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  1. #1

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    Verified Complaint

    I have searched the California Penal Code and Vehicle Code, without results, trying to find the legal definition of Verified Complaint. I know a defendant has the right to demand one (specifically of interest to me is for an Infraction). I "believe" that it must be signed by the "injured parties" in a civil or "interested parties" in a criminal case. But that is just word of mouth...

    I've spent hours and hours looking for this and, before demanding one in an infraction case, I BETTER know what the heck I'm asking for!

    Thanks to anyone and everyone for replying!



    Radioguy!

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    A "verified complaint" is a complain that includes an oath by the party bringing the complaint certifying that what is stated in the complaint is true. You should see a "verification" form or area where there is the signature of the person making the statement and a notary stamp for notarization of the signature.
    Forum posts are not legal advice, are for educational purposes only & are not substitutes for proper consultation with legal counsel.

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    can anyone confirm the validity of this claim?

    The Basics:

    In every case no matter how inferior, there is a plaintiff and a defendant. In a traffic violation, the plaintiff is The People of the State of California. You are the defendant. When you go to the courtroom for your initial arraignment and spend half your day waiting for roll-call and the judge to explain your options and the procedures, he/she fails to inform you of ALL your options. You are told you are allowed to say 3 things to the judge, and some judges will not let you say one word more. They tell us this so we won't waste anyone else's time in the courtroom, and also, (cough, cough), so you are intimidated enough to not try to motion for any other option they may have conveniently forgotten to tell you. These are the 3 options you are told you have to give the judge: 1) not guilty, 2) no contest, 3) guilty (usually with traffic school as an added option). What the judge does not tell you is about California Penal Code 740 and 949; Grafft v. Merrill Lynch, Pierce, Fenner, and Beane, 273 C.A.2d 379. You see, if you look around the courtroom there is no plaintiff in the courtroom, so in turn...there is no prosecution! You cannot defend yourself and be claimed a defendant in any case if there is no plaintiff to accuse you of wrongdoing. There's no plaintiff representing the People of the State of California - so as of that moment, there is no legal case you can claim guilt or no guilt to. There's not even a lawyer or signed document stating their case against you. The ticket you signed was just a promise to appear in court, not an admission of guilt, nor is it a substitute of a verified complaint against you by the plaintiff! You've met the court step-by-step so far by appearing in the courtroom, so you have done all you can do, as far as your legal responsibilities are concerned. The most important laws you need to know are:



    California Penal Code 740 states: all misdemeanors and infractions must be prosecuted by written complaint under oath subscribed by the complainant.

    Grafft v. Merrill Lynch, Pierce, Fenner, and Beane, 273 C.A.2d 379 states: "it is the plaintiff upon whom rests the duty to use diligence at every stage of the proceeding to expedite his case to a final determination" and the defendant's presence is "involuntary" and "can be charged with no neglect for failing to do more than meet the plaintiff step by step"

    California Penal Code 949 reads: "The first pleading on the part of the People in all inferior courts is the complaint"



    What these laws mean is this: At the time of arraignment, and only at the time of arraignment, you have the right to demand a verified complaint against you establishing the jurisdiction of the court and requiring your appearance in the courtroom! The arraignment is the only time during the case you can request this. Basically it's a prosecutors written complaint against you which is required in all U.S. courts no matter how inferior, that clearly states the nature and cause of the accusation, the essential elements of the charge, AND the identity and location of the plaintiff and his attorney(s). What happens is the court will send your paperwork up to Sacramento, a prosecuting attorney representing The People of the State of California will fill out the complaint form, sign it, and send it back to your courtroom. Usually this never happens and your case is ultimately dismissed. IF THERE IS NO VERIFIED COMPLAINT BY THE PLAINTIFF, THERE IS NO JURISDICTION FOR WHICH TO PLEAD TO.

    The judge will tell you that you HAVE to give a plea. This is false - you MAY give a plea! California Vehicle Code, Section 15 clearly defines "may" as permissive and C.V.C. Section 40513(b) offers a choice to the "accused". I NEVER give a plea because I know legally there is no valid case for me to make a plea to. The plaintiff has chosen not to prosecute by not filing a verified complaint against me. How can I give a plea if there's nothing to officially plead to??

    The main traffic law THAT IS ON THE BOTTOM OF THE TICKET is C.V.C. Section 40513(b), which reads: "whenever the written notice to appear has been prepared on a form approved by the Judicial Council (A traffic ticket), an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea (notice the word "may") and, if the notice to appear is verified (which it never is!), upon which a warrant may be issued. If the notice to appear is not verified, the defendant may, at the time of arraignment, request that a verified complaint be filed.


    I've still never seen a verified complaint. Many times when I've brought this up to the judge, he sent me to the back of the line "to think about what I want to do", but really so no one else in the courtroom will hear about this rightful request. And many times the judge will just say anything to get you out of their sight and then just give you a plea of not guilty... which then requires another court appearance with the ticketing officer. I've had the judge tell me those laws were rewritten 15 years ago & I've had a few judges deny knowing anything I'm talking about - believe me, they know very well! If you are forced to come back for your trial (which is usually the case - they're not going to make it easy for you), it is then you can state your argument again that the case should be dismissed for lack of prosecution because the court failed to provide a verified complaint at the time of your arraignment. As everyone knows, if the police officer does not show up, you are automatically dismissed. Another note, the police officer is not the plaintiff, he is the witness. One thing I always do is bring a copy of the laws to show the judge (although they've never wanted to see them - again, they're not going to be made a fool of in their court!) California state law says if a defendant does not give a plea, the judge must enter a plea of 'not guilty' for the defendant, which has been the standard in all of my confrontations with the judge.

    If I am forced to go to a trial, and the police officer does show up, and I am still found 'guilty' despite my repetitive arguments, I let the judge know I will appeal the decision if found 'guilty'. An 'appeal' can only be used if the court has made an error in the law - this is not a retrial. The one time I had to go to the court for an 'appeal', the judge dismissed it for...lack of a written complaint..

    TIPS: One thing that should be known is usually it's the same judge who does your arraignment, your trial, and your appeal. In most of my dismissals, the judge usually gets sick of seeing me and dismisses the case only because it's not a major infraction. I also try to add to the argument that I am very broke moneywise or unemployed which I know has helped in two of my trials. Some things to remember: You must make your court appearance(s)! If you miss an appearance the court will immediately send out a written 'Notice to Appear' which acts as a written complaint, which ruins most of your argument.

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    ^^^^^Can anyone confirm the validity of the claim above?

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    CVC 40513(a), for one ...

    40513. (a) Whenever written notice to appear has been prepared,
    delivered, and filed with the court, an exact and legible duplicate
    copy of the notice when filed with the magistrate, in lieu of a
    verified complaint, shall constitute a complaint to which the
    defendant may plead "guilty" or "nolo contendere."
    If, however, the defendant violates his or her promise to appear
    in court or does not deposit lawful bail, or pleads other than
    "guilty" or "nolo contendere" to the offense charged, a complaint
    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
    deemed to be an original complaint, and thereafter proceedings shall
    be had as provided by law, except that a defendant may, by an
    agreement in writing, subscribed by him or her and filed with the
    court, waive the filing of a verified complaint and elect that the
    prosecution may proceed upon a written notice to appear.


    (b) Notwithstanding subdivision (a), whenever the written notice
    to appear has been prepared on a form approved by the Judicial
    Council, an exact and legible duplicate copy of the notice when filed
    with the magistrate shall constitute a complaint to which the
    defendant may enter a plea and, if the notice to appear is verified,
    upon which a warrant may be issued. If the notice to appear is not
    verified, the defendant may, at the time of arraignment, request that
    a verified complaint be filed. In the case of an infraction
    violation in which the defendant is a minor, the defendant may enter
    a plea at the arraignment upon a written notice to appear.
    Notwithstanding any other provision of law, in the case of an
    infraction violation, no consent of the minor is required prior to
    conducting the hearing upon a written notice to appear.

    And if you want to entertain the court room you are free to object to the proceeding for lack of a verified complaint, but understand you will NOT be the first person to try (and fail). So, I would suggest you have a backup plan ready so that you can actually try to defend yourself against the charge
    Last edited by CdwJava; 05-04-2010 at 04:56 PM.
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    Quote Originally Posted by CdwJava View Post
    And if you want to entertain the court room you are free to object to the proceeding for lack of a verified complaint, but understand you will NOT be the first person to try (and fail). So, I would suggest you have a backup plan ready so that you can actually try to defend yourself against the charge
    Couldn't I just take it all the way up to appeal for lack of written complaint?

    Aren't the implications that I "may" accept the notice to appear in lieu of a verified complaint if I want to or not?

    As long as I make all court appearances on time and meet the prosecutor step by step while he uses due diligence at every stage of the proceeding to expedite his case to a final determination as demonstrated in Grafft v. Merrill Lynch, Pierce, Fenner, and Beane, 273 C.A.2d 379 right?

    I cannot be charged with no neglect for failing to do more than meet the plaintiff step by step. Therefore, wouldn't I have the rights to a verified complaint pursuant to C.V.C. Section 40513 (B) ?

    Thanks for the feedback

  7. #7
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    The section indicates that the notice to appear (the citation) "shall" constitute a complaint. You can interpret it as you like, but you will lose. As I mentioned this is old ground and has been tried by many before you to no good end.

    You can appeal all you like. The fact that you have managed to annoy your local traffic judge (probably a pro-tem) so that he dismisses your matters out of hand is his problem, and bad on him.

    So, other than wasting yours and everyone else's time, do you have an actual defense to the charge? Or, are you simply hoping to annoy them so much that they will drop the matter just to get rid of you?
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  8. #8

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    Any other opinions on the matter would be appreciated...

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    Verified Complaint

    To make it clear, the purpose of the verified complaint is to find the injured party. The "complainant" who has "standing" to invoke the jurisdiction of the inferior court.

    "Complainant"-One who applies to the court for redress; one who exhibits a bill of complaint. Benefit Ass’n v. Robinson, 147 Ill. 138, Black’s Law Dictionary, 4th edition, page 356. Redress- The receiving satisfaction for an injury sustained. Black’s Law Dictionary, 4th edition, page 1444.

    and

    Standing of Complainant-"As a general principal, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury." People v. Superior Court, 126 Cal.Rptr.2d 793.

    If their is not a injured party, there is no crime.

    "In every criminal trial, the prosecution must prove the corpus delecti, or the body of the crime itself-i.e., the fact of injury, loss or harm, and the existence of a criminal agency as its cause." People v. Sapp, 73 P.3d 433, 467 (Cal. 2003) [quoting People v. Alvarez, (2002) 27 Cal.4th 1161, 1168-1169, 119 Cal.Rptr.2d 903, 46 P.3d 372.].

    All traffic infractions are Quasi-criminal; i.e. contractual with a penalty. That is why there is no jail time for an infraction. Of course if you are "driving" without a "license" then it is a misdemeanor. Why, you are committing the crime (injury) of tax evasion. After all a "driver" is in commerce for gain.

    Driver "Driver: One employed in conducting a coach, carriage, wagon, or other vehicle..." Bovier's Law Dictionary, 1914 ed., p. 940.“Driver”– One employed in conducting or operating a coach, carriage, wagon, or other vehicle, with horses, mules, or other animals, or a bivycle, tricycle, or motor car, through not a street railroad car. Wallace v Woods, 340 Mo. 452, 102 S.W. 2d 91, 97. Black’s Law Dictionary, Ed Luxe Fourth Edition(1951) page 585

    Gain- First. It is well established law that the highways of the state are public property; that their primary and preferred use is for private purposes; and that their use for purposes of gain is special and extraordinary, which, generally at least, the legislature may prohibit or condition as it sees fit. Packard v. Banton, 264 U.S. 140, 144, 44 S.Ct. 257, 68 L.Ed. 596, and cases cited; Frost & Frost Trucking Co. v. R.R. Comm., 271 U.S. 583, 592, 593, 46 S.Ct. 605, 70 L.Ed. 1101, 47 A.L.R. 457; Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U.S. 335, 337, 52 S.Ct. 144, 76 L.Ed. 323; Johnson Transfer & Freight Lines v. Perry (D.C.) 47 F.(2d) 900, 902; Southern Motorways v. Perry (D.C.) 39 F.(2d) 145, 147; People's Transit Co. v. Henshaw (C.C.A.) 20 F.(2d) 87, 89; Weksler v. Collins, 317 Ill. 132, 138, 139, 147 N.E. 797; Maine Motor Coaches v. Public Utilities, 125 Me. 63, 65, 130 A. 866. Stevenson v. Binford, 287 U.S. 251, 77 L.Ed. 288.

    License- Senate Bill 1763 Wright, reported in Chapter 905 in the Legislative Counsel's Digest at sec. 3.6, 1994-(5) 'License' includes membership in the State Bar, and a certificate, permit, registration, or other authorization issued by a board that allows a person to engage in a business, occupation, or profession, or to operate a commercial motor vehicle."

    This is for the officer doing his job.

    "Persons dealing with the government are charged with knowing government statutes and regulations and they assume the risk that government agents may exceed their authority and provide misinformation" Lavin v. Marsh, 644 F.2nd 1378, 9th Cir., (1981)

  10. #10

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    Quote Originally Posted by CdwJava View Post
    CVC 40513(a), for one ...

    40513. (a) Whenever written notice to appear has been prepared,
    delivered, and filed with the court, an exact and legible duplicate
    copy of the notice when filed with the magistrate, in lieu of a
    verified complaint, shall constitute a complaint to which the
    defendant may plead "guilty" or "nolo contendere."
    If, however, the defendant violates his or her promise to appear
    in court or does not deposit lawful bail, or pleads other than
    "guilty" or "nolo contendere" to the offense charged, a complaint
    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
    deemed to be an original complaint, and thereafter proceedings shall
    be had as provided by law, except that a defendant may, by an
    agreement in writing, subscribed by him or her and filed with the
    court, waive the filing of a verified complaint and elect that the
    prosecution may proceed upon a written notice to appear.

    .

    And if you want to entertain the court room you are free to object to the proceeding for lack of a verified complaint, but understand you will NOT be the first person to try (and fail). So, I would suggest you have a backup plan ready so that you can actually try to defend yourself against the charge


    Well officer, I will completely disagree.

    The problem here is that whenever a statute is ambiguous and/or vague it is Unconstitutional. Which, if preserved upon the defendants objecting to the lower courts judgment on it, the defendant will prevail and receive the relief sought.

    The way you have construed the statute when butted against Criminal code 740 it would make 40513. (a) unconstitutional, then One would need to go back through the code to show a clear definition to where your position would stand on both, the words: "verified complaint", and "In lieu of".

    Moreover, if we look to Vehicle code section 40302. Which states:
    "Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases:"
    (b) "When the person arrested refuses to give his written promise to appear in court."

    Is a fact of law, the person signing the ticket is doing so under duress in fear of going to jail. Hence, constitutes "being a witness against himself". Thus, in a lawful position of suppressing all the evidence against him and having it thrown out.

    Officers should be aware of the law so that they don't take part of legislative abuse where often it oppresses the all subjects intended.
    Think back at the California Jim Crow laws. Almost 90 years of oppression and not one single officer aided to do away with them.

    Leaves to question, who are officers actually bent on protecting?
    Last edited by ssacc_01; 01-11-2011 at 10:08 AM.

  11. #11
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    Quote Originally Posted by ssacc_01 View Post
    Well officer, I will completely disagree.
    Then take your argument up with the state of California, not me.

    Until such time that the state changes the law (not going to happen), the citation will serve as the verified criminal complaint as indicated.
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    Quote Originally Posted by CdwJava View Post
    Then take your argument up with the state of California, not me.

    Until such time that the state changes the law (not going to happen), the citation will serve as the verified criminal complaint as indicated.

    LOL. Could the citizens of California really expect anything more than that in immoral character of police to protect their rights, especially when there is money involved?


    It is in very plain language that signing a ticket is in fact a violation of the Constitution right against being compelled to be a witness against himself. Specifically where citizens must sign their own complaint against themselves or go to jail:

    Vehicle code section 40302. Which states:
    "Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases:"
    (b) "When the person arrested refuses to give his written promise to appear in court."

    Just to show us how conformed we have become, take a look at the Cops ratings.

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    Well, good luck challenging the state courts and the Legislature. Have fun with that.
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  14. #14
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    A signature on a citation is a promise to appear in court to have the matter heard at a later time, not an admission of guilt regarding the offense cited. Fail to sign and you get to go to jail and have the matter heard more quickly.

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    There are two matters that you are glazing over:
    1) is the fact that if you do not sign the Notice to appear that you will be taken to jail. hence compelled to be a witness against yourself. Also is the fact that there are no Miranda rights provided nor a Counsel present.


    2). The court has clearly stated that without a Verified Complaint there is no Jurisdiction unless a plea is given, that means any plea. Again, you must not plea. Which is permissible (i.e. may plea) the Court has no jurisdiction. See below

    "This is a petition for a writ of prohibition to restrain the respondent police court from further proceeding to prosecute petitioner on a charge of reckless driving, causing bodily injury in alleged violation of section 505(b) of the Vehicle Code."

    "It does disclose, however, a plea of not guilty and it does aver that no waiver was made. Under such circumstances the filing of a complaint was mandatory, and essential to the jurisdiction of the court. "Jurisdiction is fundamental. It is the primary question for determination by a court in any case for jurisdiction is the power to hear and determine. [Citing cases.] If a judgment is rendered by a court which did not have jurisdiction to hear a cause, such judgment is void ab initio. [Citing cases.] Even though a void judgment is affirmed on appeal, it is not thereby rendered valid." (In re Wyatt, 114 Cal. App. 557, 559 [300 P. 132].)

    Let the peremptory writ issue as prayed.
    Disposition
    Writ granted." (see; Ralph v. Police Court, 84 CalApp2d Page 257) later upheld in Heldt and Barron. 1995 if you plea, you're done and have submitted to jurisdiction, Period.

    GOTCHA!!!

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