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IN THE SUPERRIOR COURT OF THE STATE OF CALIF COUNTY OF NAPA APPELLATE DIVISION
PEOPLE O F THE STATE OF CALIFORNIA, Plaintiff and Respondent,
No.: CR 151673
(Napa Superior Court No. CR 149144)
RIK WAYNE MUNSON, Defendant and Appellant. APPELLANT'S OPENING BRIEF Appeal from.the Judgmeut of the Superior Court of the State of Califoruia For the County of Napa in a MisdemeanorIInfraction Case HONORABLE STEPHEN T. ICROYER, JUDGE HONORABLE COMMISSIONER MONIQUE LANGHORNEJOHNSON
DON E. LAUGHRIDGE (SBN 85238) 833 Franklin St., Suite 4 Napa, Ca. 94559 (707) 255-3535 Attorney for Appellant by Appointmeut of the Court
TABLE OF CONTENTS
TABLE OF AUTHORITIES
ISSUES PRESENTED ON APPEAL FACTS OF THE CASE ARGUMENT: I. WAS IT ERROR FOR THE LEARNED TRIAL JUDGE NOT TO SUA SPONTE ASK THE PRO PER DEFENDANT IF HE WANTED TO TESTIFY IN HIS OWN DEFENSE? 11. DID THE HONORABLEMONIQUE LANGHORNEJOHNSON COMMIT ERROR BY NOT CONSIDERING SUA SPONTE APPELLANT'S MOTION TO QUASH AS EITHER A COMMON LAW SUPPRESSION MOTION OR A MOTION IN ARREST OF JUDGMENT? 111. DID THE HONORABLE STEPHEN T. IUiOYER ERR IN NOT SUA SPONTE TREATING APPELLANT'S MOTION TO QUASH AS EITHER A COMMON LAW SUPPRESSION MOTION OR A MOTION IN ARREST OF JUDGMENT? IV. ARE VEHICLE CODE INFRACTIONS SUBJECT TO THE GENERAL CRIMINAL LAW UNDER PENAL CODE S19.7? V. ASSUMING THAT VEHICLE CODE INFRACTIONS ARE NOT SUBJECT TO THE PENAL CODE, WAS THE DEFENDANT'S DETENTION VIOLATIVE OF THE FOURTH AMENDMENT AS AN ARREST WITOUT WARRANT? VI. DID THE PROSECUTION PROVE THAT SERGEANT HUNTER AS A DEPUTY SHERIFF HAD THE AUTHORITY TO ENFORCE TRAFFIC LAWS IN AMERICAN CANYON? CONCLUSION WORD COUNT
TABLE OF AUTHORITIES
A~izonav. Fthiinarite (1991) 499 U.S. 279, 111 S.Ct. 1246,1265,113 L.Ed.2d 302,332 Clznpnzmz v. Califomin (1967) 386 US 18, 17 L. Ed. 2d 705
CALIFORNIA CASES I72 re Estate of Homian 265 Cal.App.2d 796,71 Cal.Rptr. 780 (Cal.App. 1968)
People v. Holgui~z(1956) 145 Cal. App. 2d. 520 People. v. Horvath (1982) I27 CaI. App. 3d 398 People v. Martinez 14 Cal.3d 533, 537, 535 P.2d 739, 741, 121 Cal.Rptr. 611, 613 (Cal. 1975 People v. Mor-gmz (App. 3 Dist. 1977) 141 Cal.Rptr. 863, 75 Cal.App.3d 32. People v. Sava (1987) 190 Cal. App. 3d 935 People v. Wolilleberl 261 Cal.App.2d 461,463 (Cal.App.2. Dist.1968)
STATUTES AND MISCELLANEOUS CITES Evidence Code 5320 Code of Civil Procedure 55 418.10,607 Penal Code $5 1044,152.7, 1538.5,1185,1186,1004 Vehicle Code $5 40300, 12801.5 (e), 4000 (a) (I), 12500 (a), 16028 (a), 4,40300.5 Government Code $26613 Witkin Criminal Law, Chapter XVII, 520 9
ISSUES PRESENTED ON APPEAL
I. WAS IT ERROR FOR THE LEARNED TRIAL JUDGE NOT TO SUA SPONTE ASIC THE PRO PER DEFENDANT IF HE WANTED TO TESTIFY IN HIS OWN DEFENSE? 11. DID THE HONORABLE MONIQUE LANGHORNE-JOHNSON COMMIT ERROR BY NOT CONSIDERING SUA SPONTE APPELLANT'S MOTION TO QUASH AS EITHER A COMMON LAW SUPPRESSION MOTION OR A MOTION IN ARREST OF JUDGMENT? 111. DID THE HONORABLE STEPHEN T. KROYER ERR IN NOT SUA SPONTE TREATING APPELLANT'S MOTION TO QUASH AS EITHER A COMMON LAW SUPPRESSION MOTION OR A MOTION IN ARREST OF JUDGMENT? IV. ARE VEHICLE CODE INFRACTIONS SUBJECT TO THE GENERAL CRIMINAL LAW UNDER PENAL CODE SECTION 19.7? V. ASSUMING THAT VEHICLE CODE INFRACTIONS ARE NOT SUBJECT TO THE PENAL CODE, WAS THE DEFENDANT'S DETENTION VIOLATIVE OF THE FOURTH AMENDMENT AS AN ARREST WITOUT WARRANT? VI. DID THE PROSECUTION PROVE THAT SERGEANT HUNTER AS A DEPUTY SHERIFF HAD THE AUTHORITY TO ENFORCE TRAFFIC LAWS IN AMERICAN CANYON?
FACTS OF THE CASE AND PROCEDURAL HISTORY This case was prosecuted by a citation issued to the appellant on October 29, 2009 alleging violations of sections 4000 (a) (I), 12500 (a) and 16208 (a) of the California Vehicle Code. Sergeant Mike Hunter who issued the citation was a Sheriffs Deputy working under contract to the City of American Canyon at the time of issuance. Appellant was convicted of violating $12500 (a) and $16208 (a) on March 8,2010. Appellant now attacks the jurisdiction of the court to entertain the charges and alleges that he was denied fair hearings on December 22,2009 and March 8,2010. When appellant failed to appear pursuant to the November 30,2009 date stated on the citation, a bench warrant was issued for his arrest. On December 7,2009, appellant surrendered on the warrant and filed and sewed a NOTICE OF MOTION MOTION TO QUASH CCP $418.10; POINTS AND AUTHORITIES (Hereafter "Motion To Quash"). Although at first glance this filing seems unusual in a misdemeanorlcriminal case, appellant believed that it was wholly consistent with his belief that Vehicle Code misdemeanors and infractions are subject only to the Vehicle Code and the civil laws and not subject to the Penal Code. On December 7, 2009, defendant requested that advisory counsel be appointed to assist him in the presentation of his case, was given Faretta Wainings and, instead of signing his name to the RECORD OF FARETTA WARNINGS, wrote "Do Not Waive Rights" above the signature line. Defendant was released on his own recognizance on December 7,2009 with a promise to appear. Appellant thereafter represented himself for all purposes through trial and conviction even though his desire was to have advisory counsel to assist in protection of his rights. Appellant's Motion To Quash was denied by COMMISSIONER MONIQUE LANGHORNE-JOHNSON on December 22,2009 as not an appropriate filing. The Learned Commissioner was of the opinion that a
Penal Code $1538.5 n~otion needed to be filed. (See electronic recording of December 22,2009 hearing). The appellant's trial on one n~isdemeanor two infraction counts and for violation of the California Vehicle Code took place on March 8,2010 and the appellant represented himself. Jury trial was waived and the trial judge was the HONORABLE STEPHEN T. KROYER. The bulk of the trial transcript, docun~ents submitted with appellant's December 7, 2009 Motion To Quash, and trial exhibits set forth the substance of appellant's claim that the Court had no jurisdiction to proceed against him on the citation. It is obvious from the record of the trial proceedings that defendant was not accorded the opportunity to testify in his own defense. Prior to commencement of the trial, the trial judge only touched upon the issue of the appellant's testifying once and that was in discussions prior to conmencement of the trial. The appellant told the judge at that time (prior to trial) that "My witness list is blank." (Reporter's transcript of trial hereafter "R.T." (R.T. 3-8-10, p. 28,l. 24 throughp. 29,l. 7). Toward the end of Sergeant Hunter's testimony, the trial judge (in response to appellant's questioning-whetherthe officer recalled certain facts col-rectly) told the defendant "You're chance to testify is going to come". (R.T., 3-810, p. 43,l. 22 through p. 44,l. 8). At the conclusion of the prosecution's case, the trial judge asked appellant if he wanted to make an opening statement to begin his defense but appellant waived. (R.T., 3-8-10, p. 55,1.24 through p. 55. I. 26). Then the Court asked appellant if he wanted to "present any additional evidence" and defendant introduced one document (Defendant's Exhibit "8", a copy of which is attached hereto) over which there was some discussion regarding its relevance. (R.T., 3-8-10, p. 55,I. 27 through p. 57,l. 24.) After the appellant began arguing the relevance of Exhibit "8", the trial
judge informed him that the case was not at the argument phase yet and asked whether "there are any other items of evidence you want to present?" (R.T., 3-8-10, p. 25,1.25 through p. 58,l. 10). When appellant indicated he had no further documentary evidence, the Court asked the prosecutor if there was any rebuttal case and, being informed that there was none, proceeded to explain that closing arguments would be the next order of business. (R.T., 3-8-10, p. 58,l. 9-27). Defendant was never asked if he had witnesses to present in his own defense or if he wanted to testify but, and this is somewhat ironic, the prosecution was offered the opportunity to re-open its case after appellant had started his final argument. (R.T., 3-810, p. 59,l. 11 through p. 61,l. 4). In addition, at no time did the trial judge ask the appellant if he wanted his marked and identified exhibits moved into evidence and, consequently, only Defendant's exhibits 7 and 8 were received and made a part of the record. The prosecutor's proffered documentary evidence was marked, identified and received into evidence. Most of the appellant's arguments at trial rested on the concept that the stop of his vehicle by Sergeant Hunter was an illegal anest and not a mere detention. While making the vehicle stop, appellant was told by Sergeant Hunter that he was not under arrest but he could not leave until he signed the citation to appear. (R.T., 3-8-10, p. 43,l. 18 tl~rough p. 44,1.6 and p. 48,l. 20-24) Sergeant Hunter did not have a wanant to arrest or detain the appellant. (R.T., 3-8-10, p. 48,l. 11-19) The scope of the stop (and whether or not it was merely a detention or an actual arrest) cannot be detel-inined from the evidence because appellant did not testify. Appellant admitted to Sergeant Hunter that he did not have a valid driver's license. (R.T., 3-8-10, p. 33,l. 13 -23). Sergeant Hunter admitted that he searched the appellant's vehicle without consent. (R.T., 3-8-10, p. 44 1. 20 -28.) Appellant could have testified on the scope and duration of the detention but was never given an opportunity to do so. While the trial judge asked
appellant if he had "any other items of evidence", he never asked the defendant if he had witnesses or if he would be testifying himself. (R.T. 38-10, p. 58,l. 9 -13) Upon conclusion of the prosecution's case, documentary evidence was submitted by the appellant and then argument was invited. Defendant was never sworn to testify as a witness at any stage of the trial nor did he testify. In his final argument, the appellant argued that his detention/airest on October 29,2009 was violative of the Fourth Amendment, that there was no criminal jurisdietion to enforce the traffic laws which were essentially civil and that the tsial court did not have jurisdiction of the subject matter of his case. The trial judge acknowledged that the appellant's arguments were akin to an oral motion to suppress pursuant to 51538.5 of the Penal Code hut found that no motion had been timely made before trial. (R.T., 3-8-10, p. 89,l. 9- 17). The tsial judge also indicated that, based on the record before him, he would probably deny the motion if it was properly before him. (R.T., 3-8-10, p. 89,l. 9- 17). The appellant made numerous attempts to get Sergeant Hunter to state the authority under which he had detained and searched appellant on October 29; 2009 but &s not able to get an answer as his questions were deemed to have called for legal conclusions. (R.T., 3-8-10, p. 35,l. 21 throughp. 38., 1. 14). Appellant complained to the trial judge that he was being denied the assistance of counsel in his case and the trial judge responded by telling him that it was not possible for him [the trial judge] to countermand the decisions of "anotherjudge of equal stature". (R.T. 3-8-10, p.19, 1. 26 through p. 20,l. 25.)
WAS IT ERROR FOR THE LEARNED TRIAL JUDGE NOT TO SUA SPONTE ASIC THE PRO PER DEFENDANT IF HE M7ANTEDTO TESTIFY IN HIS OWN DEFENSE?
It was st~uchlral error in the trial of this case not to afford the appellant the opport~~nity testify in his own defense. The record shows to that the appellant had willingly given up his right to remain silent under the Fifth Amendment. The Sixth Amendment guarantees "con~pulsory process for obtaiuing witnesses" in favor of the accused. In Arizona v. F~rlrm~~mlfe (1991) 499 US. 279, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 332, "trial" en-ors were found to be subject to the CI~apnzun harmless error standard.
Clzrpina~~ Califor.izia (1967) 386 US 18, 17 L. Ed. 2d 705. Examples of v.
"struchral errors" whicb are per se reversible, include total deprivation of the right to counsel at trial, trial before a biased judge, unlawful exclusion of members of the defendant's race fiom the grand jury, denial of the selfrepresentation right at trial, and denial of public trial. 6 WITCRIM Ch. XVII, § 20. It would seem that not affording a criminal defendant his right to testify in his own defense would constitute a structural error which was reversible per se and not subject to the harmless error rule of Chapman, supra. The right to testify in one's own behalf is as fundamental as the right to remain silent. A harmless enor determination on the facts of this case would be tantamount to saying the defendant didn't have his day in court and the deprivation of the right to testify is of no consequence. Pursuant to Penal Code $1044, it is the "duty of the judge to contsol all proceedings during the trial". Section 320 of the Evidence Code states that "Except as otherwise provided by law, the court in its discretion shall regulate the order of proof '. Section 607 of the Code of Civil Procedure sets forth the suggested order of proceedings in civil and
criminal trials. The object of these statutes is to give the judge wide discretion in providing a fair and impartial trial. In the case In re Estate of
H o i - I ~ ,265 Cal.App.2d 796, 71 Cal.Rptr. 780 (CaLApp. 1968) the IZ
following language appears with respect to the exercise of the court's discretion in conducting a trial: "A party is entitled to have received in evidence and considered by the court, before findings are made, all competent, relevant and material evidence on any material issue, and while it is within cowt's sound discretion to define the issues and direct the order of proof, the court may not act so as t o preclude a party from adducing competent, material and relevant evidence which tends to prove or disprove any material issues." Even though the trial judge was courteous, patient and attentive to what he thought were erroneous arguments being put forth by appellant at trial of this case, the appellant was effectively denied his rights under the First and Sixth Amendment to give testimony in his own behalf. Even though the failure to ask defendant if he wanted to testify or the failure to inform him that it was his time to testify (if he wanted) was most likely inadvertent, the failure was structural error and is reversible per se.
DID THE HONORABLE MONIQUE LANGHORNE-JOHNSON COMMIT ERROR BY NOT CONSIDERING SUA SPONTE APPELLANT'S MOTION TO QUASH AS EITHER A COMMON LAW SUPPRESSION MOTION OR A MOTION IN ARREST OF JUDGMENT?
The appellant's Motion To Quash under Code of Civil Procedure $418.10 which was filed on December 7,2009 argued that the Court had no jurisdiction to proceed against appellant and that his seizure in a traffic stop without a warrant violated his Fourth Amendment right to be secure from unreasonable searches and seizures. Appellant brought this civil motion
because he believed (based upon his reading of the law) that Vehicle Code infractions are not "public offenses" punishable under the Penal Code. It is appellant's position that the offenses for which he was charged are offenses punishable only under the California Vehicle Code and not subject to the Penal Code.
Defendant could have testified (had he been given the opportunity) that the duration of his detention by Sergeant Hunter exceeded the scope required to ticket him and involved two searches of his vehicle even though he had already (as the evidence at the trial confirms) admitted that be had no license and the vehicle registration had expired. Even though he knew the vehicle was not registered and appellant had told him that his license had expired, Sergeant Hunter searched appellant's vehicle anyway. The procedure for arvests for traffic violations is set forth in $40300 of the Vehicle Code and that section controls whether a person may be arrested when driving. '-Section 12801.5 (e) of the Vehicle Code provides that "Notwithstanding Section 40300 or any other provision of law, a peace officer may not detain or arrest a person solely on the belief that the person is an u~llicensed driver, unless the officer has reasonable cause to believe the person driving is under the age of 16 years." The case of People v.
Wolzlleben 261 Cal.App.2d 461, 463 (Cal.App.2.Dist.1968) confirms the
autonomy of theVehicle Code and the principle that arrests without wanant for Vehicle Code violations are allowed only in limited situations:
"The trafGc violation for which defendant was stopped could not provide the basis for a lawful arrest. Procedure on arrests for traffic violations is specified in division 17, chapter 2 of the Vehicle Code commencing with section 40300. Section 40300 of the Vehicle Code provides: "The provisions of this chapter shall govern all peace officers in making arrests for violations of this code without a warrant for offenses committed in their presence, but the procedure prescribed
herein shill not otlwwise be exclusive of any other method prescribed by law for the arrest and prosecution of a person for an offense of like grade." (Italics added.) A statute is to be construed where possible to give effect to all of its temls. (Code Civ. Proc., 3 1858.) The insertion of the word "othenvise" in the second clause of section 40300 can only mean that to the extent stated in the first clause the arrest procedure of the Vehicle Code is exclusive. (See People v. hfaggiorn, 207 Cal.App.2d Supp. 908, 91 1 [24 Cal.Rptr. 6301.) Thus, although it is a misdemeanor for any person to violate a provision of the Vehicle Code unless the violation is expressly described by the code to be a felony or an offense punishable as a felony or misdenleanor ($ 40000, subd. (a)), the procedure on arrests without a warrant for misdemeanor Vehicle O d e violations is that prescribed by the Vehicle Code and not the procedure prescribed by the Penal Code. (Pen. Code, $ 833 et seq.)
In addition, $4 of the Vehicle Code provides that the comnlon law in existence at the time of adoption of the Vel~icle Code was not abrogated. The appellant's Motion to Quash should have been considered on its merits by COMMISSIONER LANGHORNE-JOHNSON and it was prejudicial error not to consider the Court's jurisdiction to proceed to determine whether or not appellant's detention by Sergeant Hunter was impermissible. Even 319.7 of the Penal Code which states that "all provisions of .. law relating to misdemeanors shall apply to infractions" cannot save the court's jurisdiction because that statute begins with "Except as otherwise provided by law" which would mean the Vehicle Code would be the law determinative of the Court's jurisdiction. Appellant's Motion To Quash was in effect a common law motion to suppress which exists independently of Penal Code $1538.5. An evidentiary hearing should have been conducted on the Motion To Quash on December 22,2009 and the Court should have ruled on whether or not
the appellant was illegally detained and anested as well as the question of the court's jurisdiction. Courts often entertain motions that are not properly denominated and on take evidence and arg~urnent those misnamed motions in accordance with their legal effect. Most courts do not exalt form over substance. For instance, an iinpermissible motion for judgment notwithstanding the verdict in in a criminal trial was treated as a n~otion arrest of judgment under $ 1185 (App. 3 Dist. 1977) 141 Cal.Rptr. of the Penal Code. People v. Mo~gan 863,75 Cal.App.3d 32. In that case, a judgment of acquittal was entered after the jury (which had been dismissed) had fo~und defendant guilty of manslaughter on a charge barred by the statute of limitations. In the case at bar, it would have been appropriate to treat the Motion To Quash as a common law suppression motion in view of the fact that it was propounded by a self-represented party and such treatment would have been fair and just in the circumstances. COlMMISSIONER LANGHORNE-JOHNSON could also have considered the appellant's motion to quash as a motion in arrest of judgment pursuant to Penal Code 5 1185 because it attacked the jurisdiction of the court to proceed on grounds other than those listed in Penal Code $1004. Section 1186 of the Penal Code gives the court discretion to anest judgment sua sponte at any appropriate time in the proceedings. Therefore, appellant's motion can also be viewed as an appropriate request to arrest judgment. I/
DID THE HONORABLE STEPHEN T. ICROYER ERR IN NOT SUA SPONTE TREATING APPELLANT'S MOTION TO QUASH AS EITHER A COMMON LAW SUPPRESSION MOTION OR A MOTION IN ARREST OF JUDGMENT?^
The appellant's main argument in his Motion To Quash and at trial was that Sergeant H~mter'sdetaining him was an impermissible arrest for a Vehicle Code infraction, i. e., V.C. $4000 (a), unregistered vehicle. His pretrial motion to quash should have been considered a common law motion to suppress as has been argued in the previous section of this brief.
A motion to su<press can be made during trial. Subdivision (11) of
section 1538.5 of the Penal Code provides a defendant shall have the right to make a motion to suppress evidence during trial if, prior to trial, 'opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion.' People v. Martinez 14 Cal.3d 533, 537, 535 P.2d 739, 741, 121 Cal.Rptr. 61 1, 613 (Cal. 1975). The trial judge did not consider the appellant's motion to quash as a common law motion to suppress which had should have been luled on prior to trial. Because the motion to qr~ash never been addressed on its merits, the appellant could raise the suppression issue and was entitled to have the court decide the issue at trial. There was no pretrial discovery provided by the prosecution which would inform the defendant that Sergeant Hunter would admit to knowing the vehicle was unregistered and appellant unlicensed and searching appellant's vehicle without consent after having already acquired such knowledge. These admissions were all new facts that the appellant only learned of during cross-examination at trial. Based on these facts, the appellant was entitled to renew his motion to suppress1 motion to quash. The trial judge saw clearly that the tenor of the appellant's motion to qnash was suppression of the evidence based on illegal search and seizure of appellant.
In addition, the trial judge could have treated the motion to quash as a motion in arrest of judgment and sua sponte arrested judgment pursuant to sections 1185 and 1186 of tbe Penal Code. This would have been appropriate at any stage of the trial.
In People v. Suva (1987) 190 Cal. App. 3d 935, it was held that Vehicle Code infractions are not crimes. The trial judge cited 5 19.7 of the Penal Code for the proposition that infractions under the Vehicle Code are subject to the same treatment as misdemeanors under the Penal Code. This was erroneous because the beginning language of that section states that such treatment can be had only as "Except as otherwise provided by law.. ." The California Vehicle Code 5 40300.5 provicks that an arrest without a warrant can only be effected in certain circuinstances: In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any di-ug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists: (a) The person is involved in a traffic accident. (b) The person is observed in or about a vehicle that is obstructing a roadway. (c) The person will not be apprehended unless immediately arrested. (d) The person may cause injury to himself or herself or damage property unless immediately arrested.
(e) The person may destroy or conceal evidence of the crime .. unless immediately aixested. Applying the maxim "expressio unio et exclusio alterius" to the above statute, the Vehicle Code can be seen to have expressly detailed when an aixest without a warrant can be made and, having done such, excludes the appellant's situation. Sergeant Hunter was not entitled to search and arrest appellant pursuant to any authority granted in the Penal Code. The trial judge's assertion that P. C. $19.7 was controlling was error. Vehicle Code infractions, unless otherwise specified in the Vehicle Code , cannot provide a peace officer with the right to aiuest or search a motorist. TWieii Sergeant Hunter .. stopped appellant for no valid registration, he was only entitled to write the ticket for which appellant was stopped.
ASSUMING THAT VEHICLE CODE INFRACTIONS ARE NOT SUBJECT TO THE PENAL CODE, WAS THE DEFENDANT'S DETENTION VIOLATIVE OF THE FOURTH AMENDMENT AS AN ARREST WITOUT WARRANT? It is hornbook law that, when an aixest or search is made without a wanant, the burden shifts to the prosecution to prove that the arrest was legal or the search was reasonable. People v. Holglriij (1956) 145 Cal. App. 2d. 520. The evidenceat trial showed that Sergeant Hunter was told the defendant had no license and knew the vehicle was not registered. Despite this inforination, he searched. Sergeant Hunter searched even though he admitted at trial he had no consent to search in violation of the Fourth Amendment rights of the appellant. ( SeePeople. v. Honmtlr (1982) 127 Cal. App. 3d 398.) The search was unreasonable. He could have just written the ticket and left the appellant alone without violating his rights.
Compounding the obvious illegality of the search was the fact that the defendant, for whatever reason, was deprived of the opportunity to testify to the facts of the search as known to him. Had appellant been able to testify, the trial result may well have been different as the trial judge may have indulged the hearing of the untimely motion to suppress because justice and fairness would have been served by such action.
DID THE PROSECUTION PROVE THAT SERGEANT HUNTER AS A DEPUTY SHERIFFHADTHE AUTHORITY TO ENFORCE TRAFFIC LAWS IN AMERICAN CANYON?
At trial, appellant asked many questions attempting to deternline Sergeant H~~nter's knowledge of the procedures that he was entitled to use in enforcing the Vehicle Code. Most of these questions met sustained objections on the basis that they called for legal conclusions on the part of Sergeant Hunter. (R.T., 3-8-10, p. 34,l. 21 thronghp. 38,l. 14). This line of q~~estions completely appropriate because it was designed to was detemine how a deputy Sheriff was entitled to enforce the traffic laws of a city. Generally, a County Sheriff does not have authority lo enforce the traffic laws in nlunicipal areas. Such authority must be legally delegated and appellant's questions were designed to elicit whether such delegation had occulred and the actual authority of Sergeant Hunter to stop him for a Vehicle Code infraction. California Government Code § 26613 provides that "Notwithstanding the provisions of Section 29601 the board of having a population in excess of 3,000,000 may supervisors in a couuty.. authorize the sheriff to enforce the provisions of the Vehicle Code in the unincorporated area of such county but only upon county highways.. . "
There was no proof that Sergeant Hunter was entitled to enforce the Vehicle Code in Alilerican Canyon except his statenlent that the Sheriffs Depaltlnent was under Contract with the City of American Canyon to provide police services.
The appellant was denied his day in court on at least two occasions. First, on December 22, 2009, his motion to quash was denied by Commissioner Langhome-Johnson and he was not accorded an evidentiary hearing. While the motion to quash appeared peculiar (a civil motion filed in a criminal action), its gravamen was entirely appropriate and the motion
raised legitimate issues for consideration by the Court. The Court should have exercised its discretion to hear and decide the motion to quash either as a common law motion to suppress, a Penal Code 51538.5 motion or a motion in arrest of judgment. Second, at his trial on March 8,2010, defendant did not testify in his own defense. The right to testify for one's self in a criminal case is a fundamental right. It was the duty of the trial judge to protect that fimdamental right but he failed to do so. This was structural error and undermines any confidence in the justness and fairness of appellant's hial. The verdict of guilty 0x1 Counts 2 and 3 should be set aside and the case remanded for filrtlier proceedings which protect the fully panoply of as appellant's rights. Such findings should be included in the remittitt~r the Appellate Department deems meet and proper. Dated: 8-23-10
Attorney at Law
CERTIFICATION OF NUMBER OF WORDS IN BRIEF
I, DON E. LAUGHRIDGE, certify and declare that the foregoing
brief contains 4768 words not including this page or the PROOF OF PERSONAL SERVICE attached hereto. Said word count was achieved on a f~mctioning Microsoft Word program.
I, DON E. LAUGHRIDGE, declare under penalty of perjury of the
laws of the State of California that the foregoing is true and correct and that this certification was signed by me on August 23,2010.
DON E. LAUGHRIDGE ATTORNEY FOR APPELLANT
PROOF OF PERSONAL SERVICE
I, DON E. LAUGHRIDGE, declare:
I am a citizen of the United States and am over the age of eighteen (18) years. I am not a party t o this action. My business address is: DONE. LAUGHRIDGE, Attorney at Law, 833 Franklin St., Suite 4, Napa, Ca. 94559. On August 23,2010, I served the APPELLANTS OPENING BRIEF in appellate action number CR 151673 of the Napa Superior Court on the following persons and/or entities, by personally delivering copies thereof to them at the addresses indicated below and giving the document to a person of suitable age and discretion who was authorized to receive service: NAPA DISTRICT ATTORNEY'S OFFICE 931 Parkway Mall Napa, Ca. 94559 HONORABLE STEPHEN T. KROYER Criminal Courts Building 1 1 Third St. 11 Napa, Ca. 94559 HONORABLE COMMISSIONER MONIQUE LANGHORNE-JOHNSON Crimninal Courts Building 1 1 Tlurd St. 11 Napa, Ca. 94559
I, DON E. LAUGHRIDGE, declare under penalty of peljury of the laws of the State of California that the foregoing is true and correct except as to tliose matters which are herein alleged on information and belief and, as to those matters, I believe them to be true. This declaration was executed by me on August 23,2010, at Napa, California.
DON E. LAUGHRIDGE
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