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IN THE APPELLATE DIVISION OF THE SUPERIOR COURT

OF STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CRUZ

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People of the State of California, )
Respondent,
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v.
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Kenneth Lloyd Cholden,
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Appellant.
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___________________________________)

AP-1713

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APPELLANTS OPENING BRIEF

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KENNETH L. CHOLDEN
140 Westdale Drive
Santa Cruz, CA 95060
Appellant and Defendant In Pro Per

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TABLE OF CONTENTS

APPELLANTS OPENING BRIEF

TABLE OF CONTENTS

SUMMARY

APPLICABILITY

FACTS

GROUNDS

ARGUMENT

PRAYER

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CERTIFICATION

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SUMMARY
The thrust of the appellants appeal is the traffic
stop, which resulted in the appellants conviction of
speeding (CVC 22349(b)), was based on an illegal speed
trap (CVC 40801 et seq.).
The trial judge, Commissioner Gallagher, summarized the
trial as:

CHP Officer Petrinovich used radar to determine that

the defendants [sic] vehicle, which was travelling in
the opposite direction was travelling at 72 mph after
first having visually estimated that the vehicle was
going 70 mph. The CHP Officer did not confirm his
speed on his speedometer as required by the manual for
the device. The defendant stated at the time, I dont
think I was going over 60 mph. The posted speed was
55 mph. Disregarding the radar reading, and using the
defendants statement and the visual estimate, the
court found the defendant guilty.
The appellant contends the trial court erred by

accepting the officers visual estimates and testimony

concerning the defendants roadside statements after
excluding radar evidence of speed and simply ignoring
the fact no traffic and engineering survey had been
produced. CVC 40803(a) provides:
No evidence as to the speed of a vehicle upon a
highway shall be admitted in any court upon the trial
of any person in any prosecution under this code upon
a charge involving the speed of a vehicle when the
evidence is based upon or obtained from or by the
maintenance or use of a speedtrap.

Without the testimony of the officer, their is

sufficient evidence to support conviction.

not

This appeal

follows.

APPLICABILITY
The judgment from which appellant appeals is final (CRC
rule 8.204(a)(2)(B)), and is appealable pursuant to PC
1237(a).

FACTS
The case history, trial testimony, and facts are
contained with the Statement on Appeal in the courts case
file, and are not restated for brevity. Any referenced to
SOA herein refer to the previous filed Statement on
Appeal, attached to Request for Final Certification of
Statement on Appeal After CR-144 Ordered Changed.

GROUNDS
The defendant appeals conviction on two grounds:

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1.The evidence used to convict was based on an illegally
maintained speed trap. See CVC 40801 et. seq. The statute
requires the prosecution produce a valid traffic and
engineering survey, and certain radar usage requirements
must be met. It was accepted at trial that the radar unit
was not calibrated according the manufactures printed
instructions. Further, no traffic and engineering survey
exists for the area. Those facts create a statutorily
defined speed trap. The statues provide that once a illegal
speed trap is found to exist, no further evidence may
offered, such as any visual estimates of speed, and the case
must be dismissed.See People v. Studley (1996) 44 Cal. App.
4th Supp. 1; also see, generally, CVC 40802 40805

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2. The commissioner failed to wait atleast six hours before
sentencing the defendant (See PC 1449).The defendant did
not expressly waive his rights under PC 1449. Since the
fine amount is at a judges discretion (e.g. the range
allowed is a base fine of $1 to $100, plus assessments) the
failure was prejudicial since the defendant was not afforded
the opportunity to present evidence for a lower fine.

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ARGUMENT
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR WHEN IT FAILED TO EXCLUDE ALL
OF THE OFFICERS TESTIMONY AFTER
DISREGARDING THE RADAR EVIDENCE

A. Statutory Requirements Not Meet

Californias vehicle code incorporates a prohibition
against speed traps. The statutes provide that in order
for an officer to use radar, specific prerequisites must be
meet. The statutes also provide that it is the prosecution
that has the burden to establish that a speed trap did not
exist (CVC 40803(b)).

Specifically, CVC 40803(a),

states:
No evidence as to the speed of a vehicle upon a
highway shall be admitted in any court upon the trial
of any person in any prosecution under this code upon
a charge involving the speed of a vehicle when the
evidence is based upon or obtained from or by the
maintenance or use of a speedtrap.

A speed trap is defined in CVC 40802(a)(2):

A particular section of a highway with a prima facie
speed limit that is provided by this code or by local
ordinance [...], if that prima facie speed limit is
not justified by an engineering and traffic survey
conducted within five years prior to the date of the
alleged violation, and enforcement of the speed limit
involves the use of radar or any other electronic
device that measures the speed of moving objects. This
paragraph does not apply to a local street, road, or
school zone.

In the instant case, the roadway is Highway 1 just

north of Santa Cruz, a state highway clearly not a local
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street (id). The limit for this section of highway is

provided by this code (id.) in CVC 22349(b).
Importantly, at trial it was established that no engineering
and traffic survey had been conducted (SOA, p. 9). Without
the survey being conducted, the presumption of an illegal
speed trap when using radar for enforcement cannot be
removed.
Additionally CVC 40802(c), requires that the radar be
properly used, by trained personal. In this case, at trial
it was shown that the radar was not used in accordance with
the operational standards required. Given both the lack of a
engineering and traffic survey, and the radar being using
inappropriately in the instant case, the prosecution failed
meet their burden to establish that the stop was not based
on an illegal speed trap. The court erred by accepting the
officers testimony, and without such evidence, their is no
evidence to support conviction. Thus reversal is mandated.

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B. Plain Text of CVC 40802 et seq. Supports Reversal
Without Survey

Case law in Studley, id. also supports reversal. In

that case the defendant was also charged with a CVC 22349(b)
speed violation (speeding, >55 or >65 MPH) and an expired
traffic survey was offered. The Studley (at 4-5) court
reversed conviction on the basis that the stop was based on
a speed trap:

However, after a close reading of the statutes in

question, we find the Legislature's antipathy toward
any radar-based prosecution of any speed law violation
in any posted zone, where the prima facie speed limit
is not justified by proof of a timely engineering
survey, is absolute and unequivocal. The statutes,
simply, provide no exception in the case of a
violation of the maximum speed limit. [emphasis
added]

The instant case presents a similar fact pattern as the

conviction reversed in Studley, except no traffic survey had
been conducted (SOA, p. 9) and, the radar evidence was
already excluded at trial for other reasons (SOA, p. 10),
only giving more weight to the existing of an illegal speed
trap.

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C. Speed Traps Prohibition Applies to Maximum" Speed
Violations

While Studley supports that a engineering and traffic

survey must be conducted for the police to avoid an illegal

speed trap, People v. Singh (2001) 92 Cal. App. 4th Supp. 13
reached a different conclusion. But their are several
distinguishing characteristics in the instant case to
distinguish it from Singh, and for this court to give
greater weight to the opinion in Studley.
First, Singh only deals with the issue of no valid
engineering and traffic survey in a CVC 22349 case, not
the combined issue

of the radar unit being used

inappropriately and the lack of a valid traffic survey. In

this case, the judge disallowed the radar evidence after it
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was proven the device was not used in accordance with the
devices operators manual (SOA, p. 10). While appellant
contends a engineering and traffic survey is required in the
case, the radar was also found at trial to be used in
inappropriately, thus questioning whether the requirements
in CVC 40802(c)(D)s minimal operational standards were
meet. In the instant case, the judge disallowed the radar
evidence based on the officers failure to follow the
operators manual, not because of a speed trap. Singh did not
deal with the double incursion into an illegal speed trap
with both: no traffic survey and incorrect radar usage by
the officer.
Second, the Singh courts statutory analysis analysis
is flawed. The appellant argues the statutes, simply,
provide no exception in the case of a violation of the
maximum speed limit (Studley at 4-5). Numerous authorities
agree that in construing a statute, the "fundamental task is
to ascertain the Legislatures intent so as to effectuate
the purpose of the statute." (Smith v. Superior Court 2006
39 Cal.4th 77, 83; accord, Cummins, Inc. v. Superior Court
2005 36 Cal.4th 478, 487; In re Marriage of Harris 2004 34
Cal.4th 210, 221), yet this is only given secondary
consideration in Singh.
Additionally, the Singh court states they are going
parse the statute using the actual language of the
statute, which would be a reasonable starting point, but
instead looks at the statute [s]tripped of the phrases
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which explain or expand on subjects not in issue here. The

appellant argues that [e]ffect should be given to the
entire statute. (CCP 1858). The appellant argues that
review of the speed trap statute construction by this court
should be de novo.
Specifically, the actual language is meaningfully
contorted by Singh when the court removed text and ignored
an or in CVC 40802(a)s first sentence:
(2) A particular section of a highway with a prima
facie speed limit that is provided by this code or by
local ordinance [...] [typographic effects added]

When read in this light, its easy to see the that text
supports that CVC 22349 is a prima facie speed limit
provided by this code. (The word prima facie is left not
undefined in the vehicle.)

The rest of the sentence

concerns speed limits not expressed directly in the vehicle

code and set in some other manner, which is why the
statutes text gets complex. If the legislature wished to
exclude cases of the maximum speed limit, they could have
expressed it in CVC 40802.

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D. Visual Estimates and Defendants Statement Were Fruit
from a Poisoned Tree

Beyond the rational under the anti-speed trap statutes,

the judge erred by not accepting the defendants motion to
exclude the officers testimony after the judge disqualified
the radar evidence (SOA, p. 11). The probably cause for the
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stop was the officers radar reading (CHP Officer

Petrinovich used radar to determine that the defendants
vehicle, SOA, p. 1), not his visual estimates which were
only introduced after the radar evidence had been
disallowed. Once the radar evidence was excluded, the
exclusionary rule should have applied since the stop was not
justified after it was found the officers radar was not
valid.

THE TRIAL COURT FAILED TO WAIT SIX

HOURS BEFORE SENTENCING AND THUS NOT
AFFORDING THE DEFENDANT TIME TO
PREPARE TO ARGUE FOR A LOWER FINE
The court must fix a time, not less than six hours nor

more than five days after the plea, for pronouncing

judgment, unless the defendant waives the postponement (PC
1449). In this case, the defendant did not waive that right
(SOA, pg. 12).

The defendant asks that the he be afforded

the ability to argue for a lower fine.

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PRAYER
For the above reasons, the appellant prays that the
conviction is reversed and the case is dismissed.

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CERTIFICATION
Pursuant to California Rules of Court, rule 8.360(b)
(1), I certify that this brief contains 1,946 words, based
on the word-count feature of the Apple Pages word processing
program.

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Respectfully submitted,
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Kenneth L. Cholden, Appellant

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