C: = Traffic Referee John Mulligan
DA: = Paul Marigandi, Assistant District Attorney
& Summer Shitaker, Legal Assistant
D: = Richard Quigley
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DA: (The legal assistant introduced herself, but it was not audible.)

D: I'm sorry, I didn't hear what she said. I'm Richard Quigley. I'm the moving party -- the defendant in this action.

C: Thank you very much. You can be seated.

D: What?

C: You can be seated.

D: Your honor, I didn't know. I thought when I made a motion, I was supposed stand up. It's only polite. I'm curious as to what ah . . . I challenge the standing of the District Attorney on the basis that on my demur, I specifically demurred on the grounds that the action wasn't being brought by the proper party. And the district attorney came in and said they didn't wanna be involved in filing a complaint, and it seemed to me that upon overruling my demur that the District Attorney's role in this thing sorta came to an official ending. I don't know where they get standing. So . . .

C: Well, in hearing your demur, if memory serves you had seven cases. The District Attorney's office filed a responsive pleading, I think, on three of the cases. Four of the cases there was no responsive pleading, so I granted the demur on four of the cases and ah overruled on three.

D: Right.

DA: That is correct.

D: That that that's correct. And when you overruled the demur, it seems to me the standing to proceed with this action rested with the person that filed the complaint. Now everybody has . . . everybody's decided that that citation constitutes a complaint. Well the person that brought that action is not the district attorney's office, it's the respective deputies and police officers. So I think that they would have the standing, and I would think that the DA would be a little short on standing after arguing himself out of the case. That's . . .

C: Well, he didn't argue himself out of three of the cases, first of all. Second of all, the district attorney can come into traffic, but they normally elect not to. But they have a right, as representative of the People, to be down here handling the case as Mr. Marigandi has elected to do.

D: So you're relying on the code sections that provide that the District Attorney attends the courts and prosecutes all manners on behalf of the name of the People of California . . . and they can, because it's an infraction traffic case, they can drift in and out by their own choice?

C: Right.

D: Okay. That's . . . as long as that's the ruling, I'm fine. No problem with that.

C: Okay.

DA: Your honor, ah . . . on the outset of this proceeding, I received last week, from Mr. Quigley, a list of witnesses that he intended to call at both hearings on a motion to dismiss.

D: That's what I did.

DA: And in that, he has a list of several people here. Now I (garbled) this list and I see that some of them have relevance as percipient witnesses in these cases. However, that People would be asking for an offer of proof as to each of these witnesses and why they're here. Ah, the persons he claimed that could be summoned, Captain David Stuflick of the California Highway Patrol. Captain Stuflick is here. I'm asking for an offer of proof as to why he's here. Ah Deputy VanHorsen, Deputy Rico, McConnell I understand that they may be percipient witnesses in certain cases. Lt. Heartness . . . ah I'm asking for an offer of proof as to him. Deputy Pifferini. Deputy Muting. Corporal Henderson, what is the offer of proof as to him? Santa Cruz Police Department . . . what's the offer of proof as to Officer Escalante. Also, an offer of proof as to why we have CD recordings and three pages of explanation? It's my position that those are irrelevant and those are not needed in this case . . . these hearings. Basically the focus should be on what the witnesses saw and what the witnesses did. I don't know how these others fit in. Captain Stuflick, for example, is not a percipient witnesses witness to these cases. I don't believe that Lt. Heartness is at this time. I don't know that Corporal Henderson, actually Deputy Henderson is a percipient witness. And Officer Escalante, I have no idea where he fits into this.

C: Concerning . . . let's do the first three. Captain ah Stuflick? Lt. Heartness and Deputy Henderson.

D: Okay uh . . . actually, I understand where the District Attorney's coming from and I think at the proper time, it's probably an okay thing for him to do, to ask all these questions. But I think it's premature relative to what I intend to do next.

C: Well, what he's asking is . . .

D: There may be no need for these gentlemen if the court decides to follow the law, your honor. I'm going to ask to dismiss on the grounds that this is a . . . uh the statutes, I intend to discuss with the court, under the statutes, whether or not this case is dismissible as correctable. Now the statutes are very clear about that. So I'm gonna . . . I wanna enter the statute into the record. I want a ruling from the court as to whether or not this thing is being improperly brought as an infraction as opposed to having been cited as . . . pursuant to 4-0-3-0-3 point 5 of the vehicle code. As soon as that answer is made, assuming that the court denies my motion, then the relevance of all of these witnesses becomes absolutely germane because . . . it will be my move then to have the case dismissed for a lack of evidence.

C: Ah well, I'm prepared to rule right now on your initial question as to whether this is an equipment violation and therefore dismissible with proof of correction.

D: I would like, I would like, your honor, if I might, to read the statute into the record so that you're clear on what it is that I see in the statute that I believe supports my contention that this is absolutely improperly written and brought as an infraction. The statute is very clear. The language of the statute is, "Whenever any person is . . .

C: All you . . . hold it, hold it, all you have to do is cite the statu . . . the section. The court can take notice of the actual wording of the statute itself. I mean, I've got the code right here in front of me.

D: Okay, your honor, and when it says that the arresting officer shall permit the arrested person to execute a promise . . . to correct, that shall is pretty heavy language where I come from. I thought where there was a shall in a statute, we stood up and saluted that sucker.

C: What section as you reading?

D: Four oh three oh three point five. The officer shall permit the arrested person to execute a notice containing a promise to correct the violation in accordance with the provisions of four oh six one oh., unless the arresting officer finds any of the disqualifying exist. That's item two. Item one is whenever any person is arrested for the following offenses . . . okay, and the following offenses is subsection dee . . . any infraction involving equipment set forth in division twelve, commencing at section twenty-four hundred. If you go to vehicle code section twenty-seven eight oh three, you will find it planted squarely in division twelve. So it would seem to me that the statutes are very clear in instructing that these citations be issued as correctable equipment violations. So, if you wanna rule on that? We can go to the next step and then I can show you why these guys are in the courtroom.

C: Do you have a brief comment, or do you want me to make my ruling right now?

DA: Go ahead and make your ruling.

C: Okay, it is my understanding that it is not an equipment violation, although it may be in that section. Um, and as such it's . . . therefore I deny your motion. I believe this is not a correctable offense.

D: The plain language of the statute notwithstanding?

C: Right.

D: Cool. Okay, then the next thing, if we're not gonna be running by statutory law, how bout we move by precedent? Are you bound by precedent? I mean if some court higher than you has ruled a certain way, do you have to follow that?

C: I'm bound by case law.

D: Cool. Then this outta be a real short deal here. According to Buhl vs. Hannigan, are you familiar with that opinion?

C: That's why you were outside. I read both of them. I ran them off this morning.

D: Cool. Buhl vs. Hannigan gets down to . . . the ah, motorcycling community challenged the statute as written. They said that it was unconstitutional. That case worked its way into the Superior Court in Los Angeles. The Superior Court denied the motion to have it taken out as unconstitutional and went to the fourth. When the fourth dealt with the issue of constitutionality on the language of the statute . . . it was never discussed how it was enforced at this point, it was strictly the language of the statute, and what they said was, to not only dismiss the bikers but I think it was a little bit of a slap up side the face, what they wrote was that the proposition that the statute would require the consumer or enforcement officer to determine proper helmet fabrication, is absurd . . . calling the proposition made by the motorcycling community, absurd. It says it's clear when the statutes are harmonized as they must be, that all that is required is a certification of compliance. Now on those grounds the law was found to be constitutional. The bizarre part of this is that on that day, it is estimated that there were a hundred citations issued to people that were wearing helmets, based on the determination of the police officer that that helmet did not comply with the standards, notwithstanding the fact that they had DOT stickers. On that day . . .

C: Are you talking about the E&R helmet?

D: I'm talking about all the helmets they were citing, you honor. They were citing all kinds of stuff in ninety-two. They went nuts.

C: Okay.

D: They were citing everything that moved. I brought a few of them here today. It had nothing to do . . . I mean, every one of them was in diametric conduct to what it is that the Fourth wrote. The proposition that the statute would require that is absurd, but that's exactly what they were doing on that day. A hundred traffic courts found bikers guilty of wearing, or not wearing a proper helmet, two seven oh eight three bee, on that very day, based on the determination of compliance, visual by the officer, the proposition that the statute would require the consumer or enforcement officer to determine proper helmet fabrication was not absurd your honor, that was the state of the law at that time. So the court had to be acting on the language of the statute, and I concur . . . the language of the statute, if what Buhl says it says, it says, then the language of the statute . . . it's clearly not a vague statute. Here comes the however comma . . .

C: Right.

D: As enforced, that's a whole different world. Because that same thing that took place on that day took place every single one of these tickets I've got that come through these courts. Every single time. So I move this court to strike in advance all testimony having anything to do with helmet fabrication on the grounds that the proposition that the statute would require an enforcement officer to make a determination of compliance on a helmet, or a consumer to make a determination of proper fabrication, is absurd. Those are the words of Buhl. Any testimony having to do with construction of the helmet, the fabrication of the helmet, is absolutely irrelevant and I move in advance to strike all of that and then we can let these guys go.

C: D-A. Do you have any comments you wish to make . . . on that issue?

DA: Your honor I'll submit it to the court.

C: My reading of Buhl is not your reading of Buhl.

D: Well your honor, it's the same words. I mean . . . I realize I'm paraphrasing. I've only read it a couple hundred times to myself and to other people.

C: I understand, but my reading of Buhl, and then the subsequent reading of the Bianco case . . .

D: I'm gonna get to Bianco in a minute, your honor, it's a whole different world.

C: Now my understanding of what they're all saying here is, first of all, the State has a legitimate interest in enforcing such laws to . . . as they put here, at the end, which I agree one hundred percent with, in a society unwilling to abandon bleeding bodies on the highway, the motorcyclist or driver who endangers himself plainly imposes a cost on others. Therefore the State has this legitimate interest to protect ourselves.

D: Your honor, I would be the last one to argue that point. I absolutely gave them a big nod on that. Did you also read the part where they denoted driving to be a privilege, but cited no authority?

C: Yeah, I got all that.

D: Did you note that they cited no authority? They simply said it?

C: And I also note in here . . . whether it was in Buhl or in Bianco . . . it may be in Bianco, because that was the one citing . . .

D: Tell me what it starts with and I'll tell you where it's from.

C: . . . where the Bianco court, I think it's the Bianco court, stated that uh the law as written, it's the government that goes off after the helmet manufacturer to make certain that they comply with the Federal Standard, and it's not really a burden set on the consumer. So therefore, based on how these two decisions are written, Bianco and Buhl, I deny your motion.

D: Your honor . . . I don't think I understood what you just said, but I'm gonna try to do this so that you can understand where I'm coming from. When you say things one way, sometimes they mean something completely opposite from when you say them the other. When you do something one way, it throws the burden on one person, and if you do it the other, it throws the burden on the last. The way the statute is written, and I have to go back to it because it is it is the soul of this whole thing. Because it's written that's it's a correctable violation. As a correctable violation, the impetus goes on the officer, because it says he shall set into motion these things that shall exonerate you or convict you on a fix-it ticket level. You show up and that officer has to deal with is that or is that not a helmet? So the plain language of the statute conflicts with Buhl going in, but all of a sudden, it's the officer that's going to have to be held responsible for this. But the way you all do it, you got it set up so that no matter what the consumer does, any peace officer at any time can come up and boom, write the ticket, and go into court and boom, you know the consumer is being held responsible for that certification. Now it could not be more clear than it is in Buhl, because they were not only being clear, but they were being rude, your honor. They were saying that the proposition that the consumer or enforcement officer, that the statute makes us responsible for proper helmet fabrication, is absurd. Now either they are correct and that is true, or they are not correct . . . and if this court wants to go on record as saying that they're not correct, then fine. You know . . . the statute does require the consumer or enforcement officer to make a determination of proper fabrication, if that's your ruling, fine. I will take your vote up against the Fourth and say which way, you know, the Fourth rules on it.

C: Okay.

D: If that's your ruling.

C: My ruling is that uh the way I read this, part of your argument is the fact that the way that this section is written, the burden is placed on the consumer to make certain that the law (he meant, helmet) complies with the Federal Standards.

D: That's the way you're interpreting it . . .

C: Isn't that your argument?

D: No, that's the way you're interpreting it.

C: What's your argument? What am I missing it. One more time, what is your argument?

D: My argument is, is Buhl correct or are they not? In order to rule that Buhl is incorrect, you have to rule that the proposition that the statute requires me to be responsible for proper helmet fabrication is not absurd.

C: I can't overrule a higher court. Only a higher court can overrule . . .

D: Well than you can't admit the testimony of as to helmet fabrication, because the statue does not . . . the proposition that the statute would require me or the officer to determine proper helmet fabrication is absurd. It's absurd. The only evidence that . . .

C: That's not what the cases are saying, sir.

D: It's exactly what it says. Am I putting words in their mouth? I'm sitting here looking at it . . . the proposition that the statute requires the consumer or enforcement officer to decide if a helmet is properly fabricated, is absurd. Now what he said is such a reading of two seven eight oh three is absurd. And I'm not prepared . . . you know, I'll do it if you insist on it, but I'm not prepared to sit here and believe that you're gonna go ahead and do something that that court said is absurd. It says there's only one requirement. Only one. It uses the word only.

C: I think in the Bianco court ruling they addressed that specific issue that you're talking about . . .

D: Isn't that interesting? But how do I go about proving to you, your honor, that D-O-T don't approve helmets? Can I get counsel to stipulate right now that D-O-T don't approve helmets? Or do I put on a case about that? Will you stipulate that D-O-T don't approve helmets? . . . You won't?

DA: (garbled)

D: You will stipulate that D-O-T don't approve . . . okay, D-O-T don't approve helmets.

C: Well, before we get to that, . . .

D: (garbled)

C: Well, before we get to that . . . hold it . . . Mr. Quigley . . . before we get there, I've already made my ruling.

D: Oh, okay.

C: Okay? So . . .

D: The reason for these guys is that I'm challenging the law because it's unconstitutional . . . it's unconstitutional as applied. Not only are you saying that Buhl don't know what they're talking about, so they didn't . . . they couldn't set it aside constitutionally; but I'm challenging it in a way they did not hear argument . . . they did not hear argument about unconstitutional as enforced. They heard argument about unconstitutional as written. So my argument is that as enforced, the law is unconstitutional and every one of these gentlemen is here to verify their part in these tapes that I made of these traffic stops to explain how it is that they made the determinations in the field. I have two elements that I have to do to show that this law's unconstitutional . . . one, I have to show that the rules aren't clear for me. And two, I have to show that these guys don't have clear guidelines. And I promise you by the time we get finished with the gentlemen back here, every one of them . . . most of them are darned good cops . . . every one of them will come there and testify, and when they're all done, you won't have anything better than cause I said so.

C: Okay. Let's deal with this a different way. Deputy Henderson.

D: Deputy Henderson.

C: What is he here for.

D: Deputy Henderson, that's Corporal Henderson

C: Whatever.

D: He's a training officer. He was present out there when they did a traffic stop on me at Branciforte and 17th. And he's a percipient witness to the conversation when he and I talked about the helmet law, and he and I talked about four oh three oh two.

C: Okay. What's your position on Corporal Henderson, Deputy Henderson . . . what is it, Corporal, Deputy . . . deputy.

DA: It's irrelevant, your honor, in terms of what Mr. Quigley did or didn't do. He committed a violation. A witness who was there will testify that Mr. Quigley was not wearing a helmet, he was wearing a baseball cap.

D: Objection, you honor. Fabrication. He's discussing fabrication. What's it got to do with what material the helmets made of. Buhl said it's clear, it's clear, it said it is clear the law requires only that the consumer wear a helmet bearing a certification of compliance. That's what they said. I didn't put the words in their mouth. It's right there. It is clear the law requires . . .

C: So, again, Mr. Quigley, what do you expect to get from Deputy Henderson.

D: Proof that this law is unconstitutionally vague as enforced. They don't have the guidelines. He's a training officer, and he was present the day that I got that ticket from Ross.

C: Lt. Heartness, what are you expecting from . . .

D: Lt. Heartness stopped me out here in front of the county building and threatened to send me a ticket because he didn't . . . he apparently made a determination of noncompliance on my helmet, based on fabrication. He's gonna give his opinion about what a helmet is, based on his opinion. He has no standards. I will use it to prove that he didn't know what he was talking about that day, and he won't know what he's talking about the next time it happens. They have no guidelines.

C: Captain . . .

D: I got stopped by an excellent Highway Patrol officer out in San Lorenzo Valley. He asked me where my helmet was. I said on my head. He said it looks like a baseball cap to me. I said, well you're telling me a helmet can't look like a baseball cap? And he said my Captain told me if it looks like a helmet it's a helmet, if it looks like a baseball cap, it's a baseball cap. That qualifies him as the man that's training the officer that gave me the ticket. His testimony about what constitutes a helmet will go a long ways toward me showing you that they have no guidelines even in the biggest and the best police agency in the State. And, you honor, he will also discuss with the court how it is that they work underneath the injunction that was issued against them for citing riders based on the fact that the officer was making a determination as to helmet fabrication.

DA: The same issue comes back, your honor. In each of these cases that are before the court today, the issue is that witnesses are going to testify that Mr. Quigley was stopped for riding his motorcycle while wearing a baseball cap. Period. That's the issue. The court can take judicial notice as a person that a baseball cap is not a helmet. And that's the issue. It's as simple as that. Now he can talk about all he wants to about standards and all of these other things but when you just get down to what the issue is here, this guy is riding his motorcycle around with a baseball cap . . .

D: Excuse me. First of all I take exception to "this guy", your honor. First of all I take exception to "this guy" . . . I ain't gonna put up with that. And secondly, your honor, he don't understand what this motion is about.

C: Okay.

D: You need to explain to him what this motion is about.

C: You made your point, you made your point about respect for each other. I'm going to insist on that in this hearing.

D: No problem.

C: This is, Mr. Quigley . . .

DA: My apologies, your honor, but again . . . we get the issue to what's relevant to the motion here. The court, first of all, would hear the testimony of the witnesses as to each of these three citations that are before it today. When the court hears that evidence from these three witnesses who were issued, the court is going to see that the testimony of Henderson, Heartness or Stuflick, for that matter, Escalate, to be irrelevant, because when the court looks at what evidence is gonna be proper, and I'm simply stating as an offer of proof what these witnesses are going to testify to, that the court is going to see that applying Buhl and Bianco to the facts that are presented before the court today, that the other witnesses are not relevant.

D: In reply your honor?

C: Uh huh.

D: This motion is about challenging the law on constitutional grounds. The court, appellate court of the State of California has found this law to be constitutional. Now my argument is of course that they considered only the language. They didn't talk about any enforcement whatever, in that case. They were dealing strictly with the language. In order for me to prepare this court to issue a finding that a law is unconstitutional, I have to go to substantial lengths. This is no small matter. And in order for me to do that convincingly, I have to be afforded the opportunity to put on witnesses that can demonstrate the two elements necessary to prove to this court that the law is unconstitutional as enforced. If he doesn't want me to put on witnesses, so that I can't prove that this law is unconstitutional, then he's arguing that this court stripe me of my rights. And I believe I have an absolute right to challenge the law on constitutional grounds. I am absolutely prepared to do what is necessary to prove to this court that I am correct.

C: Officer Escalante is going to testify as to what?

D: Officer Escalante issued me a citation.

C: Okay. That takes care of Officer Escalante, except for . . . that should be one of the cases that's set.

D: No sir, that's one of the ones that was dismissed.

C: Well . . .

D: He was one of the four that went away. There were three CHP tickets, and one Santa Cruz PD.

C: What I'm trying to figure out is . . .

D: Real good cop.

C: (Sigh)

D: Your honor, Deputy Watson . . . Deputy Watson is one of two officers that was gonna throw me in jail. One of things I have to do to be able to challenge the law for being unconstitutional is I have to show that it could end up with me going to jail. So Deputy Watson, no he doesn't have his name on any of these tickets. But Deputy Watson is absolutely essential to my being able to show this court that the law is unconstitutional. Probably one of the best witnesses I brought in today. I mean, if you tell me I'm gonna be limited to a certain number, your honor, I would appreciate it if they are on the list of people that I recorded that the DA stipulate that this is a true and actual recording of the incidents involved, so that I don't have to have the deputy here to say yeah, or the officer here to say, yeah that was me. And if you want to limit me to, you know, pick four, then okay, make me pick four. I'll go ahead and pick four, because four is better than none. But I'm not here on Deputy Watson's ticket, but I need Deputy Watson's testimony for my motion.

DA: Your honor, again, as to Deputy Watson, I question the relevance of his testimony. Whether a statement that an officer said that he was gonna put him in jail is not the issue here. I don't believe what Mr. Quigley has presented to the court by way of offer of proof in the last few minutes is sufficient to raise this hearing to an evidentiary hearing whereby the constitutionality is questioned with respect to how it is enforced. Again, so I object to Deputy Watson being here on relevance grounds. I don't believe that the tape recordings that Mr. Quigley has prepared are going to be necessary. I'm going to object to those under evidence code three fifty two, because I think they would be an undue consumption of the court's time after the court listens to the testimony of the witnesses both on direct and cross examination. And, so, with the court having made it's rulings with respect to four oh three oh three point five, and it's interpretation of Bianco and Buhl, I think what we (garbled) as far as a hearing is whether what happened when the stops were made. And in fact, those actually, on the court's prior decision back in April (garbled) actually can be combined on the issue of guilt for court trial purposes as well, because it will be (garbled) evidence. I think that's what the court had in mind when it set up this procedure at this particular time. But as to the rest of these people, I don't see why they have to be here. It's just, what's been presented just isn't sufficient to rise to their being here to testify to these issues.

C: Mr. Quigley, I'm going to give you one final comment or opportunity to respond. And the question directly to you is, when you are asking for Lt. Heartness and the rest of them to be here, cannot the individual officers who issued the citation to you, when you cross-examine them, answer your questions regarding their training and their office police that they receive in their training?

D: You're asking me if the ones that issued these citations I'm here for today, if they can answer those questions? I don't know. I don't know whether or not you're going to admit those at all. What I have is a plate full of evidence that I brought to this court so that I can get a proper determination as to whether or not this thing is enforceable constitutionally. Whatever you want to remove from that table, you go ahead and remove from that table, because there's nothing that I can do about it. I'm already standing on the other side of the statutes. We're already standing on the other side of clearly established law, precedent. I don't know what jurisdiction you're acting on now, and I don't know how to, I don't know how to prepare a case where we don't follow the law. I have no idea. But there's no, there's no testimony that any of these officers can offer this court that is relevant to my issue of guilt, none according to Buhl. There's absolutely none. And one more point, and it may be Mr. Marigandi's wish that this be both a motion hearing and a trial, and it may even be what the court intended, but it's absolutely not where I'm coming from. Because the evidence that I want to admit for the purpose of this hearing, is absolutely, by my interpretation of the law, and I believe by the next court that rules on this, in admissible. You simply cannot entertain absurdities against a person in a criminal prosecution. And these . . . all this testimony about fabrication has already been deemed . . . it couldn't be spelled out more clear. I think there's a benefit to the fact that the Buhl court wanted to slap the heads of them bikers about how stupid they are, much like the prosecution has here. I was either wearing a helmet or I wasn't. I'll take that challenge of anybody in this room. If they can show me what a helmet is with sufficient clarity to pass the law's requirement for clarity of a statute, not necessarily the court's because I'm starting to get a little bit weak on the court, but the law's requirements . . . there's not a person in this room could tell me what a helmet is. Not one. Not one.

C: Okay.

D: There may be one up here on Friday, but there ain't one here today.

C: Then concerning the subpoenas to Captain Stuflick, Lt. Heartness, Deputy Henderson . . . gentlemen, you're excused. Gentlemen, what I'm also going to do though . . . um . . . so you don't have to be . . . if, in the trial, the officers who are going to testify, cannot answer the question, if Mr. Quigley asks it, concerning corporate . . . corporate, agency policy regarding enforcement of the helmet law, then I imagine he's gonna bring, repeat his motion to subpoena Captain Stuflick. As far as Lt. Heartness, can you answer on ah . . . no, don't even go there. So, he may bring it again if the officers cannot testify. And if that's the case, I may allow him to re-subpoena you and bring you back. Clear gentlemen? So you're out of here.

DA: What about Watson, Almos . . .?

C: Okay . . .

D: Are you ruling right now that these recordings are not admissible, your honor?

C: No, I'm ruling right now that these three gentlemen are not needed.

D: I understand. I'm talking about your preparation for your next ruling. Are you getting ready to rule on something that will effect the admissibility of this evidence that I brought to court to make my case. Because if you are, I would like to get a ruling as to that evidence first before you decide you're gonna let the deputies go that can verify that I'm not dummying up these recordings. I'd just as soon get a decision about the CDs.

DA: Those have to be shown through evidence with a foundation to be laid.

C: Thank you.

D: I thought I did that your honor.

DA: Again, in the court trials before us today, the only witnesses the People plan to call are deputies McConnell, VanHorsen and Rico. Again, I question why all the others. Piffirini, Almos (garbled) and Watson.

C: And Ulrich.

DA: And Ulrich, yes. Those are on for arraignment today.

D: I didn't subpoena Ulrich.

C: Okay. Ah, okay. So, Mr. Quigley. You have three trials today.

D: No, your honor. If this is a trial date, I'm absolutely ill prepared to go to trial.

DA: I believe we agreed to this at the last stage.

C: Right. We did.

D: If this is a trial date, I'm absolutely ill prepared to go to trial. There's no way I could be tried today. This is a motion hearing to dismiss these things . . . to dismiss them. And that's what I'm doing here.

C: Okay, first of all, I've denied the motion.

D: In total?

C: In total.

D: I don't get a hearing on the evidence? I don't get to present any evidence in support of the motion? The motion's just denied? The law's not unconstitutional as enforced? Is that your ruling?

C: As stated in Bianco vs. California Highway Patrol, and as stated in Buhl vs. Hannigan, both of them said the law is constitutional.

D: I thought I just explained, your honor, that they did not deal with the law as enforced. The fact of the matter is that Easyriders, and I don't know how you can ignore them, flatly stated that the very citations that I have received, every single one of them violated my fourth amendment . . . every one of them. Easyriders vs. Hannigan, that's in there. And I guarantee you I'll call your two courts of appeal and raise you the Ninth.

C: Okay.

D: Are you disputing the Ninth's opinion? I mean . . .

C: Based on the way I've read it . . .

D: In accordance with the terms of the Act, the court wrote, Bianco, in accordance with the terms of the Act, although in the first instance the manufacturer are authorized, indeed required, before sale, to certify that their helmet would meet the Standard, the self-certification creates only a rebuttable presumption that the helmets meet two eighteen. Now I . . . my good God, your honor, if we're not follow the law, why did you invite me here?

C: Okay. Gentlemen, you're ex . . . three of you are excused. If you want to leave now, fine. If you want to stay here, fine, it doesn't bother me. Mr. Quigley . . .

D: If you're gonnna render judgment, you go ahead and do it, your honor. It sounds to me like I just been hoodwinked. I'll take it up. I have no choice if that's what the court's gonna do. I cannot believe that I'm being denied my right to put on a presentation as to the constitutionality of this statute. I don't know how I got myself into a trial. I don't know. Pretty good move.

C: Mr. Quigley, last time you were here, we said we'd do the motion and go right into the trial.

D: Yeah.

C: Okay.

D: Yeah, we were gonna do a motion hearing, your honor. We were gonna to a motion hearing . . . three days for the motion hearing . . .

C: Well, that wasn't my understanding, but fine.

D: Oh, we weren't booked for Tuesday, Wednesday and Thursday?

C: We are booked for Tuesday, Wednesday and Thursday, also to do the trial. However, if you're saying right now . . . first of all . . . let's go back.

D: I don't believe the court's got jurisdiction to proceed, your honor. I believe you're acting outside the law. I'll be walking out of here and going right straight for habeas corpus as fast as I possibly can. I believe the court is absolutely disregarding the law. I do not know why. I have an absolute belief . . . I've read the statutes, I read the decisions, it's all real clear. Mr. Mariganda may be absolutely convinced that the law has no meaning in this case, but I'm not. I've read these statutes through and through. I read these court opinions, and you sit there and you disregard the Ninth like they're just a bunch of nobody's sitting up there in San Francisco wasting everybody's time.

DA: Your honor.

D: Do they or do they not, your honor, say citations that are issued under certain circumstances, violate the four amendment right of the consumer?

DA: Your honor, it's very clear that case law, since 1969, states that Federal Authorities could not be (garbled) on the State courts.

C: Again, both the cases that you cite say that the law is valid.

D: Both of those cases that I cite, the first one I'll do it again, Buhl was not dealing with as enforced. Bianco made the error. Read the foundation of Bianco. The Bianco foundation is that there's such a thing as a DOT approved helmet. You can't through that decision without running into those words.

C: Okay. What else . . . what else . . . what other arguments do you have concerning your motion to dismiss these tickets?

D: I don't have any arguments. I have witnesses to show that the law is vague, that nobody knows what a helmet is. But you don't care that they don't know what a helmet is. The fact that they have no guidelines whatsoever doesn't bother you. The court says it's supposed to, but that's only the United States Supreme Court. My God, if the Ninth don't have no meaning, we know the U-S Supreme Court don't mean squat.

C: Is Deputy McConnell here?

DA: He's right here.

C: Is, who is it, Officer VanHorsen?

D: Is the hearing over, your honor?

C: No. If you want to call your witnesses concerning the standards . . . the training they've received, I'm gonna let you do that.

D: Am I going to have a hearing on whether or not this law is constitutional?

DA: Well, I prefer to do it in terms of a court trial. If he wants to ask any questions on cross-examination, fine. But I'll put these witnesses up right now to show, based on my offer of proof, that he wasn't wearing a helmet.

C: He's saying the whole law is unconstitutional.

DA: And the court has ruled that it is.

C: Correct.

DA: The court has made it's ruling . . .

D: I'm saying as to me, as enforced, your honor, it is absolutely unconstitutional, and I can prove it.

C: Sir, I . . .

D: I can prove it. If evidence means . . .

C: You can also raise those issues at your trial. Are you prepared to proceed with your trial?

D: Your honor, you can't mix the two elements. I'm gonna be willing to admit things in that hearing, because I'm going to need them in that hearing, that are absolutely inadmissible at trial. How can I object to the admission of testimony, and at the same time want it in. That doesn't make sense to me. I'm gonna have the officer up there talking about what I had on my head, what I didn't have on my head, all that kind of stuff . . . all things having to do with . . . I'm going to be talking to him about his knowledge about proper helmet fabrication. Now all of those things are irrelevant, every single one of those is irrelevant as to a trial, but they are absolutely essential as to my motion to dismiss because the law is unconstitutional.

DA: But that's already been ruled upon by the court.

C: I believe the law is constitutional. That's . . .

DA: That's it.

C: Based on the case law that I've read.

D: Based on the case law, but not on the facts. The facts on this case demonstrate that the law is not constitutional.

C: But I think sir . . .

D: This is a case of first impression, your honor. It is not a case that has already been asked and answered.

C: But I think that's where you can bring all that up at your trial, for your clear record, that . . . if I find the law is not constitutionally vague, and if I find that there is no set pattern by the different agencies concerning enforcement of the statue, at that point can appeal.

D: Yeah . . .

C: And you've got the record . . .

D: I gotta charge up the hill . . . I 've gotta charge up the hill to have them overturn a Traffic Referee that that that . . . I mean, I've gotta climb over the decision. There should not be that decision for me to climb over because you cannot get there and follow the law. You can't get there and follow the law. I don't know how you get there and follow the law. You can't . . . you don't tell me how you're gonna do it, you just do it. You say, okay I'm ruling this way because I said so.

C: Based on . . .

D: No, you're all the way to there. I'm all the way back to four oh three oh three point five.

DA: The court's already . . .

D: The statue says, the statute says one thing, you say another. And I sit here and I say, well okay, where did the DA argue that four oh three oh three point five don't apply? Where did he show the case law that sets that aside? Where did he show where the courts, or anybody, has come in and ruled contrary to the language of the statute? I . . .

C: Going back to that it's an equipment violation . . . is your argument?

D: It is a correctable violation pursuant to the vehicle code. I didn't write the code your honor. You didn't write the code. The code says what it says. The plain language, and it's not vague in any way, it says straight up shall.

C: Let's go back to that issue. Let's resolve it right now. His issue that this is a correctable offense, your argument Mr. DA.

DA: My argument it that it is not a correctable offense. My . . . it is a public offense that is a violation that constitutes an infraction. Thus the criminal matter. It is a criminal offense, subject to a fine. The failure to wear a helmet it not a correctable violation. One either has a helmet on or one doesn't. I don't find it to be correctable. That's my interpretation of it. And that's in my second full paragraph on page two.

D: Yes, your honor, and begging the court's pardon, that's exactly where he's at. He's got the statute over here, and he's got because I said so over here. A D-D-A up against the language of the statute. Now I'm not, I'm not being disrespectful to the man, but excuse me if I say it pushes the envelope of audacity. Address the issue. I mean, if I could put him on the stand and ask, your honor, and I would ask that the court ask, when it says whenever a person is arrested . . .

C: Put who on the stand?

D: No, just ask the DA. Ask him. Whenever a person is arrested for any of the following offenses, the arresting officer shall permit the arrested person to execute a notice . . . ask him what authority he has for the contention that it can't mean that?

C: Okay.

D: It may be disturbing to him. It may not make sense to him. It may be unreasonable to him. But gimme the legal basis for ignoring the language of the statute?

C: Okay.

DA: Very simply, you go to section twenty-four thousand, lighting equipment, spot lamps, real lighting equipment, reflectors, parking lamps . . . flashing and colored lights . . . I'm just simply thumbing through these sections, and that is the people's interpretation of what the legislature intended by correctable equipment violations, your honor. The court's initial ruling on it, this morning, when we started, was correct. It's the . . . clear . . .

D: Why do I have the burden on appeal to come against the opinion of the court when I have no legal foundation. Yeah, there's a whole bunch in division twelve that doesn't happen to be the helmet law. There's a whole bunch of different things in there. The language is . . . I think that what the District Attorney is saying is that the Legislature made a mistake. And if he's saying that the Legislature made a mistake, I can run down the hall real quick . . . there's a whole room full of books down there that explains that if the Legislature made a mistake, that it ain't up to the courts or the DA to fix it. Okay, so if it's his contention that the legislature made a mistake, then I think that somebody needs to bring it to their attention. And you ain't gonna bring it to their attention by giving me a bunch of hours in the law library web site . . . it just ain't gonna work out that way.

C: Mr. Quigley, I am denying your motion. Before I do that, I want to be perfectly clear . . . and I want to add something that I said earlier . . . I also believe I have to take judicial notice of the fact that the judicial council has stated that this is a non-correctable offense.

D: Fine, if you're gonna do that, then I want to know the legal authority . . . and this gentleman over here's been to law school, he knows where twelve fifty-nine bee is, the only legal authority that I know of where it talks about what the Judicial Council's authority is, I think if you'll read twelve fifty-nine bee, you'll find it staggeringly short of correcting a mistake by the legislature. So, if what the court's ruling is that the legislature made a mistake, but you believe that the Judicial Council fixed it, um you say that's the one and we're on to the next issue.

C: No, that's not my ruling. My ruling is that this is not a correctable offense. The way I read the sections, or read was it Buhl, the state's rational legitimate purpose in protecting society. Furthermore I believe that I do have to take judicial notice that the . . . I hate to admit this on the record I just went blank . . . the Judicial Council has stated that it is not an equipment violation, therefore sir, I am denying that motion. I think there is a sufficient record right now that if you wish to proceed further on that issue, you can take it up.

D: Oh no, I got the ruling out of the other court upstairs, I mean it's not the first time it's been done. You guys dealt with this on demur. I still do not have a legal basis . . . I hear it's your opinion, and as close as we come, if I understand the ruling, is that the Judicial Council has the authority to override the clear language of the statute and make up for any mistake that the legislature made . . . and the base contention is that this was a mistake by the legislature. It was just a mistake.

C: Now, since I've just made my final ruling on your motion, are you prepared to proceed with your trial.

D: No. I'm prepared to proceed for a hearing to challenge the constitutionally of the statute. And again, your honor . . .

C: That's it. It's over with. Now we're moving on to the trial, sir. Do you want a continuance for you to prepare for your trial. I've ruled on your motion. The law, in my opinion, is constitutional.

(The tape ran out and was turned over . . . it picks up:)

C: . . . constitutional . . . I can't overrule that.

D: They didn't know nothing about these circumstances. They didn't ever hear from Deputy Watson. They haven't got . . . they haven't got twelve traffic citations that are absolutely contrary to what they wrote. Do you think they would have wrote what they wrote, your honor, if they had the evidence that I was gonna put in front . . . oh well wait a minute, I can't ask you that because I was gonna ask you that at the end.

C: Mr. Quigley, I've ruled on the motion. You can, again, raise this argument at your trial if you so desire.

D: No, if we're done with the hearing, your honor, I'm gonna be moving into court to injoin this court from moving any further to move to trial. I just don't believe you can go there. I don't believe that you can ignore the law. I don't believe that you can ignore the law. And if I got . . . if it can be by writ, I'll do the writ. If I gotta go habeas corpus, amen brother. I mean, it's gonna happen, because we're gonna get this tied down before I start getting dragged up . . . when I start going up to the big boys, it's gonna be to back up the right decision, not to take on the wrong one.

DA: Your honor, the people are ready to proceed.

C: I understand.

DA: The witnesses are here. We don't believe that this will take an inordinate amount of time. And we are prepared to proceed to trial today. We have been. When we had the case last on in April, this period time was chosen by the court for us to proceed to trial. It was my impression, and I believe the court's as well, that Mr. Quigley was aware of that. We are ready to go. And we'd like to put the witnesses on. We only have three witnesses, deputies McConnell, Rico and VanHorsen. They will not take long, and we believe that it would be a better use of the court's time instead of having these officers come back again and again, and we just want to get this going. I've blocked out this particular week for that.

C: I understand. I understand. Mr. Quigley?

D: I beg your pardon your honor?

C: Are you prepared to proceed to trial?

D: I thought I'd already answered that, your honor. I thought I had explained to you . . . that this, you can't try me. You can't try me under these circumstances. You can't do it. You can't take away . . . you don't have any right. There's no foundation for you to take away my right to put on a defense. There's no way that you can take away my rights to challenge the law. I don't even understand what your rulings are today. I got the one. Four oh three oh three point five is a mistake, and it don't mean what it says, so it's gone. I got that one. I got the one that says that the . . .

C: When are you going to be prepared for your trial?

D: Excuse me your honor?

C: When are you going to be prepared for your trial?

D: I'm trying to figure out these rulings. I need to know what the rules are, because I thought we were going by the law. We're not going by the law, so I gotta work with what's left. So I gotta prepare my case all over again, so I'm trying to clarify the rulings. First, four oh three oh three point five is a mistake made by the Legislature . . . it's inconvenient, we're not doing that. The testimony of the officers as to whether or not a helmet is properly fabricated, is absolutely admissible against me, by the rulings of this court, is that correct?

C: I've already made my ruling. I'm not going to announce it again. Ah, I anticipate that therefore then you are going to go to the appellate court panel right now?

D: I'm not sure whether I'm going to the appellate court or whether I'm going to Federal Court, your honor. It depends to what the answer to that question is. As I understood your answer to what your ruling was . . . I'm trying to clarify the ruling . . . but I've got one set in my head. I'm real clear on that one. The second one is that irrespective of Buhl, the testimony of the officer having to do with the fabrication of the helmet, is admissible as to these matters against me?

C: Okay, where we stand is . . . Mr. Quigley, again, I've already answered that question as far as I'm concerned, on the record. I've denied the motion. I do know that you are an experienced litigator. And that I fully expect that you are going to do an appeal on this denial of your motion. When can you file the paperwork here in Santa Cruz, Federal Court, or whatever? When are you going to get that paperwork done?

D: It'll be ah . . . a week from next Monday. What is the day on that?

C: And you are also gonna get a stay . . . a court order demanding a stay.

D: I will be asking a stay until it's been decided. I think it will be declaratory and injunctive is what I'm thinking about right now.

DA: Your honor, for the record, the people object to the continuance. We are prepared to go forward. It's my belief that the same issues that are going to be raised in any appeal or writ regarding the motion, would be also raised as to the issues in the trial. And for fairness and for economy and for getting all of the issues dealt with at one time, it would make more sense to have the trials, have the court issue it's verdicts of guilty or not guilty . . . if the defendant is not guilty, then of course his appeal or writs are moot. If the defendant is guilty, then he can take up the whole panoply of issues before the appellate panel or the Federal authorities. Otherwise we're doing things piecemeal. It's a far more efficient use of time and getting to the issues.

D: Your honor, it's real interesting that economy of time becomes such a pressing thing after the number of times that I've been to these courts over this matter. I think that you're well aware that this amount of time is not going to inconvenience anybody, that the rules have been changed . . . it's absolutely putting me at an unfair disadvantage to expect me to proceed under the rules that I have not prepared for at all. It never occurred to me. I have a right to rely on the court to abide by the law in preparing my case, and I did. And it is my opinion, my honor, with all due respect, that you have not held to that, therefore my case, as I had it planned, in no longer viable. And until I get this other matter resolved, I have no way to know to address it.

C: Okay. It's my understanding that you are going away on vacation? Or you went away?

DA: I did.

C: You're back. Mr. Quigley, you are not going on your vacation or trip?

D: I'm not going anywhere, your honor. I'm gonna be writing briefs.

C: Okay. Mr. Quigley, I'm gonna continue your trial until June twentieth, at ten thirty in the morning. I'm gonna set up the three day period again. That is the time of the trial. The reason I'm doing this is two-fold . . . noting the DA's objection and I'm overruling the objection concerning the continuance of the trial . . . actually it comes down to one thing . . . when I overruled, or when I denied Mr. Quigley's motion, and said are you prepared to go to trial because that was my understanding when we originally set this whole thing up, without, I'm not trying to insult you Mr. Quigley, I saw not only the anger and whatever else in my decision, but I got the distinct impression when I was asking you are you ready to proceed to trial, that were going to sit there mute and not put on a defense. I do not want that at trial. I want to be able to have Mr. Quigley be prepared to put on his full defense, including his constitutional arguments if that's what he wants. Uh . . . and that's why I'm granting this motion, your motion, for the continuance of the trial until June twentieth, at ten thirty in the morning. There will be no further continuances unless, of course, there is a stay order from a higher court.

D: Thank you your honor.