(Napa Superior Court No.

CR 149144)

IN THE SUPERRIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF NAPA

APPELLATE DIVISION

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

No.: CR 151673

v.

RIK WAYNE MUNSON, Defendant and Appellant.

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APPELLANT'S REPLY BRIEF

Appeal from the Judgment of the Superior Court of the State of California For the County of Napa in a Misdemeanor/Infraction Case

HONORABLE STEPHEN T. KROYER, JUDGE

DON E. LAUGHRIDGE (SBN 85238)

833 Franklin St., Suite 4 Napa, Ca. 94559

(707) 255-3535

HONORABLE COMMISSIONER MONIQUE LANGHORNEJOHNSON

Attorney for Appellant by Appointment of the Court

TABLE OF CONTENTS

TABLE OF AUTHORITIES REPLY ISSUES

FACTS OF THE CASE ARGUMENT:

1. 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? 5

3

4

5

CONCLUSION 13

II. DID THE HONORABLE MONIQUE 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? 7

III. DID THE HONORABLE STEPHEN T. KROYER ERR IN NOT SUA SPONTE TREATING APPELLANT'S MOTION TO QUASH AS EITHER A COMMON LAW SUPPRESSION MO-

TION OR A MOTION IN ARREST OF JUDGMENT? 8

IV. ARE VEHICLE CODE INFRACTIONS SUBJECT TO THE

GENERAL CRIMINAL LAW UNDER PENAL CODE § 19 .7? 10

V. DID SERGEANT HUNTER FOLLOW APPROPRIATE STATUTORY PROCEDURES IN BRINGING APPELLANT

PROPERLY BEFORE THE TRIAL COURT? 11

VI. DID THE PROSECUTION PROVE THAT SERGEANT HUNTER AS A DEPUTY SHERIFF HAD THE AUTHORITY

TO ENFORCE TRAFFIC LAWS IN AMERICAN CANYON? 12

WORD COUNT 14

2

Page(s)

TABLE OF AUTHORITIES

FEDERAL CASES

Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 5

1246, 1265, 113 L.Ed.2d 302,332

Chapman v. California (1967) 386 US 18, 17 L. Ed. 2d 705 5

Faretta v. California (1975) 422 u.s. 806 6

.'

CALIFORNIA CASES

People v. Boyer (1989) 48 Cal. 3d 247

People v, Castellon (1999) 76 Cal. APf' 4th 1369 People v. Hernandez (2008) 45 Cal. 411 295 People v. Holguin (1956) 145 Cal. App. 2d. 520 People. v. Horvath (1982) 127 Cal. App. 3d 398 People v. Hoyos (2007) 41 Cal. 4th 872

People v. Lilienthal, (1978) 22 Cal. 3d 891 People v. Logsdon (2008) 164 CaL App. 4th 741 People v, Martinez (1975) 14 Ca1.3d 533

People v. Sava (1987) 190 Cal. App. 3d 935

People v. Superior Court (Simon) (1972) 7 Cal. 3d 186

9 10 10 12 12 10 8 10 9 10 10

STATUTES AND MISCELLANEOUS CITES Evidence Code §320

Penal Code §§ 1044, 19.7, 1538.5, 1185,995

Vehicle Code §§ 40300, 40300.5,27361,26710,4000 (a)

Government Code §26613

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ISSUES PRESENTED ON APPEAL

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?

II. 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?

III. 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?

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I.

FACTS OF THE CASE AND PROCEDURAL HISTORY

Appellant has summarized the basic facts on which this appeal is based in his opening brief and said "FACTS OF THE CASE AND PROCEDURAL HISTORY" presented there are incorporated by reference herein. The defendant/appellant will make additional references to the record and/or transcript on appeal wherever such references would be appropriate in this reply brief.

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?

Defendant/appellant maintains that it was structural error in the trial for the trial judge not to inform him that it was his turn to be sworn and testify in his own behalf. In Arizona v, Fulminante (1991) 499 U.S. 279, 111 S,Ct. 1246, 1 i3 L.Ed,2d 302, it was decided that certain types of error were reversible per se. The U.S. Supreme COUli listed certain errors which were per se reversible, i.e., total deprivation of the right to counsel at trial, trial before a biased judge, unlawful exclusion of members of the defendant's race from the grand jury, denial of the self-representation right at trial, and denial of public trial. These are all due process rights, This list was not meant to be exhaustive but simply instructive as to the types of errors that would constitute a carte blanche denial of due process of law. Such errors are not subject to the Chapman harmless enol' standard, Chapman v. Californiaf1967) 386 US 18, 17 L. Ed. 2d 705.

Defendant/appellant has already cited ample authority in his opening brief which requires the trial judge to control all proceedings at trial and regulate the order of proof. [Penal Code § 1044; Evidence Code §320]. In the trial on appeal, the leamed trial judge exercised with

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diligence his customary control of the proceedings before him making short work of appellant's many preliminary motions and objections. Judge Kroyer then promised defendant: "I'll help you out just a little bit by pointing out your options all along ... " (Reporter's Transcript of Trial, 3-8- 10, p. 24, 1. 24 through p. 25, 1. 12.) In addition to this promise, the trial transcript clearly reflects that the trial judge told the defendant that he would get his chance to testify at a later time.

Appellant did not sign the Faretta Waiver although he was given Faretta Warnings by the Court. Faretta v. California (1975) 422 U.S. 806. The record is clear that appellant sought "advisory" counsel to assist him in the presentation 'of his case, While it is settled that a pro per defendant who chooses to represent himself is held to the same standard as attorneys, it is also axiomatic that a pro per defendant is entitled to the same courtesies accorded to attorneys arguing cases. One of those courtesies is that the court will keep its promises with regard to how it wiII control the order of proof and presentation of the evidence in the case before it. In the trial of this case, it is easy to see that the defendant was promised an opportunity to testify and that opportunity was either not given or was overlooked. What is even more problematic is that a double standard emerged in the overall conduct of this case as shown by the following indisputable facts:

1. Most of defendant's exhibits were marked and identified but did not become evidence because they were not received.

2. All of the prosecution's non-objectionable evidentiary exhibits were marked, identified and received.

3, Although the prosecution did not file a response to the defendant's initial "Motion To Quash" which challenged the authority of the Court to proceed, the prosecution was allowed to argue against the

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II.

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?

motion despite court rules requiring a response. The prosecution should not have been allowed to proceed in opposition to the motion.

4. Defendant/appellant was not able to question Sergeant Hunter in any meaningful manner with regard to the claim that he had not followed statutory procedures in the stop and detention.

Commissioner Langhorne-Johnson asked the appellant what the purpose of his motion was. (3:20 Tape of 12-22-09 proceedings on Motion To Quash). During the less than fifteen minute hearing before Commissioner Langhorne-Johnson on December 22,2009, the appellant summed up his reasons, for bringing the motion to quash by means of a civil motion. Essentially, Mr. Munson stated that he was challenging the jurisdiction of the Court to proceed based on his reading of the law. His argument was that, since he was detained on an infraction offense without a search warrant, that the Court had no jurisdiction to proceed against him. Commissioner Langhorne-Johnson denied the motion to quash, found that the subject matter was governed by section 1538.5 of the Penal Code, and found that the charges were criminal and not civil in nature. (11: 15 to 14:30: Tape of 12-22-09 proceedings on Motion To Quash).

The respondent's contention that appellant cannot appeal the ruling by Commissioner Langhorne-Johnson is not we1l taken. Appellant has done everything necessary to preserve his right to appeal and there should have been a hearing held on his motion to quash on December 22, 2009.

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A defendant may preserve a search and seizure challenge for appeal by moving to set aside an information for lack of probable cause under section 995 of the Penal Code. The California Supreme Court has rejected the claim that search and seizure issues "must be raised in the superior court by a motion to suppress rather than a section 995 motion," (People v. Lilienthal, (1978) 22 Cal. 3d 891,896,)"

In the same way, the appellant's motion to quash challenged the probable cause to detain him on an infraction. The appellant' s reasoning for his request was clearly spelled out in his motion but the COUli refused to grant a hearing and instead found that the motion was not the proper vehicle to put the matter before the court. The court exalted form over substance in dealing with the appellant and gave him short shrift rather than deal with the actual gravamen of his motion: The court's lack of jurisdiction to proceed.

What is even more alarming is that the Court, having a motion to quash brought by a pro per litigant before it, proceeded to deny the motion without hearing the matter on the merits. While a pro per litigant will rarely have a perfect work product, the self-represented should not be dealt with more harshly than practicing lawyers. There should have been a hearing on the merits of the motion to quash and the judge should have considered the motion to quash as either a motion to suppress or as a motion challenging the jurisdiction of the court. This would have been the most likely followed procedure in dealing with a practicing attorney. "So what is this motion about. .."

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?

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Once a motion to suppress has been made, it can be re-opened again during the trial if the situation warrants it. (See People v. Boyer (1989) 48 Cal. 3d 247). A motion to suppress can be made during trial, Subdivision (h) 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 Ca1.3d 533, 537, 535 P.2d 739, 741, 121 Ca1.Rptr. 611, 613 (Cal. 1975). The responding party claims that this issue is moot because the Honorable Stephen T. Kroyer "made a ruling on an untimely Motion to Suppress made by Appellant at trial on March 8, 2010." While this is hue, the learned trial judge also failed to hold a hearing on the motion to quash/suppression motion.

As a result of the failure to swear the defendant/appe11ant at trial and the failure to allow him to testify, the pro per litigant was denied his right to a hearing on the court'sjurisdiction to proceed a second time. We can only speculate on what the defendant's testimony would have been at trial but the record is certain that the defendant/appellant was subject to a traffic stop of substantia1 duration by Sergeant Hunter and a non-consensual search of his vehicle during that extended detention.

The Honorable Stephen T. Kroyer should have held a hearing on March 8, 2010 at which defendant/appellant testified. This would have been the hearing on Mr. Munson's motion to quash which should have taken place on December 22,2009. The court would have then been able to rule whether or not there was probable cause to detain the defendant/appellant and whether or not there was probable cause to seize without a warrant.

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ARE VEHICLE rODE INFRACTIONS SUBJECT TO THE GENERAL CRIMINAL LAW UNDER PENAL CODE SECTION 19.7?

The People proceed upon a perception of Vehicle Code infractions as crimes or public offenses and that observance of such an infraction by a peace office provides probable cause to detain or arrest. This is consistent with the trial court's reasoning in this case. However, Penal Code section 689 states that one cannot be convicted of a public offense except by a jury, Only one appellate level court (People v. Sava (1987) 190 Cal. App. 3d 935), has directly addressed this contradiction and held that Vehicle Code infractions are not crimes.

None of the cases cited by the People address the substantive nature of infractions or the contradictions inherent in the presumption that infractions are crimes. This presumption does not appear to have been challenged in any of the cases cited by the People. (People v. Hernandez (2008) 45 Cal. 4th 295,299; People v. Logsdon (2008) 164 Cal. App. 4th 741, 746; People v. Hoyos (2007) 41 Cal. 4th 872, 892; People v. Castellon (1999) 76 Ca1. App. 4th 1369, 1373; People v. Superior Court (Simon) (1972) 7 Cal. 3d 186,200.) It is interesting to note that People v. Superior Court (Simon), supra, clearly states that, while an investigatory detention may be brief, it is nevertheless an arrest until the detained motorist signs the citation to appear.

The responding party has failed to show how § 19.7 of the Penal Code confers jurisdiction to peace officers to arrest or detain on infractions without violating the Fourth Amendment right to be free of unreasonable searches and seizures. The trial judge's assertion that P. C. § 19.7 was controlling was error. Vehicle Code infractions, unless otherwise specified

10

11

in the Vehicle Code, cannot provide a peace officer with the right to arrest or search a motorist. Although current practice is to detain and search after having spotted an infraction, the Vehicle Code does not permit peace officers to do so. There are only certain infractions for which an-est is specifically authorized in the Vehicle Code. They are cve §§27361, 40300.5 and 26710. eve §27610 provides as follows:

"It is unlawful to operate any motor vehicle upon a highway when the windshield or rear window is in such a defective condition as to impair the driver's vision either to the front or rear. In the event any windshield or rear window fails to comply with this code the officer making the inspection shall direct the driver to make the windshield and rear window conform to the requirements of this code within 48 hours. The officer may also arrest the driver and give him notice to appear and further require the driver or the owner of the vehicle to produce in court satisfactory evidence that the windshield or rear window has been made to conform to the requirements of this code."

It should be noted that this specific authority to arrest is granted in very limited situations in the Vehicle Code. It was the obvious intent of the legislature not to make .infractions actions for which arrests could be made.

v.

DID SERGEANT HUNTER FOLLOW APPROPRIATE STATUTORY PROCEDURES IN BRINGING APPELLANT PROPERLY BEFORE THE TRIAL COURT?

While it is true that Sergeant Hunter was found by Judge Kroyer to have followed the required statutory procedures and was properly before the Court, it is also undeniable that all the attempts made by the pro per litigant to ascertain the procedures that Sergeant Hunter followed were met with objections by the Court and the People.

At trial, appellant asked many questions attempting to determine Sergeant Hunter'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. 34,1. 21 through p. 38, 1. 14).

It is hornbook law that, when an arrest or search is made without a warrant, the burden shifts to the prosecution to prove that the arrest was legal or the search was reasonable. People v. Holguin (1956) 145 Cal. App. 2d.520. The evidence at trial showed that Sergeant Hunter was told the defendant had no license and knew the vehicle was not registered. Despite this information, he searched. Sergeant Hunter searched even though he admitted the defendant denied his request to search his vehicle and insisted on asserting his Fourth Amendment rights. (See People. v. Horvath (1982) 127 Cal. App. 3d 398.) The search was unreasonable. If, in fact Sergeant Hunter was authorized to effect a warrantless seizure for a suspected violation of section 4000 (a) of the Vehicle Code, he could have just written the ticket and left the appellant alone without violation of 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.

VI.

DID THE PROSECUTION PROVE THAT SERGEANT HUNTER AS A DEPUTY SHERIFF HAD THE AUTHORITY TO ENFORCE TRAFFIC LAWS IN THE CITY OF AMERICAN CANYON?

The People never proved that a county sheriff has legal authority to enforce the traffic laws in municipal areas. The evidence at

12

trial fell sh011 of this proof and the pro per litigant was prevented from asking questions about the statutory procedures that Sergeant Hunter followed during the traffic stop.

The defendant cannot be asked to prove a negative. It is rather for the prosecution to prove that Sergeant Hunter had followed statutorily authorized procedures. No such proof was made.

The authority of county sheriffs to enforce the laws is defined by the Government Code. Nowhere in the Government Code are Sheriffs given the power to enforce the traffic laws, §26613 of the Government Code is as important for what it doesn't say as what it does say. It says that the Sheriff may enforce traffic laws in the unincorporated area of a county with over 3,000,000 population if the Board of Supervisors grants that authority. Nowhere is it stated that sheriffs deputies can enforce the traffic laws of municipalities. The pro per defendant asked for the peace officer's authority but was blocked at every step from getting an answer.

CONCLUSION

We cannot tell from the record on appeal what appellant would have said with regard to his detention ifhe had testified. We also cannot tell from the record what statutory procedures Sergeant Hunter followed while detaining and citing the appellant.

The appellant and pro per litigant did not have his day in court. He was deprived of several hearings and those denials were prejudicial to his effectively presenting his case. First, he was denied a hearing on his motion to quash. Second, he was not heard as a witness in his own trial. Third, he was not allowed to question Sergeant Hunter about statutory procedures utilized in traffic stops. And finally, at trial, he was not given the opportunity to renew his motion to quash either as a common law suppression motion or motion challenging the jurisdiction of the trial court to proceed.

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The defendant/appellant's only recourse from denial of his due process rights is this appeal and a possible re-trial. Naturally, the People object because they have not wanted defendant/appellant to be heard in any context with regard to this case. Although the appellant's arguments and submissions in this case go against the grain of long-established procedures, he is entitled to have his day in court. He is entitled to be heard and to have his case decided. Unfortunately, the appellant has been deprived of his voice in these proceedings in several instances. These deprivations were a denial of due process and defendant is entitled to redress.

Dated: 10-12-10

DON E. LAUGHRI Attorney at Law

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CERTIFICATION OF NUMBER OF WORDS IN BRIEF

I, DON E. LAUGHRIDGE, certify and declare that the foregoing

brief contains words not including this page or the PROOF OF

----

PERSONAL SERVICE attached hereto. Said word count was achieved on

a functioning Microsoft Word program.

I, DON E. LAUGHRIDGE, declare under penalty of pel jury of the la\vs of the State of California that the foregoing is flue and correct and that this certification was signed by me on October 12, 2010.

D~~~J~

ATTORNEY FOR APPELLANT

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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 to this action. My business address is:

DON E. LAUGHRIDGE, Attorney at Law, 833 Franklin St., Suite 4, Napa, Ca. 94559.

On October 12, 2010, I served the APPELLANT'S REPLY 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

1111 Third St. -""

Napa, Ca. 94559

HONORABLE COMMISSIONER MONIQUE LANGHORNE-JOHNSON Criminal Courts Building

1111 Third St.

Napa, Ca. 94559

I, DON E. LAUGHRIDGE, declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct except as to those 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 October 12,2010, at Napa, California."

DON E. LAUGHRIDGE

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