ELECTRONICALLY FILED

Superior Court of California

County of Santa Cruz
4/2/2019 8:00 AM
Alex Calvo, Clerk
Anthony By: Karen Broughton, Deputy
Defendant, In Pro Per

SUPERIOR COURT OF THE STATE OF CALIFORNIA,

SANTA CRUZ COUNTY, TRAFFIC DIVISION

)
People of the State of California, ) PETITION FOR
Plaintiff, ) WRIT OF CORAM NOBIS1
v. ) (ERROR)
Anthony )
Defendant. ) Trial Court Case#
) 18TR29451
_______________________________________)________________________________

TO THE HONORABLE PAUL P. BURDICK, PRESIDING JUSTICE OF THE

SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SANTA CRUZ:

The defendant, Anthony M. Shaffer, in the above entitled case, petitions for a writ of
coram nobis, and by this petition states as follows:

GROUNDS

1. The trial date currently set, June 20, 2019, violates the defendant’s right to a speedy
trial as it must be set within 30 days after a re-trial was ordered per PC § 1382(a).

2. The “Please Take Notice” sent to defendant by the court clerk on March 26, 2019
contains material errors concerning applicability of PC § 1214.1 to a defendant’s
failure to appear at trial, encroaching on the defendant’s right to remain silent, and in
violation of the statutory scheme in PC § 1043(e); among other errors noted herein.

3. There are significant public policy concerns around the court’s usage of civil
assessments — with the court violating established statutory schemes and case law,
resulting in the denial of civil rights to the accused; and, muting the obligation of the
court to be a neutral arbiter of disputes, above the appearance of impropriety, with a
duty to seek justice in each individual case.

1Morgan Prickett, The Writ of Error Coram Nobis in California, 30 Santa Clara L. Rev. 1 (1990),
available at http://digitalcommons.law.scu.edu/lawreview/vol30/iss1/1

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 PROCEDURAL HISTORY

4. The case concerns a “fix-it” ticket for failure to display registration, issued by the
CHP, on December 2, 2018 to the defendant.

5. The defendant signed the “notice to appear” issued at time of the stop, agreeing to
appear “within 30 days” to answer for the registration violation, VC § 4001(a).

6. The issued notice to appear does not state any operating hours for the courthouse,
neither on the front, nor back 2, of the citation.3

7. The defendant attempted appearance at the clerk’s window during “normal business
hours”, on an uncertain date but before the due date, sometime between 3:30 and 3:45
pm. However, the court’s operating hours were not typical or expected.

8. The court clerk’s office opens at 8am, and unexpectedly closes early at 3pm each day
– closing before the time of the defendant’s first visit.

9. The record is unclear of the date but the traffic court entered a judgement in the case,
apparently based on only on the allegations contained in notice to appear, and adding
a “civil assessment” for failure to appear, on or around January 17, 2019.

10. The court’s apparent judgement resulted in the case being assigned to court-appointed
collection agency very soon after judgement, on or about February 12, 2019.

11. The defendant made a second appearance at the courthouse to resolve the case on
February 21, 2019, but the case had been “assigned to collection” a few days prior.

12. The defendant spoke with, eventually, two clerks at criminal court clerk window on
same day above, February 21. The clerk’s office position was that they could not
schedule an arraignment, or even take a request for any other type of hearing or
motions – the clear, singular option presented by two different court clerks was to
contact the court’s collection agency, AllianceOne.

2 The back of the ticket was not visible when the defendant executed by signature the “Notice
to Appear” at the time of the stop. As is likely standard practice, the defendant was handed the
CHP officer’s black, leather-bound “ticket book” to sign the ticket at the end of the stop. The
ticket book only allows the viewing of the front face of the document when being asked to
signed the citation. As a result, the back side of the ticket is not accessible before signing.
Nevertheless, the back side of the notice to appear also did not state any court hours either.
3 Judicial Council guidelines for the format of the TR-135 notice to appear form provide provide
for the inclusive of the “hours of operations”. The trial court fails to make use of these
provisions, despite the clerk’s atypical operating hours. See https://www.courts.ca.gov/
documents/trinst.pdf for the guidelines: “Shaded areas on the [sample] form indicate spaces
subject to modification for local or agency requirements.” with court hours being shaded.

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 APPELLATE DIVISION REVIEW AND RESPONSE

13. Instead of contacting the collection agency, the defendant choose to appeal to the
appellate division of this court the following day, February 22, 2019. A series of
filings, and emails, followed, including a criminal appeal, extraordinary writ, and a
civil appeal, over the pursuing weeks.

14. Ultimately, via a second order in the extraordinary writ case, Shaffer v. Superior
Court, case number 19AP00007 (“‘007 writ”), the appellate division ordered a new
trial, “set aside” the $300 civil assessment, and ordered “the case removed from
collections” on March 11, 2019.4

15. The order was followed on March 26, 2019 with trial court setting a trial for June 20,
2019, mailing a “Please Take Notice” to the defendant, and mailing a “Request for
Court Appearance” to the CHP officer who issued the citation initiating the case.5

DEFENDANT NEVER WAIVED TIME 6

16. Importantly a “general time waiver” was also filed and recorded at the same time as
the trial date being set, March 26, 2019. No proof of service is on record with the
waiver, however.

17. The defendant only became aware of the waiver from viewing the court’s online case
portal on the evening of March 26, 2019. No copy of the notice was ever mailed to the
defendant concerning the entry of a time waiver by the court.

4 The ‘007 writ case file from the appellate division, as maintained by the court clerk, is
incorporated by reference here. A copy of Judge Burdick’s March 11, 2019 order is included in
this filing for clarity.
5To provide notice of the trial date to the parties, the court clerk mailed two notices on March
26, 2019: (1) the “Please Take Notice” sent to the defendant, and (2)“Request for Court
Appearance” sent the arresting officer (termed a “summons” in court records). Both are
attached and incorporated into this petition. The attached copies have been annotated by the
defendant to better highlight the issues. Official, unadulterated copies of both are already part
of the court record.
6 It is well-settled that the court cannot simply presume a defendant’s waiver of his
fundamental rights, which includes a guarantee of speedy trial and the right to confront
witnesses. “Courts indulge in every reasonable presumption against waiver of
fundamental rights and do not presume acquiescence in the loss of fundamental rights.”,
Johnson v. Zerbst (1938) 304 U.S. 458, 464.

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18. On March 29, 2019, the defendant appeared at the clerk’s window at the main
courthouse with purpose to obtain a copy of the “general time waiver” recorded in the
court’s computer system. The court clerk stated to the defendant “there was no
document” to print. It was explained that the waiver is “automatically” filed based on
the trial date set7.

19. Accordingly there is no record of the defendant “waiving time”, nor has the defendant
indicated any desire to forfeit his right to a speed trial.

20. While “summons” sent to the arresting officer notes that “Time is Waived”, the
“Please Take Notice” mailed to the defendant notably do not contain any hint of a
time waiver.

21. As a procedural matter, the defendant has not been arraigned, nor has any plea entered
been entered in the case – normally where any time waiver be discussed in open court.
The trial was instead ordered by appellate division order, but re-trial does not moot
any speedy trial rights, nor the fact it is defendant’s right alone to decide to waive
them.

22. PC § 1382(a) mandates a trial within 30 days, or at worse 45 days8, under the threat to
plaintiff of dismissal.

23. The current trial date of June 20, 2019 is 96 days from March 26, 2019, beyond the
any of the statutory limits, and absent any waiver of “speedy trial” rights by the
defendant.

24. The court clerk thus errored in setting the trial beyond the statutory limits, and it is
within the power of the court to correct the error here.

7Seemingly based on a clerk’s action in the court computer system. There is no evidence to
suggest a judge or magistrate of the court entered the waiver, nor has the defendant ever
appeared in open court concerning this case.
8 The defendant asserts the standing is similar to the case of a retrial being ordered after
appeal, which is 30 days under PC § 1382(a). However, depending on the court’s interpretation
of the procedural standing of the case, PC § 1382 allows up to 45 days. Despite the statute’s
lengthy enumeration of speedy trial rules, the case of no trial or arrangement in the first place,
and a trial ordered via a writ, was not specifically enumerated.

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 CLERK’S PREJUDICIAL STATEMENT CONCERNING CIVIL ASSESSMENT

UPON DEFENDANT’S POTENTIAL FAILURE TO APPEAR AT TRIAL

IN “PLEASE TAKE NOTICE” MAILED TO DEFENDANT

25. PC § 1214.1(a)’s actual text reads “In addition to any other penalty in infraction,
misdemeanor, or felony cases, the court may impose a civil assessment of up to three
hundred dollars ($300) against a defendant who fails, after notice and without good
cause, to appear in court for a proceeding authorized by law”.

26. The “Please Take Notice” mailed the defendant on March 26, 2019 contains a
warning statement, indicated by a checkmark, that states a failure to appear at trial
may result in a civil assessment9 — and ignores the potential outcomes enumerated in
PC § 1043(e)10 given incorporation into infraction procedures by PC § 19.711.

27. It is noted that the “Please Take Notice” is signed by a deputy court clerk, not a
judicial officer or magistrate.12.

28. Critically the statement about civil assessment included in the “Please Take Notice”
uses the phrase “in the amount of $300”, implying a unalterable, fixed amount. While
PC § 1214.1 actual text uses the phrase “up to” which instead implies judicial
discretion in the amount. The clerk’s statement continues with “pursuant to section
1214.1 of the California Penal Code”, which is unjustifiable given the material
changes to the wording that it is apparently “pursuant to”, thus an error requiring
court correction.

9 See attached, annotated “Please Take Notice”, that highlights the specific issues.
10 PC § 1043(e) states what happen in misdemeanor cases, emphasis added:

“… if the defendant fails to appear in person at the time set for trial or during the course
of trial, the court, in its discretion, may do one or more of the following, as it deems
appropriate:

(1) Continue the matter.

(2) Order bail forfeited or revoke release on the defendant's own recognizance.

(3) Issue a bench warrant.

(4) Proceed with the trial if the court finds the defendant has absented himself
voluntarily with full knowledge that the trial is to be held or is being held. …”
11 PC § 19.7 reads “Except as otherwise provided by law, all provisions of law relating to
misdemeanors shall apply to infractions including, but not limited to, powers of peace officers,
jurisdiction of courts, periods for commencing action and for bringing a case to trial and
burden of proof.”
12PC § 1214.1 uses phrase “the court may impose” – without any apparent delegation to the
clerk to set the amount – “a civil assessment of up to three hundred dollars ($300) against a
defendant”. Arguably, a judge might be able to preset the civil assessment amount in order or
notice; but, a court clerk lacks any statutory authority to set the amount of civil assessment.

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29. The situation is hardly theoretical: the defendant could decide not to show up to trial
to force the legal issue, and a busy CHP office may not think it worth it to attend a
trial concerning vehicle tags — it is unsettled law in California as to what the statutes
and constitution requires when neither party showing up a infraction trial.13

30. The critical error of court and/or it’s clerk is assuming that civil assessment upon a
failure to appear at trial is allowed, despite the clear, statutory procedures outlines in
PC § 1043(e) for such case. See People v. Kriss (1979) 96 Cal. App. 3d 91.

TRIAL IN ABSTENIA IS AN UNLAWFUL FICTION

31. In the March 26, 2019 “Please Take Notice”, next to an unchecked14 choice, it states
“Failure to appear … may result in a trial being held in your absence” (emphasis
added). Notably, there are no references to court rule or any statutory authorization for
the contrived trial in abstenia mentioned in clerk’s statement.

32. The vaguely worded VC § 40903 is the likely statutory co-conspirator in court clerk’s
scheme here, which reads (emphasis added):

“Any person who fails to appear as provided by law may be deemed to have
elected to have a trial by written declaration upon any alleged infraction, as
charged by the citing officer, involving a violation of this code or any local
ordinance adopted pursuant to this code.”

33. VC § 40903 is the only statute that even implicates an alternative process in failure to
appear cases. There is no case law or rules of court discussing the statute that might
clarify it application. Importantly, the legislature only allows a “trial by written
declaration” but clearly does not grant of holding trials “in absentia” — and,
additionally, impermissibly vague in defining the circumstances under which one
might be “deemed to have elected”.

13The court’s “Please Take Notice” imply a civil assessment “in the amount of $300” may still
be due in this eventuality. No court rule, statute, or case law can be found to affirm this
position. Rather the plaintiff CHP officer carries the burden of proof, so absent other witnesses,
the court’s acquittal should follow absence of both the officer and defendant – given the
prosecution didn’t make it’s case.
14While not implicated at present, the statement is relevant since the defendant was earlier
ensnared by the described process, which was the subject of the preceding ‘007 writ case. The
statement above is offered as evidence of the court clerk’s error in bias against traffic
defendant’s rights as criminal defendants, requiring correction to prevent future harms to other
defendants.

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34. Instead the notion of “trial in abstenia” appears to be a longstanding legislative policy
goal of state court administrators, the Judicial Council of California (“J.C.”). But the
state legislature has never adapted any of recommendations related to trial in absentia.

35. On December 2, 1999, “[t]he Judicial Council approved sponsoring legislation to

amend Vehicle Code section 40903 to provide that when a defendant fails to appear
on a traffic infraction citation, he or she has elected to have a trial in absentia.”15

36. Based on a public information request to the J.C., the referenced “sponsoring
legislation” was still available, along with a committee report.16 In short, the portal
was to change“trial by written declaration” to “trial in absentia”, in VC § 40903. The
recommendation was never adopted by the legislature.

37. However, the J.C.’s “Traffic Advisory Committee” report for the December 2, 1999
meeting (and attached here) contained an indicting admission, highlighting the
concern over the practice absent statutory change. The relevant section from the
attached 1999 report:

“The Traffic Advisory Committee believes that Vehicle Code section 40903,
which currently provides that a defendant who fails to appear in a traffic matter
elects a trial by written declaration, is rarely used and needs to be amended to
allow what courts are already doing, i.e., when a defendant fails to appear, the
court deems that he or she has elected a trial in absentia and the case can-be
closed.”

38. It appears the proposal resurfaced in subsequent years, yet the changes to allow trial
in the absence of the defendant was never ratified into code to this day. The Traffic
Rules Committee of the J.C., like the disavowed English star chamber courts, always
meets in secret (i.e. “closed session”), so further evidence is difficult to come by.

39. The court errors by letting the myth of trial in abstenia be promulgated as law.
Fundamentally the court cannot decriminalize infraction by administrative fiat, and
significant changes like “trial in abstenia” require statutory changes. Even with
statutory change, a myriad of violation of constitutional right and due process issues
arise from such practice – perhaps why the J.C.’s “trial in absentia” recommendations
were wisely never adopted by the legislature. As result, trial in absentia is not the law
of the land.
15 Minutes of meeting of Judicial Council of California held on December 2, 1999, specifically
citing the actions taken on item 1J, on page 7. The full text is available online at: https://
www.courts.ca.gov/documents/min1299.pdf
16 A copy of which is attached, title “Report Summary”, created by Traffic Advisory Committee
of the J.C., dated Nov. 3, 1999. Incorporated into the petition by reference here.

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 UNUSUAL CIRCUMSTANCES REQUIRE AN UNUSUAL WRIT

40. The failure to correctly title a writ is rarely a fatal mistake under case law – the
substance is relevant consideration in determining what, if any, relief may be granted.

41. To be certain, the court’s processing of failure-to-appear infractions case is also

unusual – barely cognisable under any statutory means in the Vehicle Code for such
cases — presenting numerous due process issues on a on-going basis, and lacking in
published rules governing the process to ensure due process. A “failure to appear” is
essentially treated by the court clerk as a waiver of constitution rights, in order speed
processing and meet contracted revenue quotas17. However, this is clearly beyond the
clerk’s authority, and also beyond typical judicial review.

42. The vast majority of “failure to appear” case are precluded any meaningful review of
the process by any “real” court because the statutory limits times for appeal are likely
expired due to the nature of the crime: non-appearance. This however prevents any
real oversight by higher courts of the procedures used in failure to appear infraction
cases, as evidence by the dearth of case law on the subject, and thus ripe for review.

43. As complex procedural history of the preceding appeal in the ‘007 writ illustrate, the
rights and procedures concerning PC § 1214.1 civil assessments remain unsettled and
not sufficiently codified. For example, as a civil matter, the trial court should be
looking to damages (up to $300) to the plaintiff, caused by breach of the signed
“promise to appear” contract. Arguably, a preset amount implicates a fine, and
attendant criminal process would likely attach, regardless of labeling it as “civil”.18
These complexities warrant review of the entire civil assessment “scheme”.

17This allegation is suggested by, among others, PC § 1214.1 provisions discussing the
resulting revenue. Such as PC § 1214.1(a) “…This assessment shall be deposited in the Trial
Court Trust Fund, as provided in Section 68085.1 of the Government Code.” with additional
text in (e) “… If a court and a county do not agree on a plan for the collection of civil
assessments imposed pursuant to this section …”. Combined they suggests a contracts
between the court and county may unwittingly be binding upon “failure to appear” defendants,
as indicated by the court setting the maximum civil assessment each time. While this may
meet administrative funding goals, it ignores the court’s judicial obligations in the process. See
Elkins v. Superior Court (2007) 41 Cal.4th 1337. All go to question the court's avoidance of the
“appearance of impropriety” in failure to appear cases.
18 See Timbs v. Indiana (2019) 586 U.S. ___

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 PRAYER FOR RELIEF

Based on the facts and allegations in this petition, as well as the records of the court, the
defendant prays for the following relief:

44. Correction of errors identified herein and/or formal administrative review, by

appropriate court order.

45. Specifically, strike the court computer’s automated “general time waiver” entered in
the court record, and order a trial be set within the statutory time limits as defined by
PC § 1382(a).

46. While the defendant endeavors to appear at trial, circumstances might prevent
attendance, as a result the defendant seeks declarative relief19 on the potential
ramification of a failure to appear at an infraction trial, for himself and others.

47. Any other relief that court may deem appropriate.

Respectfully submitted,

on April 1, 2019
________________ by _________________________________
Anthony
Defendant, In Pro Per

19 Given some of the alleged errors are in what appear to be a standard court forms, likely used
in similarly situated cases, makes it is an issue that likely to recur in the future – typical grounds
for declarative relief. Also, while the defendant’s concern’s are somewhat theoretical, they are
nonetheless cognisable given the court clerk’s categorical statement concerning civil
assessments. The defendant seek clarity at the earliest possible time.

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Notations added by defendant are in a red color, with any added text set
in a serif font, to aid in understanding the clerk’s errors here.

While the defendant has to appear under threat

of an additional $300 civil assessment for non-
appearance, the plaintiff CHP officer escapes with
only a “request” by the court, with no
consequence to non-appearance. This is despite
the clerk’s records calling this a “Summons”, yet,
no mention of “summons” appears herein.

The defendant never waived time, yet,

here it’s noted “Time is Waived”

While this document was obtained from the court clerk’s

office, with associated copy fees paid, it does not bare the
signature of the clerk.
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 Notations added by defendant are in a red color, with any added text
set in a serif font, to aid in understanding the clerk’s errors here.

The court lacks any statutory authority to

conduct a trial by absentia, absent an Note the lack of any
knowing and explicit waiver of constitutional statutory reference
rights from the defendant.

PC § 1214.1 reads “up to $300” not “in the

amount of” — a critical distinction as the
former implies “judicial discretion” in the
ammount, and the later reads as, and
incorrectly implies, a “statutory mandate”.
While this document was obtained from
the court clerk’s office, like “summons”
before, it also does not bare the
signature of the clerk.

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 ADMINISTRATIVE OFFICE OF THE COURTS
Report Summary

Traffic Advisory Committee November 3, 1999

I

SUBJECT: Failure to Appear-Trials in Absentia Code§ 40903)

(Action Required)

Issue statement
The Traffic Advisory Committee believes that Vehicle Code section 40903, which
currently provides that a defendant who fails to appear in a traffic matter elects a
trial by written declaration, is rarely used and needs to be amended to allow what
courts are already doing, i.e., when a defendant fails to appear, the court deems
that he or she has elected a trial in absentia and the case can-be closed.

Recommendation
The Traffic Advisory Committee and the Policy Coordination and Liaison
Committee recommend that the Judicial Council sponsor legislation to amend
Vehicle Code section 40903 to provide that when a defendant fails to appear on a
traffic infraction citation, he or she has elected to have a trial in absentia.

Background
In 1991, the California Legislature passed Assembly Bill 1297 (Isenberg), the
Trial Court Funding Realignment and Efficiency Act (Stats. 1991, ch. 90), which
required the Judicial Council, among other things, to examine the advantages of
civil adjudication of minor traffic violations and to make recommendations to
improve the process. The council conducted a study in 1992 and made
recommendations to the Legislature. One of those recommendations was to
specify that any person who fails to appear on a traffic infraction may be deemed
to have elected to have a trial in absentia.

In 1992, the 9alifomia Legislature passed Assembly Bill 1344 (Isenberg), Stats.
1992, ch. 696, which incorporated many of the council's recommendations from
the 1992 study. However, the above proposal was not included.

Rationale behind recommendation

Vehicle Code section 40903 currently provides that any person who fails to appear
may be deemed to have elected a trial by written declaration. As currently written,
this section is not being significantly utilized by the courts. During the informal
survey and discussions with various courts, staff found that this section was hardly
ever used and that most courts were now conducting trials in absentia.

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Under the trial by written declaration procedure, the case remains open and
pending. These cases remain pending as long as four years. After a long period of
time, the underlying violation is usually dismissed because oflack of evidence and
the defendant is ultimately only responsibly for paying the amount assessed for the
failure to appear.

When the court conducts a trial in absentia, a final judgment is entered and the
case can be closed. If the defendant returns later to clear his or her record, they
can either pay the judgment or ask to have the judgment set aside.

For courts that are currently utilizing the current section 40903, the change would
result in a reduction in court time and provide a mechanism to clear court
calendars, therefore streamlining the administrative process.

Alternatives
The only apparent alternative is to continue the current court practice without
changing section 40903.

Implementation
AOC staff to advise courts of new procedures.

Fiscal impact
None.

I Vehicle Code section 40903 would be amended to read:

2
3 §40903. Failure to appear; evidence , ,
4 (a) Any person who fails to appear as provided by law may be deemed to have
5 elected to have a trial by writteB deelaratioB in absentia upon any alleged
6 infraction, as charged by the citing officer, involving a violation of this code or
7 any local ordinance adopted pursuant to this code.
8 (b) Notwithstanding Division IO_(cotrimencing with Section 1200) of the
9 Evidence Code, testimony and other relevan! evidence may be introduced in the
IO form of a notice to appear issued pursuant to Section 40500, a Botiee ofparlciBg
II violatioB issHed pHrsHaBt to SeetioB 40202, a Botiee of deliBql:leBt parlciBg
I2 YiolatioB issHed pHrsHaBt to SeotioB 40206, a bHsiBess reeord or reeeipt, a swom
I3 deelaratioB of the ahestiBg offieer, or a writteB statemeBt or letter sigBed b;)' the
I4 defeBdr:iHt or a business record.

13 of 14
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