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PUBLIC OFFENSES & DUE PROCESS

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  • paradoxmagnus@earthlink.net
    Just what is a PUBLIC OFFENSE? PC 15. A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which
    Message 1 of 2 , Dec 25, 2005
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      Just what is a PUBLIC OFFENSE?

      PC 15.  A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments:
         1. Death;
         2. Imprisonment;
         3. Fine;
         4. Removal from office; or,
         5. Disqualification to hold and enjoy any office of honor, trust,or profit in this State.
       
      PC 16.  Crimes and public offenses include:
         1. Felonies;
         2. Misdemeanors; and
         3. Infractions.
       
      PC 19.4.  When an act or omission is declared by a statute to be a public offense and no penalty for the offense is prescribed in any statute, the act or omission is punishable as a misdemeanor.

      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=2-24

      But does that mean that all infractions, misdemeanors and felonies are also PUBLIC OFFENSES?

      FELONY, crimes. An offence which occasions a total forfeiture of either lands or goods, or both, at common law, to which capital or other punishment may be super-added, according to the degree of guilt. 4 Bl. Com, 94, 5; 1 Russ. Cr. *42; 1 Chit. Pract. 14; Co. Litt . 391; 1 Hawk. P. C. c. 37; 5 Wheat. R. 153, 159.

      MISDEMEANOR, crim. law. This term is used to express every offence inferior to felony, punishable by indictment, or by particular prescribed proceedings; in its usual acceptation, it is applied to all those crimes and offences for which the law has not provided a particular name; this word is generally used in contradistinction to felony; misdemeanors comprehending all indictable offences, which do not amount to felony, as perjury, battery, libels, conspiracies and public nuisances.

      2. Misdemeanors have sometimes been called misprisions. (q. v.) Burn's Just. tit. Misdemeanor; 4 Bl. Com. 5, n. 2; 2 Bar. & Adolph. 75: 1 Russell, 43; 1 Chitty, Pr. 14; 3 Verm. 347; 2 Hill, S. C. 674; Addis. 21; 3 Pick. 26; 1 Greenl. 226; 2 P. A. Browne, 249; 9 Pick. 1; 1 S. & R. 342; 6 Call. 245; 4 Wend. 229; 2 Stew. & Port. 379. And see 4 Wend. 229, 265; 12 Pick. 496; 3 Mass. 254; 5 Mass. 106. See Offence.

      INFRACTION. The breach of a law or agreement; the violation of a compact. In the French law this is the generic expression to designate all actions which are punishable by the code of France.

      OFFENCE, crimes. The doing that which a penal law forbids to be done, or omitting to do what it commands; in this sense it is nearly synonymous with crime. (q. v.) In a more confined sense, it may be considered as having the same meaning with misdemeanor, (q.v.) but it differs from it in this, that it is not indictable, but punishable summarily by the forfeiture of a penalty. 1 Chit. Prac. 14.  (Bouvier's Law Dictionary, 1856)

      It should be NOTED that there were NO INFRACTIONS in California when the CONSTITUTIONS and the PENAL CODES were written.

      SEC. 15.  The defendant in a criminal cause has the right to a speedy public trial, to compel attendance of witnesses in the defendant's behalf, to have the assistance of counsel for the defendant's defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant.  The Legislature may provide for the deposition of a witness in the presence of the defendant and the defendant's counsel.
         Persons may not twice be put in jeopardy for the same offense, be compelled in a criminal cause to be a witness against themselves, or be deprived of life, liberty, or property without due process of law.
       
      SEC. 16.  Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict.  A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel.  In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.
         In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.  In civil causes other than causes within the appellate jurisdiction of the court of appeal the Legislature may provide that the jury shall consist of eight persons or a lesser number agreed on by the parties in open court.
         In criminal actions in which a felony is charged, the jury shall consist of 12 persons.  In criminal actions in which a misdemeanor is charged, the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.  CALIFORNIA CONSTITUTION (1879).

      To me, INFRACTIONS appear to be an UNCONSTITUTIONAL violation of our DUE PROCESS RIGHTS.

      PC 19.6.  An infraction is not punishable by imprisonment.  A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him or her unless he or she is arrested and not released on his or her written promise to appear, his or her own recognizance, or a deposit of bail.

      PC 19.7.  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.

      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=2-24

      They are considered QUASI-CRIMINAL.

      Doesn't that mean that they are really CIVIL?

      So why do they have you appear in a CRIMINAL COURT?

      These DISTINCTIONS could be extremely IMPORTANT because other that VC 40300.5, isn't PC 836 the ALLEGED AUTHORITY that POLICE use when they STOP & TICKET someone or perform any other type of WARRANTLESS ARREST and doesn't it involve the COMMISSION of a PUBLIC OFFENSE?

      VC 40300.5.  In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists:
         (a) The person is involved in a traffic accident.
         (b) The person is observed in or about a vehicle that is obstructing a roadway.
         (c) The person will not be apprehended unless immediately arrested.
         (d) The person may cause injury to himself or herself or damage property unless immediately arrested.
         (e) The person may destroy or conceal evidence of the crime unless immediately arrested.
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=40001-41000&file=40300-40313

      PC 836.  (a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur:
         (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer's presence. 
        (2) The person arrested has committed a felony, although not in the officer's presence.
        (3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed.  (rest omitted)
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=833-851.90

      That is assuming that the LEO meets the STATUTORY REQUIREMENTS for being a PEACE OFFICER and has OATH OF OFFICE, proper BOND and was properly APPOINTED in order to have the AUTHORITY to do so.

      Of course one has to wonder how the LEO had PROBABLE CAUSE to STOP you in the FIRST PLACE?

      Certainly it couldn't be for not having a DRIVER'S LICENSE, could it?
      VC 12801.5(e) "Notwithstanding Section 40300 or any other provision of law, a peace officer may not detain or arrest a person solely on the belief that the person is an unlicensed driver, unless the officer has reasonable cause to believe the person driving is under the age of 16 years."
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=12001-13000&file=12800-12819

      It should also be NOTED that in order to TICKET you, you had to first be ARRESTED, which means that the LEO FIRST needs PROBABLE CAUSE to believe that you COMMITED a PUBLIC OFFENSE in their PRESENCE.

      "We conclude that a motorist's failure to have or produce the registration card for his vehicle, without more, cannot reasonably give rise to the belief that the vehicle is stolen.
      ...
      We conclude that the mere failure of a motorist to have his driver's license in his immediate possession is a circumstance of such generally innocent connotation that it cannot reasonably transform the coincident lack of a registration card into grounds to believe the motorist guilty of grand theft. "The mere absence of registration did not give the officer probable cause to think that the car was stolen... The absence of license and identification makes it no more probable that the car was stolen." (United States v. Day (E.D.Pa. 1971) 331 F.Supp. 254, 256.) fn. 8 [7 Cal.3d 196]
       
      This does not mean, however, that police officers are wholly barred from making warrantless arrests for automobile theft on the basis of personal observation; it means only that something more is needed to justify such an arrest than the motorist's inability to produce a registration card or driver's license. The cited decisions of the Courts of Appeal demonstrate there usually have been additional suspicious circumstances which, taken with the considerations just discussed, combine to furnish the necessary probable cause.
      ...
      At the outset, a brief explanation of the statutory reference will be helpful. The exclusive procedure to be followed after a warrantless arrest for a Vehicle Code violation is that prescribed in division 17, chapter 2 (§§ 40300-40604) of the Vehicle Code. (People v. Wohlleben (1968) 261 Cal.App.2d 461, 463 [67 Cal.Rptr. 826].) If that violation is declared to be a felony, the arrestee is to be dealt with according to the general provisions of the Penal Code on felony arrests. (Veh. Code, § 40301.) For all other cases, however, the Legislature has created a special tripartite scheme which reflects the lesser degree of criminality attached to the act of transgressing against ordinary traffic rules and regulations.
       
      First, the scheme in effect presumes that in the vast majority of cases the violator will not be taken into custody: with the exception of the instances next discussed, the officer must prepare a written notice to appear (i.e., a citation or "ticket"), and must release the violator "forthwith" when the latter in turn gives his written promise that he will appear as directed (§§ 40500, 40504). Indeed, such a violator may entirely avoid the necessity for appearing in court: he may choose to deposit the prescribed bail by mail (§ 40510) and, by failing thereafter to appear, forfeit that amount in lieu of fine (§ 40512).
       
      Second, in certain cases section 40303 gives the officer the option either to follow the foregoing procedure or to take the violator "without unnecessary delay" before the "nearest or most accessible" magistrate having jurisdiction over the offense. The section lists a number of more serious violations as grounds for invoking this option, such as reckless driving, failure to stop after an accident, participating in speed contests, driving with an invalid license, attempt to evade arrest, and refusal to submit to safety inspections.
       
      Third, section 40302 makes it mandatory for the officer to follow the [7 Cal.3d 200] latter branch of the section 40303 option -- i.e., to take the violator before a magistrate without unnecessary delay -- in four specific instances: i.e., when the violator (a) fails to present his driver's license or other satisfactory evidence of his identity, (b) refuses to give his written promise to appear, or (c) demands an immediate appearance before a magistrate, or (d) when the violator is charged with the very serious traffic offenses of misdemeanor drunk driving or driving under the influence of toxic glue or nonnarcotic drugs.
       
      The second preliminary matter we must consider is the precise point in time at which a traffic violator is "arrested." [4] A police officer may legally stop a motorist to conduct a brief investigation when he entertains a rational suspicion, based on specific facts, that a violation of the Vehicle Code or other law may have taken place (see People v. Griffith (1971) supra, 19 Cal.App.3d 948, 950-951, and cases cited), and the temporary restraint of the suspect's movements incident to that investigation will not ordinarily be deemed an arrest. But when the officer determines there is probable cause to believe that an offense has been committed and begins the process of citing the violator to appear in court (Veh. Code, §§ 40500-40504), an "arrest" takes place at least in the technical sense: "The detention which results [during the citation process] is ordinarily brief, and the conditions of restraint are minimal. Nevertheless the violator is, during the period immediately preceding his execution of the promise to appear, under arrest. [Citations.] Some courts have been reluctant to use the term 'arrest' to describe the status of the traffic violator on the public street waiting for the officer to write out the citation [citations]. The Vehicle Code, however, refers to the person awaiting citation as 'the arrested person.' Viewing the situation functionally, the violator is being detained against his will by a police officer, for the purpose of obtaining his appearance in connection with a forthcoming prosecution. The violator is not free to depart until he has satisfactorily identified himself and has signed the written promise to appear." (Fns. omitted.) (People v. Hubbard (1970) 9 Cal.App.3d 827, 833 [88 Cal.Rptr. 411].)
       
      There is no doubt, of course, that a motorist who is actually taken into police custody for transportation before a magistrate pursuant to section 40302 (or 40303) is "under arrest" in the traditional sense of the term. (Pen. Code, §§ 834, 835; People v. Hatcher (1969) 2 Cal.App.3d 71, 75 [82 Cal.Rptr. 323].) This explains why Officer Erickson and the trial judge in the case at bar both stated that defendant was arrested "under 40302(a) of the Vehicle Code." But such language is at best a kind of verbal shorthand. Upon analysis it will be seen that one cannot be arrested on the sole authority of section 40302: "such section [§ 736, predecessor to § 40302][7 Cal.3d 201] is not penal in nature and cannot form the basis for a lawful arrest." (People v. Randolph (1957) 147 Cal.App.2d Supp. 836, 841 [306 P.2d 98].) The section by its terms applies only when a person "is arrested for any [nonfelony] violation of this code" and one of the four specified conditions is met. It thus assumes the violator has already been arrested under a substantive provision of the code, and simply declares the procedure which is then to be followed.
       
      Thus viewed, a principal purpose of the statute becomes apparent. The citation procedure of section 40500 (discussed ante) is essentially an honor system, requiring the good faith and cooperation of the person cited. At the very least, he must be able to convince the officer -- either by exhibiting his driver's license or by "other satisfactory evidence" -- that the name he is signing on the written promise to appear corresponds to his true identity (see also § 40504, subd. (b) [signing such a promise with a false name is a misdemeanor]). When he cannot do so the officer has no assurance the promise will be honored, and under those circumstances subdivision (a) prohibits the use of the citation procedure. (People v. Mercurio (1970) 10 Cal.App.3d 426, 430 [88 Cal.Rptr. 750].)
      ...
      As noted above (Part II A, ante) sections 40300-40604 of the Vehicle Code provide the exclusive procedure to be followed after making a warrantless arrest for a traffic violation not amounting to a felony, and those provisions must be read together to effectuate the deliberate legislative scheme they embody. Section 40302 requires that a person coming within its terms be taken "without unnecessary delay" before the "nearest or most accessible" magistrate having jurisdiction, and sections 40306 and 40307 prescribe the next step in the procedure: if a magistrate is available, section 40306 provides (a) the arresting officer shall file a complaint, (b) the arrestee shall be given at least five days' continuance to prepare his case and (c) "shall thereupon be released from custody" on his own recognizance or on bail; if on the other hand a magistrate is not available, section 40307 provides that the officer shall take the arrestee before (a) the clerk of the magistrate "who shall admit him to bail" or (b) the officer in charge of the most accessible jail "who shall admit him to bail" or release him upon a simple written promise to appear.
       
      The clear and unmistakable import of these provisions, when read together, is that a person taken into custody pursuant to section 40302 must be transported directly to a magistrate or to one of the officials listed in section 40307, and must immediately be released on bail or written promise to appear. fn. 17 Accordingly, he cannot lawfully be subjected to the routine booking process used in the case of a nontraffic misdemeanant; nor can he be searched as an incident of that process, either in the field or at a police station."  People v. Superior Court (Simon) , 7 Cal.3d 186 (1972)

      It is also IMPORTANT because a CRIMINAL ACTION is based on a PUBLIC OFFENSE.

      PC 683.  The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action.
       
      PC 684.  A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense.
      And PROSECUTIONS for PUBLIC OFFENSES are supposed to be INITIATED & PROSECUTED by the DISTRICT ATTORNEY.
      GC 26500.  The district attorney is the public prosecutor, except as otherwise provided by law.
         The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.

      However most VIOLATIONS of the CODES are INFRACTIONS & MISDEMEANORS and ARE NOT INITIATED & PROSECUTED by the DA, are they?

      Most VIOLATIONS of the CODES are INFRACTIONS & MISDEMEANORS and are INITIATED by an LEO via the filing of a CITATION such as a NOTICE TO APPEAR, aren't they?

      PC 853.9.  (a) Whenever written notice to appear has been prepared, delivered, and filed by an officer or the prosecuting attorney with the court pursuant to the provisions of Section 853.6 of this code, 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 which shall conform to the provisions of this code and 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 the provisions of subdivision (a) of this section, 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.

      Could they be acting under the PRESUMPTION that the FAILURE to ASSERT a RIGHT is deemed a WAIVER of that RIGHT?

      "Waiver may be express or implied. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.) Generally, an implied waiver based on failure to assert a right, including a constitutional right, must be accompanied by an informed intent to relinquish that right. (Id. at p. 31; North Carolina v. Butler (1979) 441 U.S. 369, 371, 374-375 [waiver implied where no invocation of right to counsel]; People v. Riva (2003) 112 Cal.App.4th 981, 989 [waiver implied where defendant, who was not tricked or coerced, understood his rights but chose to speak with police].)
      ...
      Waiver is the intentional relinquishment of a known right; the foundation of waiver is intent. (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 31.)
      ...
      “Case law is clear that ‘“[w]aiver is the intentional relinquishment of a known right after knowledge of the facts.” [Citations.] The burden . . . is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver” [citation].’ (City of Ukiah v. Fones (1962) 64 Cal.2d 104, 107-108 [48 Cal.Rptr. 865, 410 P.2d 369]; DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515] [‘“‘Waiver always rests upon intent.’”’];  [citations].) The waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right. (Brookview Condominium Owners’ Assn. [v. Heltzer Enterprises-Brookview (1990)] 218 Cal.App.3d [502,] 513.)” (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th 1, 31.)"  PIONEER ELECTRONICS (USA), INC. v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, No. B174826 (Super. Ct. No. BC257222) (2005)
      http://www.courtinfo.ca.gov/opinions/revpub/B174826.PDF

      And PUBLIC OFFENSES are supposed to be PROSECUTED by INDICTMENT or INFORMATION, except in certain cases.

      PC 682.  Every public offense must be prosecuted by indictment or information, except:
         1. Where proceedings are had for the removal of civil officers of the state;
         2. Offenses arising in the militia when in actual service, and in the land and naval forces in the time of war, or which the state may keep, with the consent of Congress, in time of peace;
         3. Misdemeanors and infractions;
         4. A felony to which the defendant has pleaded guilty to the complaint before a magistrate, where permitted by law.

      Of course PC 682 (3) used to read "Offenses tried in justices' and police courts." and there was no part 4.

      Could that be because those CLASSES of OFFENSES were not PUBLIC OFFENSES, regardless of what they were called?

      Even though today INFRACTIONS & MISDEMEANORS are CONSIDERED as "public offenses" for purposes of the TIME OF COMMENCING CRIMINAL ACTIONS.

      PC 804.  For the purpose of this chapter, prosecution for an offense is commenced when any of the following occurs:
         (a) An indictment or information is filed.
         (b)
      A complaint is filed charging a misdemeanor or infraction.
         (c) A case is certified to the superior court.
         (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.

      The fact is that even in many MISDEMEANOR and INFRACTION cases NO VALID COMPLAINT is ever filed.

      PC 949.  The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a.  The first pleading on the part of the people in a misdemeanor or infraction case is the complaint except as otherwise provided by law.  The first pleading on the part of the people in a proceeding pursuant to Section 3060 of the Government Code is an accusation.

      Certainly not a VERIFIED COMPLAINT that is WITNESSED and SWORN to under OATH by the COMPLAINANT (usually the ARRESTING OFFICER or other EYEWITNESS) and then VERIFIED by the DA.

      PC 740.  Except as otherwise provided by law, all misdemeanors and infractions must be prosecuted by written complaint under oath subscribed by the complainant.  Such complaint may be verified on information and belief.

      Nor is there even a PROPER ACCUSATORY PLEADING in most MISDEMEANOR and INFRACTION cases.

      PC 950.  The accusatory pleading must contain:
         1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties;
         2. A statement of the public offense or offenses charged therein.

      PC 951.  An indictment or information may be in substantially the following form:  The people of the State of California against A. B. In the superior court of the State of California, in and for the county of ____.  The grand jury (or the district attorney) of the county of ____ hereby accuses A. B. of a felony (or misdemeanor), to wit:  (giving the name of the crime, as murder, burglary, etc.), in that on or about the ____ day of ____, 19__, in the county of ____, State of California, he (here insert statement of act or omission, as for example, "murdered C. D.").

      PC 952.  In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified.  Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.  In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.

      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=948-973

      And isn't strange that PC 859a ONLY MENTIONS FELONIES?

      PC 859a.  (a) If the public offense charged is a felony not punishable with death, the magistrate shall immediately upon the appearance of counsel for the defendant read the complaint to the defendant and ask him or her whether he or she pleads guilty or not guilty to the offense charged therein and to a previous conviction or convictions of crime if charged.  While the charge remains pending before the magistrate and when the defendant's counsel is present, the defendant may plead guilty to the offense charged, or, with the consent of the magistrate and the district attorney or other counsel for the people, plead nolo contendere to the offense charged or plead guilty or nolo contendere to any other offense the commission of which is necessarily included in that with which he or she is charged, or to an attempt to commit the offense charged and to the previous conviction or convictions of crime if charged upon a plea of guilty or nolo contendere.  The magistrate may then fix a reasonable bail as provided by this code, and upon failure to deposit the bail or surety, shall immediately commit the defendant to the sheriff.  Upon accepting the plea of guilty or nolo contendere the magistrate shall certify the case, including a copy of all proceedings therein and any testimony that in his or her discretion he or she may require to be taken, to the court in which judgment is to be pronounced at the time specified under subdivision (b), and thereupon the proceedings shall be had as if the defendant had pleaded guilty in that court.  This subdivision shall not be construed to authorize the receiving of a plea of guilty or nolo contendere from any defendant not represented by counsel.  If the defendant subsequently files a written motion to withdraw the plea under Section 1018, the motion shall be heard and determined by the court before which the plea was entered.
         (b) Notwithstanding Section 1191 or 1203, the magistrate shall, upon the receipt of a plea of guilty or nolo contendere and upon the performance of the other duties of the magistrate under this section, immediately appoint a time for pronouncing judgment in the superior court and refer the case to the probation officer if eligible for probation, as prescribed in Section 1191.

      Of course it used to be that if you were ARRESTED for a PUBLIC OFFENSE, first an EXAMINATION was held to see if you could be TRIED for the ALLEGED act.

      It appears to me that that this SHOULD STILL APPLY since a PUBLIC OFFENSE is a CRIMINAL CHARGE, isn't it? 

      PC 145.  Every public officer or other person, having arrested any person upon a criminal charge, who willfully delays to take such person before a magistrate having jurisdiction, to take his examination, is guilty of a misdemeanor.

      PC 858.  When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.  If it appears that the defendant may be a minor, the magistrate shall ascertain whether such is the case, and if the magistrate concludes that it is probable that the defendant is a minor, and unless the defendant is a member of the armed forces of the United States and the offense charged is a misdemeanor, he shall immediately either notify the parent or guardian of the minor, by telephone, telegram, or messenger, of the arrest, or appoint counsel to represent the minor.
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=858-883

      Especially if you do not simply sign a PROMISE TO APPEAR and DEMAND to see a MAGISTRATE.

      PC 849.  (a) When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before such magistrate.
         (b) Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever:
         (1) He or she is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested.
         (2) The person arrested was arrested for intoxication only, and no further proceedings are desirable.
         (3) The person was arrested only for being under the influence of a controlled substance or drug and such person is delivered to a facility or hospital for treatment and no further proceedings are desirable.
         (c) Any record of arrest of a person released pursuant to paragraphs (1) and (3) of subdivision (b) shall include a record of release.  Thereafter, such arrest shall not be deemed an arrest, but a detention only.
       
      VC 40302.  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:
         (a) When the person arrested fails to present his driver's license or other satisfactory evidence of his identity for examination.
         (b)
      When the person arrested refuses to give his written promise to appear in court.
         (c)
      When the person arrested demands an immediate appearance before a magistrate.
         (d) When the person arrested is charged with violating Section 23152.

      Especially since by signing a NOTICE TO APPEAR you could be inadverdently WAIVING your RIGHTS.

      "4] Real parties also argue that they were entitled to be cited for violation of section 2803. They were given citations [239 Cal.App.2d 503] for violations of the maximum weight provisions. Petitioners' affidavits on the summary judgment motions show, without contradiction by real parties, that the trucks were substantially overloaded, after all allowances for tolerance. These overloads were the crux of the violations. If real parties questioned the weights attributed to them (a contention not suggested in their affidavits) they had a right to be taken before a magistrate immediately, upon the overloading charges, if they so demanded (Veh. Code, § 40302, subd. (c)). They made no such demand. Choice of the charge to be preferred obviously is with the officer, and not the violator.
       
      Belatedly, real parties seek to file in this court an affidavit alleging that they did demand to be cited "for refusal to unload," and to be taken before a magistrate on that charge. No such assertion is made in any affidavit filed in the trial court. That court, in its original memorandum opinion, stated that real parties had demanded to be taken before a magistrate. The statement was specifically stricken in the judge's memorandum upon petition for reconsideration, which had attacked this statement as unsupported. Some doubt is cast upon the present allegation by real parties' failure to file it in the trial court in reply to the petition for reconsideration. In any event, it comes too late at this stage, and permission to file it is denied.\
       
      Moreover, this belated affidavit fails to meet any issue in this case. The requirement of section 40302, subdivision (c) that one who so demands must immediately be taken before a magistrate obviously is designed to afford speedy opportunity for a judicial determination. It affords a right of due process to an accused, and thus is entitled to strong support and liberal construction by the courts. But it is a right quite as available on a violation of the overweight provision as on violation of section 2803. Real parties' apparent premise is that, if charged under section 2803, they would be entitled to have the magistrate pass upon suitability of the place to reduce their loads. But, as we have pointed out, the choice of a suitable place is largely for the officer. In any event, real parties' affidavits make plain that they do not quarrel with the space afforded them for reduction of load, but with the claimed absence of convenient equipment. Since they do not deny the full adequacy and ready availability of the portable equipment, they show no issue of suitability to be submitted to a magistrate. On this record, their claimed demand to be arrested on charges of violating section 2803 is irrelevant. [239 Cal.App.2d 504]" Kramer v. Superior Court, 239 Cal.App.2d 500
       

      Wouldn't not having commited a PUBLIC OFFENSE and not DRIVING a MOTOR VEHICLE be among the "ISSUES suitable to be submitted to a magistrate"?

      So they TRICK us into making a PROMISE TO APPEAR in a CRIMINAL COURT.

      "Several courts have held that a uniform traffic ticket is merely a notice to a person to appear in a given court on a given day to then be charged with a specific crime. See People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901 (1957). The party served with the traffic ticket is merely notified that the officer signing the ticket intends to submit a complaint to the court at a certain time and place and that if the party served does not appear then and there, the court will be requested to issue a warning for his arrest. People v. McMillan, 112 Misc.2d 901, 447 N.Y.S.2d 626, 628, (1982); see also; Bayse v. State, 420 So.2d 1050, 1052 (Miss. 1982); State v. Grady, 548 S.W.2d 601, 606 (Mo. App. 1977); People v. Hale, 75 A.D.2d 606, 426 N.Y.S.2d 827 (1980); Coville v. Bennett, 57 Misc.2d 838, 293 N.Y.S.2d 685 (1968)."
      http://www.hsba.hostme.com/Hawaii/Admin/Ag/op87-5.htm
       
      "Tilton argues that he cannot be guilty of violating these statutes because he was not asked to acknowledge, and he did not refuse to acknowledge, receipt of a copy of the traffic infraction. His premise is that promising to appear in court is different from acknowledging receipt of a copy of a document, and that he was only asked to make a promise to appear in court.
       
      [1] We agree. A person does not acknowledge receipt of a copy of a document merely because he or she promises to appear in court. Nor does a person decline to acknowledge receipt of a copy of a document merely because he or she declines to promise to appear in court. Thus, Tilton did not refuse to acknowledge receipt of a copy of the notice of infraction merely because he declined to promise to appear in court, and the City's evidence is insufficient to prove the facts needed to convict under RCW 46.61.021(3).
       
      [2] Our conclusion is supported by the fact that if we held otherwise, we would allow Tilton to be convicted for refusing to make a promise that he had a right not to make. As the City conceded at oral argument, a motorist stopped for a traffic infraction has no legal duty to promise to appear in court; if he or she refuses to make such a promise, he or she can be taken to jail, but he or she does not commit a crime merely by virtue of the refusal." Port Orchard v. Tilton, 77 Wn.App 178 (1995)

      Because otherwise they would have accord us DUE PROCESS of law and need PROBABLE CAUSE for the ARREST. 

      "But to argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment. Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions [394 U.S. 721, 727]   be termed "arrests" or "investigatory detentions." 6 We made this explicit only last Term in Terry v. Ohio, 392 U.S. 1, 19 (1968), when we rejected "the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a `technical arrest' or a `full-blown search.'" DAVIS v. MISSISSIPPI, 394 U.S. 721 (1969)
      http://laws.findlaw.com/us/394/721.html
       
      "When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a crime had been committed.
      ...
      The fact that the suspects were in an automobile is not enough. Carroll v. United States, supra, liberalized the rule governing searches when a moving vehicle is involved. But that decision merely relaxed the requirements for a warrant on grounds of practicality. It did not dispense with the need for probable cause." HENRY v. UNITED STATES, 361 U.S. 98 (1959)
      http://laws.findlaw.com/us/361/98.html 
       
      "The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights."  HALE v. HENKEL, 201 U.S. 43 (1906)
      Regardless of the EVIDENCE the LEO COERCED (such as a DRIVER'S LICENSE) from you and whether the LEO believed they were acting LAWFULLY.

       "Though we assume the officer acted in good faith, there is no good faith exception to the exclusionary rule for police who enforce a legal standard that does not exist. Creating a good faith exception here would run counter to the exclusionary rule's goal by removing an incentive for the police to know the law we entrust them to enforce. (U.S. v. Lopez-Soto, supra, 205 F.3d at p. 1106.)"  People v. White (2003) 107 Cal. App. 4th 636 , 132 Cal.Rptr.2d 371

      http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/107/636.html

      But now, thanks to your SIGNATURE on their ticket, if you FAIL TO APPEAR you can be PENALIZED for the BREACH of your PROMISE.
      PC 853.7.  Any person who willfully violates his or her written promise to appear or a lawfully granted continuance of his or her promise to appear in court is guilty of a misdemeanor, regardless of the disposition of the charge upon which he or she was originally arrested.
      And given the CONSPICUOUS WARNING contained on the NOTICE TO APPEAR ("if you fail to appear in court, you may be arrested and punished by...") that you VOLUNTARILY SIGNED, is it possible that your FAILURE to DEMAND to be taken to the MAGISTRATE could be deemed a KNOWING & WILLING WAIVER of your RIGHTS?
      "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." BRADY v. U. S. , 397 U.S. 742 (1970)
      http://laws.findlaw.com/us/397/742.html
      After all, you did sign it after you were INTERROGATED without warning or benefit of counsel, asked to INCRIMINATE yourself, ARRESTED without a WARRANT and have AGREED to DEFECTIVE SERVICE of PROCESS and PROMISED TO APPEAR in a CRIMINAL COURT for an act or omission that may not even be CRIMINAL.
      MAXIMS OF LAW
      What I approve I do not reject. I cannot approve and reject at the same time. I cannot take the benefit of an instrument, and at the same time repudiate it.
      Consent makes the law. A contract is a law between the parties, which can acquire force only by consent.
      Consent makes the law: the terms of a contract, lawful in its purpose, constitute the law as between the parties.
      To him consenting no injury is done.
      He who consents cannot receive an injury.
      Consent removes or obviates a mistake.
      One who wills a thing to be or to be done cannot complain of that thing as an injury.
      The agreement of the parties makes the law of the contract.
      Agreement takes the place of the law: the express understanding of parties supercedes such understanding as the law would imply.
      Manner and agreement overrule the law.
      In default of the law, the maxim rules.
      An error not resisted is approved.
      He who is silent appears to consent.
      Things silent are sometimes considered as expressed.
      He who does not prevent what he can, seems to commit the thing.
      He who does not prevent what he can prevent, is viewed as assenting.
      He who does not forbid what he can forbid, seems to assent.
      He who does not forbid, when he might forbid, commands.
      He who does not repel a wrong when he can, induces it.
      A general appearance cures antecedent irregularity of process, a defective service, etc.
      A presumption will stand good until the contrary is proved.
      All things are presumed to be lawfully done and duly performed until the contrary is proved.
      When the law presumes the affirmative, the negative is to be proved.
      When the proofs of facts are present, what need is there of words.
      Ignorance of the Law does not excuse misconduct in anyone, least of all a sworn officer of the law.
      Acts required by law to be done, admit of no qualification.  

      Which means that you've AGREED to APPEAR in a "court" in front of a "judge" that the SECRETARY OF STATE doesn even list them under the JUDICIAL BRANCH in the CALIFORNIA ROSTER.

      http://www.ss.ca.gov/archives/ca-roster/html/01g_ca_judicial.htm

      On top of that you've PROMISED TO APPEAR in a COURT where if it is for an INFRACTION you ALLEGEDLY have no RIGHT to TRIAL BY JURY and there is no SEPARATION OF POWERS because the so-called JUDGE also acts as the PROSECUTOR.
      The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the other powers except as permitted by this Constitution. ARTICLE 3, SECTION 3, CALIFORNIA CONSTITUTION (1879).
      http://www.leginfo.ca.gov/.const/.article_3

      Is it any wonder that they believe that we are unable to manage our own affairs and need an OFFICER of the COURT, an ATTORNEY to REPRESENT us?

      And isn't all of this very SIGNIFICANT, given that JURISDICTION is determined by the valid service of PROCESS and the SUFFICIENCY of the PLEADINGS?

      It should be noted that originally all PUBLIC OFFENSES were triable in the district and county courts and were PROSECUTED by INDICTMENT and ONLY PROCEEDINGS that were for the REMOVAL of PUBLIC OFFICERS were by accusation or information.

      ACCUSATIO

      (Message over 64 KB, truncated)

    • paradoxmagnus@earthlink.net
      Despite much CRITICISM & ARGUMENT it STILL appears to me that PUBLIC OFFENSES are a SPECIFIC CLASS of OFFENSES and DO NOT INCLUDE all
      Message 2 of 2 , Jan 1, 2006
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        Despite much CRITICISM & ARGUMENT it STILL appears to me that PUBLIC OFFENSES are a SPECIFIC CLASS of OFFENSES and DO NOT INCLUDE all infractions/misdemeanors/felonies, especially after you review the provisions in the PENAL CODE for GRAND JURIES.

        888.  A grand jury is a body of the required number of persons returned from the citizens of the county before a court of competent jurisdiction, and sworn to inquire of public offenses committed or triable within the county.
           Each grand jury or, if more than one has been duly impaneled pursuant to Sections 904.5 to 904.9, inclusive, one grand jury in each county, shall be charged and sworn to investigate or inquire into county matters of civil concern, such as the needs of county officers, including the abolition or creation of offices for, the purchase, lease, or sale of equipment for, or changes in the method or system of, performing the duties of the agencies subject to investigation pursuant to Section 914.1.
        889.  An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.
         

        914.  (a) When the grand jury is impaneled and sworn, it shall be charged by the court.  In doing so, the court shall give the grand jurors such information as it deems proper, or as is required by law, as to their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury.
           (b) To assist a grand jury in the performance of its statutory duties regarding civil matters, the court, in consultation with the district attorney, the county counsel, and at least one former grand juror, shall ensure that a grand jury that considers or takes action on civil matters receives training that addresses, at a minimum, report writing, interviews, and the scope of the grand jury's responsibility and statutory authority.
           (c) Any costs incurred by the court as a result of this section shall be absorbed by the court or the county from existing resources.

        917.  The grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment.

        918.  If a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he may declare it to his fellow jurors, who may thereupon investigate it.

        919.  (a) The grand jury may inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted.
           (b) The grand jury shall inquire into the condition and management of the public prisons within the county.
           (c) The grand jury shall inquire into the willful or corrupt misconduct in office of public officers of every description within the county.
        923.  (a) Whenever the Attorney General considers that the public interest requires, he or she may, with or without the concurrence of the district attorney, direct the grand jury to convene for the investigation and consideration of those matters of a criminal nature that he or she desires to submit to it.  He or she may take full charge of the presentation of the matters to the grand jury, issue subpoenas, prepare indictments, and do all other things incident thereto to the same extent as the district attorney may do. (rest omitted)
        924.6.  If no indictment is returned, the court that impaneled the grand jury shall, upon application of either party, order disclosure of all or part of the testimony of a witness before the grand jury to a defendant and the prosecutor in connection with any pending or subsequent criminal prodeeding before any court if the court finds following an in camera hearing, which shall include the court's review of the grand jury's testimony, that the testimony is relevant, and appears to be admissible.
         
        Coundn't an INDICTMENT by a GRAND JURY be the EXCEPTION to where the DISTRICT ATTORNEY is the PUBLIC PROSECUTOR?
        GC 26500.  The district attorney is the public prosecutor, except as otherwise provided by law.
           The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.

        Especially when you consider the GRAND JURIES POWERS to "inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted", and to "consider those matters of a criminal nature" SUMBITTED by the ATTORNEY GENERAL, and to disclose "all or part of the testimony of a witness before the grand jury to a defendant and the prosecutor in connection with any pending or subsequent criminal prodeeding before any court"? 

        Doen't that make sense given the FACT that a CRIMINAL ACTION is based on the commission of a PUBLIC OFFENSE?

        PC 683.  The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action.
         
        PC 684.  A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense.

        And a PUBLIC OFFENSE is a CRIMINAL CHARGE, isn't it? 

        PC 145.  Every public officer or other person, having arrested any person upon a criminal charge, who willfully delays to take such person before a magistrate having jurisdiction, to take his examination, is guilty of a misdemeanor.

        PC 858.  When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.  If it appears that the defendant may be a minor, the magistrate shall ascertain whether such is the case, and if the magistrate concludes that it is probable that the defendant is a minor, and unless the defendant is a member of the armed forces of the United States and the offense charged is a misdemeanor, he shall immediately either notify the parent or guardian of the minor, by telephone, telegram, or messenger, of the arrest, or appoint counsel to represent the minor.
        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=858-883

        Wouldn't that mean that an INFRACTION SHOULD NOT BE a PUBLIC OFFENSE?
        "Further, infractions are not crimes and the rule forbidding successive prosecutions of a defendant is not applicable when an infraction is one of the offenses involved. (People v. Battle (1975) 50 Cal.App.3d Supp. 1 [123 Cal.Rptr. 636].) fn. 1 [1b] Proceedings on infractions are not attended by the same constitutional safeguards as those attending felony or misdemeanor prosecutions. The limitation on an accused's right to jury trial of infractions has withstood constitutional attack upon the rationale the Legislature did not intend to classify infractions as crimes. (See People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4 [116 Cal.Rptr. 795] and People v. Battle, supra, 50 Cal.App.3d Supp. 1.)"  People v. Sava (1987) 190 Cal.App.3d 935 , 235 Cal.Rptr. 694
        Could it be that most PROSECUTIONS for PUBLIC OFFENSES are supposed to REQUIRE an INDICTMENT and ARE NOT SUPPOSED to be by INFORMATION?
        PC 889.  An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.

        The fact is that PUBLIC OFFENSES are supposed to be PROSECUTED by INDICTMENT or INFORMATION.

        PC 682.  Every public offense must be prosecuted by indictment or information, except:
           1. Where proceedings are had for the removal of civil officers of the state;
           2. Offenses arising in the militia when in actual service, and in the land and naval forces in the time of war, or which the state may keep, with the consent of Congress, in time of peace;
           3. Misdemeanors and infractions;
           4. A felony to which the defendant has pleaded guilty to the complaint before a magistrate, where permitted by law.

        Could it be that the PUBLIC OFFENSES that are supposed to be PROSECUTED by INFORMATION are those CASES listed in the FIFTH AMENDMENT?

        "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."  Amendment V, Constitution for the United States of America

        Wouldn't that EXPLAIN what the CALIFORNIA PENAL CODE used to read?

        13,682. Public offenses, how prosecuted.
        Every public offense must be prosecuted by indictment, except:
        1. Where proceedings are had for the removal of civil officers of the state;
        2. Offenses arising in the militia when in actual service, and in the land and naval forces in time of war, or which this state may keep, with the consent of Congress, in time of peace;
        3. Offenses tried in justices' and police courts.
         
        13,701. Information of threatened offense.
        An information may be laid before any of the magistrates mentioned in section 808, that a person has threatened to commit an offense against the person or property of another.
         
        13,702. Examination of complainant and witnesses.
        When the information is laid before such magistrate he must examine on oath the informer, and any witness he may produce, and must take their depositions in writing, and cause them to be subscribed by the parties making them.
         
        13,703. Warrant of arrest.
        If it appears from the depositions that there is just reason to fear the commission of the offense threatened, by the person so informed against, the magistrate must issue a warrant, directed generally to the sheriff of the county, or any constable, marshal, or policeman in the state, reciting the substance of the information, and commanding the officer forthwith to arrest the person informed of and bring him before the magistrate.
         
        13,704. Proceedings on charges being controverted.
        When the person informed against is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto. The evidence must be reduced to writing and subscribed by the witnesses.
         
        13,705. Person complained of, when to be discharged.
        If it appears that there is no just reason to fear the Commission of the offense alleged to have been threatened, the person complained of must be discharged.

        Could an INDICTMENT be the EXCEPTION that allows a MISDEMEANOR or INFRACTION case to be PROSECUTED as a PUBLIC OFFENSE?

        PC 949.  The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a.  The first pleading on the part of the people in a misdemeanor or infraction case is the complaint except as otherwise provided by law.  The first pleading on the part of the people in a proceeding pursuant to Section 3060 of the Government Code is an accusation.

        Wouldn't an INDICTMENT be a PROPER ACCUSATORY PLEADING in a MISDEMEANOR and INFRACTION case?

        PC 950.  The accusatory pleading must contain:
           1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties;
           2. A statement of the public offense or offenses charged therein.

        PC 951.  An indictment or information may be in substantially the following form:  The people of the State of California against A. B. In the superior court of the State of California, in and for the county of ____.  The grand jury (or the district attorney) of the county of ____ hereby accuses A. B. of a felony (or misdemeanor), to wit:  (giving the name of the crime, as murder, burglary, etc.), in that on or about the ____ day of ____, 19__, in the county of ____, State of California, he (here insert statement of act or omission, as for example, "murdered C. D.").

        PC 952.  In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified.  Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.  In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.

        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=948-973

        Wouldn't this EXPLAIN WHY originally all PUBLIC OFFENSES in California were triable in certain courts and were PROSECUTED by INDICTMENT and ONLY PROCEEDINGS that were for the REMOVAL of PUBLIC OFFICERS were by accusation or information, SINCE PUBLIC OFFICERS would fall under the EXCEPTION in the FIFTH AMENDMENT for "except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger"?

        ACCUSATION, crim. law. A charge made to a competent officer against one who has committed a crime or misdemeanor, so that he may be brought to justice and punishment.

        2. A neglect to accuse may in some cases be considered a misdemeanor, or misprision. (q. v.) 1 Bro. Civ. Law, 247; 2 Id. 389; Inst. lib. 4, tit. 18.

        3. It is a rule that no man is bound to accuse himself, or to testify against himself in a criminal case. Accusare nemo se debet nisi coram Deo. Vide Evidence; Interest; Witness.

        INFORMATION. An accusation or complaint made in writing to a court of competent jurisdiction, charging some person with a specific violation of some public law. It differs in nothing from an indictment in its form and substance, except that it is filed at the discretion of the proper law officer of the government, ex officio, without the intervention or approval of a grand jury. 4 Bl. Com. 308, 9.

        2. In the French law, the term information is used to signify the act or instrument which contains the depositions of witnesses against the accused. Poth. Proc. Cr. sect. 2, art. 5 .

        3. Informations have for their object either to punish a crime or misdemeanor, and these have, perhaps, never been resorted to in the United States or to recover penalties or forfeitures, which are quite common. For the form and requisites of an information for a penalty, see 2 Chit. Pr. 155 to 171. Vide Blake's Ch. 49; 14 Vin. Ab. 407; 3 Story, Constitution, 1780 3 Bl. Com. 261.

        4. In summary proceedings before justices of the peace, the complaint or accusation, at least when the proceedings relate to a penalty, is called an information, and it is then taken down in writing and sworn to. As the object is to limit the informer to a certain charge, in order that the defendant may know what he has to defend, and the justice may limit the evidence and his subsequent adjudication to the allegations in the information, it follows that the substance of the particular complaint must be stated and it must be sufficiently formal to contain all material averments. 8 T. R. 286; 5 Barn. & Cres. 251; 11 E. C. L. R. 217; 2 Chit. Pr. 156. See 1 Wheat. R. 9.  (Bouvier's Law Dictionary, 1856)

        INDICTMENT, crim. law, practice. A written accusation of one or more persons of a crime or misdemeanor, presented to, and preferred upon oath or affirmation, by a grand jury legally convoked. 4 Bl. Com. 299; Co. Litt. 126; 2 Hale, 152; Bac. Ab. h. t.; Com. Dig. h. t. A; 1 Chit. Cr. L. 168.

        2. This word, indictment, is said to be derived from the old French word inditer, which signifies to indicate; to show, or point out. Its object is to indicate the offence charged against the accused. Rey, des Inst. l'Angl. tome 2, p. 347.

        3. To render an indictment valid, there are certain essential and formal requisites. The essential requisites are, 1st. That the indictment be presented to some court having jurisdiction. of the offence stated therein. 2d. That it appear to have been found by the grand jury of the proper county or district. 3d. That the indictment be found a true bill, and signed by the foreman of the grand jury. 4th. That it be framed with sufficient certainty; for this purpose the charge must contain a certain description of the crime or misdemeanor, of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation. Cowp. 682, 3; 2 Hale, 167; 1 Binn. R. 201; 3 Binn. R; 533; 1 P. A. Bro. R. 360; 6 S. & R. 398 4 Serg. & Rawle, 194; 4 Bl. Com. 301; Yeates, R. 407; 4 Cranch, R. 167. 5th. The indictment must be in the English language. But if any document in a foreign language, as a libel, be necessarily introduced, it should be set out in the original tongue, and then translated, showing its application. 6 T. R. 162.

        4. Secondly, formal requisites are, 1st. The venue, which, at common law should always be laid in the county where the offence has been committed, although the charge is in its nature transitory, as a battery. Hawk. B. 2, c. 25, s. 35. The venue is stated in the margin thus, "City and county of _____ to wit." 2d. The presentment, which must be in the present tense, and is usually expressed by the following formula, "the grand inquest of the commonwealth of ______ inquiring for the city and county aforesaid, upon their oaths and affirmations present." See, as to the venue, 1 Pike, R. 171; 9 Yerg. 357. 3d. The name and addition of the defendant; but in case an error has been made in this respect, it is cured by the plea of the defendant. Bac. Ab. Misnomer, B; Indictment, G 2; 2 Hale, 175; 1 Chit. Pr. 202. 4th. The names of third persons, when they must be necessarily mentioned in the indictment, should be stated with certainty to a common intent, so as sufficiently to inform the defendant who are his accusers. When, however, the names of third persons cannot be ascertained, it is sufficient, in some cases, to state " a certain person or persons to the jurors aforesaid unknown." Hawk. B. 2, c. 25, s. 71; 2 East, P. C. 651, 781; 2 Hale, 181; Plowd. 85; Dyer, 97, 286; 8 C. & P. 773. See Unknown. 5th. The time when the offence was committed, should in general be stated to be on a specific year and day. In some offences, as in perjury, the day must be precisely stated; 2 Wash. C. C. Rep. 328; but although it is necessary that a day certain should be laid in the indictment, yet, in general, the prosecutor may give evidence of an offence committed on any other day previous to the finding of the, indictment. 5 Serg. & Rawle, 316. Vide 11 Serg. & Rawle, 177; 1 Chit. Cr. Law, 217, 224; 1 Ch. Pl. Index, tit. Time. See 17 Wend. 475; 2 Dev. 567; 5 How. Mis. 14; 4 Dana. 496; C. & N. 369; 1 Hawks, 460. 6th. The offence should be properly described. This is done by stating the substantial circumstances necessary to show the natue of the crime and, next, the formal allegations and terms of art required by law. 1. As to the substantial circumstances. The whole of the facts of the case necessary to make it appear judicially to the court that the indictors have gone upon sufficient premises, should be set forth; but there should be no unnecessary matter or any thing which on its face makes the indictment repugnant, inconsistent, or absurd. Hale, 183; Hawk. B. 2, c. 25, s. 57; Ab. h. t. G 1; Com. Dig. h. t. G 3; 2 Leach, 660; 2 Str. 1226. All indictments ought to charge a man with a particular offence, and not with being an offender in general: to this rule there are some exceptions, as indictments against a common barrator, a common scold, and the keeper of a common bawdy house; such persons may be indicted by these general words. 1 Chit. Cr. Law, 230, and the authorities there cited. The offence must not be stated in the disjunctive, so as to leave it uncertain on what it is intended to rely as an accusation; as, that the defendant erected or caused to be. erected a nuisance. 2 Str. 900; 1 Chit. Cr. Law, 236.

        2. There are certain terms of art used, so appropriated by the law to express the precise idea which it entertains of the offence, that no other terms, however synonymous they may seem, are capable of filling the same office: such, for example, as traitorously, (q. v.) in treason; feloniously, (q. v.) in felony; burglariously, (q. v.) in burglary; maim, (q. v.) in mayhem, &c. 7th. The conclusion of the indictment should conform to the provision of the constitution of the state on the subject, where there is such provision; as in Pennsylvania, Const. art. V., s. 11, which provides, that " all prosecutions shall be carried on in the name and by the authority of the commonwealth of Pennsylvania, and conclude against the peace and dignity of the same." As to the necessity and propriety of having several counts in an indictment, vide 1 Chit. Cr. Law, 248; as to. joinder of several offences in the same indictment, vide 1 Chit. Cr. Law, 253; Arch. Cr. Pl. 60; several defendants may in some cases be joined in the same indictment. Id. 255; Arch. Cr. Pl. 59. When an indictment may be amended, see Id. 297 .Stark. Cr. Pl. 286; or quashed, Id. 298 Stark. Cr. Pl. 831; Arch. Cr. 66. Vide; generally, Arch. Cr. Pl. B. 1, part 1, c. 1; p. 1 to 68; Stark. Cr. Pl. 1 to 336; 1 Chit. Cr. Law, 168 to 304; Com. Dig. h. t.: Vin. Ab. h. t.; Bac. Ab. h. t.; Dane's Ab. h. t.; Nels. Ab. h. t.; Burn's Just. h. t.; Russ. on Cr. Index, h. t.,

        5. By the Constitution of the United States, Amendm. art. 5, no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war, or public danger.  (Bouvier's Law Dictionary, 1856)

        It appears to me that DUE PROCESS of law SHOULD REQUIRE a WARRANT to ARREST in most cases.

        "The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights."  HALE v. HENKEL, 201 U.S. 43 (1906)

        Unless of course, one is a PUBLIC OFFICER or the CRIME is a FELONY.

        PC 836.  (a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur:
           (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer's presence. 
          (2) The person arrested has committed a felony, although not in the officer's presence.
          (3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed.  (rest omitted)
        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=833-851.90

        Could it be POSSIBLE that the government is operating under a FICTION OF LAW and using PRESUMPTIONS & INFERENCES against us regarding a PUBLIC OFFENSE?

        I think the government is using PUBLIC OFFENSE to do an "end run" around the 4th, 5th & 6th AMENDMENTS.

        I think that PUBLIC OFFENSES are really a SPECIFIC CLASS of offenses as EVIDENCED by the FACT that they have DESIGNATED certain violations of the PENAL CODE as PUBLIC OFFENSES.

        PC 136.1.  (a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:(rest omitted)
        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=132-141
        PC 136.7.  Every person imprisoned in a county jail or the state prison who has been convicted of a sexual offense, including, but not limited to, a violation of Section 243.4, 261, 261.5, 262, 264.1, 266, 266a, 266b, 266c, 266f, 285, 286, 288, 288a, or 289, who knowingly reveals the name and address of any witness or victim to that offense to any other prisoner with the intent that the other prisoner will intimidate or harass the witness or victim through the initiation of unauthorized correspondence with the witness or victim, is guilty of a  public offense, punishable by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.
           Nothing in this section shall prevent the interviewing of witnesses.
         
        PC 171b.  (a) Any person who brings or possesses within any state or local public building or at any meeting required to be open to the public pursuant to Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of, or Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of, the Government Code, any of the following is guilty of a public offense punishable by imprisonment in a county jail for not more than one year, or in the state prison:(rest omitterd)

        I think that the government doesn't want people to realize that in most cases the SAME RIGHTS apply to all DEFENDANTS in a CRIMINAL ACTION.

        And wouldn't that INCLUDE anyone DETAINED/CITED/ARRESTED for a so-called PUBLIC OFFENSE? 

        And I think that they have probably hidden & obscured that fact through various REWRITES of the laws and by replacing the term PUBLIC OFFENSE in many places with the terms FELONY & MURDER and so on.
         
        Of course a lot of other people BELIEVE OTHERWISE.
         
        For centuries people BELIEVED that the "world is flat,"
         
        For centuries people BELIEVED that man would NEVER FLY.
         
        For years it was BELIEVED that no man could travel faster than the speed of sound.
         
        Of course that didn't make what they BELIEVED was TRUE, did it?
         
        The simple FACT is that WHAT many people BELIEVE may have LITTLE or NO BASIS in FACT.
         
        I THINK people should do their own RESEARCH and then DECIDE for themselves what they should BELIEVE.
         
        Patrick in California

        "Those who CANNOT or DO NOT READ, INTERPRET and UNDERSTAND things for themselves, will be DEPENDENT on others and will always be easily MISLEAD or DECEIVED."-PKM

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