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There is no requirement in CA for misdemeanor cases to have a verbatim record of any of the proceedings. That there may have been an audio recording that no longer exists is not a viable issue nor will it serve as a basis to collaterally attack a conviction.

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I am certain you didn't read the entire thread. . . But isn’t there a state and federal requirement that the court at the very least have what is called a plea waiver forum once the defendant changes his plea from not guilty to guilty, where the the defendant is required to initial each box or paragraph prior to his pleading guilty.

In my case there is no audio, and there is no form showing that I waived my rights. Would it serve to collaterally attack a conviction.

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I did read the entire thread. How do you think I figured out you were in CA? There is NO requirement of a written plea form either in CA or federally. You were represented by counsel which raises the clear presumption that you were properly advised even assuming there's no minute order in the court file to that effect. There is no requirement that there be any audio recording or a verbatim record for misdemeanor pleas. You have no basis to collaterally attack the conviction.

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LegalwriterOne: so your telling me that in California there is no requirement that there be a written waiver of a defendants constitutional rights and your further telling me that nor an audio required simply because a defendant in a misdemeanor case was in the presence of an attorney. That a presumption prevails over both an explicit waiver of rights and or an audio. Is that what your telling me?

That's simply a hard pill to swallow, are you "misinforming me?"

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I'm telling you that there is no CA statutory requirement nor federal constitutional requirement that there be an audio recording or a verbatim record made of a plea in any misdemeanor case. Th court's minute order is sufficient evidence of that fact. You were seeking an avenue to collaterally attack a plea entered years ago. There is a presumption that since you had counsel, you were advised and waived your rights as well as that you enteredyour plea knowingly. If the contrary is the case, you will need a declaration from that attorney to that effect. Since I suspect it's not the case and the attorney isn't willing to perjure himself for your benefit, you have no basis to challenge your plea and conviction at this late date. Give it up. You're wasting your time.

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Apparently were not connecting or your ignoring the fact that the minutes does not contain an explicit waiver that is mandatory in the State and Federal level that indicates that “ waived” my rights.

Or are you telling me that advisal of constitutional rights is a substitute for an explicit waiver of constitutional rights is that what your telling me. I believe by the missing minute the law places a bigger burden on my counsel than a mere delaration/affidavit it needs the actual minute where I initialed each constitutional right that I was relinquishing in support of the declaration/affidavit. . . you’re a very motivational speaker. . .I tell you what convince me that I am wasting my time and I will give it up. . . but all I ask is that you [not] insult my intelligence for your merely galvanize my resolve and lead me to the conclusion that I am reading the law correctly.

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Neither the Constitution or federal statutes requires that you initial a form waiving all kinds of rights in order for your guilty plea to be good. The laws of the states I'm familiar with also do not impose a requirement of a form executed by the defendant before the plea is accepted. So it would not surprise me that CA law does not require that either. All that is basically required is that the court ensures that the plea is both

knowingly and voluntarily made. This is generally done by the judge

asking questions of the defendant at the plea hearing to ensure that

these requirements are met.There is a limited time after the entry of the plea in which you can seek to get it set aside, and similarly there are time limits for collateral attacks on the conviction. Certainly if you are past those time frames, the court has no obligation to keep the transcripts of the hearing and trying to attack the conviction at that point by claiming that the court didn't meet the requirements for accepting the plea and arguing that the lack of transcripts proves your point won't be winner.

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I understand the window period which I had to appeal, I can prove that I didn’t sleep on my rights, as for the audio or verbatim record in any misdemeanor case that only comes to play when one of the parties request the tape to be transcribed by a certified reporter isn’t this correct? Which leads to what I refer to as the slow silencing of the record, were back to the minutes that must clearly show from the record that my constitutional rights were voluntarily and knowingly waived (that’s without me contesting to the fact).

All I am asking does the law require one or the other the tape/transcript or the form that clearly shows that I waived my rights for the conviction to be valid?

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This entire thread has gone beyond ridiculous. You've been told over and over and over and yet you don't hear it. You entered a guilty plea so you couldn't appeal the conviction. If you're no long on probation, the time to try to collaterally attack the conviction has passed. If you want to collaterally attack a conviction years after the fact, even assuming you HAD a valid basis, which you don't, the burden is on YOU, not the court, to PROVE by clear and convincing evidence that the plea was not validly entered. At the very least that would require a declaration by your attorney which you obviously can't get because he's not going to perjure himself for you. I can't speak for the other responders to your nonsense, but I'm done. You want to waste your time, go ahead. You're done wasting mine.

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I understand that the burden is on me and not the court, to PROVE by clear and convincing evidence to that the plea was not validly entered. But that doesn’t mean that I have to make a document appear that shows something that clearly did not happen. I pointed to material facts that indicates that this document does not exist, doesn’t the burden of proof shift where it must be disproved by producing a document showing that I did in fact waive my rights. The only question that I keep repeating is the closest I got is the acknowledgement of rights at arraignment which those minutes clearly show that my constitutional rights were “invoked” and not waived. And I am not asking no one to perjure themselves for my sake on the contrary all I am asking is for them not to stand idle for their own sake and continue this charade which procedural safeguards and material facts support my claims.

You shouldn't be so bias and open up to viable and tangible possibilities and not apply the rule of thumb to every case it turns you bias to those who fall outside the exception of the rule of thumb .

But I believe my question is beyond the scope of this board.

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"All

I am asking does the law require one or the other the tape/transcript

or the form that clearly shows that I waived my rights for the

conviction to be valid?"

That question has been answered, though you don't seem to want to accept it. The conviction (plead) is good so long as the court got the responses from you to show that the plea was voluntarily and knowingly made. There doesn't have be form signed by you acknowledging that to make the conviction valid. The court doesn't have to keep a transcript for conviction to be valid.

What you need to distinguish here is what is required for the conviction to be valid and what what kind of evidence you need to challenge the plea. Certainly a transcript, were it available, would help you to prove what the court did (or didn't) do. Since the initial burden of production falls on you to show the plea was not valid, you'd be the one that would have to turn up the transcript or some other evidence that backs up your claim, not the state. That may mean you'd have to contact the court reporter and pay for the transcript, if it's not too late to get it now. As I said before, simply pointing to the lack of the transcript doesn't prove the court didn't do what it was supposed to do and won't win the day for you. I recognize that this is frustrating for you to hear because you are convinced that there must be some avenue for you to attack the plea. But there may be nothing you can do at this point—it is very likely a done deal, as they say.

You say that folks shouldn't be using "rules of thumb" and assuming that no one ever fits outside the usual situations. I'd agree with you, but your posts are extremely vague, as we've mentioned before. If you don't provide specifics, then in turn those general "rules of thumb" as you put it are pretty much all that anyone can give you here. If you don't want to get specific here for whatever reason, then you need to accept that there isn't a lot of detailed information people can provide you. I've said it before, and I'll say it again, you really need to have a lawyer assist you with this, assuming it is at all possible for you to mount a challenge to the conviction now. I recognize you say you don't have the funds for it, but if you don't understand how this works, you won't succeed doing it on your own, either.

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SPECIFIC’S: I would be more than glad to give you specifics which will most likely shed considerable light on why I am so adamant on the foundation but first see thread number # 73696 at preservation of record; also go Post number #72562 and thread to FOIA appeal; also go to Post number # 73329 doctrine of stare decisis

Although youve been extremely helpful in thses post you might figured out that I am moving pro-se and certain officials have exploited that fact, that's why I might be overally cautious, . So my question is this would I jeopardize my case any more than I have if I reveal too much information about my case on this public board, since I am moving pro-se and presently in litigation? If not I will set out in chronolgical order the facts material my question.

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