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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,


Defendant/Appellant. 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 Drik-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) 110 Cal. App. 4th. Supp. 1...............................................7,8
People v. McKay (2002) 117 Cal. Rptr. 2d 236..............................................................7
People v. Oppenheimer (1974) 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 (1972) 7 Cal. 3d. 186 ..............................................................- 7

Federal Cases
Atwater v . Ciw of Lago Vista (2004) 532 U .S. 3 18 .......................................................... 7
Baldwin v . New York (1970) 399 U.S. 66 ..................................................................... 5 6

TABLE OF STATUTES
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.,.,, .,..., , , . , . ...............
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 23 152 .................................................................................... 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 11, 2010, and

Appellant's Opening Brief on Appeal on May 11, 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~sntimor 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~pellantwas 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 *-exceptas 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 ~ih i k t i ~ n suihur 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 1951. 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 1703) 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 \iohkg


~t 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) 110 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 18, 20 10

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