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SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
APPELLATE DIVISION
PEOPLE OF THE STATE OF CALIFORNIA, I Case No.: 41-168622
RESPONDENT'S REPLY BRIEF
RIK WAYNE MUNSON,
De fendant/Ap pellant . i APPEAL FROM THE JUDGMENT OF THE
PLACER COUNTY SUPERIOR COURT,
ROSEVILLE TRAFFIC DIVISION
BRADFORD R. FENOCCHIO Placer County District Attorney State Bar No. 800 17 108 10 Justice Center D r i k - e , Suite l - iU Roseville, CA 95678 Tel: (916) 543-8000
By: Richard D. Opich DEPUTY DISTRICT ATTORNEY
TABLE OF CONTENTS
STATEMENT OF THE CASE .... ....................................... 2
................................ ................. STATEMENT OF THE FACTS .'. 2
................................................ I11 . RESPONDENT'S ARGUMENTS 3
.............................................................. IV . LAW & ARGUMENT 3
...................................................................... CONCLUSION 9
TABLE OF CASES
C.liforrmE411 Cases ................................................................. People E Brown (1 998) 62 Cal . App . 4th 493 7
..................................................... . . . . People v Campbell (2002) 104 Cal App 4th Supp 1 4 People v . Geiger (1984) 35 Cal . 3d . 510 ......................................................................... 6
............................................... People v . Hernandez (2003) 1 10 Cal . App . 4th . Supp . 1 7,8 .............................................................. People v . McKay (2002) 1 17 Cal . Rptr . 2d 236 7
................................................. People v . Oppenheimer (1 974) 42 Cal . App . 3d . Supp . 4 5 . People v . Suva 190 Cal . App 3d 935 ............................................................................ 6
People v . Staturn (2002) 28 Cal . 4th 682 .................................................................... 3 .............................................................. People v . Superior Court (1 972) 7 Cal . 3d . 1 86 - 7
Federal Cases .......................................................... Atwater v . Ciw of Lago Vista (2004) 532 U . S . 3 1 8 7
Baldwin v . New York (1970) 399 U.S . 66 ..................................................................... 5 6
TABLE OF STATUTES
(Ii!.+. .,-. .. T2- :' ( - . 4 > i 1 < - -. . . . . . . . . , , , , . . , , . , , . . . , . . . . '= 1 . . . . . . - . . . . -
. ....... .. L.L.I..C-.L Y S T L Ci'bJZ ; , ? , . , .......................,. ......... . . . . , , . . , . . , ....,,.,..,.... ... . , .,.,, .,... ,, , . , . ...............
California Penal Code 5 17 .............................................................................................. 4 ....................................................................................... California Penal Code fj 19.6. 4'5 .......................................................................................... California Penal Code tj 19.7 - 4
California Penal Code 5 689 ............................................................................................ 5 ...................................................................................... California Penal Code 5 1042.5. 5
....................................................................... California Vehicle Code $ 12500(a) 2,3,6, 8
....................................................................... California Vehicle Code 5 16028(a) 2,3,6, 8 .................................................................................... California Vehicle Code tj 2 1703 6
....................................................................... California Vehicle Code $ 22349(b) 2,3,6, 8 .................................................................................... California Vehicle Code 5 23 1 52 6 .................................................................................. California Vehicle Code 4 40000.1 4
................................................................................... California Vehicle Code 5 42001 - 4
I. STATEMENT OF THE CASE
On April 12, 20 10, Appellant was convicted of violating California Vehicle Code
5 22349(b), California Vehicle Code 5 12500(a)-I, and California Vehicle Code 5
16028(a) in the Placer County Superior Court, Roseville Traffic Division. (Court Trial
Minutes). Appellant (in Pro Per) filed a Notice of Appeal on May 1 1, 2010, and
Appellant's Opening Brief on Appeal on May 1 1, 20 10. Appellant then filed an
"Application and Declaration for order extending time m serrls". fin June 10. 2010. and a
proposed Statement on Appeal on June 28,2010.
STATEMENT OF THE FACTS
All factual references herein are to the Modifications and Corrections to Parties'
Proposed Statement on Appeal ("MPSA") prepared by Judge Joe O'Flaherty, and filed
September 9,20 10.
On October 17, 2009 at 4:20p.m, Officer Scholl of the California Highway Patrol
observed Appellant's vehicle traveling east on Foresthill Road. Officer Scholl visually
estimated the vehicle's speed to be 70 mph. The speed limit on the roadway is 55 mph
k a i t has one lane in each direction. Officer Scholl then used his radPis to "lock K'
the vehicle's speed of 70 mph and pursued the vehicle and initiated an enforcement stop.
(MPSA p. 1).
Officer Scholl identified the driver as Rik Munson, the Appellant in this case.
The officer was then informed by dispatch that appellant's driving privilege was
"suspended". Appellant also did not have proof of insurance. Appellant was cited for
violation of California Vehicle Code 5 22349(b), 12500(a), and 16028(a), all as
infractions, and issued a Notice to Appear. (MPSA p. 1).
111. RESPONDENT'S ARGUMENTS
Respondent contends that:
(1) The infractions Appellant was convicted of are crimes and public offenses but are not subject to the constitutional right to a jury trial.
i. The idactions Appellant was convicted of are crimes and public offenses. ii.Infractions are not suljsct to the constitutional right to a j u q trial.
(21 Ths police \rere permined rs plriixm a ~~--arranties ils~sntim or amst to cite Appellant for the infkaction they observed him commit. (3) The court had sufficient evidence to convict appellant of the charged offenses.
IV. LAW & ARGUMENT
A. THE INFRACTIONS APPELLANT WAS CONVICTD OF ARE CRIMES AND PUBLIC OFFENSES BUT ARE NOT SUBJECT TO THE CONSTITUTIONAL RIGHT TO A JURY TRIAL.
i. The infractions a~pellant was convicted of are crimes and public offenses.
An infraction is a type of crime in California. California Penal Code 5 16 lists
"crimes and public offenses" in California as "felonies," "misdemeanors" and
because both are defined identically by California Penal Code § 15 which states that "a
crime or public offense is an act committed or omitted in violation of a law forbidding or
commanding it," and is punishable by various sanctions including a fine. Id.
This interpretation is supported by the courts. In People v. Statum (2002) 28
Cal.4th 682 at 698, (Kennard, J., dissenting), Justice Kennard observed that "[fjrom its
earliest days," the Supreme Court of California "has distinguished between the nature or
identity of a crime-such as murder, robbery, arson, and so forth-and the class or grade
o[fl the crime as being a felony, misdemeanor, or infraction." Id. at 698 (emphasis in
original). In People v. Campbell (2002) 104 Cal. App. 4th Supp.1, 5-7, the court
discussed "crimes" that can be charged as infractions under California Penal Code 5 17.
See also 1 Witkin, Cal. Crim. Law 3d (2000), Introduction to Crimes, 5 70, at 116 (noting
infractions among the "classification of crimes.")
Section 15 of the California Penal Code includes the offense that Appellant was
charged with because CaMornia Vehicle Code $40000.1 states that *-except as otherwise
provided in this article, it is unlawful and constitutes an infraction for any person to
violate, or fail to comply with any provision of this code.. ." Id. Furthermore, California
Vehicle Code tj 42001 provides for fines for violations of infractions defined in
California Vehicle Code tj 40000.1. Appellant violated a provision of the vehicle code for
which fines are imposed. Thus they fall within the meaning of California Penal Code 5 15
which states that "a crime or public offense is an act committed or omitted in violation of
a law forbidding or commanding it," and is punishable by various sanctions including a
fine.
ii, Miactions are not subiect to the constitutional right to a jury trial.
California Penal Code $ 19.7 states that "Except as otherwise provided. by law, all
provisions of law relating to misdemeanors shall apply to infractions." Id. However, this
does not include the right to a jury trial because California Penal Code 5 19.6 entitled
"Infractions Not Punishable by Imprisonment" states that "a person charged with an
infraction shall not be entitled to a trial by jury." Id. Further, California Penal Code 5
1042.5 adds that the "Trial of an infraction shall be by the court.. ." Id.
It is true that California Penal Code 5 689 states that "No person can be convicted
of a public offense unless by verdict of a jury, accepted and recorded by the court, by a
finding of the court in a case where a jury has been waived, or by a plea of guilty." Id.
But this statute must be read in context with other statutes that apply to infractions.
The court in People v. Oppenheimer (1974) 42 Cal.App.3d. Supp. 4, analyzed the
c~mmor: IW rslaring rc rhe trial ~i h i k t i ~ n s uihur juries and fdund tha~ "it is clear
that offenses of the same class as those now classified as idractions by the Vehicle Code
were triable by courts sitting without juries. Under this approach sections 19c (now 19.6)
and 1042.5 of the Penal Code fully measure up to the constitutional mark." Id.
The Oppenheimer court also stated that:
"The language in section 689 obviously conflicts with that of Penal Code sections 19c and 1042.5. Section 689, however was originally enacted in 1872 and last amended in 195 1. In accordance with ordinary principles of statutory construction we must read all of the sections of the Penal Code together, give effect in case of conflict to the latest enacted sections, and construe the provisions of the sections according to the fair import of their terms with a view to effecting their objective and to promoting justice. (Penal Code section 4.) Therefore we read sections 19c and 1042.5 as qualifying section 689, insofar as infractions are concerned.. . " People v. Oppenheimer ( 1 974) 42 Cal.App.3d. Supp. 4, fn 2.
Thus, the Oppenheimar court recognized that Penal Code sections 19.6 and
1042.5 merely qualify section 689, and modify it with regard to infractions. People v.
Oppenheimer (1974) 42 Cal.App.3d. Supp. 4, fn 2. The exception to the jury trial right
for petty offenses has also been recognized by the United States Supreme Court. See
Baldwin v. New York (1970) 399 U.S. 66 (recognizing the petty offense exception to the
right to a jury trial).
Appellant cites People v. Sava 190 Cal. App. 3d 935 for the proposition that
"infractions are not crimes", but People v. Sava is distinguishable from the case at hand.
In People v. Sava, the court stated that "infractions are not crimes" in the context of
determining whether jury instructions should be given for the infractions of speeding
(California Vehicle Code $22348) and following too closely (California Vehicle Code $
2 1 703) in a trial for a misdemeanor charge of drk-ing d e r the iniluence of alcohol
(California Vehicle Code 5 23 152). Id. The court ruled that infractions were not crimes
for purposes of the rule in People v. Geiger (1984) 35 Cal. 3d. 510, which requires jury
instructions on lesser related crimes. Id.
Here, Appellant is not requesting a lesser included offense instruction. Rather,
Appellant was convicted of three infractions, namely, violations of Cal. Vehicle Code 5
22349(b), Cal. Vehicle Code 5 12500(a), and Cal. Vehicle Code $ 16028(a). To hold that
that these infractions are not crimes for the purpose of enforcement would do harm to the
structure of the Penal Code and Vehicle Code and would result in large sections of the
Vehicle Code being unenforceable.
Infractions are crimes and Appellant was properly convicted of three diactions
without a jury trial. The ruling of the trial court should be affirmed.
B. THE POLICE WERE PERMITTED TO PERFORM A WARRANTLESS DETENTION OR ARREST TO CITE APPELLANT FOR THE INFRACTION THEY OBSERVED HIM COMMIT
Officer Scholl's traffic stop of appellant's car and issuance of a traffic citation and
Notice to Appear was not a violation of the Fourth Amendment. In Atwater v. Ciw of
Lago Vista (2004) 532 U.S. 3 18, the Supreme Court ruled that if a police officer has
probable cause to believe that individual has committed even a very minor criminal
offense in his presence, be may, ~ i t h o ~ t \iohkg Fourth Amendment make a custodial
arrest the offender. Id. In People v. MiRay, a custodial arrest for a violation of a provision
of the Vehicle Code requiring bicycles to be operated in same direction as motor vehicle
traffic, a fine-only offense, did not inherently violate Fourth Amendment. People v.
McKay (2002) 117 Cal. Rptr. 2d 236.
Likewise, with non-custodial detentions or arrests, "[a] police officer may legally
stop a motorist to conduct a brief investigation when he entertains a rational suspicion,
based on specific facts, that a violation of the Vehicle Code or other law may have taken
place" People v. Superior Court (1972) 7 Cal. 3d. 186 at 200. Also see People v. Brown
(1998) 62 Cal. App. 4th 493, at 496-497 (quoting People v. Grant (1990) 217 Cal. App.
3d 145 1, 1458) where tbe court ruled that "[a] police officer may legally stop a mox~lrist
he suspects of violating the Vehide Code for the purpose of issuing a citation. The officer
may detain the motorist for the period of time necessary to discharge the duties related to
the traffic stop." Id. Finally, the court in People v. Hernandez ruled that for traffic
infractions, a police officer may lawfully stop motorist if facts and circumstances known
to officer support at least reasonable suspicion that driver has violated state Vehicle Code
or some other law. People v. Hernandez (2003) 1 10 Cal. App. 4th. Supp. 1.
Here, Officer Scholl observed Appellant's vehicle in violation of Vehicle Code $
22349(b) and initiated an enforcement stop. Officer Scholl did nothing more than was
necessary to investigate the offense that he observed and issue a citation and Notice to
Appear. Officer Scholl was authorized by law to conduct this traffic stop without a
warrant and no Fourth Amendment violation occurred.
THE COURT HAD SUFFICIENT EVIDENCE TO CONVICT APPELLANT OF THE CHARGED OFFENSES.
Officer Scholl testified that he observed Appellant's vehicle traveling in excess of
the speed limit, that he detained the car and driver for the purpose of issuing a traffic
citation, that dispatch informed him that Appellant's driving privileges were suspended,
and that Appellant did not provide proof of insurance. Appellant offers no argument that
would lead to the conclusion that there was insufficient evidence to convict Appellant of
California Vehicle Code 5 22349(b), California Vehicle Code $ l25OO(a), and California
Vehicle Code 5 16028(a).
V. CONCLUSION
For all the reasons set forth, the Respondent respectfully requests that the Court
uphold the findings of the trial court.
Date: November 1 8, 20 1 0
Respectfull!- submitted,
BRADFORD R. FENOCCHIO, DISTRICT ATTORNEY
Deputy ~ i s t 6 t t o r n e ~
PROOF OF SERVICE
iTATE OF CALIFORNIA
:OUNTY OF PLACER
I. the undersigned, declare:
1. That I am a citizen of the United States. 2. That I am over 18 years of age. 3. That I am a resident of Placer County,California. 4. That I am not a party to the within action. 5. That my business address is Placer County
l i s t r i c t A t x r z e ; . ' ~ Cffice, 10810 Justice Center Drive, Suite 240, Roseville, CA 95678-6231
6. That I am readily familiar with the business xactices of the County of Placer for collection and xocessing of correspondence for mailing with the United States Postal Service on the same date of placement for zollection.
7. That on this date I served a copy of the within
RESPONDENT'S REPLY BRIEF
by placing a true copy thereof in a sealed envelope, 2nd placing it for collection and mailing following xdinary business practices and addressed as follows:
7 transmitting said document ( s ) by facsimile to the number(s) set forth below:
personally served said document ( s ) to the person(s) at the address (es) set forth below:
Rik Wayne Munson 218 Landana Street American Canyon, CA 94503
Executed under penalty of perjury this 18th day 3f November, 20-10, at Roseville, Placer County, California.
(CCP 1013A, 2015.5)
Debbie ~ulbl?, LEGAL SECRETARY
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