist with respect to the right of trial by jury and the appointment of counsel, P.C. 19.6. However, no such exception exempts discovery laws from application to infraction proceedings. Penal Code section 19.7 incorporates into infraction procedure all statutory law (and even constitutional law not per se applicable to infractions), absent an express statutory declaration to the contrary. People v. Matthews (1983) 139 Cal.App.3d 537, 188 Cal.Rptr.796. Thus, the provisions of Penal Code sections 1054 through 1054.7 apply to infraction procedure. II. IN TRAFFIC INFRACTION CASES, WHERE THE PEOPLE HAVE FAILED TO COMPLY WITH THE INFORMAL DISCOVERY PROCEDURES IN PENAL CODE SECTIONS 1054.1 AND 1054.7, THE PEOPLE SHOULD BE SANCTIONED WITH DISMISSAL OF THE CASE.

Under Penal Code section 1054.5, parties to criminal actions -- including infractions -- may engage in informal discovery. Pursuant to an "informal discovery request," the defendant may request the People to disclose, among other things, "Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at trial." P.C. 1054.1(f). This obviously includes, in traffic-infraction matters, any written statements of the officer has made about the alleged violation, on his or her copy of the notice to appear, or elsewhere, at least if the officer will testify at trial.

It is a universal police practice for officers who issue notices to appear for moving violations to write brief notes about the circumstances surrounding the alleged violation, including any admissions made by the defendant, on the reverse side of the officer's copy of the notice to appear. Most, if not all officers refer to such notes when testifying in court about the alleged violation. These notes are the equivalent of a police report, but are not normally supplied to the defendant. Fortunately, Proposition 115 has codified discovery procedures, which clearly apply to infractions. Just as it is essential in a misdemeanor case for an attorney preparing for trial to review the officer's police report, it is essential in a traffic-infraction case for the defendant to review the notes made by the officer.

To obtain discovery, the defendant when making a request must disclose similar information. See P.C. 1054.3, 1054.5(b). Where the defense discloses section 1054.3 discovery in an informal discovery request to the People for section 1054.1 discovery, the People must disclose within 15 days of the request and at least "30 days prior to the trial." P.C. 1054.5(b), 1054.7. Where the People ignore such a request, the defense may move for sanctions "upon a showing that a party has not complied with section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure ...," and "a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentations of real evidence, continue the matter, or any other lawful order."

Here, defendant made the appropriate disclosures under section 1054.3, and requested disclosure from the People under section 1054.1, but the People ignored the request. Here, the discovery request was sent to the Sonoma County Municipal Court. A copy of the request is attached to the within declaration as exhibit "A". The appropriate sanction here is dismissal, for preclusion of the testimony of the officer involved would have the same effect.

This, after all, is a traffic-infraction matter. Even if the court were to order disclosure just before trial, defendant would perhaps require more time to prepare for trial after having read the officer's version on the reverse of his notice to appear.

But to continue this matter, thus requiring defendant to come to court a third time, would be unfair, in light of the fact that the People would be responsible for the delay by virtue of their failure to disclose. A large body of case law holds that error on the part of the People or the trial court, at the trial level or on appeal, necessitates the dismissal of traffic-infraction cases. People v. Kriss (1979) 96 Cal.App.3d 913 (sentencing error mandates dismissal on remand following reversal); People v. Ruhl (1967) 63 Cal.App.3d Supp. 6; People v. Bighinatti (1975) 55 Cal.App.3d Supp. 5; People v. Jenkins (1976) 55 Cal.App.3d Supp. 55 (appeal delay caused by People or trial court mandates reversal and dismissal on remand). Such dismissals should occur in traffic infraction cases in which the prosecutor and police agency both ignore a valid discovery request. Such sanctions should be imposed until prosecuting and police agencies take seriously -- even in the context of traffic-infractions -- the provisions of Proposition 115 for which they so strenuously lobbied. In the alternative the district attorney should be required to pay defendant sanctions in the sum of $250.00 for the trouble and inconvenience of having to prepare a trial motion.

DATED: February 5, 1997

___________________________________

MICHAEL R. CLEMENTS

Defendant