1st Amended Opening Brief On Appeal

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Rik Wayne Munson, sui juris 218 Landana Street American Canyon, California Near 94503 Zip Code exempt DMM 602 - 1.3e 707-649-0689

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In the Superior Court of California

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County of Contra Costa

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Appellate Division

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STATE OF CALIFORNIA, Unknown Plaintiff

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v. RIK WAYNE MUNSON Defendant in Error, Rik Wayne Munson Real party in interest

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Case No. 080744-6

1st amended OPENING BRIEF ON APPEAL

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I Statement of the Case....................................................................................................................4

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Lex non cogit non ad imposibilia ................................................................................................5

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II Issues Raised on Appeal...............................................................................................................5

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III What set of books is traffic court using?.....................................................................................6

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In what substantive body of law do we find infractions?............................................................6

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3.1 Courts holding that Traffic infractions are criminal offenses: ..........................................6

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3.2 Courts holding that Traffic infractions are non-criminal offenses:....................................7

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3.3 Other authorities holding traffic infractions to be non-criminal........................................8

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IV If Not One, Then The Other; Contra Proferentem!.....................................................................9

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V Who or what is the Plaintiff?......................................................................................................10

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Nullum similar est idem. ...........................................................................................................10

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The California Judicial Council endorsed Noncriminal Traffic “Infractions” Legislation and

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Boasts It To Be A Milestone......................................................................................................12

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The Business Partner Network...................................................................................................12

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V Where is the Law?......................................................................................................................12

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REMEDY.......................................................................................................................................15

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7.1 ANSWER.........................................................................................................................15

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7.3 REMAND FOR A FULL, COMPLETE, AND PROPER ACCOUNTING....................15

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Cases

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Clearfield Trust Co. v. United States, 318 U.S. 363-71, 63 S.Ct. 573 (1943)...............................10

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Continental Casualty Co. v. United States, 113 F.2d 284 (5th Cir. 1940)................................10, 11

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Cross v. Harrison, 57 U.S. 16 How. 164 (1853)............................................................................11

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Federal Crop Insurance v. Merrill, 332 U.S. 380...........................................................................11

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In re Bittaker (1997) 55 Cal.App.4th 1004, 1009, 64 Cal.Rptr.2d 679)..........................................9

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in re Floyd Acceptances, 7 Wall. 666.............................................................................................11

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Mitchell v. Superior Court (People) (1989) 49 Cal.3d 1230 , 265 Cal.Rptr. 144; 783 P.2d 731.....6

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Olmstead et al v. United States, 277 U.S. 438, 485 (1928)..............................................................5

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People v Battle 50 Cal.App.3d Supp. 1.......................................................................................7, 8

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People v Hamilton (1986) 191 Cal.App.3d Supp. 13, 236 Cal.Rptr. 894........................................6

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People v Mckay (2002) 02 C.D.O.S. 2036.....................................................................................7

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People v Sava (1987) 190 Cal.App.3d 935 , 235 Cal.Rptr. 694......................................................8

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People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4, [116 Cal.Rptr. 795]..............................6, 8

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State v. Hawkins, 257 P. 411, 413-418...........................................................................................11

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Tracy v Municipal Court (1978) 22 Cal.3d 760, 765....................................................................8

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United States v. Stewart, 311 U.S. 60............................................................................................11

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Utah Power & Light Co. v. United States, 243 U.S. 389...............................................................11 -2-

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Statutes

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§853.9 PC.......................................................................................................................................11

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40500(b) VC..................................................................................................................................11

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40513(b)VC...................................................................................................................................11

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40522 VC.......................................................................................................................................11

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40600 VC.......................................................................................................................................11

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Civ. Proc., § 29................................................................................................................................9

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Code Civ. Proc., § 20.......................................................................................................................9

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Code Civ. Proc., § 21.......................................................................................................................9

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Code Civ. Proc., § 22.......................................................................................................................9

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Code Civ. Proc., § 23.......................................................................................................................9

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Code Civ. Proc., § 24.......................................................................................................................9

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Code Civ. Proc., § 25.......................................................................................................................9

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Code Civ. Proc., § 26.......................................................................................................................9

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Code Civ. Proc., § 27.......................................................................................................................9

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Code Civ. Proc., § 28.......................................................................................................................9

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Code Civ. Proc., § 30.......................................................................................................................9

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Code Civ. Proc., § 32.....................................................................................................................10

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Code Civ. Proc., §§ 30-31................................................................................................................9

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Other Authorities

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Judicial Council of California 1967 Report To The Governor And The Legislature................8, 12

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Judicial Council of California Form Rev. 9-20-05........................................................................11

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Ops.Atty.Gen. (2006) 04-1212........................................................................................................8

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Rules CRC Rule 1.6..................................................................................................................................9 CRC Rule 8.706(c)..........................................................................................................................4

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I

Statement of the Case

The above captioned matter is entirely devoid of any facts of record other than the court acting as plaintiff, and the real party in interests’ challenge to jurisdiction and efforts to exercise discovery. There is no sworn testimony. There is no physical evidence. There is no record of appearance or involvement by any plaintiff or opposing counsel of record. There is no evidence of the trial court’s jurisdiction to proceed against Appellant. There is no evidence of complaining witnesses standing to represent unknown because unidentified plaintiff. There is no proper record of arraignment, no court of record, no evidence of judicial authority of any kind. There is no nexus extant, no conformation, and no elements of an offense, no claim and no controversy. There is no law in evidence here. A properly written demur titled “Special Plea in Bar” was entered before the court, which the court refused summarily. The traffic commissioner entered a plea of not guilty against the DEFENDANT. The Clerks Docket sheet does not reflect who entered said plea. Appellant nonethe-less filed his Special Plea alleging an absolute bar to the courts proceedings. There is no transcript of oral proceedings of arraignment. Appellants unanswered and unchallenged motions and pleadings have been summarily dismissed and appellant was refused findings of fact and conclusions of law. There is simply no adherence to any substantive body of law on record and neither plaintiff nor court has followed any known set of evidentiary or procedural rules. Appellants very well researched, well-written and properly presented brief on Appeal, requested by this court, has been stricken from the record under CRC Rule 8.706(c). Appellant is amused as to the magical nature of Rule 8.706(c) as it appears to be the only rule required to be followed except for proofs of service upon noninvolved, non-prosecuting Prosecutor. It would thus appear that only Appellant must obey the rules of pleading and practice and follow substantive, evidentiary and procedural laws, assuming we’re in law at all. Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent -4-

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teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face. Olmstead et al v. United States, 277 U.S. 438, 485 (1928)

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Lex non cogit non ad imposibilia When there are no answers to the inquiries leading to trial and no answers forthcoming at trial there can be no narrowing of the issues, which may then be addressed in 15 succinct pages. The law does not compel one to do the impossible i.e. if the doing of a thing is impossible the law will excuse its performance or the lack thereof. This amended appeal only raises the questions of notice and standing. The question of notice is the more vital as it is a delict confronting all Californians in traffic and other infraction proceedings and thus demands answer. The question of standing is peripheral to the primary issue of notice and relies entirely upon the question of proper identification of parties and principals of interest. The later question is more thoroughly addressed in the stricken portion of Appellants original opening brief and will not be fully addressed herein.

II

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1) 2) 3) 4)

Issues Raised on Appeal

Due Process requires Notice of Nature and Cause. Due Process requires Notice of the Proper Identity of all Real Parties In Interest. Appellant is not the object of the statute charged violated and when jurisdiction is challenged it must be proven. There is no evidence of jurisdiction established in the record. If the plaintiff cannot provide appellant with notice of the substantive body of law within which infractions reside then plaintiff cannot provide the People of the state of California with notice and never could. a. Infraction proceedings as routinely applied by traffic courts are nothing more than municipal corporate racketeering under color of law. Demand is therefore brought: i. On behalf of Appellant/claimant in his private capacity and ii. On behalf of the People of the state of California as a member of the body politic. Claim is brought in delict condemning the actions of corporate policy enforcement agencies, their principals, California traffic courts, the state of California; it’s municipalities -5-

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and instrumentalities. Appellant here alleges the underlying action not to be an isolated specific instance but a classic example of the disregard for law of government actors as a direct result of deprivation of US Amend. VI and Cal.Const.Art.1 §15 Assistance of Counsel and U.S. Amend. VII and Cal.Const.Art.1 §15 Jury protections in traffic infraction proceedings.

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III

What set of books is traffic court using?

In what substantive body of law do we find infractions? 3.1

Courts holding that Traffic infractions are criminal offenses: 1. People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4, [116 Cal.Rptr. 795]

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a.

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Therefore, we read sections 19c and 1042.5 as qualifying section 689, insofar as infractions are concerned, and we devote our attention to the constitutional infirmity alleged to exist in the concept that infractions need not be tried by juries.

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2.

People v Hamilton (1986) 191 Cal.App.3d Supp. 13, 236 Cal.Rptr. 894 a. We concur in the language of Oppenheimer with respect to sections 19c and 1042.5 as qualifying section 689. [1] However, we decline to accept the interpretation of People v. Battle, …that the Legislature, in drafting sections 19c and 1042.5, intended merely to exempt infractions from those public offenses which require a jury trial rather than exempting infractions from the definition of a public offense. In People v. Tennessee (1970) 4 Cal.App.3d 788 [84 Cal.Rptr. 697], the court construed the "public offense" language of section 836, subdivision 1 to include a Vehicle Code infraction of failure to stop at a traffic light. In People v. Turk (1977) 75 Cal.App.3d 639 [142 Cal.Rptr. 362], the court found that an officer had reasonable cause to believe a public offense had been committed where the officer observed the defendant's vehicle speeding through a residential area and observed that there was no illumination on the rear license plate.

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3. Mitchell v. Superior Court (People) (1989) 49 Cal.3d 1230 , 265 Cal.Rptr. 144; 783 P.2d 731 a. Our state Constitution guarantees a right to trial by jury in all criminal prosecutions for offenses above the grade of infraction. (Mills v. Municipal Court, supra, 10 Cal.3d 288, 298, fn. 8. 4. People v Mckay (2002) 02 C.D.O.S. 2036

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a. In California, a Vehicle Code offender is generally arrested pursuant to section 40300 et seq. For most violations, the Vehicle Code, recognizing the lesser degree of criminality associated with traffic violations, expresses a preference for citing and releasing the offender. (§ § 40303, 40304, 40500.)

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b. (Quote from McKay misquoting Tracy infra)

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i. In California, however, traffic infractions have not been decriminalized. (See People v. Carlucci (1979) 23 Cal.3d 249, 257-258; Tracy v. Municipal Court (1978) 22 Cal.3d 760, 765 compare §§40000.1 and 42001 with §§40200 and 40203.5, subd. (b) [defining parking fines as "civil penalties" ii. FN 16 Some jurisdictions have held that the commission of a civil infraction cannot support a custodial arrest. (E.g., Barnett v. United States (D.C.App. 1987) 525 A.2d 197, 198-199 & fns. 2, 5; Thomas v. Florida (Fla. 1993) 614 So.2d 468, 470-471.)

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3.2

Courts holding that Traffic infractions are non-criminal offenses:

[All emphasis can be construed as added unless otherwise noted.] 1) People v Battle 50 Cal.App.3d Supp. 1 a. If the Legislature intended to treat infractions as public offenses and if the charging of a public offense invokes the right to trial by jury, sections 19c and 1042.5, which deny a jury to one who commits an infraction, conflict with section 689. However, the same (1968) Legislature enacted section 19c, the pertinent amendment of section 16 and section 1042.5. Construing these sections in accordance with the precepts laid down in In re Kay, supra, we must conclude that it was not the intent of the Legislature to enact inconsistent statutes and, further, that when it added the term "public offense" to section 16 it was not so categorizing infractions because if it did so, it would have caused inconsistency between sections 19c and 689 of the Penal Code. Support for this interpretation is found in the language of section 1042.5 which states that a defendant "charged with an infraction and with a public offense for which there is a right to jury trial" (italics added) may be accorded a jury trial. Had the Legislature intended that an infraction be treated as a public offense, it would have worded the statute differently, for example, "an infraction and with some other public offense." [50 Cal.App.3d Supp. 7] (Emphasis added) 2) Tracy v Municipal Court (1978) 22 Cal.3d 760, 765 -7-

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a. “The Legislature’s first proposed bill. . .sought to decriminalize the simple possession. . .by classifying the offense as an infraction. (Emphasis original)

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3) People v Sava (1987) 190 Cal.App.3d 935 , 235 Cal.Rptr. 694

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a. 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.) b. As Presiding Judge Holmes observed in his concurrence in Battle, the underlying purpose of Penal Code section 1042.5 is promotion of expeditious disposal of infractions cases "which is the chief reason for classifying them as such." (People v. Battle, supra, 50 Cal.App.3d Supp. 1,Supp. 7.) c. "[T]he Kellett court was concerned with successive prosecutions for crimes." People v. Battle, supra, 50 Cal.App.3d Supp. 1 at p. Supp. 5.) Battle soundly reasoned infractions are not crimes; hence, the Kellett rule was held inapplicable to prosecutions involving infractions.

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3.3

Other authorities holding traffic infractions to be non-criminal 1) Judicial Council of California 1967 Report To The Governor And The Legislature CHAPTER 1 A SYSTEM FOR CLASSIFYING MINOR TRAFFIC VIOLATIONS AS NONCRIMINAL TRAFFIC INFRACTIONS A. RECOMMENDATION “The Judicial Council recommends the enactment of legislation reclassifying minor traffic violations as non-criminal traffic infractions, punishable by a money penalty, license suspension, attendance at a school for traffic violators or any combination thereof. There would be no right to a jury trial or to the appointment of counsel in such cases.” 2) Attorney General of California “[I]f the intent of a state law is generally to prohibit certain conduct, it falls within. . .criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory.” Ops.Atty.Gen. (2006) 04-1212

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Even the Joint legislative committee for revision of the penal code in its 1968 discussion about non-criminal offenses fails to distinguish what they are from what they are not. If not criminal offenses then what kind of offenses are they?

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If Not One, Then The Other; Contra Proferentem!

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CRC Rule 1.6. Definitions and use of terms

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As used in the California Rules of Court, unless the context or subject matter otherwise requires:

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(3) “Civil case” means a case prosecuted by one party against another for the declaration,

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enforcement, or protection of a right or the redress or prevention of a wrong. Civil cases include

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all cases except criminal cases and petitions for habeas corpus.

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California Code of Civil procedure

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Judicial remedies are such as are administered by the Courts of justice, or by judicial officers

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empowered for that purpose by the Constitution and statutes of this State (Code Civ. Proc., § 20).

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The code of civil procedure states that there are two classes of remedies, (1) actions and (2)

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special proceedings” (Code Civ. Proc., § 21) An action is an ordinary proceeding in a court of

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justice by which one party prosecutes another for the declaration, enforcement, or protection of a

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right, the redress or prevention of a wrong, or the punishment of a public offense. (Code Civ.

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Proc., § 22, CRC §1.6) Every other remedy is a special proceeding. (Code Civ. Proc., § 23) The

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Legislature has drawn a statutory distinction between types of actions: Actions are of 2 kinds (1)

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Civil and (2) Criminal (Code Civ. Proc., § 24), and given them mutually exclusive definitions

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(Code Civ. Proc., §§ 30-31; In re Bittaker (1997) 55 Cal.App.4th 1004, 1009, 64 Cal.Rptr.2d

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679). A civil action arises out of: (1) An obligation; (2) An injury. (Code Civ. Proc., § 25) An

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obligation is a legal duty, by which one person is bound to do or not to do a certain thing, and

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arises from: (1) Contract; or, (2) Operation of law (Code Civ. Proc., § 26). An injury is of two

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kinds: (1) To the person; and, (2) To property. (Code Civ. Proc., § 27) An injury to property

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consists in depriving its owner of the benefit of it, which is done by taking, withholding,

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deteriorating, or destroying it. (Code Civ. Proc., § 28) Every other injury is an injury to the

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person. (Code Civ. Proc., § 29) A civil action is prosecuted by one party against another for the

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declaration, enforcement or protection of a right, or the redress or prevention of a wrong. (Code

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Civ. Proc., § 30). THE PENAL CODE defines and provides for the prosecution of a criminal

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action. (Code Civ. Proc., § 31) When the violation of a right admits of both a civil and criminal

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remedy, the right to prosecute the one is not merged in the other. (Code Civ. Proc., § 32)

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V

Who or what is the Plaintiff? Nullum similar est idem.

It is a long-standing maxim of law that things, which are similar, are not the same. The statutes of California are enacted in the name of “The People of the State of California”. The action before the “traffic” court is brought in the name of “THE PEOPLE OF THE STATE OF CALIFORNIA”. Appellants name is Rik Wayne Munson but the defendant is a RIK WAYNE MUNSON. Third grade grammar alone suggests that these things are not the same. This all becomes curious as we examine another possible thesis. In the words of the court of appeals when governments conduct business they descend to the level of an ordinary corporation or private individual and the laws of contract govern their business dealings. When governments conduct business they do so on business terms Clearfield Trust Co. v. United States, 318 U.S. 363-71, 63 S.Ct. 573 (1943)

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Policemen, or policy enforcement officers, are not public officers of a civil character but

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employees of municipal corporations.

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“After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority, and give an official

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bond, if the latter be required by proper authority State v. Hawkins, 257 P. 411, 413-418. The other three criteria required to be a “public officer” are stated in the long line of De

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facto Officer Doctrine cases beginning where the policy was first invented with Cross v.

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Harrison, 57 U.S. 16 How. 164 (1853).

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“Whatever the form in which the government functions, anyone entering into an arrangement with the government takes a risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority, even though the agent himself may be unaware of the limitations upon his authority.” Federal Crop Insurance v. Merrill, 332 U.S. 380 see also Utah Power & Light Co. v. United States, 243 U.S. 389; United States v. Stewart, 311 U.S. 60 *; and generally, in re Floyd Acceptances, 7 Wall. 666.

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"Public officers are merely the agents of the public, whose powers and authority are defined and limited by law. Any act without the scope of the authority so defined does not bind the principal, and all persons dealing with such agents are charged with knowledge of the extent of their authority." Continental Casualty Co. v. United States, 113 F.2d 284 (5th Cir. 1940)

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With the blurring of the line between governmental and corporate it becomes more vital than

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ever that the principals to an action and it’s underlying cause be properly plead by the plaintiff as

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persons are subject to the subdivision of both natural and artificial upon which distinction the

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question of rights and jural relation is pivotal. Appellant here affirmatively avers that no

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municipal corporate “policy and procedures” or “operations” manual in California provides for

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the production of a police report in non-bodily injury automobile accidents. Logic following

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simple research suggests the reason to be that the municipal corporations are invested in the auto

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insurance industry and each other. The “ticket” instrument, serving the basis for the trial action,

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which may be viewed as a form of complaint, does not conform to the California Rules of Court

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regarding civil or criminal pleadings and in any event is not verified. The instrument itself is a

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Judicial Council form. The instrument is issued on the public highways by, in this case, the

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CALIFORNIA HIGHWAY PATROL. The instrument itself is titled: CALIFORNIA HIGHWAY

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PATROL NOTICE TO APPEAR CHP 215 (REV 9/05) and at the bottom it states that it is:

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Judicial Council of California Form Rev. 9-20-05 (40500(b) VC), (40513(b)VC), (40522 VC),

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(40600 VC); (§853.9 PC)

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The California Judicial Council endorsed Noncriminal

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Traffic “Infractions” Legislation and Boasts It To Be A

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Milestone The Judicial Council sponsored the 1968 legislation amending PC 16 to add what it called noncriminal infractions. In its 1999 and 2001 Annual Report, the Judicial Council, listing as a “Milestone,” the sponsoring of non-criminal traffic infraction legislation. See also Judicial Council of California 1967 Report.

The Business Partner Network

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The Business Partner Network is the single source for vendor data for the Federal

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Government located at http://www.bpn.gov. From here you can search various databases, including the Central Contractors Registry of federal business partners. A search for Judicial Council of California returns, several items amongst which is;

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JUDICIAL COUNCIL OF CALIFORNIA, DUNS: 787935100, CAGE /NCAGE: 4LH58 Doing Business As (DBA): SUPERIOR COURT OF CALIFORNIA, FRESNO COUNTY, CORPORATE INFORMATION: Type of Organization U.S. Government Entity. A search for California Highway Patrol returns DUNS: 602310245 DUNS CAGE

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/NCAGE: 31KZ9 Legal Business Name: CALIFORNIA, STATE OF Doing Business As (DBA): CALIFORNIA HIGHWAY PATROL, CORPORATE INFORMATION: Type of Organization U.S. Government Entity. There is more but there is no space for that discussion here.

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1)

Where is the Law?

The “Plea in Bar” is a motion to dismiss for lack of jurisdiction and it is the proper

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pleading for challenging subject matter Jurisdiction. It operates as an estopple at law

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until jurisdiction is proven by the plaintiff on the record.

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When a court does not have subject matter jurisdiction to hear a case, then it cannot have jurisdiction to decide issues of fact and law. In such cases, a motion to dismiss for lack of jurisdiction or a Special Plea in Bar, is the proper approach. -12-

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Martorano v. Hertz Corp., 415 F. Supp. 295 (E.D. Pa. 1976; Cook v. Children’s Medical Group, P.A., 756 So. 2d 734 (Miss. 1999)(Emphasis added)

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A plea in bar is an appropriate means of challenging the trial courts Subject matter jurisdiction. Fountain Parkway, Ltd. v. Tarrant Appraisal Dist., 920 S.W.2d 799 (Tex. App. Forth Worth1996) reh’g overruled, (May 23, 1996) and writ denied, (Sept. 12, 1996)

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2)

Penal Code 1024 only allows entry of a not guilty plea by the court where the

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defendant refuses to enter a plea. Defendant here did not refuse to enter a plea.

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PC1002. The only pleading on the part of the defendant is either a demurrer or a plea.

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PC1003. Both the demurrer and plea must be put in, in open Court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.

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PC1004. The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof either: 1. If an indictment… or, if any information or complaint that the court has no jurisdiction of the offense charged therein;

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3)

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of appeal as required by CRC Rule 8.610 (A)(2) (A), made applicable to infraction

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proceedings via PC 19.7. 4)

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5)

The record is devoid of any form of evidence. Evidence Codes 140, 300, 710.

6)

The record does not evidence traffic court proceeding according to any established body of substantive of law.

7)

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The record is absent any verified complaint as required by Penal Code 853.9 applicable via PC 19.7 and/or as required by Vehicle Code 40513(b)

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There is no reporter’s transcript of oral proceedings of the entry of a plea for purposes

The record is absent any showing that Appellant was engaged in traffic or transportation and thus the proper subject of civil regulatory or other traffic authority.

8)

The requested, now stricken, Opening Brief on appeal is a responsible effort to establish the record by showing the history of law that explains the nature and scope of the legal moeity embodied as the public corporation established for the protection of the people, their liberty and their property. Said brief on appeal shows that when a -13-

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'persona ficta' is a party to an action at law, certain considerations lie as crucial to the

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determination as to controlling law, and thus to procedural rules that will govern. The

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now stricken brief on appeal also shows beyond cavil that the nature of 'infractions',

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as they are interpreted by the courts, the legislature, and the regulatory agencies, are

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so ambiguous and contradictory as to completely fail to rise to the level of legitimate

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law, by being 1) devoid of Notice, 2) devoid of certainty, 3) in clear violation of the

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rules governing statutory construction, as well as 4) riddled with abundant

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characteristics violating the constitutional guarantee of a republican form of

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government, and 5) constituting on its face the appearance of a scheme that satisfies

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the federal definitions of racketeering, extortion and fraud.

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Excerpt from Roscoe Pound’s 1946 paper entitled, "Administrative Agencies and the Law"

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seems fitting here.

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"To them, administrative officials, law is whatever is done officially. And so administrative law is whatever is done by administrative agencies.... "This led some advocates of administrative development to denounce the separation of powers which is fundamental in American constitutional law....

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"Today, exemption from judicial scrutiny of its actions seems to be the ambition of every federal administrative agency ... but in the hands of agencies and subordinates of agencies not disposed to be scrupulously fair, these simple, nontechnical methods may easily serve as traps for the citizen who is seeking to obey the law... "But, it is a characteristic tendency of present-day administrative agencies to use as a ground of decision some idea of policy not to be found in the statute or general law nor even in any formulated rule of the agency... "Many of these agencies entertain complaints; institute investigations upon them; begin what are in effect prosecutions before themselves; allow their own subordinates to act as advocates for the prosecution; and often make the adjudications in conference with those same subordinates. All this runs counter to the most elementary and universally recognized principles of justice." Appellant hereby incorporates by reference the “Special Plea in Bar” and “Memorandum in Support of Plea in Bar” filed into the traffic court in the original proceeding as if fully restated

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herein. Appellant hereby incorporates by reference the settled statement on appeal submitted to

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and accepted by the trial court March 31, 2007 as if fully restated herein.

REMEDY

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7.1 ANSWER

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The Appellate Division of the Superior Court of Contra Costa County is hereby authorized to

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instruct the lower court to surrender Appellant’s property in the form of written answers to the

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questions presented in the Plea in Bar, especially as to the true identity of the complaining party,

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and as to the true identity of the Principal party in interest for whom the complaining party acts,

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as well as to the nature and cause of the action, the substantive body of law that would thus

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control the proceedings, and a statement as to the evidence in the court’s possession upon which

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a decision might rely.

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COMPENSATION

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Compensatory damages section of the stricken opening brief is a counter offer and demand in

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commerce and as such is not subject to being stricken at law. Principal and agent are noticed and

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said demand is incorporated by this reference as if fully restated.

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7.3 REMAND FOR A FULL, COMPLETE, AND PROPER ACCOUNTING

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The Appellate Division of the Superior Court of Contra Costa County is hereby authorized to

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instruct the lower court to produce documents of an official status that accounts for any

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commercial interests the court may have, the actual authority the court claims to exercise, the

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oaths of office on file for court officers, and as may relate to the instant matter; copies of all bid

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bonds, performance bonds, indemnity or surety bonds, public hazard bonds or civil malpractice

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bonds, bonds covering any statutes claimed as violated, attornment bonds, accounts receivable,

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existing proceeds and any funds created by any above said bonds, or sales thereof, all registered

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or unregistered liens, certificates of deposit, securities transactions, bank credit transfers, pension

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fund deposits or transfers, conveyances of title, and identification of all fiduciaries and assigns,

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trustees and beneficiaries, business partners, income tax statements. -15-

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Appellant so moves this court.

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Below named Appellant/claimant declares and states, under penalty of perjury pursuant to

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the laws of California state republic (1849); that to the best of appellants knowledge and

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understanding the above statements are true and correct and the authorities cited are the current

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state of the published law.

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"I expressly reserve the right to amend or supplement as I see necessary."

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______________________________ Rik Wayne Munson, Real Party in Interest 1/19/2009 22:20:17 a1/p1

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