santa clara traffic ticket 2010 appeal - respondent's opening brief

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA

APPELLATE DEPARTMENT

PEOPLE OF THE STATE OF CALIFORNIA, )) N o . 1-10-AP-000919

Plaintiff and Respondent, )) C a s e No. 7-10-TR-699090

vs.) R E S P O N D E N T ' S

ANTHONY SHAFFER, ) O P E N I N G BRIEF

Defendant and Appellant. )

RESPONDENT'S OPENING BRIEF

ON APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT

OF THE STATE OF CALIFO RNIA

IN AND FOR THE COUNTY OF SANTA CLARA

THE HONORABLE JAMES MADDEN

DOLORES CARR,DISTRICT ATTORNEY, #94406ALEXANDRA WANER ELLIS,VOLUNTEER DEPUTY DISTRICT ATTORNEYLAURA AIZPURU-SUTTON,DEPUTY DISTRICT ATTORNEY, #197438COUNTY GOVERNMENT CENTERWEST WING, 70 W. Hedding StreetSan Jose, California 95110Telephone: (408) 792-2874

Attorneys for the People/Respondent

RESPONDENT'S OPENING BRIEFPeople vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919



PEOPLE OF THE STATE OF CALIFORNIA, ))

Plaintiff and Respondent, ))

vs. ))

ANTHONY SHAFFER, ))

Defendant and Appellant. )

No. 1-1 0-A P-0 0 09 1 9

Case No. 7-10-TR-699090

RESPONDENT'SOPENING BRIEF


ON APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT

OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

THE HONORABLE JAMES MADDEN

DOLORES CARR,DISTRICT ATTORNEY, #94406ALEXANDRA WANER ELLIS,VOLUNTEER DEPUTY DISTRICT ATTORNEYLAURA AIZPURU-SUTTON,DEPUTY DISTRICT ATTORNEY, #197438COUNTY GOVERNMENT CENTERWEST WING, 70 W. Hedding StreetSan Jose, California 95110Telephone: (408) 792-2874

Attorneys for the People/Respondent

RESPONDENT'S OPENING BRIFFPeople vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

I. INTRODUCTION

STATEMENT OF THE CASE AND THE FACTS

LAW AND ARGUMENT

A. APPELLANT IS BARRED FROM BRINGING AN APPEALBEFORE THE APPELLATE DIVISION BECAUSE HE FAILEDTO FIRST SEEK A TRIAL DE NOVO

B. APPELLANT WAIVED HIS CONSTITUTIONAL RIGHT TOBE PRESENT AND TO CONFRONT WITNESSES WHEN HEKNOWINGLY AND VOLUNTARILY ABSENTED HIMSELFFROM THE TRIAL

1. I t is Unsettled Whether Appellant is Constitutionally EntitledTo All Sixth Amendment Protections for a Minor TrafficInfraction

2. The Constitutional Rights to Be Present at Trial and to ConfrontWitnesses Can Be Waived 1 0

3. The Commissioner's Conclusion — That Appellant Knowinglyand Voluntarily Absented Himself Should Be Upheld WhereAppellant Has Provided No Record on Appeal to AffitinativelyProve a Claim of Error

4. Based On All the Circumstances Now Before the Court, It IsClear That Appellant Waived His Trial Rights By Knowinglyand Voluntarily Absenting Himself From the Proceedings

C. NEITHER VEHICLE CODE § 40903 NOR LOCAL CRIMINALRULE OF COURT 12 IS VOID FOR VAGUENESS 1 6

D. APPELLANT SHOULD NOT BE PERMITTED TO BENEFITFROM HIS OWN WRONG 1 9

IV. C ON C L U S ION 2 1


1

3

5

5

9

9

12

15

TABLE OF AUTHORITIES

Diaz v. United States (1912) 223 U.S. 442 20

Illinois v. Allen (1970) 397 U.S. 337 20

Lockheed Aircraft Corp. v. Superior Court (1946) 28 Ca1.2d 481 17

Lyng v Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439 2

People v. Concepcion (2008) 45 Ca1.4-th 7 7 1 0 ,

11, 20

People v. Connolly (1973) 36 Cal.App.3d 379 1 1 , 12, 15

People v. Disandro (2010) 186 Cal.App.4-th 5 9 3

9, 13

People v. Dixon (2007) 153 CalApp.4th 985 12

People v. Edwards (1991) 54 Ca1.3d 787 13

People v. Gordon (1990) 50 Ca1.3d 1223 13

People v. Hard (2003) 112 Cal.App.4th 272 16

People v. Kennedy (2008) 168 Cal.App.4th 1233 2, 6

People v. Neilson (2007) 154 Cal.App.4th 1529 13, 14

People v. Rubalcava (2000) 23 Ca1.4th 322 16

People v. Siegenthaler (1972) 7 Ca1.3d 465 14

People v. Williams (1976) 16 Ca1.3d 663 2

Santa Clara County Local Transportation Authority v. Guardino (1995)11 Ca1.4th 220 2

Scott v. Illinois (1979) 440 U.S. 367 9

Taylor v. United States (1973) 414 U.S. 17 11

United States v. Batchelder (1979) 442 U.S. 114 17-18

STATE STATUTES

Evidence Code §452(d) 3

Evidence Code 059 3

Penal Code §19.7 1 2


lit

Penal Code §1043

Veh. Code § 26708(a)(1)

Veh. Code § 40500

Veh. Code § 40901(c)

Veh. Code § 40903

Veh. Code § 40902

OTHER AUTHORITIES

Cal. Rules of Court, rule 4.210

Santa Clara County Local Criminal Rule of Court, rule 12

Santa Clara County Local Criminal Rule of Court, rule 11

3,

1,

5, 7,

11-13, 15

3, 4, 6, 7

7, 187

passim

8, 12, 19

6-8

5, 17-197




PEOPLE OF THE STATE OF CALIFORNIA, ))

Plaintiff and Respondent, ))

vs. ))

ANTHONY SHAFFER, ))

Defendant and Appellant. ))


I. I N T R O D U C T I O N

1

No. 1-10-AP-000919

Case No. 7-10-TR-699090

RESPONDENT' SOPENING BRIEF

On March 30, 2010, Anthony Shaffer (hereinafter "Appellant") was cited

for a violation of Vehicle Code § 26708(a)(1) (material obstructing or reducing

driver's view). Appellant failed to respond to the citation or appear on the date

indicated on the notice to appear. On July 12, 2010, the Santa Clara County

Superior Court sent Appellant a Notice of Failure to Appear and Civil Assessment.

Appellant did not respond to the notice. On September 2, 2010, Commissioner

James Madden of the Santa Clara County Superior Court held a trial by written

declaration in absentia wherein Appellant was found guilty of violating Vehicle

Code § 26708(a)(1) and was ordered to pay a fine of $474.00.

Appellant challenges his conviction on the following grounds: (1) the trial


by declaration in absentia violated Appellant's constitutional right to be present

and to confront witnesses; (2) the trial court exceeded its judicial discretion and/or

was not permitted to conduct the trial by declaration in absentia; and (3) the

Vehicle Code section and local court rule that peimits trials by declaration are too

vague to be operative.

As both the United States Supreme Court as well as the California Supreme

Court have recognized, "[a] fundamental and longstanding principle of judicial

restraint requires that courts avoid reaching constitutional questions in advance of

the necessity of deciding them." (Santa Clara County Local Transportation

Authority v. Guardino (1995) 11 Ca1.4th 220, 230-231 [quoting Lyng v. Northwest

Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445].) "Applying that principle,

the high court observed that i f statutory relief had been adequate in the case before

it, 'a constitutional decision would have been unnecessary and therefore

inappropriate." (I d . ; s e e a l s o P e o pl e v . W i l li a ms ( 19 76 ) 16 C a1 .3 d 663, 667

superseded by statute on other grounds.)

Without addressing Appellant's constitutional claims, this appeal may be

resolved on the basis that Appellant is barred from appealing his conviction

because he failed to first seek a timely trial de novo. (People v. Kennedy (2008)

168 Cal.App.4th 1233, 1241.) However, even i f this Court considers the

constitutional claims raised by Appellant, the verdict should be affirmed because:

(1) Appellant waived his constitutional right to be present and to confront

2


witnesses when he knowingly and voluntarily absented himself from the trial; (2)

the trial was properly conducted by declaration in absentia pursuant to Penal Code

§1043(e) and Vehicle Code §40903(a) when Appellant failed to appear or respond

to his multiple court notices; and (3) neither Vehicle Code §40903 nor Local

Criminal Court Rule 12 is void for vagueness.

STATEMENT OF THE CASE AND THE FACTS'

On March 30, 2010, Appellant was cited for a violation of California

Vehicle Code §26708(a)(1). The citation was written on a California Judicial

Council Form TR-130. Appellant signed the citation, which read, "Without

admitting guilt, I promise to appear at the time and place indicated below." The

citation indicated that Appellant was required to appear on June 3, 2010 at the

Superior Court located at 1095 Homestead Road, Santa Clara, CA 95050. A

telephone number for the Superior Court was also written on the bottom of the

citation.

In addition to the notice of Appellant's court date, the citation indicated that

Appellant was to follow the instructions on the reverse of the citation. The back of

the citation contained the following warning:

...any person who fails to appear as provided by law may be deemed tohave elected to have a trial by written declaration (in absentia) pursuant to

I All documents and fauns referred to can be found in the Appellate File in this case. Respondent requeststhat this Court take judicial notice of the contents of these folios pursuant to Evidence Code §§452(d) and459.

3


section 40903(a) VC upon any alleged infraction, as charged by thearresting/citing officer.

Appellant failed to respond to the citation or appear in court on June 3, 2010.

On July 12, 2010, the Superior Court of California, County of Santa Clara

mailed a Notice of Failure to Appear and Civil Assessment to Appellant's address

listed on the citation, which is the same address that appears on the title page of

Appellant's Opening Brief (hereinafter "AOB") and Appellant's Notice of Appeal.

The Notice stated that Appellant was to elect one of the following options and

return the Notice by July 27, 2010: (1) pay the ticket; (2) show proof of correction;

(3) request traffic school; or (4) schedule a court appearance. The Notice also

contained the following warning in bold at the bottom of the page:

Your failure to comply with one of the options above by the due date willbe deemed your consent to Trial by Written Declaration (in Absentia)pursuant to Vehicle Code Section 40903, thereby waiving your right to bepresent at trial, to testify and/or present evidence on your behalf, to berepresented by an attorney, to confront and cross-examine the witnessesagainst your, and to use the subpoena power of the court to compel theattendance of witnesses on your behalf.

Appellant failed to respond to the Notice.

On September 2, 2010, a trial by declaration in absentia was held in the

Santa Clara County Superior Court. Commissioner James Madden found

Appellant guilty of violating Vehicle Code § 26708(a)(1) and ordered him to pay a

fine of 8474.00. The Superior Court mailed a Decision and Notice of Decision to

Appellant at the address listed on the citation, which is the same address that

appears on the title page of AOB and Appellant's Notice of Appeal. The following4


information was contained at the bottom of the Decision in all capital letters: " I f

you wish to request a new trial (trial de novo), you must submit a request and pay

the fine amount of $174.00 (in cash, money order or cashier's check) within 20

days (plus 5 mailing days) of the clerk's certificate o f mailing to the Superior

Court."

There is no indication in the court file that Appellant has filed a California

Judicial Council Form TR-220 "Request for New Trial (Trial de Novo)." Rather,

Appellant directly filed a Notice of Appeal on September 24, 2010.

Appellant has elected to proceed without a record of oral proceedings in the

trial court to the appellate division, pursuant to California Rule of Court 8.910.

(See Appellant's Form CR-142, filed September 24, 2010)

L AW AND ARGUMENT

A. A P P E L L A N T IS BARRED FROM BRINGING AN APPEALBEFORE THE APPELLATE DIVISION BECAUSE HE FAILED TOFIRST SEEK A TRIAL DE NOVO

Vehicle Code §40903(a) plainly states, "[a]ny person who fails to appear as

provided by law may be deemed to have elected to have a trial by written

declaration upon any alleged infraction, as charged by the citing officer, involving

a violation o f this code or any local ordinance adopted pursuant to this code."

(Veh. Code § 40903(a) [emphasis added]; see Santa Clara County Local Criminal

Rule of Court, rule 12.) Vehicle Code §40902, which governs trials by written5


declaration, provides that i f a defendant is dissatisfied with the result of his trial by

written declaration, the defendant shall be granted a trial de novo. However, i f a

defendant's request for a trial de novo is not timely received, "... no new trial may

be held and the case must be closed." (Cal. Rules of Court, rule 4.210(b)(7).)

In construing the statutes and court rules governing trials by declaration and

their review, the Court of Appeal held that a defendant convicted of a Vehicle

Code infraction after a trial by declaration may appeal to the Appellate Division

only i f the defendant is first convicted again following a trial de novo. (People v.

Kennedy, supra, 168 Cal.App.4th at 1241.) As Appellant was properly deemed to

have elected a trial by written declaration, which resulted in a subsequent

conviction, Appellant similarly cannot bring this appeal unless he has first timely

requested, and has received, a trial de novo.

On March 30, 2010, Appellant was cited for a violation of California

Vehicle Code §26708(a)(1). Appellant signed the citation, promising to appear on

June 3, 2010 at the Santa Clara County Superior Court. Additionally, the citation

indicated that Appellant was to follow the instructions on the reverse of the

citation, which warned a failure to appear may be deemed an election to have a

trial by written declaration (in absentia). Appellant failed to respond to the citation

or appear in court on June 3, 2010.

On July 12, 2010, the Santa Clara County Superior Court mailed a Notice

of Failure to Appear and Civil Assessment to Appellant's address listed on the

6


citation, the same address that appears on the title page of AOB and Appellant's

Notice of Appeal. The Notice stated that Appellant was to elect one of several

options, which included scheduling a court appearance, and return the Notice by

July 27, 2010. The Notice also warned that Appellant's failure to respond would

be deemed consent to a trial by written declaration in absentia and, in compliance

with Vehicle Code §40901(c), a waiver of Appellant's trial rights. Appellant failed

to respond to the Notice or elect to proceed by means of a court appearance.

Accordingly, Appellant was properly deemed to have elected a trial by

declaration. (See Veh. Code § 40903(a).)

On September 2, 2010, a trial by declaration in absentia was held in the

Santa Clara County Superior Court. Pursuant to Vehicle Code §§40903(b) and

40902(c), Commissioner Madden considered the notice to appear issued in

accordance with Vehicle Code 00500 and found Appellant guilty of violating

Vehicle Code §26708(a)(1). In accordance with Local Criminal Rule 11,

Appellant was notified of the disposition of his case, the amount of imposed fines

and fees, and his right to request a trial de novo within a specified period of time.

Appellant asserts that the trial by declaration in his case did not meet the

"minimum requirements" for a trial by declaration set forth in California Rule of

Court 4.210(b) - namely a solicitation of the officer's testimony and a written

waiver of the defendant's constitutional rights. Here, Appellant did not request a

trial by declaration in accordance with Vehicle Code §40902, but instead was

7


deemed to have elected a trial by declaration by default pursuant to Vehicle Code

00903. California Rule of Court 4.210(b) contemplates the participation of an

Appellant requesting the convenience of a trial by declaration pursuant to Vehicle

Code 00902. Notably, the "minimum requirements" which Appellant refers to on

page 17 o f his brief are triggered only i f Appellant is active participant in the

process. Fo r example, the "requirement" that the clerk o f the court send a TR-200

form to an Appellant is triggered only "[ i ] f the clerk receives the defendant's

written request for a trial by written declaration...." (See California Rule of Court

4.210(b)(2)). Also, the "requirement" that the court clerk must deliver or mail to

the arresting officer's agency Notice and Instructions to Arresting Officer (Foil -1TR-210) and Officer's Declaration (Form TR-235), is similarly triggered only "[i ]f

the clerk receives the defendant's Request for Trial by Written Declaration (form

TR-205) and bail by the due date...." Accordingly, Appellant's trial was properly

conducted according to Vehicle Code §§40902 and 40903 and is, consequently,

subject to the requirement that Appellant first request a trial de novo before

seeking an appeal before this Court.

There is no indication in the court file that Appellant has filed a California

Judicial Council Form TR-220 "Request for New Trial (Trial de Novo)." Rather, i t

appears that Appellant directly filed a Notice of Appeal on September 24, 2010,

before exhausting the procedure of requesting a trial de novo. Accordingly,

Appellant is barred from bringing this appeal.

8


B. A P P E L L A N T WAIVED HIS CONSTITUTIONAL RIGHT TO BEPRESENT AND TO CONFRONT WITNESSES WHEN HEKNOWINGLY AND VOLUNTARILY ABSENTED HIMSELFFROM THE TRIAL

I. I t is Unsettled Whether Appellant is Constitutionally EntitledTo Al l Sixth Amendment Protections for a Minor TrafficInfraction

In a recent decision by the California Court of Appeal, the court noted that

it was "...unable to locate any case in which the United States Supreme Court has

specifically addressed the extent to which the Sixth Amendment right to

confrontation applies in minor traffic infraction cases where a loss of liberty is not

involved." (People v. Disandro (2010) 186 Cal.App.4th 593, 600.) The court went

on to state:

To the contrary, the United States Supreme Court has in at least two caseslimited the rights afforded by the Sixth Amendment to more seriouscriminal matters. For example, in Scott v. Illinois (1979) 440 U.S. 367, 371-374, 99 S.Ct. 1158, 59 L.Ed2d 383, the United States Supreme Court heldthe Sixth Amendment right to counsel is limited to criminal cases whichactually lead to imprisonment. In addition, the Sixth Amendment right to ajury trial does not extend to petty offenses involving a sentence ofimprisonment for six months or less. [Citation.] In other words, i t isuncertain whether the Sixth Amendment right to confrontation afforded todefendants "[i ]n all criminal prosecutions," [citation] would apply fully andcompletely in minor traffic infraction cases that are not punishable byimprisonment under California law. Therefore, without more, we cannotconclude defendant has a viable claim she was denied her federalconstitutional right of confrontation under the Sixth Amendment becausethe traffic court proceeded with her minor traffic infraction case while shewas not present.

(Id.) The court further examined the limitations of the protection provided by the

9

RESPONDENT'S OPENING BRIEFPeople vs. Anthony Shaffer, Appeal from Superior Court No. 140-AP-000919

California Constitution to persons charged with infractions:

Under California statutory law, a person charged with an infraction hassome, but not all, o f the constitutional rights afforded a defendant in amisdemeanor criminal prosecution. For example, Penal Code section 19.6specifically states that a person charged with an infraction does not have aright to appointed counsel or a trial by jury. Instead, "[t]rial of an infractionshall be by the court...." [Citation.]

(Id. at 600-601.)

Accordingly, i t is unsettled whether Appellant enjoys all o f the Sixth

Amendment guarantees, including the right to confrontation, for a minor traffic

infraction case such as this.

2. The Constitutional Rights to Be Present at Trial and toConfront Witnesses Can Be Waived

Even i f Appellant is entitled to all Sixth Amendment protections for a

minor traffic infraction, which Respondent does not concede, Respondent

alternatively argues that the right to be present and the right to confront witnesses

are constitutional rights which can be waived.

The California Supreme Court has recognized:

A criminal defendant's right to be personally present at trial is guaranteedunder the federal Constitution by the confrontation clause of the SixthAmendment and the due process clause of the Fourteenth Amendment. It isalso required by section 15 o f article I of the California Constitution and bysections 977 and 1043. [Citations.]

(People v. Concepcion (2008) 45 Ca1.4th 77, 81.) Notably, in that same opinion,

10


the California Supreme also stated: "The right to be present [at trial] may be

waived, however. [Citations.] Waiver may be express or implied. [Citations.]"

(People v. Concepcion, supra, 45 Ca1.4th at 82 [Emphasis added].) Thus, the

court should look to a defendant's conduct to determine whether there was an

implied waiver of his right to be present at his own infraction trial — as by his

knowing and voluntary failure to appear. (See Taylor v. United States (1973) 414

U.S. 17, 19-20 [a defendant's voluntary absence from trial may be properly

construed as an effective waiver of right to be present]; People v. Connolly (1973)

36 Cal.App.3d 379, 384-385 [a defendant's voluntary absence from trial may be

construed as a waiver of the right to be present i f the absence was knowing and

voluntary].)

In determining whether a defendant voluntarily absented himself from his

own trial, the California Supreme Court considered the application of Penal Code

§1043 (statutory waiver of right to be present at trial) — without any finding that

Penal Code §1043 was unconstitutional. (People v. Concepcion, supra, 45 Ca1.4th

at 83-86) With regard to defendants in misdemeanor cases, Penal Code §1043

states, in relevant part, that:

(e) I f there is no authorization pursuant to subdivision (a) of Section977 and i f the defendant fails to appear in person at the time set for trialor during the course of trial, the court, in its discretion, may do one ormore of the following, as it deems appropriate:

(4) Proceed with the trial i f the court finds the defendant hasabsented himself voluntarily with full knowledge that the trial is to beheld or is being held.

11


(Id. [Emphasis added].)

The "knowing and voluntary" requirement of Penal Code §1043(e) mirrors

the requirement for the waiver of a constitutional right. (See e.g., People v. Dixon

(2007) 153 Cal.App.4th 985, 990 ["A defendant's waiver of the right to a jury trial,

as with other fundamental rights, however, may be accepted by the court only i f

done in a knowing, intelligent, and voluntary manner"]); see also, People v.

Connolly, supra, 36 Cal.App.3d at 384.)

Respondent asserts that Appellant's conviction was the result of a trial by

written declaration, as governed by Vehicle Code §§40902 and 40903, and not a

trial in absentia, as governed by Penal Code §1043(e). However, should the court

disagree, Respondent argues in the alternative that Appellant impliedly waived his

constitutional rights pursuant to Penal Code §1043(e). Pursuant to Penal Code

§19.7, except as otherwise provided by law, all provisions of law relating to

misdemeanors also apply to infractions. Thus, the portions of Penal Code §1043

relating to misdemeanants also apply to Appellant.

3. Th e Commissioner's Conclusion — That Appellant Knowinglyand Voluntarily Absented Himself Shou ld Be UpheldWhere Appellant Has Provided No Record on Appeal toAffirmatively Prove a Claim of Error

Under Penal Code §1043(e), the Commissioner was entitled to proceed

with trial, despite Appellant's absence, so long as the Commissioner found that

12


Appellant had: (a) voluntarily absented himself from the trial, (b) with full

knowledge that the trial was to be held. Recently, an appellate court further

explained the requirements of Penal Code §1043:

A trial court abuses its discretion under Penal Code section 1043 i f itproceeds with the trial without an adequate showing that the defendant'sabsence is a knowing and voluntary one. [Citation.] Before i t can make afinding that a defendant's absence is knowing and voluntary, a trial courtmust make reasonable inquiry and have 'sufficient facts before it.'[Citation.] The defendant must be given a 'ful l opportunity to explain hisabsence.' [Citation.] The court cannot 'look solely at the facts initiallybefore the court' but must base its deteimination 'upon the totality of thefacts; not just a portion of them.' [Citation.] 'Mere absence standing aloneis purely equivocal.' [Citation.]

(People v. Disandro (2010) 186 Cal.App.4th 593, 602 [trial court made no inquiry

on the record of whether defendant's absence was knowing and voluntary, but

ultimately finding harmless error].)

In the case at bar, Appellant has elected to proceed with his appeal without

a record of the proceedings. Thus, there are no trial court findings regarding

Appellant's absence within the record on appeal. In the absence of such a record,

Respondent requests that this Court hold that no error with respect to the

commissioner's findings occurred.

Appellate review is limited to matters contained within the record on

appeal. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534) It is Appellant's

burden to provide an adequate appellate record. (People v. Gordon (1990) 50 Cal.

3d 1223, 1250 overruled on other grounds in People v. Edwards (1991) 54 CaL3d

787, 835.) Without such a record of the oral proceedings, Appellant has not met13


his burden to show that the trial court committed error. Furthermore, Appellant's

failure to provide an adequate record precludes consideration of his contentions on

appeal. (See People v. Siegenthaler (1972) 7 Ca1.3d 465, 469; see also People v.

Neilson, supra,154 Cal.App.4th at 1534).

In People v. Neilson, a defendant appealed a traffic infraction in pro per and

failed to provide the appellate division with a record of oral proceedings in the

trial court (either a transcript or settled statement). (Neilson, supra, 154

Cal.App.4th at 1531) The court found no requirement under Government Code

08081 to afford a pro per litigant an opportunity to address the issue of an

inadequate record even i f the lack of record was the grounds for affirming a

judgment on appeal. (Id. at 1534) The court acknowledged that while it may be

difficult for persons proceeding in pro per to navigate the appellate process, there

is no special exemption in the California Rules of Court for pro per litigants. The

appellate court affirmed the defendant's conviction. (Id.)

Respondent here similarly requests that this Court hold that the trial court

committed no error regarding its finding that Appellant knowingly and voluntarily

absented himself, in the absence of a record on appeal which affirmatively shows

error in the trial court proceedings.

14


4. Based On All the Circumstances Now Before the Court, It IsClear that Appellant Waived His Trial Rights By Knowinglyand Voluntarily Absenting Himself From the Proceedings

On appeal the reviewing court must deteimine on the whole record,

whether Appellant's absence was knowing and voluntary. (People v. Connolly

(1973) 36 Cal.App.3d 379, 385) Penal Code §1043(b)(2) is similar to Penal Code

§1043(e) in that it requires a finding that a defendant "voluntarily" absented

himself from proceedings. On the issue of "voluntarily absenting" oneself under

Penal Code §1043(b)(2), the court in People v. Connolly stated:

Unquestionably section 1043, subdivision (b)(2), was designed to preventthe defendant from intentionally frustrating the orderly processes of his trialby voluntarily absenting himself. A crucial question must always be, 'Whyis the defendant absent?' This question can rarely be answered at the timethe court must deteimine whether the trial should proceed. Consequently, inreviewing a challenge to the continuation of a trial pursuant to Penal Codesection 1043, subdivision (b)(2), i t must be recognized that the court'sinitial determination is not conclusive in that, upon the subsequentappearance o f the defendant, additional information may be presentedwhich either affilins the initial decision of the court or demands thatdefendant be given a new trial. It is the totality of the record that must bereviewed in determining whether the absence was voluntary.

(Id. at 384-385 [emphasis added].) The court also considered whether or not that

defendant made any "reasonable effort" to contact the court or counsel. (Id.)

As mentioned previously, Appellant's absence is the exclusive result of his

failure to respond in any manner to his Notice to Appear and his Notice of Failure

to Appear and Civil Assessment, both of which contained warnings that a failure

to respond would result in the now complained-of actions, including a waiver of

15


Appellant's constitutional rights. In addition, AOB contains multiple admissions

regarding his knowing and voluntary failure to appear. Indeed, on page 4 of AOB,

Appellant states, "[u]nquestionably the appellant could have been more diligent in

the case." Appellant then states on page 6 of AOB, "...i t is true that there would

be no questions of law had the defendant simply appeared as promised..." In other

words, Appellant had notice of his court appearances and simply elected not to act.

Based on the totality of the record, i t is clear that Appellant knowingly and

voluntarily absented himself. Accordingly, Appellant waived his right to be

present and to confront witnesses. Any such argument that the trial conducted by

written declaration in absentia violated Appellant's constitutional rights is, thus,

without merit.

C. N E I T H E R VEHICLE CODE § 40903 NOR LOCAL CRIMINALRULE OF COURT 12 IS VOID FOR VAGUENESS

"A law is void for vagueness only i f it 'fails to provide adequate notice to

those who must observe its strictures and 'impermissibly delegates basic policy

matters to policemen, judges, and juries for resolution on an ad hoc and subjective

basis, with the attendant dangers of arbitrary and discriminatory application."

[Citations.]" (People v. Hard (2003) 112 Cal.App.4th 272, 281 [quoting People v.

Rubaleava (2000) 23 CalAth 322].) "Al l presumptions and intendments favor the

validity of a statute and mere doubt does not afford sufficient reason for a judicial

declaration of invalidity. Statutes must be upheld unless their unconstitutionality16


clearly, positively and unmistakably appears. [Citations.]" (Lockheed Aircraft

Corp. v. Superior Court (1946) 28 Ca1.2d 481, 484.) A statute "cannot be held

void for uncertainty i f any reasonable and practical construction can be given to its

language." (Id.)

AOB appears to raise two challenges to Vehicle Code §40903(a) and Local

Criminal Rule 12 on the ground that each provision is impermissibly vague. As

explained below, both challenges are without support.

Appellant first contends that Vehicle Code §40903(a) is impermissibly

vague because the Legislature failed to mandate a trial by written declaration upon

a defendant's failure to appear. Contrary to Appellant's assertion, that the court is

given some discretion as to whether to proceed by means o f a trial by declaration

or by some other means when a defendant fails to appear does not support a

finding that the Legislature impeimissibly delegated basic policy matters to the

courts.

In United States v. Batchelder (1979) 442 U.S. 114, the United States

Supreme Court held that the existence of two overlapping statutes available to

prosecute a particular defendant at the prosecutor's discretion did not give rise to

an impermissible delegation of basic policy matters. Specifically, the Court found:

The provisions at issue plainly demarcate the range of penalties thatprosecutors and judges may seek and impose. In light of that specificity, thepower that Congress has delegated to those officials is no broader than theauthority they routinely exercise in enforcing the criminal laws. Havinginfoimed the courts, prosecutors, and defendants of the permissible

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punishment alternatives available under each Title, Congress has fulfilledits duty.

(Id. at 126.)

Similarly, here, the Legislature has infoli led the courts, prosecutors, and

defendants of the permissible courses of action available when a person fails to

appear — including the possibility that a person may be deemed to have elected a

trial by written declaration. That the court may elect one course of action or

another does not, without more, support the assertion that Vehicle Code 00903 is

impermissibly vague.

Appellant further contends that Vehicle Code §40903(a) is vague as to

whether the court can impose a trial by written declaration or a trial in absentia. In

support of this argument, Appellant asserts that Local Criminal Rule 12, which

governs trials by declaration, fails to explain what makes a case eligible for trial in

absentia. Both arguments are without merit.

Local Criminal Rule 12 provides, in relevant part:

The Court adopts the trial by declaration process defined in Vehicle Code §40902. Additionally, pursuant to Vehicle Code § 40903, any person whofails to appear as provided by law may be deemed to have elected to have atrial by written declaration upon any alleged infraction, as charged by theciting officer, involving a violation of the Vehicle Code or any localordinance adopted pursuant to the code. In eligible cases the court willconduct the trial in absentia and it will be adjudicated on the basis of thenotice to appear issued pursuant to Vehicle Code § 40500 and any businessrecord or receipt, sworn declaration of the arresting officer, or writtenstatement or letter signed by the defendant that is in the file at the time thetrial by declaration is conducted.

(Emphasis added.) When read as a progressive whole rather than in a vacuum, i t is18


clear that "eligible cases" merely refers to those cases that may be held by means

of a trial by declaration. In other words, what make a case eligible to be heard in

absentia by the declarations and documents contained within the file, is that the

case meets the requirements of Vehicle Code 00903 (the defendant failed to

appear) or §40902 (the defendant affirmatively elected to proceed by declaration).

Furthermore, when Local Criminal Rule 12 is read together with Vehicle

Code §40903(a), i t is clear that the "trial in absentia" refers to the parties' physical

absence during the adjudication of the case by written declaration and not to some

other method of trial the court may utilize. Stated differently, the "trial in

absentia" referred to in Local Criminal Rule 12 is merely the procedure by which

the trial by declaration must proceed. Accordingly, there is no ambiguity or

vagueness as to whether and in what circumstances a court may hold a trial by

declaration or a trial in absentia.

D. A P P E L L A N T SHOULD NOT BE PERMITTED TO BENEFITFROM HIS OWN WRONG

In the context of felony cases in which a defendant fails to appear during an

ongoing trial or is removed from the courtroom during trial for unruly behavior,

courts have repeatedly stated:

Neither in criminal nor in civil cases will the law allow a person to takeadvantage of his own wrong. Any yet this would be precisely what it woulddo i f it permitted an escape from prison, or an absconding fro thejurisdiction while at large on bail, during the pendency of a trial before ajury, to operate as a shield.

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(Diaz v. United States (1912) 223 U.S. 442, 458; People v. Concepcion, supra, 45

Ca1.4th at 82; see Illinois v. Allen (1970) 397 U.S. 337, 350.)

Although the holdings of these cases are inapplicable to the present case, as

they involve constitutional limits on trials in absentia for felony defendants, the

aforementioned statement and underlying policy considerations are certainly

applicable to this case. Indeed, Appellant is asking this Court to find that, although

he was given every opportunity to appear in court and present a defense but

knowingly and voluntarily elected not to do so, his conviction should be reversed

on the basis that he was not present in court. Such a holding would peimit any

person cited for a traffic violation to simply do nothing and have any subsequent

conviction overturned on appeal, thus benefitting from his or her own wrong.

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