I just figured out why our country is in danger

I just figured out why our country is in danger: Donald J Trump needs the office of the Presidency to stay out of prison. He is never going to leave. This is why I'm scared of Donald Trump becoming President.

Be Very Careful When Selling Your Digital Goods on eBay

Back in December 2011, I detailed a harrowing journey which started with my offering digital goods for sale on eBay, and resulted in my losing both my digital goods and the money that was paid to me for said goods. Now that my losses are a matter of public record, I can come out and say I lost 486.4 bitcoin, and have nothing to show for it other than a grim, and ultimately fruitless for me, journey with eBay through the courts. My long ordeal with eBay finally came to a less than positive conclusion yesterday morning, when the commissioner presiding over my small claims trial, Lisa Steingart, ruled against me while court was still in session, saying that based on what she had heard from me and from the defendant eBay (represented by a paralegal who introduced herself to me as Stephanie), the defendant eBay did not owe me, as the plaintiff who had brought suit against eBay, anything, because the eBay user agreement that I allegedly agreed to when I created my account in 1999 states sellers cannot sell "intangible currency".

My main argument in court was that eBay is talking out of both sides of their mouth, because the user agreement may state that sales of digital goods are prohibited, but eBay continues to reap massive financial reward by allowing sales to continue, even encouraging sales of so-called prohibited items, and collecting commissions on successful sales of cellphone ringtones, music, movies, domain names, software, electronic books, electronic currency, financial and cash services, video game accessories and characters, electronic gift certificates and coupon codes, and much more. To this day a thriving market for digital goods exists (I contend to rival Amazon, Netflix and Apple), and eBay does nothing about it other than to say that eBay will take down individual listings when people report violations of the User Agreement.

Note that even though eBay says their User Agreement states that sales of intangible currency are prohibited, they have a category for sales of "Virtual Currency", which gives lie to the idea that eBay prohibits such sales:
http://www.ebay.com/sch/Coins-Paper-Money-/11116/i.html?clk_rvr_id=390780746032&_nkw=bitcoin

The crux of my argument is that I had created four separate listings to sell my digital goods, and during that entire time, eBay never once warned me, or anyone else who lists digital goods for sale, that doing so could result in the eBay seller being doubly damaged, meaning, the eBay seller could lose both the item being offered for sale, and the money paid for said items. I told the commissioner that eBay benefits from sales of prohibited items (and upon further analysis, even encourages sales of prohibited items), and eBay does not provide adequate safeguards to protect eBay users who are vendors and sellers.

How eBay deals with eBay users who sue eBay:

1. eBay has a paralegal attempt to contact you to dismiss the case in your county, and refile in Santa Clara County, where eBay headquarters is, and where eBay hopes to have home field advantage. In Santa Clara County, the commissioners or pro-tem judges who you appear before will likely be unfamiliar to you as plaintiff, but more likely to be familiar to the eBay legal team. eBay then sends legal documents to your home county, arguing the motion for change of forum from your home county to Santa Clara County, and in my case, the commissioner decided in eBay's favor.
2. eBay points to their User Agreement which states that in matters of contention, you agree to file in Santa Clara County, and that you also agree that sales of digital goods are prohibited.

Someone will have to successfully hold eBay accountable, and that someone has to be other than me. I feel my strongest arguments for why eBay owes me monetary damages for the loss I suffered are:

1. eBay is saying that they have proof an unauthorized third party accessed the eBay buyer's account (please keep in mind that the eBay buyer is claiming his eBay, Paypal, AND personal email accounts were all compromised by this unauthorized third party) and bid on my items without the account holder's permission, but eBay won't tell me what this evidence is, let alone, let me examine this evidence. I am simply supposed to take eBay at their word.
2. even if what ebay is saying about the compromised accounts is true, there was a time window of 24 hours between when the item in question was first purchased by the buyer, and when eBay notified me that the buyer account was accessed by an unauthorized third party. Why didn't eBay let me know sooner, if they had evidence that the buyer's eBay, Paypal and email accounts had been compromised?
3. when I was creating the listings, why didn't eBay warn me that my digital goods, and what I paid for them, and could sell them for, could potentially all be lost, and unrecoverable, and that digital goods auction listings were not covered by eBay or Paypal?
4. Paypal says that if you receive payment for an item, you are covered by Paypal seller protection; you only need to provide proof of shipping, and that you sent the item to an address that is verified by Paypal. However, this protection does not cover digital goods, even though I have the evidence to show I sent the items and the buyer received them.
5. when it comes to high value transactions, eBay can set up an escrow system, just like it does for eBay Motors, where a disinterested third party, perhaps an eBay employee, can make sure that the buyer is who he or she says s/he is, and that the seller actually has said goods and they are the value claimed by the seller, before payment is released and goods are delivered, as overseen by the third party.

To pour salt in the wound, after I lose my bitcoin and the money paid for them, my Paypal account is limited until I send in a notarized document agreeing not to buy or sell bitcoin using Paypal. When I tried to resolve this by contacting an eBay seller advocate, I was told that in the future, if I want to sell digital goods, to list said goods using eBay Classified Ads, for which you pay a flat fee of $9.95:

http://pages.ebay.com/help/sell/adformatfees.html

Here again, I feel eBay is being a bit disingenuous, because while eBay may not necessarily get more money in each and every auction sale, 11% (eBay and Paypal fees combined) of a large number of digital goods auctions or Buy It Now transactions, even if many of those transactions are where the buyer claims their account was hacked, is much better than a fixed fee of $9.95 per Classified Ad transaction. That is my theory for why eBay doesn't force, or even automatically notify, sellers listing digital goods to go to eBay classifieds. The seller may lose out on money and goods, and eBay may have to refund the fees, but eBay suffers no additional loss, other than the small percentage of people who successfully sue eBay and collect.

Ultimately, I feel that the fact that eBay continues to allow and encourage digital goods auctions to take place, to allow people to see what said goods can sell for, presents a sort of attractive nuisance, much like a clean, well-lit pool on private property with an invisible fence around it, in an area with lots of families with children and young people.

how to find out who's been watching you and how to start watching them

Countersurveillance: the attempt to avoid being watched. Last month, I briefly addressed how to avoid being detected when browsing online. This month, we will delve into spying on those who are spying on you. How do we ascertain when someone is investigating you and maybe doing research on you on the internet, and how do we turn the tables and start doing same to them?

Some time in the recent past, I got into a conflict with a party that spilled into the arena of the law. I've since settled the case out of court, and on the day of the settlement, I signed a confidentiality agreement, so I cannot reveal specifics about the case. What I can say is that a couple of months after my attorney agreed to represent me and to file suit against the other party, I was reviewing my Google Analytics (henceforth GA) report for my blog, which I do on a nightly basis, when I see the following: Someone, whose identity was unknown to me, had typed my name into a search engine, clicked on one of the search result links, loaded my blog on their computer, and had proceeded to go through the stuff I had written. In the interest of full disclosure, finding out who is watching you is much easier when your name is unique; I know of no one else on the internet who has the same first AND last name as I do. If your name is not unique, you cannot be certain that the person who typed the words into the search engine is looking for you; the search engine user may have happened upon your website while looking for someone else, and got interested in you or what you had to say. But once my mind came to grips with the fact that somebody had conducted an online search of me, I formed a theory that the person doing research on me was either the party I was suing, or connected with the lawsuit, or associated with the attorney for the party I was suing. A few days later, I happened to be at a local courthouse, at the registrar of voters, trying to find out how to get a mail-in ballot sent to me. Afterwards, it occurred to me that if I was curious to see the latest developments in a court case involving me and another party, and I wanted to search the database of lawsuits that had been filed in the very county that I happened to be in, to see how my lawsuit was progressing, the place that I'd want to be is at a courthouse in the county where the lawsuit was filed. I asked around, inquired at the information desk, and was directed to the courthouse Records department. There, I saw a few computers that members of the general public can sit in front of and type in keywords to look up court records. After I conducted my own search on the name of the party I was suing, I confirmed that on the day my name was used as a search term by an unknown person or persons, the party I was suing, i.e., the defendant, had gotten served with the papers containing the text of the lawsuit in which I was plaintiff. While I cannot be 100% certain, I think there's a high probability that said party, after having been served with court papers, had gone online to find out more about me. The next week, I was at my attorney's office and I confirmed that my attorney's process server had traveled to the city where the GA report had indicated the online search may have originated, and served the defendant. In the next few weeks, the GA report indicated that my name was used twice more as a search term, but in both cases, the searches originated from a city that court records told me the defendant's attorney had his office. This could all just be a coincidence, of course, but I also think there's a high probability that the lawyer for the defendant may have conducted an online search of me, wanting to look through what I had written, perhaps in an attempt to find out anything that could be used to hurt my legal case against the attorney's client.

While a trip downtown to the courthouse may be fun, if you have an interest in the proceedings of a legal case, you can just as easily get updates from the comfort of your own home. You simply locate the website for the county courthouse that your lawsuit was filed in, and as long as you have the case number, or you know the date the case was filed, you can use the courthouse website to see how your (or anyone else's) legal case is progressing. However, perhaps because of privacy concerns, you cannot go online and perform a keyword search through county court records; you still need to physically be present in front of a county courthouse computer in order to search by a party's name.

On November 1, 2011, Google put into place a new feature of their evolving privacy policy; if a person typing keywords into Google's search engine is using a browser that is already logged into a Google account, Google no longer discloses the keyword search terms on your GA report. Therefore, if you now perform a search for my name on Google while logged into your Google account, and say you visit my blog, if I were to use GA to generate my blog's traffic analysis report, my name as a keyword would no longer be visible to me. What I'd see, instead of my name, is Keyword (not provided): None of us like being watched, but knowing we are being watched by other people keeps us honest (if not a little paranoid). Because of Google's new privacy policy implementation, you have less information in your GA reports than before, and therefore you are far less certain than before that someone is actually investigating you. However, you can still use GA to develop profiles of online users who may be watching you:

1. If your blog, like mine, is about many different topics, and the online user's keyword is (not provided) and the first page the user alights upon is your blog's landing page, instead of a specific blog post, that may be an indication that the user typed in your unique first and last name as the keyword, while using a browser that is logged into a Google account.
2. If your blog URL is not easy to remember, such as tpc247.blogspot.com, but using the URL is how the user accesses your blog's landing page, then the source of traffic to your blog's landing page is direct; this is an indication that the user typed your blog URL (or at least the first few letters of the URL) into the browser's address bar and pressed 'Enter', or the user has your blog in his or her browser bookmarks. Another possibility is that the user may have searched for your unique name, copied and pasted the blog's URL from the search results into the browser address field, then pressed 'Enter', possibly in order to evade detection by GA.

The aforementioned profiles are, of course, just guidelines, and do not necessarily match someone who may be investigating you. The user may have entered one or more keywords that are not your name, and ended up on the landing page of your blog. The user who perhaps copied and pasted your blog's URL from the search results into his or her browser address bar may not have been motivated by evading detection, but may have performed this extra work out of habit, or maybe as a lark, i.e., he or she may have just felt like doing it at that time. However, the information from these profiles, in combination with all the other data that GA provides you, such as geography and technology information, can be used in totality to track your website visitors, and any possible return visitors, in order to help you paint a better picture of who may be watching you.

Out of all the visits that GA tracks, there are still many where a keyword is provided, and occasionally that keyword may be your unique name. Even if you are a celebrity, you may still want to know who is googling your name and landing on your website or blog. In GA, I have created a filter with the following condition: where a user's keyword contains my first name, or my last name, or the keyword exactly matches my first and last name, then I can isolate that segment of user, and find out more about his or her visit. I'd like GA, at some point in the future, to be able to let me create an email alert (GA calls them Intelligence Events), so that I am notified by email when certain conditions in a filter in my own GA instance are met, such as the aforementioned profile. However, as we go to press, it looks like the only email alerts that you can create in GA are for when your website traffic has significant statistical variation, i.e., website traffic goes up or down by a certain percentage.

Gentle reader, all of this is to say that, so yes, I've been watching you, and now I know that you know that I know that you've been watching me.

Fight Your Red Light Camera Ticket, and Win!

Last Friday, my long battle against a red light camera ticket I received back in 2010 finally came to a positive conclusion. The ticket I received in the mail was a formal statement of the government's allegation that, on June 1, 2010, I made a rolling right on red, i.e., I didn't come to a complete stop before making a right turn in my vehicle. The problem is, no actual police officer was there to witness the incident, and the only purported evidence showing I had violated the law were photographs and video recorded by cameras operated by a for-profit corporation, Redflex Traffic Systems.

So, last Friday, when I showed up promptly for my 2pm hearing in Superior Court, and walked into the Department 1 courtroom, there was almost no one in the room, and you could have heard a pin drop. I saw two women in their 30s standing, huddled over a ledger, and I surmised they were courtroom staff. One of them asked me for my appellate court case number, and after she confirmed I was on the docket, I took a seat. Another male, about my same age, soon walked in, and apparently he was also there as a defendant for an appellate hearing. We four, the only ones in the court room, were soon joined by another woman, who also appeared to be courthouse staff, and who told me she would speak with the judge, as there was apparently a mix-up, as I was listed on the docket as not wanting to give an oral argument, even though I had expressly requested in writing that I wanted to speak at my hearing. This woman, who seemed to have the ear of the judges, left the room, then reappeared and confirmed that I would be on the docket for oral argument. Soon the appeals panel appeared, and we all stood for Justices Jon Tigar (presiding judge) and Gloria Rhynes. Normally, there are 3 judges on the panel, but one justice, Jacob Blea III, was absent that day. The entire proceeding lasted at most 15 minutes. Judge Tigar, who spoke on behalf of the appeals court panel, first called the other defendant's case, which I had overheard the women say was also a traffic matter, and Judge Tigar said that charges would be dismissed. He then called my name, and I walked up to the table and stood. Before I was able to utter a word of my prepared oral argument, the judge said that they had reviewed my case, and the charges against me would be dismissed, because hearsay was introduced as evidence. The judge asked me if that was alright, to which I replied, "Oh, very much alright, your honor." That was that, and I left right after.

Today, I received in the mail the following letter:

People of the State of California vs Thuon Chen

The judgment of the trial court is reversed 3-0. Similar to the affidavits held inadmissible in Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527, there was no live testimony by any person involved in the production of the Redflex Traffic Systems court Evidence Package (the "Redflex Packet"). Because the defense was not able to freely and adequately cross-examine the testifying witness on any of these issues, and because the absence of witness who could have testified as to the facts underlying the Redflex packet, Appellant's Sixth Amendment rights were violated, and the judgment of the trial court below must be reversed.

Remittitur to issue.

If you decide to fight your ticket, you will find that your experience in appeals court is a marked contrast to traffic court, which is much more crowded, especially at arraignment. Lots of people are there to tell their stories, when the judge (or more likely a commissioner, which Len Tillem likes to say is usually a lawyer who likes to wear a robe and hear people address him as "your honor") really only wants to hear how you plead. Your traffic court trial is where you can sit in on other people as they face the judge and the police officer. Most of the defendants at trial are not prepared and are hoping and betting on an officer not showing up to testify against them. The probability is high that a police officer will be present at your traffic court trial, because the police get paid to be there. What's funny (I'm sure it gets old for the presiding judge very quickly) is that when the police do show up, very often the defendant makes weak, anecdotal arguments, essentially pitting the defendant's testimony against the testimony of a sworn officer of the law. The judge is much more likely to believe what a police officer has to say. While doing research for my case, I got the sense that traffic court judges are like the hanging judges, that is, the police write the tickets and the judges collect. It's not until you, as the defendant, appeal your traffic case to Superior Court that you have a chance to make an argument before a receptive audience of jurists.

Here are the step by step instructions on how to fight your ticket and win. If a police officer actually saw you run a red light, you may be out of luck (unless s/he doesn't appear at your trial, which is unlikely). These steps apply to any traffic case where the only evidence used to charge you with a crime are recordings made by cameras operated by a for-profit corporation. Many municipalities, in addition to red light cameras, may also use traffic camera systems to collect evidence to charge people with exceeding the posted speed limit, or not coming to a complete stop at a stop sign:

1. Ask yourself if you have the wherewithal, the time, and the motivation, to make numerous appearances in court. If you don't want to pay the ticket, you either have to hire a lawyer, or invest a lot of time learning how to do this on your own. You will need to set aside hours to do research, collect your arguments, and put together the documents you need to jump through the hoops in traffic court. This means going to your arraignment, and asking the judge to schedule a motion hearing; in the event your arraignment judge does schedule a motion hearing, you will need to attend that hearing, with a copy of your motion in your hand, as well as a prepared oral argument; and of course, you will need to attend and argue at your trial.
2. Given that many towns, cities and states are in poor financial shape, the arraignment judge is not likely to honor your request and schedule a motion hearing. But if s/he does, you want to request that the municipality where you are alleged to have violated the law give you the best representation of the evidence that will be used against you, which are the full resolution photos and video. In a previous blog post, I detail my exploits in traffic court, how I asked the traffic court commissioner numerous times, in a total of three arraignment appearances, to schedule a motion hearing for me, to no avail; how the commissioner got so exasperated with my asking for a motion hearing at arraignment that he demanded I enter a plea, to which I replied "not guilty", and so the matter was set for trial.
3. If you attend all of your scheduled appearances at arraignment, the judge may release you on your own recognizance, i.e., not require you to pay bail in the amount of the fine. To my surprise, at my traffic court trial, Redflex Traffic Systems even sent their co-custodian of records, Sarah Rutherford, as a witness to testify against me. However, you are allowed to cross-examine even surprise witnesses, and her answers, or lack of answers, to your prepared questions can be used in your appeal. These are the questions I asked of the two people who testified against me during my trial (The first witness was the police service technician, and the last two questions were directed by me only to the Redflex co-custodian of records, in an effort to show that she is not an agent of the government, and because she is an employee of a for-profit corporation, her testimony in your trial does not hold the same weight as the testimony of a police officer):
   • How many technicians at Redflex were assigned to process Emeryville cases?
   • Who were the technicians who created the system for Emeryville, and who installed it?
   • Who were the technicians who reviewed this particular violation?
   • With regard to my case, was the photographic and video evidence recorded by Redflex originally in digital or analog form?
   • If the evidence was recorded digitally, what are the typical sizes of the photos and video please, in bytes and in resolution?
   • Have you had any federal, state or local police training?
   • What is the physical location of the computers that store the high resolution photos and video that are being used as evidence against me in my trial?
4. After you are found guilty, the judge will order you to pay your fine. In a previous blog post, I instruct you on how to ask for a stay of judgment after you've been found guilty, so that, while you appeal your conviction, you don't have to pay the fine.
5. You will have to develop a thick skin, because the judge who was present during your arraignment may be present at your trial, and may very well be dismissive of your arguments. S/he may even not-so-secretly hate you for wasting her time, when she has the photos and video showing someone, who looks a lot like you, appearing to violate the law.
6. In a previous blog post, I instruct you on how to appeal your red light camera case after you've been found guilty.

Thanks to Jim, editor of highwayrobbery.net, for his correspondence and help, and for supplying me with actual digital copies of:

• the motion to compel a municipality to either provide me with the best evidence, or else preclude the evidence that would be used against me during trial
• the motion to stay the judgment

I also got quite a bit of help from Fight Your Ticket & Win in California. Fight Your Red Light Camera Ticket, and Win!

Update: After you prevail in your lengthy court case fight, you may still notice an increase in your automobile insurance premiums when it's time to renew, based on the state DMV records your insurance company receives showing you were found guilty in traffic court because of traffic camera system evidence. This is despite the fact you fought long and hard to get the original traffic court conviction overturned on appeal. What your insurance company needs from you is proof from the DMV that the traffic court conviction was dismissed. This is a two step process:

1. Bring the proof your conviction was overturned in appeals court to your local traffic court clerk, and ask that this information be sent to the state DMV headquarters (in California, DMV headquarters is in Sacramento). My local traffic court clerk then went into the back, presumably spoke to someone or perhaps she herself had access to the court computer that talks to the DMV computer, and she came back and told me the dismissal had been sent to the DMV and my record had been cleared.
2. Your insurance company will want an updated copy of your driver record (some call it a "DMV abstract") faxed or mailed to them. In California, you can get a copy online for $2 by printing it out from your web browser at
   http://www.dmv.ca.gov/online/dr/welcome.htm
   Or, time permitting, you can schedule an in-person appointment to confirm with the DMV representative that the conviction has been removed, then ask to get a copy of your driver record as a DMV printout that comes with an official seal. This cost me $5.

How to Sue a Corporation in Small Claims Court

Several years back, I sued AT&T in small claims court, and the judge ruled in my favor for $1000. My complaint was that AT&T (back then they were doing business as Pacific Bell) had never notified me, as a DSL subscriber, that I could have availed myself of a number of features of their DSL package, including a nationwide network of local dialup phone numbers, and free web hosting and 3 email addresses. I was never given notice of these parts of their package, and felt that I very much could have used those services if only I had known. I had subscribed to DSL for 2 years by the time I found out, and believed I was due some sort of credit for the services the company had failed to notify me of, and I had never used. I called the company, detailing my complaint, and asked for free DSL for a year (back then AT&T was the only game in town in terms of providing DSL service in my area). The representative I spoke to declined to give me free DSL, but offered me a discounted rate per month. Hard-head that I was back then, I decided to reject their counter-offer, and began to prepare my case. It was a lot of work, and after I had served the corporation with the suit, I even got a call from another representative, offering me 3 free months of DSL service; I decided to reject that offer and proceed with my lawsuit. In court, no one showed up to contest the charges (a corporation usually must pay a lawyer much more than a potential liability of $10,000 to represent the company in a small claims case), but that doesn't mean you automatically win. In my case, the judge wanted to hear the basis for my lawsuit, and I argued that, at the time I discovered I was due the extras that I was never notified of, given Pacific Bell's monopoly on DSL service, I couldn't have simply moved my business elsewhere if I was dissatisfied with their customer service. The phone companies that owned the infrastructure were only just beginning to lease their lines to competitors at the time I argued my case, but the judge agreed with my logic and ruled in my favor.

Flash forward to the present: last year, I was operating my motor vehicle, a Honda Accord, and discovered that the seatbelt alarm for my car was starting to flash and emit a continuous beep, even though I made sure I had my seatbelt properly secured. Now, it's important to clarify that, by seatbelt alarm, what I'm talking about is actually a warning system that has a flashing light and audible alarm, indicating my seatbelt is not secure during operation of the vehicle (hence seatbelt alarm). I told my local mechanic about the problem, and he suggested I take the car into the dealership, as what I was describing seemed to indicate a problem with the seatbelt system, and since Honda has a lifetime warranty on seatbelts, I could get the problem repaired for free. I did as my mechanic suggested, but then I got a call from the dealership repair shop that the problem I had would not be covered under warranty, as their mechanic had deemed the problem to be an electrical issue, and not a seatbelt issue, so Honda would not pay for the cost of repair. As explained to me by the dealership mechanic Chuck, for my particular model of vehicle, the seat belt system is one of the most complicated ever made. To fix the problem, which is probably a wire that is shaved or touching the body of the car somewhere, the mechanics would have to take the panels off, including the dash panels and door panels, and trace the wiring from the sensors to everything that's involved with the system to find out where a wire is touching the body of the car somewhere. So even though Honda says in their warranty booklet that "a seat belt that fails to function properly is covered for the life of the vehicle," I am apparently out of luck.

I believe Honda is being disingenuous. If the problem is electrical, it's still manifest by the seat belt alarm beeping and flashing for no apparent reason, and it was a mechanic who first suggested that the problem might fall under Honda's limited lifetime warranty for seat belts. That's why I plan to sue them. Stay tuned.

1. Make sure your claim is not invalid under the statute of limitations: http://www.dca.ca.gov/publications/small_claims/file.shtml
2. Ascertain the proper jurisdiction. If you don't file your lawsuit papers in the proper county, your lawsuit will be dismissed by the judge. To figure out the correct jurisdiction, ask yourself, where was the agreement between you and the corporation entered into? Where was the agreement broken? When I purchased DSL from AT&T, I did so for my home in Berkeley, and I filed in the Berkeley small claims court (which has since been moved to Oakland). When I purchased my used car, I did so in Oakland, so I plan to file in Oakland at the Wiley Manuel Court.
3. Ask the corporation for the amount of damages you are seeking, either in writing, or in person (if in person, note the date and time you do this)
4. Find the agent of process for the corporation, at http://www.sos.ca.gov/, click on Business Entities, under 'Online Services' click on Business Search, type in the name of the corporation
5. File the lawsuit papers in court, then notify the corporation you are suing them by serving the lawsuit papers on the agent of process
6. Prepare to argue your case in court, making sure to organize your ideas as legal arguments, and have documentation in hand showing damages, and evidence to support your claim of damages
7. If you win, i.e., if the judge rules in your favor and awards you damages, serve the judgment on the agent of process, so that your paperwork will be forwarded to the corporation's Accounts Payable department, where a check should be cut out to you

How to Appeal a Red Light Camera Ticket When You've Been Found Guilty: Filing an Opening Brief

Update: After a year and a half battle, I won my case on appeal in Superior Court, as detailed in this latest blog entry: Fight your red light ticket, and win!


Recent news about red light cameras, like the cities of Loma Linda in California, then Houston, Texas, and now the city of Los Angeles doing away with them, have been disturbing for those concerned with road safety, and encouraging for those who believe red light camera tickets have become an aggressive tactic by municipal government to squeeze money out of motorists. The cities did away with the automated ticketing systems, despite evidence that the cameras prevent the most horrific and fatal type of accidents, the ones where a driver barrels through an intersection on a red light and gets into a side-impact collision. I appreciate the technology of an automated system to record by video and photograph the people who violate traffic laws, and I even believe the technology can be used to bring safety to people on the road. The implementation so far, however, leaves a lot to be desired.

On Monday, December 13, 2010, during the 2pm hour, Gil Gross, news-talk host on KGO radio, interviewed Los Angeles City Controller Wendy Greuel on her 77 page critique of the red light camera program. She made the point that 2/3 of red light camera tickets are for rolling right-on-reds, i.e., turning right on a red without coming to a complete stop. Wendy came to the conclusion that red light cameras cost Los Angeles more than the city collects in fines; the state of California taking a portion of these fines is one reason, but another reason is people are not paying the fines, and getting away with this because they can still renew their licenses with the DMV. In a damning rebuke of municipal greed, Wendy found that where the city puts these cameras are not where the most dangerous intersections are, but where they are easiest to install, i.e., where the city didn't have to work through a state process for an intersection near a state highway, or where there was the same kind of physical infrastructure at an intersection that the equipment installers had worked with before, and could easily work with again.

I was convicted of a red light camera traffic ticket on Tuesday, July 12, 2011, even though at trial I felt I presented a strong case with convincing arguments. As I mentioned in a previous blog post, how to file a stay of judgment, my read of the judge was he just didn't want to hear what I had to say. Fair enough, judges can do whatever they want in their courtroom, and he certainly wouldn't be the first person to reject whatever may be contradictory to what he wants to believe! The great thing about the criminal justice system (yes, a traffic ticket means you are being charged with a crime) is you can appeal your conviction when you've been found guilty of an infraction, which most traffic tickets are. If you don't want to pay the ticket, you either have to hire a lawyer, or invest a lot of time learning how to do this on your own. The first step to an appeal is filing a proposed notice of appeal, but before you can do so, you must do a lot of research, reading, writing, and preparation, using resources like highwayrobbery.net and Fight Your Ticket & Win in California. In California, you need to download from the internet or ask the court clerk for the CR-141-INFO packet, which gives you information on appeal procedures for infractions.

One of the main pillars of my defense at trial was the rule of "best evidence", which means in court the government has to submit their sharpest photos and video as evidence, and not some fuzzy copies. Under California Evidence Code 1520, otherwise known as the Secondary Evidence Rule, if submitting a document, the government has to provide an uncondensed version, not a summary or memo. On the website, at photonotice.com, where you can view your alleged violation, there is a disclaimer (which as of 5pm today, I've confirmed is still there) which states: "Due to formatting constraints this video is a representation of the original evidence and is not intended for court purposes...The video you are viewing on this website is provided as a courtesy and convenience to you. The video is in no way purported to be a true and correct copy of evidence that will be presented in court."

Because I asked the government numerous times to give me their best evidence, which are the high-resolution photos and video captured by the Redflex cameras, and said evidence was never provided to me, then for the purposes of trial, the rule of best evidence was never satisfied. At trial, the police service technician may have, on her laptop, access to the evidence you requested, and she may offer to show it to you, but since you asked for the evidence before trial, so you could prepare for your defense, and that evidence was never given to you, you can ask the judge to throw out the high-resolution copy that the police have and plan to use against you. If the judge throws out the high-resolution copy (which, in my case, did not happen), the police have no evidence against you, unless they decide to submit a lower resolution copy, or the officer might refer to the low res copy given to you in discovery. However, you can object to the admission of the low res copy under the rule of "best evidence".

The second step in an appeal is to file an opening brief, which the district attorney can respond to by filing a respondent's brief (this is unlikely in an infraction case). Filing an opening brief is mandatory, and after all the briefs have been filed, or the time to to serve and file them has passed, the court will schedule a date for oral argument. Below is what I submitted as my opening brief:

Red light cameras depend heavily on legal faith in a certificate that claims to confirm the total reliability of a machine's calibration and accuracy in detection, tracking, and overall synchronicity with the system of lights and cameras. Despite the possible hassle involved in confirming each fact at trial, it is essential to the integrity of the court system that questioning of the evidence be allowed. On the basis of my right to challenge the human elements of the evidentiary chain, I submit this appeal.

Commissioner Culver's trial court ruling was not supported by substantial evidence because there was no live testimony by any person actually involved in the preparation or production of the crucial evidence. I have a right to confront witnesses under the 6th Amendment, as affirmed by the Supreme Court in Melendez-Diaz versus Massachusetts. In addition, the website where representations of the evidence can be reviewed, photonotice.com, states the following (copied verbatim, and current as of October 12, 2011): "Due to formatting constraints this video is a representation of the original evidence and is not intended for court purposes." I made multiple requests to the police and the city for the best evidence, i.e., the high resolution photos and video recorded by the Redflex cameras, by serving Dominique Burton, the agent of process for the city of Emeryville, by asking Rebecca Sylvester, Emeryville police technician, in person at the police station for said evidence, and by asking Sergeant Mike Allen, Ms. Sylvester's superior, in emails. When my requests were not fulfilled, I twice asked Judge Culver during arraignment to schedule a motion hearing to hear my motion to compel discovery, and during the second time I requested a motion hearing, I submitted a printed copy of said motion to the court that asked the city of Emeryville to either provide me with the best evidence, or else preclude the evidence that would be used against me during trial. None of my requests were fulfilled. The evidence used against me in trial should have been precluded, because the city of Emeryville did not comply with my discovery request.

Commissioner Culver made the following errors:

• refused or ignored my numerous requests for a motion hearing to compel the city of Emeryville to provide me with the best evidence.
• did not preclude the evidence when I asked him to, under California Evidence Code 1520
• called up a witness, Sarah Rutherford, co-custodian of records for Redflex, when I as the defense was never notified in advance (according to rules of discovery) that she was going to testify.
• did not want to see or consider the 2 rulings of the higher court in Alameda County, copies of which I brought with me and which I attempted to show Commissioner Culver. Both of these appeals cases, People v Singh (January 2010) and People v Blankenship (May 2010), overturned similar trial court rulings resulting in convictions for said defendants in red light camera photo trials. In both of these cases, the appellate court reversed the lower court ruling due to violation of the defendant's right to confront witnesses under the 6th Amendment.
• denied my motion to dismiss based on violation of my right to due process under the 5th Amendment, i.e., no motion hearing was scheduled for me when I requested it.

Update: After a year and a half battle, I won my case on appeal in Superior Court, as detailed in this latest blog entry: Fight your red light ticket, and win!

Heather, Rachel, Michelle, Casey, Ann or Tiffany from Account Services or Cardholder Services

Update: David Lazarus at the Los Angeles Times has written two recent articles about this issue, with some news and interesting ideas:

• http://www.latimes.com/business/la-fi-lazarus-20140107,0,1818707.column
• http://www.latimes.com/business/la-fi-lazarus-20140114,0,1753169.column

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From phonespam.blogspot.com:

Hello. This is Heather at account services. And we're calling in reference to your current credit card account. There's no problems currently with your account. It is urgent however that you contact us concerning your eligibility for lowering your interest rate. Your eligibility expires shortly. So please consider this your final notice. Please press one now on your phone to speak with a live operator and lower your interest rate. Or press two to discontinue further notices. Thank you and have a great day.

I've been roused from sleep by these unsolicited, automated phone calls, all having to do with card member services, or account services, relating to your credit card debt, lowering your interest rates across all lines of credit, repairing your credit, financial services counseling, or debt negotiation. Fraudsters, con men, whatever you want to call them, ultimately, they're looking to get your money. These robocalls piss me off, and if you want to do something more than just hang up, you can get even. I've pressed '1' to get connected to a live agent. The people who get paid by the telephone marketing scammers have learned to be wary of giving out too much information, especially to an angry caller, because they know if too many people complain, the money will stop coming in. However, if you have a little time, you can employ the following strategy to make yourself some money fighting crime, and help bring down these organizations who try to scam people. The next time you get one of these calls, here's what you should do:

1. Pretend that you are interested. The first two things the representative may ask you are your name and how much credit card debt you have. You can use a variant of your name, or create a new name for yourself (in order to not arouse suspicion, try to make your new name similar to your real name, so that it's easier to remember, such as starting with the same sound or letter. If your name is Mike, then Mark or Malcolm. If John, Jerry or Jesus). Tell the representative you have credit card debt of $16,000 (which is about the national average), so that he or she will get excited about possibly doing a balance transfer with you over the phone, or getting your credit card number so he or she can bill your credit card for "services".
2. Do not give out any of your personal information, such as your credit card number. Inform the representative that you have some discomfort doing business over the phone, and you would like to do some research before you go forward. Tell the telemarketer, "I have a fear of scams, and would like to make sure this is a legitimate business", and "I would like to take advantage of that 4 to 8% rate, but before I do, can you tell me what is your company's name and physical location?" To lull the scammer into thinking you are sincere, I might go so far as to give out my ZIP code and the toll-free number of my credit card company (Craig in the comments below prudently advises retaining your expired credit card for just this occasion, or perhaps switching around the last four digits of an old credit card), but when you are prompted for your credit card number, stall them until they give you some kind of traceable information, such as an official company name, their callback phone number, and of course their physical location.
3. Ask for, and record, the company's name, the name of the person you are talking to, get a call-back number and an address, and note the time and the date of the call.
4. Report the call and any of the information you have to the authorities.

Enough people who complained were finally able to identify and bring down three telephone scammer companies, including Mutual Consolidated Services in Tacoma, Washington, and multiple companies in Florida:

http://blogs2.startribune.com/blogs/whistleblower/2009/06/26/hunt-for-rachel-from-cardholder-services-takes-me-to-a-company-in-florida-but-she-wasnt-there/
http://www.kirotv.com/money/18910460/detail.html
http://www.ftc.gov/opa/2010/07/mutualconsol.shtm
http://www.ftc.gov/os/caselist/0923190/index.shtm

These are three URLs I've used to lodge complaints about the calls:

https://esupport.fcc.gov/ccmsforms/form1088.action
https://complaints.donotcall.gov/complaint/complaintcheck.aspx
https://www.ftccomplaintassistant.gov/

Depending on your state, you can possibly make yourself some extra cash by suing the telemarketing company in small claims court if you are on the "do not call" registry:According to the California Attorney General:

In order to file a complaint, you must know either the name or the phone number of the company that called you. Our office cannot trace the phone call you received and obtain this information on your behalf. You also must provide the date that the company called you and your registered phone number. You may provide your name and address, but it's not required for you to submit a complaint.

According to the FCC:

Some states permit you to file law suits in state court against persons or entities violating the do-not-call rules. You may be awarded $500 in damages or actual monetary loss, whichever is greater. The amount may be tripled if you are able to show that the caller violated the rules willfully and knowingly. Filing a complaint with the FCC does not prevent you from also bringing a suit in state court.
States also can bring a civil law suit against any person or entity that engages in a pattern or practice of violating the TCPA or FCC rules. You can contact your state Attorney General’s office or consumer protection agency with particular complaints, or to encourage such suits.

Happy hunting!

Update: Some new variants of this automated robocall telephone scam start out with:

1. This is Visa Mastercard member services. Congratulations, you now qualify for a lower interest rate on all your credit card accounts. Press the number 2 to speak to a customer service agent, or press 3 to decline this offer.
2. "Hi, this is Tiffany with Account Services, calling in reference..."
3. "We have closed the file on your annual credit card review, and you should have received mail..."
4. "This is an important message from cardmember services..."
5. "Hi, this is Anne with Account Services with some good news!"

how to file a stay of judgment when you've been found guilty of a traffic violation

Update: After a year and a half battle, I won my case on appeal in Superior Court, as detailed in this latest blog entry: Fight your red light ticket, and win!

Let's say you got a traffic ticket, a red light camera photo ticket, and you decide to fight it. You do your due diligence, poring over the resources available at Fight Your Ticket & Win in California and highwayrobbery.net, and the first two times you appear for arraignment, in front of the same judge, you request that a motion hearing be scheduled so you can compel the city of Emeryville to provide discovery, in the form of the high resolution photos and video captured by the Redflex cameras. Both times, the judge either ignores or refuses your request, and continues the matter, i.e., gives you an additional 30 to 60 days before you have to reappear during arraignment in order to enter a plea. The third time, the judge is exasperated that you persist in your request for a motion hearing, and he demands that you enter a plea. You plead Not Guilty, and the judge, perhaps cognizant that you won't skip town, since you showed up all 3 times like you were supposed to, does not order you to put up bail (i.e., the fine of $446 in order to clear the citation), but instead, does you the favor of releasing you on 'O' 'R', i.e., on your own recognizance (most people try to ask the judge for no bail, and are usually denied, although the judge may grant you extra time to put up the bail). You have a trial, where you are found guilty, and the judge orders you to pay the fine, and gives you one month to do so. You may now want to appeal the trial court ruling, because you believe the trial court judge made one or more errors when deciding to rule against you. If you plan to appeal the ruling, you may want to avoid paying the fine until the appeals process is over, hopefully with the appeals court judge ruling in your favor.

The government alleges that, last year, on June 1, 2010, I didn't stop before turning right at the intersection of 40th Street and Horton Street in Emeryville. 17 days later, on June 18, I received a citation in the mail, a notice of traffic violation of California Vehicle Code 21453a, "Failure to Stop at Red Light". Since this case is still on appeal, I have to be wary of what I say, for fear of hurting my case (the government can read, just as well as you or I can). I pled Not Guilty, and appeared in court a total of 8 times, 6 out of 8 in front of the same judge, Commissioner Taylor Culver, to argue my case and lose, then ask for a stay of judgment, and then for a hearing on settlement of the statement on appeal. I spent quite a bit of time reading and writing to get a sense of what my legal foundation is and what obstacles I might face, as I carefully prepared my case. Often, you'll find that when you're arguing a case in traffic court, the system is set up against you, and you will need all the help you can to navigate a process that seems prejudiced in favor of the police, the municipality where the alleged violation took place, and the corporations, such as Redflex, that the cities and the municipalities are in contract with. Eventually, despite all your preparation and strong arguments, the judge may be unresponsive to what you have to say, and very well rule against you (the logic may be, perhaps, that if the trial court were to actually listen to your arguments, then that may only encourage people to fight their tickets, instead of swallowing your pride and forcing yourself to submit to what I believe is an aggressive government tactic to squeeze money out of motorists). Well, during trial, despite my preparation and what I thought to be strong arguments for why my case should be dismissed, or at the very least why I should be found not guilty, the judge ruled against me, and I was ordered to pay $466 in one month.

You can now do one of two things: pay the fine, and when you win, petition to get your money back, or avoid paying the fine by filing a stay of judgment, asking the court to postpone the sentence while you appeal the trial court's ruling. I opted for the latter, as paying such a large amount for me would be a hardship. At first I asked the trial court to stay the judgment, and not surprisingly, the same trial court judge denied my motion. I then submitted a motion to the appeals court to stay the judgment, the template of which was provided to me by the editor of highwayrobbery.net, but the court sent me a letter saying the motion was denied, without prejudice ('without prejudice' means you are allowed to resubmit the motion to the court). The appeals court's given reason for why my motion was denied had to do with my not following the procedure spelled out by the California Rules of Court, which lays out the rules you must abide by, i.e., the technicalities you must follow, when you want the higher court to consider your motion. In this case, this is the denial letter that I got, copied verbatim:

Petitioner Chen's "Application for Stay of Sentence Pending Resolution Of Appeal To the Appellate Department" is denied, without prejudice. CRC 8.930 et seq. governs proceedings in the appellate division for writs of mandate, certiorari, or prohibition.

I was left scratching my head, wondering what I did wrong. I went to my local law library, where I was able to obtain a copy of the specific passage pointed at by the reference California Rules of Court 8.930. Reading further into the rule, in 8.931, I found the following:

A person who is not represented by an attorney and who petitions the appellate division for a writ under this chapter must file the petition on Petition for Writ (Misdemeanor, Infraction, or Limited Civil Case) (form APP-151). For good cause the court may permit an unrepresented party to file a petition that is not on form APP-151.

Reading it over, I finally figured out I had to file what is known as a writ of mandate. After some googling, particularly for california appeals, writ of mandate, I was led to the proper form, APP-151:

http://www.courts.ca.gov/documents/app151.pdf

I went ahead and filled out the form, resubmitted my motion, crossed my fingers, and hoped for the best. Four weeks later, I got the following letter in the mail, copied verbatim:

Petitioner Chen's Petition for Writ is granted.
IT IS ORDERED that the judgment and payment of the $466.00 fine be stayed pending resolution of Petitioner Chen's appeal to the appellate division.

The best thing about filing for a stay of judgment, and appealing a traffic court ruling, is that a traffic infraction technically falls under the aegis of the criminal justice system, where you are entitled to a free defense. Therefore, all the paperwork described herein, such as the appeal or the writ of mandate, is free to file. Unlike the paperwork you file in civil court, where you do have to pay, sometimes hundreds of dollars per filing, filing the aforementioned paperwork with the appeals court regarding a traffic violation incurs no fees.

Update: After a year and a half battle, I won my case on appeal in Superior Court, as detailed in this latest blog entry: Fight your red light ticket, and win!

while on my bike, I recently hit a car door

On a Tuesday morning, May 12, 2009, around 7am, I was bicycling on this stretch of road, just leaving North Oakland and crossing into South Berkeley:


View Larger Map

Traveling at a high rate of speed, I was on the right side of the road northbound on Martin Luther King Jr Way, having just passed Angel Light Books & Gifts. I crossed in front of the fenced playground area of Shelton's Primary Education Center (Since I wrote this, Shelton's moved, and the building is now occupied by American International Montessori) when suddenly a car door flipped open directly in front of me. My right shoulder caught the top of the door corner and my right pedal the edge of the lower door, and I was thrown off my bike, landing on my back in the middle of the street. After I heard a female voice ask if I was alright, I got up, dusted myself off, and took notice of the driver standing before me, dressed for an early summer morning and ready for work, possibly at the very school we had collided in front of; on the other side of the vehicle stood another woman, who may have been a passenger, dressed similarly and carrying her purse and some papers. I made sure I was ok, asked the driver if she was ok, and picked up my bike to inspect for damage. The African American female driver seemed genuinely concerned about my well-being, and I noticed that the tip of the lower metal edge of her car door was bent and protruding, having clearly been struck by something, which I later surmised had been the right pedal of my bike, the force of which had spun me around and thrown me out onto the street on my back. I seemed to be in one piece, though my bike had some minor damage; I was still in a hurry to get to Kinko's in downtown Berkeley to print out a document before riding into work. I felt embarrassed for not being more attentive to the parked vehicle immediately ahead of me and to my right, whether there were any occupants to worry about, and I remarked to the woman that I was ok, but that the repair to her car door would cost a lot more than the repair to my bike. I was operating under the assumption we were both at fault for the incident, and given the possibility in the back of my mind I might be held liable for any damages to the woman's car door as a result of my haste, I didn't see the need to exchange information with the driver. I remarked to both ladies that it was an interesting way to start the day, got back on my bike and rode off, noticing the slight wobble in my now out-of-true front wheel.

Over the next two weeks I saw a noticeable dark bruise appear on the upper part of my right chest where it had caught the car door's corner and felt severe pain in my right shoulder area whenever I picked up my bike and lifted it, or made certain motions with my right arm; luckily for me, gradually the sharpness lessened and over time the ache in my shoulder disappeared.

On Saturday morning, July 18, 2009 at 11:15am I was at Missing Link's repair shop to get my wheel trued. I asked the bike mechanic Bill about his summer plans for his two kids, then described the incident that led to my being in his shop, and was surprised to hear from him that the woman was almost surely responsible for the incident, that a driver is almost always at fault for a bicyclist being "doored". This idea was reinforced when on Thursday, July 23, 2009 I was listening to my favorite radio personality Len Tillem's noon to 1pm call-in radio show. A woman named Sunny called saying her daughter, who was driving, had opened her car door and a female cyclist had collided with the door, breaking her wrist. Sunny claimed the bicycle rider, a woman in her early 40s, caused the accident and so was liable for any damages resulting from the impact of the bicycle against the car door when her daughter opened it. Sunny explained her rationale for defending her daughter as not motivated by the expected protective instinct a mother might have for her child, but simply that the woman on her bike was riding too close to the vehicles. In her daughter's defense, Sunny, herself a cyclist, pointed out how some states have the door zone law, but in California there is unfortunately no such law, only a pending statute. Len seemed skeptical, saying Sunny's daughter, if she had just checked over her shoulder, would have seen the cyclist, and was in a better position than the woman on the bicycle to prevent the collision. Later, Jim, a retired California Highway Patrol officer, called in to confirm Len's initial assessment, saying that whenever a bicyclist hits a car door that opens into traffic, the person who opened the car door is at fault, quoting California Vehicle Code section 22517. In response to Sunny's rationale, Jim added that a bike rider is required to ride as close as possible to the right side of the roadway: