Help! I Got a Ticket
The Hon. , District Attorney
County
re: citation number
Dear District Attorney ,
[optional if appropriate]
[or if appropriate]
Per Government code 26500:
The district attorney is the public prosecutor, except as otherwise provided by law.
If you are not the prosecuting attorney in this case, please inform me of the statute that provides otherwise and provide me with contact information for the prosecuting attorney.
NOTE: The prosecuting attorney is not the issuing agency:
Whether or not the People provide a prosecuting attorney, the citing officer who testifies as to the circumstances of the citation is a witness, no more, no less. – People v. Marcroft (1992) 6 Cal.App.4th Supp. 1 , 8 Cal.Rptr.2d 544
Further, unless the officer is a member in good standing of the California Bar, for him or her to act as the prosecuting attorney would be a violation of Business and Professions Code 6125:
No person shall practice law in California unless the person is an active member of the State Bar.
If you cannot cite the statute providing otherwise, you are the prosecuting attorney, and per Penal Code 1054.1:
The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:… (emphasis added)
Further:
A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigating agency to assist the prosecution or the investigating agency in its work. The important determinant is whether the person or agency has been "acting on the government's behalf" (Kyles v. Whitley, supra, 514 U.S. at p. 437 [115 S.Ct. at p. 1567]) or "assisting the government's case." (In re Brown, supra, 17 Cal.4th at p. 881.) – from People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305 , 96 Cal.Rptr.2d 264
The only discretion the prosecuting attorney has in regards to the current discovery request is found in Government Code 26500:
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.
In light of the above, please confirm, in writing to the above address, which of the following you intend to do:
1. Cite the statute that provides that someone else is the prosecuting attorney, and provide the name and contact information for that person; or
2. Comply with the enclosed Discovery Request; or
3. Exercise your discretion and not initiate and conduct the prosecution of this case, and inform the court that you are making a motion per Penal Code 1385 to have the case dismissed in the interest of justice; or
4. Violate my right to due process (and 42 USC 1983) and refuse to comply with the Discovery Request.
I look forward to your response.
Sincerely,
cc:
[optional]
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