"Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity to the law of the land.   There are two reasons for this; one to avoid bloodshed, and the other to preserve the liberty of the citizen.   Obedience to the law is the bond of society, and the officers set to enforce the law are not exempt from its mandates.".
Town of Blacksburg v. Bean (1916) 104 S.C. 146, 88 S.E. 441
Allen v. State (1924) 197 N.W. 808, 810-11 (Wis.)



"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." (Saucier v. Katz , supra , 533 U.S. at p. 202.)
Macias v. County of Los Angeles (2006) 144 Cal.App.4th 313


William L. Prosser
Professor of Law
Hastings College of Law


Chapter 13


p. 492

1:    As we have seen, the early law of torts was not concerned primarily with the moral responsibility, or “fault” of the wrongdoer.   It occupied itself chiefly with keeping the peace between individual, by providing a remedy which would be accepted in lieu of private vengeance.

            This is the reason we go to court.   We want to avoid*...

*  Uncompensated reference


Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.


Are you being SUED or PROSECUTED?

Prosecute = CRIMINAL









...the court has no authority to substitute itself as the representative of the People...
People v. Orin (1975) 13 Cal.3d 937



Or how the State shifts its burden of proof to the still innocent defendant.


The court initially stated it thought the People had failed to prove a violation of Vehicle Code section 12500.   The People referred the court to CALJIC No. 16.631, stating: "I'll refer the Court to CALJIC 16.631 and the authority cited and that's jury instruction which indicates the People do not have to prove that the defendant did not have a license. Since it is a fact that is peculiarly within the defendant's knowledge."

CALJIC No. 16.631 provides:  "It is not necessary for the People to prove that the defendant did not have a license [of the appropriate class or [34 Cal.App.4th 197] certification] to operate a motor vehicle. Whether the defendant was or was not properly licensed is a matter peculiarly within [his] [her] own knowledge.   The burden is on the defendant to raise a reasonable doubt as to [his] [her] guilt of driving a motor vehicle upon a highway without being the holder of a driver's license [of the appropriate class or certification]."

The trial court read the instruction, found it to be the correct law, and concluded that because the matter was within Shawnn's own personal knowledge, the burden was shifted to Shawnn to prove that he had a valid license.

[2] Shawnn asserts that the court erred in relying on CALJIC No. 16.631.   Shawnn contends this instruction is unconstitutional because it improperly shifts the burden of proof on an element of the crime to the accused.   While acknowledging the rule of convenience, Shawnn argues that it should not apply here; whether or not he holds a driver's license is not a fact peculiarly within his knowledge, and the People have ready and convenient access to the records of the Department of Motor Vehicles.

Respondent contends that the rule of convenience applies and views a driver's license as no different than any other type of license where the rule has been previously applied.

The rule was adopted by the California Supreme Court in People v. Boo Doo Hong (1898) 122 Cal. 606 [55 P. 402].   In Boo Doo Hong the court followed the general consensus by legal writers that when there are facts peculiarly and clearly within the knowledge of the defendant, and the defendant can show the evidence without the least inconvenience, then the defendant is required to offer this proof. Both of the legal writings relied on by the court offered license cases as examples. (Id. at pp. 608-609.) [34 Cal.App.4th 198]

Thus, the California Supreme Court in Boo Doo Hong clearly held that a defendant has a burden of producing a license when a license would act as a complete defense. "As far back as the case of People v. Boo Doo Hong (1898), 122 Cal. 606 ..., it has been the law that when a license or prescription would be a complete defense, the burden is upon the accused to prove that fact so clearly within his knowledge." (People v. Martinez (1953) 117 Cal.App.2d 701 , 708 [256 P.2d 1028].)

In People v. Montalvo (1971) 4 Cal.3d 328 [93 Cal.Rptr. 581, 482 P.2d 205, 49 A.L.R.3d 518], the California Supreme Court refused to apply the rule of convenience to an allegation that a defendant was 21 years of age or older. "The allegation that the defendant is 21 years of age or over is not a negative averment. A true negative averment, for example that the defendant lacked a prescription for a drug, the possession of which was lawful only on prescription, may often be practically impossible for the prosecution to prove but easy for the defendant to refute. In the absence of a legislative provision that minority is a defense, we do not believe that the relative ability of the prosecution and defense to establish the defendant's age is sufficient to justify invoking the rule of necessity and convenience to relieve the prosecution of its burden of proving the defendant's majority under section 11502.

"The defendant may not necessarily have any substantially greater ability to establish his age than does the prosecution. A defendant's precise age is not a matter within his personal knowledge but something he must have learned either from family sources or public or church records. In this age of documented existence there is little doubt that ordinarily the prosecution may be able to secure evidence of the defendant's age. Moreover, in those rare cases where there is no evidence of the defendant's precise age except his own belief as to what it is, the defendant might be as hard pressed as the prosecution to verify it. If minority be deemed a defense, a defendant in such a case would be at the mercy of the jury's power to disbelieve his testimony even though it be the only available evidence of age. We conclude that a case for the application of the rule of necessity and convenience here has not been made out." (People v. Montalvo, supra, 4 Cal.3d at pp. 334-335.)

Driving without a valid driver's license is a negative averment just as possessing a controlled substance without a prescription has been held to be. Holding a valid driver's license is a matter within the defendant's personal knowledge and it would not be unduly harsh or inconvenient for a defendant to produce the license. The California Supreme Court in Boo Doo Hong specifically endorsed the rule in license cases.

The one factor urged by Shawnn as a reason to not apply the rule of convenience is that the People have ready access to driver's license records [34 Cal.App.4th 199] in California. We cannot ignore that much has changed since 1898 in technology and that access to particular types of information can often be achieved with little or no inconvenience in a very short period of time. Yet there is insufficient evidence before us from which we can determine how easily accessible and producible in admissible form this information is to the People. Because the Supreme Court's ruling in Boo Doo Hong continues to be good law, and because of the lack of evidence as to the People's access to driver's license information, we choose not to deviate from the well-established principle of applying the rule of convenience to cases involving licenses.

Shawnn failed to produce his driver's license when asked to do so. Sergeant Ruckman ran Shawnn's name through a Department of Motor Vehicles check and was advised that Shawnn did not have a valid license. At trial, Shawnn failed to produce any evidence that he possessed a valid driver's license. Shawnn failed to show he was a licensed driver.
In re Shawnn F. (1995) 34 Cal.App.4th 184

THE PEOPLE, Respondent, v. BOO DOO HONG, Appellant

Crim. No. 420

Supreme Court of California, Department Two

122 Cal. 606; 55 P. 402; 1898 Cal. LEXIS 641

December 8, 1898

PRIOR-HISTORY: APPEAL from a judgment of the Superior Court of Tehama County and from an order denying a new trial.
John F. Ellison, Judge.

COUNSEL: J. T. Matlock, for Appellant.

W. F. Fitzgerald, Attorney-General, and C. N. Post, Deputy Attorney-General, for Respondent.

JUDGES: Belcher, C. Haynes, C., and Searls, C., concurred. Henshaw, J., McFarland, J., Temple, J.



The defendant was charged by information, filed in the superior court of Tehama County, with the crime of willfully and unlawfully practicing medicine in the state of California, without having first procured a certificate to so practice as required by law. He demurred to the information, and, his demurrer being overruled, then pleaded not guilty. He was subsequently tried and found guilty of the offense charged, and judgment was entered that he pay a fine of three hundred and fifty dollars, et cetera. From that judgment and an order denying his motion for a new trial he has appealed.

The demurrer was properly overruled. The facts stated in the information were sufficient to constitute a public offense, and it was not necessary to allege the existence of the medical societies referred to. ( People v. O'Leary, 77 Cal. 30.)

At the trial uncontradicted evidence was introduced by the prosecution sufficiently showing that for several months prior to the filing of the information defendant had been practicing medicine at Red Bluff, in the county of Tehama ( People v. Lee Wah, 71 Cal. 80), but no evidence was introduced on either side showing, or tending to show, that defendant had or had not a certificate to so practice, as required by law. (Stats. 1875-76, p. 792; Stats. 1877-78, p. 918.) And at the conclusion of the evidence the court instructed the jury quite fully upon all the questions of law involved in the case, and, among other things, told them, in effect, that the burden was upon the defendant to establish that he had a certificate to practice medicine as provided by law, and, if he failed to prove that he had such certificate, then it must be taken as true that he had not procured a certificate to so practice medicine.

It is contended for appellant that the said instruction was erroneous and misleading, and that the verdict was not justified by the evidence, because in a criminal action the defendant is presumed to be innocent until he is proved guilty beyond a reasonable doubt, and this presumption continues through the entire trial, and the burden is upon the people to establish his guilt by proving every material allegation of the information; and that as the information charged that defendant had practiced medicine without having a certificate to do so, it devolved upon the people to prove that fact, and having entirely failed to offer any such proof he ought not to have been convicted, and his motion for new trial should have been granted.

The general rule is undoubtedly as above stated, but there is a well recognized exception to the rule, where there is a negative averment of a fact which is peculiarly within the knowledge of the defendant.

Mr. Greenleaf, in his work on Evidence, volume 1, section 79, under the heading "Negative Allegations," says: "But when the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. Such is the case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any persons, except those who are duly licensed therefor; as, for selling liquors, exercising a trade or profession, and the like. Here the party, if licensed, can immediately show it without the least inconvenience; whereas, if proof of the negative were required, the inconvenience would be very great." (Citing a large number of cases. See, also, 3 Rice on Evidence, sec. 260, where the same rule is declared.)

In 1 Jones' Law of Evidence, section 179, under the heading "Burden as to particular facts lying peculiarly within knowledge of a party," it is said: "This is often illustrated in prosecutions for selling liquors or doing other acts without the license required by law. By a few authorities the rule is prescribed that in such cases the prosecution must offer some slight proof of the fact that no license has been granted, for example, by producing the book in which licenses are recorded; and, if the book fails to show that a license has been granted, the burden is shifted upon the defendant to prove the fact claimed by him; but the greater number of authorities hold that where a license would be a complete defense the burden is upon the defendant to prove the fact so clearly within his own knowledge." (Citing cases.)

We think the rule upon this subject generally recognized and followed the correct one, and therefore conclude that the court did not err in giving the instruction complained of, and that the verdict was justified by the evidence.

The judgment and order appealed from should be affirmed.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.



            A lawyer is a mechanic.  They fix things.   There’s repair manuals for their trade.  Their repair manuals are located at the Law Library.   Lots of repair manuals are also on-line so anyone can read them to determine if the mechanic knows what they’re doing.

            The primary tools of the mechanic’s trade are his eyes, brain, mouth, and fingers.   Presumably if you have these tools you too could do what the lawyer does.  It’s helpful to have a typewriter or computer with a printer.

            The lawyer mechanic primarily fixes misunderstandings and disagreements.   That’s something anyone with a mouth and semi-functional brain can do.

            If you don't show up after promising to show up, you lose.   Neither the People, who are the alleged victim, nor their attorney, the District Attorney, bothers to show up to tend their case.  

            Their case must be on ...


            Is that how it works?    You're accused of an alleged crime and neither the plaintiff nor their attorney appear, in fact they don't even file a complaint.   This is your Justice System.   It was set up to benefit the People.   The Founders would not have set up a system they risked their lives and the lives of their families to recreate what they went to war and defeated. 

            Seriously, who prosecutes the CRIMINAL CASE?   Who filed the CRIMINAL CASE?    Who's the witness in the CRIMINAL CASE?   What does the Accuser HAVE TO do?

[4]  Whether or not the People provide a prosecuting attorney, the citing officer who testifies as to the circumstances of the citation is a witness, no more, no less.
People v. Marcroft (1992) 6 Cal.App.4th Supp. 1
Appellate Department, Superior Court, Orange

Actori incumbit onus probandi 
The burden of proof lies on the plaintiff.

Defendant makes a prima facie case of unlawful arrest when he establishes that arrest was made without a warrant, and burden rests on prosecution to show proper justification.
People v. Holguin (1956) 145 Cal.App.2d. 520

If objection to illegal arrest may be raised at all after accused has subjected himself to the jurisdiction of the court, the issue must at least be raised before a plea is entered at arraignment.
Ringer v. Municipal Court of Modesto Judicial Dist., Stanislaus County (1959) 175 C.A.2d 786



Defendant makes a prima facie case of unlawful arrest when he establishes that arrest was made without a warrant, and burden rests on prosecution to show proper justification.
People v. Holguin (1956) 145 Cal.App.2d. 520
Defendant notes that the prosecution has the burden of proving, if it can, some justification for a warrantless search or seizure, and therefore a warrantless search is presumptively unreasonable.
...once defendant had properly raised the issue, the prosecution had the burden of proof.
The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances.
People v. Williams (1999) 20 Cal. 4th 119



            The Judicial Officer is not the Defendant's adversary.   The Defendant's adversary is the District Attorney or City Attorney or private citizen.   The judicial officer is the umpire.   They play for neither team.  




Code of Civil Procedure

170.1.  (a)  A judge shall be disqualified if any one or more of the following is true:
   (2) (A)  The judge served as a lawyer in the proceeding,

   (6) (A)  For any reason:
   (iii)  A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.


            Your Honor, the question assumes facts not in evidence.    We are here to ask for facts from the witnesses, not assume that a fact exists.

            Your Honor, we object to the lack of foundation because [e.g., there is no showing of the witness’s time and place of observation of the facts called for].

“An objection to foundation is futile unless it is sufficiently specific to afford the opposing party opportunity to cure it.”
United States v. Michaels, 726 F.2d 1307, 1314 (8th Cir. 1984)

It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.  Their motto should be obsta principiis.

BOYD v. U.S. (1886) 116 U.S. 616

Judge has obligation to impose contempt and swiftly punish those who attempt to win by disobeying rules.
Betsworth v. W.C.A.B. (1994) 26 Cal.App.4th 586

When a person is clothed with power and has assumed the duties of a public officer, he has taken upon himself the obligation to perform those duties; and if he neglects or refuses to do so, any person, whose rights thereby injuriously affected, is entitled to demand relief, and mandamus is the proper remedy.   
Sinton v. Ashbury (July 1871) 41 Cal. 526

California Government Code

    72190.   Within the jurisdiction of the court and under the direction of the judges, commissioners shall exercise all the powers and perform all of the duties prescribed by law. At the direction of the judges, commissioners may have the same jurisdiction and exercise the same powers and duties as the judges of the court with respect to any infraction or small claims action.  They shall be ex officio deputy clerks.







13951(b)(1).  "Crime" means a crime or public offense, wherever it may take place, that would constitute a misdemeanor or a felony if the crime had been committed in California by a competent adult.

In View of Code Civ. Proc. 24, declaring actions to be two kinds, civil and criminal, and 22, defining actions, there is no such thing as a “quasi-criminal act.”
Ex Parte Clark (1914), 24 C.A. 389

All crimes are against the state.

People v. Weber (1948) 84 C.A.2d 126

A "public offense" is synonymous with "a crime" and a crime includes both felonies and misdemeanors.
Burks v. United States, 287 F.2d 117 (9th Cir.1961).

Prosecution must establish that a crime has been committed.
People v. Brower (1949) 92 C.A. 2d 562

Are based on rules that are printed and are on-line.




The investigation and prosecution of public offenses is, of course, the responsibility and prerogative of the Attorney General and the several district attorneys (Cal. Const., art. V, 13; Gov. Code, 26500), and no one may intrude upon these activities without the concurrence, approval, or authorization of such officers. (Dix v. Superior Court (1991) 53 Cal.3d 442, 451 [279 Cal.Rptr. 834, 807 P.2d 1063]; People ex rel. Kottmeier v. Municipal Court (1990) 220 Cal.App.3d 602, 609 [269 Cal.Rptr. 542]; People v. Shults (1978) 87 Cal.App.3d 101, 106 [150 Cal.Rptr. 747]; Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, 240-241 [138 Cal.Rptr. 101].)
Los Angeles City Ethics Com. v. Superior Court (Fuentes) (1992) 8 Cal.App.4th 1287

The prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor. (Gov. Code, 26500, 26501; see Cal. Const., art. V, 13.)

[2] The prosecutor ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek. (E.g., People v. Sidener (1962) 58 Cal.2d 645, 650 [25 Cal.Rptr. 697, 375 P.2d 641].) No private citizen, however personally aggrieved, may institute criminal proceedings independently (e.g., Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 226 [124 Cal.Rptr. 427]), and the prosecutor's own discretion is not subject to judicial control at the behest of persons other than the accused. (People v. Wallace (1985) 169 Cal.App.3d 406, 410 [215 Cal.Rptr. 203]; Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, 240-241 [138 Cal.Rptr. 101]; Taliaferro v. Locke (1960) 182 Cal.App.2d 752, 755-757 [6 Cal.Rptr. 813].) An individual exercise of prosecutorial discretion is presumed to be " 'legitimately founded on the complex considerations necessary for the effective and efficient administration of law enforcement. ...' " (People v. Keenan (1988) 46 Cal.3d 478, 506 [250 Cal.Rptr. 550, 758 P.2d 1081], quoting People v. Heskett (1982) 30 Cal.3d 841, 860 [180 Cal.Rptr. 640, 640 P.2d 776].) [53 Cal.3d 452]

Exclusive prosecutorial discretion must also extend to the conduct of a criminal action once commenced. "In conducting a trial a prosecutor is bound only by the general rules of law and professional ethics that bind all counsel." (Taliaferro v. Locke, supra, 182 Cal.App.2d at p. 756.) The prosecutor has the responsibility to decide in the public interest whether to seek, oppose, accept, or challenge judicial actions and rulings. These decisions, too, go beyond safety and redress for an individual victim; they involve "the complex considerations necessary for the effective and efficient administration of law enforcement." There is no place in this scheme for intervention by a victim pursuing personal concerns about the case.

Dix v. Superior Court (People) (1991) 53 Cal.3d 442

Thus the theme which runs throughout the criminal procedure in this state is that all persons should be protected from having to defend against frivolous prosecutions and that one major safeguard against such prosecutions [27 Cal.App.3d 206] is the function of the district attorney in screening criminal cases prior to instituting a prosecution. fn. 8

Due process of law requires that criminal prosecutions be instituted through the regular processes of law. These regular processes include the requirement that the institution of any criminal proceeding be authorized and approved by the district attorney.
People v. Municipal Court (Pellegrino) (1972), 27 Cal.App.3d 193



We get to make up our own rules!

            Why weren't you invited to participate in the development of the "innovative procedures"?   How do you know they benefit you?   How do you know what rules to use when you're subjected to the "innovative system" the courts and attorneys have developed if you decide to have your day in court because you believe the officer may be wrong?   How will you know what procedures to use to go about fixing your problem?

                Fortunately the codes are available on-line 24/7 so there's no reason for anyone to claim they didn't know the law.   What commissioner or judge would buy the "Gee, I didn't know your honor." defense, due to the fact they KNOW the codes are avaliable for access 24/7 365?

             Government was created by the people for the people, not by the people for the government employees. It's an absurd proposition that the employees have more power than the employer.   Hence, the importance of knowing the rules applicable to the employees and their job description.

Even if the officer is not expected to know the law of all 50 states, surely he is expected to know the California Vehicle Code,...

Both the police we honor and the criminals we prosecute are subject to the same binding Constitution.
SMITH v. CITY OF HEMET, 394 F.3d 689 (9th Cir. 2005) (en banc)

Police officer may not rely on good faith, inarticulable hunches, or generalized suspicions to meet standard of reasonable suspicion to justify investigatory stop.
U.S.  v.  Velarde, 823 F. Supp. 792.  (D. Hawaii 1993)

“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.”
Bordenkircher v. Hayes, 434 US 357, 363 (1978) 
U.S. v. Goodwin, 457 US 368, 372 (1982)

If the averments contained in the affidavit are true, it may be that the present complaint was drawn so as to get past a demurrer, and so as to get to trial on a purely fictitious and nonexistent cause of action.   If so, it constitutes an abuse of judicial process.   To take up the time of the courts with an action known by the attorney to be false and fictitious is clearly an abuse of judicial process.   The courts involved are not impotent to protect themselves from such imposition. They possess inherent powers to prevent the administration of justice from being brought into disrepute by such tactics, [67 Cal.App.2d 897] and specifically may use the implied power "to properly and effectively function as a separate department in the scheme of our state government" (Brydonjack v. State Bar, 208 Cal. 439 [281 P. 1018, 66 A.L.R. 1507]) to supervise and discipline "the conduct of attorneys who are officers of the court." (Barton v. State Bar, 209 Cal. 677, 681 [289 P. 818].)   These powers do not depend upon constitutional grant but arise from the inherent power "necessary to the orderly and efficient exercise of jurisdiction." (14 Am.Jur., pp. 370, 372, 171.)

If upon such a hearing it develops that there has been a deliberate intentional abuse of the judicial processes by counsel for appellant, the trial court possesses full and complete powers to punish such abuse by contempt proceedings or otherwise.
Corum v. Hartford Acc. & Ind. Co., 67 Cal.App.2d 891
[Civ. No. 12705. First Dist., Div. One. Feb. 9, 1945.]

Government officials performing discretionary functions “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Harlow, 457 U.S. at 818, 102 S.Ct. 2727.
Mary CLEMENT, Plaintiff-Appellant, v. CITY OF GLENDALE, Defendant, J & E Service Inc., d/b/a Monterey Tow Service;  J. Young, an individual, Defendants-Appellees. (2008), No. 05-56692, 9th Circuit Court of Appeals

            Was there an actual violation.   When you're exercising clearly established constitutionally secured rights you're immune from arrest and criminal prosecution for crime.

"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." (Saucier v. Katz , supra , 533 U.S. at p. 202.)
Macias v. County of Los Angeles (2006) 144 Cal.App.4th 313

        Of course this is "dispositive" because when you're exercising clearly established rights you're not harming anyone nor breaking any rule.   So that seems to be the first order of business.


            If the arrest was illegal, where's a better place to report it than open court in front of a judicial officer while the interaction is being officially recorded?   And who says you have to have a jerk for a judge?

Title 28, United States Code, Part I, Chapter 21, 455 Disqualification of justice, judge, or magistrate judge

(a)  Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b)  He shall also disqualify himself in the following circumstances:
    (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
    (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
    (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
    (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
    (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
        (i) Is a party to the proceeding, or an officer, director, or trustee of a party;
        (ii) Is acting as a lawyer in the proceeding;
        (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
        (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c)  A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d)  For the purposes of this section the following words or phrases shall have the meaning indicated:
    (1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
    (2) the degree of relationship is calculated according to the civil law system;
    (3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
    (4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
        (i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
        (ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
        (iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
        (iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
    (e)  No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
    (f)  Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
    (June 25, 1948, ch. 646, 62 Stat. 908; Pub. L. 93–512, 1, Dec. 5, 1974, 88 Stat. 1609; Pub. L. 95–598, title II, 214(a), (b), Nov. 6, 1978, 92 Stat. 2661; Pub. L. 100–702, title X, 1007, Nov. 19, 1988, 102 Stat. 4667; Pub. L. 101–650, title III, 321, Dec. 1, 1990, 104 Stat. 5117.)


    19572.  Each of the following constitutes cause for discipline of an employee, or of a person whose name appears on any employment list:
           (a) Fraud in securing appointment.
           (b) Incompetency.
           (c) Inefficiency.                       
           (d) Inexcusable neglect of duty.
           (e) Insubordination.
           (f) Dishonesty.
           (g) Drunkenness on duty.
           (h) Intemperance.
           (i) Addiction to the use of controlled substances.
           (j) Inexcusable absence without leave.
           (k) Conviction of a felony or conviction of a misdemeanor involving moral turpitude. A plea or verdict of guilty, or a conviction following a plea of nolo contendere, to a charge of a felony or any offense involving moral turpitude is deemed to be a conviction within the meaning of this section.
           (l) Immorality.
           (m) Discourteous treatment of the public or other employees.
           (n) Improper political activity.
           (o) Willful disobedience.
           (p) Misuse of state property.
           (q) Violation of this part or of a board rule.
           (r) Violation of the prohibitions set forth in accordance with Section 19990.
           (s) Refusal to take and subscribe any oath or affirmation that is required by law in connection with the employment.
           (t) Other failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the person's employment.
           (u) Any negligence, recklessness, or intentional act that results in the death of a patient of a state hospital serving the mentally disabled or the developmentally disabled.
           (v) The use during duty hours, for training or target practice, of any material that is not authorized for that use by the appointing power.
           (w) Unlawful discrimination, including harassment, on any basis listed in subdivision (a) of Section 12940, as those bases are defined in Sections 12926 and 12926.1, except as otherwise provided in Section 12940, against the public or other employees while acting in the capacity of a state employee.
           (x) Unlawful retaliation against any other state officer or employee or member of the public who in good faith reports, discloses, divulges, or otherwise brings to the attention of, the Attorney General or any other appropriate authority, any facts or information relative to actual or suspected violation of any law of this state or the United States occurring on the job or directly related to the job.

Everyone on the government payroll is an employee, including police, dirstrict attorneys, judges and everyone else working there.


            I guess none of that means what it says because if it did then we’d have to admit we’ve been pretty screwed over for a very long time by people who should know better and haven’t lifted a finger to do anything about it.   Infractions are not crimes.   There is no probable cause for a valid warrantless arrest given the conduct in question was not a crime.

            Then there's that commercial aspect of the allegation that must be proved with sufficient evidence that one was involved in commerce at the time the officer determined a violation had occurred.



"Every fact which, if controverted, plaintiff must prove to maintain his action must be stated in the complaint."
Jerome v. Stebbins (1859), 14 C. 457;
Green v. Palmer (1860), 15 C. 411, 76 Am. Sec. 492;
Johnson v. Santa Clara County (1865), 28 C. 545.

"The complaint, on its face, must show that the plaintiff has the better right."
Rogers v. Shannon (1877), 52 C. 99

[4] A plaintiff is required to set forth in his complaint the essential facts of his case with reasonable precision and with sufficient clarity and particularity that the defendant may be apprised of the nature, source and extent of his cause of action. (Dunn v. Dufficy, 194 Cal. 383, 391 [228 P. 1029]; Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 156 [157 P.2d 1]; Goldstein v. Healy, 187 Cal. 206, 210 [201 P. 462]; Miller v. Pacific Constructors, Inc., 68 Cal.App.2d 529, 539 [157 P.2d 57].)
Metzenbaum v. Metzenbaum, 86 Cal.App.2d 750
[Civ. No. 16288. Second Dist., Div. Two. July 14, 1948.]

"Complaint, to be sufficient, must contain a statement of facts which, without the aid of other facts not stated shows a complete cause of action."
Going v. Dinwiddie (1890), 86 C. 633, 25 P. 129.

"Pleadings should set forth facts, and not merely the opinions of parties."
Snow v. Halstead (1851), 1 C. 359.

[2] (2) In pleading, the essential facts upon which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise. (Philbrook v. Randall, 195 Cal 95, 103 [231 P. 739].)

[3] (3) Mere recitals, references to or allegations of material facts which are left to surmise are subject to a special [98 Cal.App.2d 444] demurrer for uncertainty. (Corum v. Hartford Acc. & Ind. Co., 67 Cal.App.2d 891, 894 [155 P.2d 710].)

[4] Applying the foregoing rules to the facts of the instant case it is evident that the trial court's orders and judgments must be sustained. The orders sustaining the demurrers were general in their terms and therefore under rule (1) supra, if properly taken on any ground stated therein must be affirmed.
Bernstein v. Piller, 98 Cal.App.2d 441
[Civ. No. 17607. Second Dist., Div. Two. July 13, 1950.]

"A complaint must contain a statement of facts showing the jurisdiction of the court, ownership of a right by plaintiff, violation of that right by the defendant, injury resulting to plaintiff by such violation, justification for equitable relief where that is sought, and a demand for relief."
Pierce v. Wagner, 134 F.2d. 958.

"Essential facts on which legal points in controversy depend, should be pleaded clearly and precisely, so that nothing is left for court to surmise."
Gates v. Lane (1872), 44 C. 392.

"The test of the materiality of an averment in a pleading is this: Could the averment be stricken from the pleading without leaving it insufficient?"
Whitwell v. Thomas (1858), 9 C. 499.

"In pleading, the essential facts on which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise."
Bernstein v. Fuller (1950), 98 C.A.2d 441, 220 P.2d 558.

"The "facts" which the court is to find and the "facts" which a pleader is to state lie in the same plane - that is, in both connections, "facts" are to be stated according to their legal effect."
Hihn v. Peck (1866), 30 C. 280.

"In general, matters of substance must be alleged in direct terms, and not by way of recital or reference."
Silvers v. Grossman (1920), 183 C. 693, 192 P. 534; Reid v. Kerr (1923), 64 C.A. 117, 220 P. 688.

"A fact which constitutes an essential element of a cause of action cannot be left to inference."
Roberts v. Roberts, 81 C.A.2d 871, 185 P.2d 381.

"Material facts must be alleged directly and not by way of recital."
Vilardo v. Sacramento County (1942), 54 C.A.2d 413, 129 P.2d 165.

"Material allegations must be distinctly stated in complaint."
Goland v. Peter Nolan & Co. (1934), 33 P.2d 688, subsequent opinion 38 P.2d 783, 2 C.2d 96.

"Matters of substance must be presented by direct averment and not by way of recital."
Stefani v. Southern Pacific Co. (1932), 119 C.A. 69, 5 P.2d 946.

"A pleading which leaves essential facts to inference or argument is bad."
Ahlers. v. Smiley (1909), 11 C.A.343, 104 P. 997.

"The forms alone of the several actions have been abolished by the statute.  The substantial allegations of the complaint in a given case must be the same under our practice act as at common law."
Miller v. Van Tassel (1864), 24 C. 459.

"A pleading cannot be aided by reason of facts not averred."
San Diego County v. Utt (1916), 173 C. 554, 160 P. 657.

"[2] While the complaint should be liberally construed, with a view to substantial justice between the parties (Code Civ. Proc., sec. 452), that rule "does not, however, permit the insertion, by construction, of averments which are neither directly made nor within the fair import of those which are set forth. On the contrary, facts necessary to a cause of action but not alleged must be taken as having no existence." (21 Cal.Jur. 54; Feldesman v. McGovern, (1941) 44 Cal.App.2d 566, 571 [112 P.2d 645]; Estrin v. Superior Court, (1939) 14 Cal.2d 670, 677 [96 P.2d 340].) ."
Frace v. Long Beach City High School Dist. (1943), 137 P.2d 60, 58 C.A.2d 566

"A fact necessary to pleader's cause of action, if not pleaded, must be taken as having no existence."
Feldesman v. McGovern (1941), 44 C.A.2d 566.

"When pleading is silent as to material dates, or does not clearly state facts relied on, it must be presumed that statement thereof would weaken pleader's case."
Whittemore v. Davis (1931), 112 C.A. 702, 297 P. 640.

"Material matters in pleadings must be distinctly stated in ordinary and concise language."
Brown v. Sweet (1928), 95 C.A. 117, 272 P. 614.

"Facts contained in public records should be alleged in pleading when they constitute necessary elements of good cause of action."
Gray v. White (1935), 5 C.A.2d 463, 43 P.2d 318.

"When facts are available from public records, it is ordinarily improper to allege such facts on mere information and belief."
People v. Birch Securities Co. (1948), 196 P.2d 143, 86 C.A.2d 703, cert. denied
Birch Securities Co. v. People of State of California, 69 S.Ct. 745, 336 U.S. 936, 93 L.Ed. 1095.

Traffic experts and the public agree that traffic law enforcement is "criminal" only in a limited procedural sense.   The public and the legal system recognize that unsafe driving is a serious social problem, and the role of law enforcement is to promote traffic safety and improve driver behavior.   For the most part, trials of traffic infractions involve no complex problems of law or fact. fn. 3   Attorneys rarely appear in infraction cases for the simple reason that the stakes are not worth the cost.   For a judge who has no special interest in the subject, traffic court is characterized by the pressure of high volume and the monotony of repetition. fn. 4   In a large metropolitan court, where judicial assignments are influenced by seniority, traffic cases are assigned to the newest judges on the court, or to commissioners.

In some jurisdictions traffic infractions have been removed from the judicial branch and handled by administrative hearing officers attached to the executive agency which issues operator's licenses.   In 1975 the California Legislature requested the California Department of Motor Vehicles to undertake a study to determine the feasibility of adjudicating minor traffic cases administratively in this state. (Sen. Con. Res. No. 40, Stats. 1975, Res. ch. 86.)   The department did conduct such a study and in April 1976 published its report which concluded, among other things, that administrative adjudication by legally trained hearing officers "would stabilize and enhance the quality and efficiency of infraction processing and adjudication." (1 Cal. Dept. of Motor Vehicles: Administrative Adjudication of Traffic Offenses in Cal. p. 21.)

To avoid a conflict with the separation of powers requirement of the California Constitution, the report contemplated that the decisions of the [82 Cal.App.3d 53] administrative hearing officers would be subject to judicial review in the superior court through a proceeding in mandamus under Code of Civil Procedure, section 1094.5. (Id, p. 142.)   As a practical matter, such a review would be unavailable to most individuals who were aggrieved by an administrative decision.   Mandate proceedings in the superior court (unlike traffic trials) are relatively complex and expensive, and are rarely attempted without the assistance of an attorney.   Many persons would be unable and most would be unwilling to incur the expense of that kind of litigation to escape the administratively imposed sanction.   Thus for all practical purposes, administrative adjudication would mean a final decision by a person who was not a judicial officer at all.

The California Legislature thus far has kept traffic adjudication within the judicial branch but with expanded use of subordinate judicial officers.

...the trial of traffic infraction cases calls for the talents of a person who understands the special societal function of traffic law enforcement, who is committed to its educational objective and who has the personal capability of dealing with people expeditiously, fairly, and in good spirit. 

Regardless of what the collateral consequences of a traffic conviction may be, our concern should focus upon the accuracy of the adjudicatory system in determining which persons charged with violations are in fact violators.   In the context of our present inquiry, the crucial question is whether the conviction of the innocent is more likely to occur in an infraction trial before a commissioner than before a judge.
People v. Lucas (1978) 82 Cal.App.3d 47

Moreover, the state's substantial interest in maintaining the summary nature of minor motor vehicle violation proceedings would be impaired by requiring the prosecution to ascertain for each infraction the possibility of further criminal proceedings.   The chief reason for classifying some prohibited acts as infractions is to facilitate their swift disposition. (People v. Battle (1975) 50 Cal.App.3d Supp. 1, 7 [123 Cal.Rptr. 636].)  Unconstrained by the more stringent procedural requirements of a major criminal trial, municipal courts and prosecutors are free to develop innovative procedures to expedite traffic cases.
In re Dennis B., 18 Cal.3d 687
[S.F. No. 23453. Supreme Court of California. December 28, 1976.]



(Actual roadside court.   Inglewood, California, 1926)

OFFICER:   Sir this is where we accept pleas for violations of the Vehicle Code.
DEFENDANT:   Well you mean alleged violations of the Vehicle Code is that right?   Otherwise why would you need a plea if you’ve already determined I’m guilty as alleged? 
OFFICER:  Sir are you trying to be a smart ass?
OFFICER:   Ok then what’s your plea?
DEFENDANT:   Well is the alleged violation a crime?
OFFICER:   It’s an offense sir and this is where we accept pleas for offenses of the Vehicle Code.
DEFENDANT:   Again officer, you mean alleged offense right because if it’s already concluded I committed an offense then why would you need a plea?
OFFICER:    Are you trying to be a smart ass?
OFFICER:   So what’s your plea?
DEFENDANT:   Is the alleged offense a crime?
OFFICER:   Sir you’ve been charged with violating the Vehicle Code now what’s your plea?
DEFENDANT:   Again officer, and I mean no disrespect but you mean alleged violation right because if it’s already been determined, rather than just alleged, that I violated anything then you wouldn’t need a plea right?
OFFICER:   Yeah that’s right but remember this is 1926 and all we have are misdemeanors and felonies but if it was after 1968 then it would be an infraction, but it’s not after 1968 so it’s a misdemeanor which is a crime, so yeah, you’ve been accused of a crime, now what’s your plea?

The primary purpose of a constitution is to place limitations upon the legislative authority as well as upon the powers of its co-ordinate branches of government.
Allen v. State Board of Equalization (1941) 43 Cal.App. 2d 90

Obviously, administrative agencies, like police officers must obey the Constitution and may not deprive persons of constitutional rights.
Southern Pac. Transportation Co. v. Public Utilities Com., 18 Cal.3d 308
[S.F. No. 23217. Supreme Court of California. November 23, 1976.]

“The state constitution is the supreme law of the state,...”.  “If there is any difference in meaning between the constitution and a statute, the constitution must prevail,...”.
13 Cal.Jur.3d (Rev) 4, Part 1, p. 25