From: rjc@devo.unify.com (Ronald Cole)
Subject: PEOPLE v. OPPENHEIMER, 42 Cal.App.3d Supp. 4
Organization: Unify Corporation, Sacramento, California
Distribution: ca
Date: 11 Oct 92 19:32:14

Here it is, your "inviolate" right to a jury trial going *poof*...
[this "infraction" business was started in 1969 and the final blow was
to have been dealt in 1980 when the Legislature attempted to change
Section 17 of the California Penal Code to remove your right to elect
to have an infraction proceed as a misdemeanor (and thus get your jury
trial and public defender).  However, Stats 1985 ch 265 repealed the
change and the language of 17(d)(1) suggests that the court *must*
inform you of this right.  Just a straw poll, how many of you have
been told of this right?]

Take note at how the judge relates "That's clearly what the
Constitution says, son, but that's not what it means!  Now lissen up
and lemme tell ya *all* about it..."

			42 Cal.App.3d Supp. 4

		The PEOPLE, Plaintiff and Respondent,

				  v.

		    John G. OPPENHEIMER, Defendant
			    and Appellant.

			  Cr. A. No. 12647.

		Appellate Department, Superior Court,
			 Los Angeles County.
 
			    Aug. 14, 1974.

     Defendant was convicted of failing to stop for a traffic signal,
after being denied a jury trial in the Municipal Court, Maurice J.
Hindin, J.  Defendant appealed.  The Appellate Department, Superior
Court, Cole, J., held that the charge of running a red light, where no
claim was made that defendant's driving record was endangered or that
a license was necessary for his livelihood, was a "petty" offense, and
defendant had no constitutional right to jury trial.

     Affirmed.


1. Statutes

     All sections of Penal Code were to be read together, giving
effect in case of conflict to latest enacted sections, and construing
provisions of sections according to fair import of their terms with
view to effecting their objective and to promoting justice.  West's
Ann.Pen.Code, sects. 4, 16, 16c, 19d, 689, 1042.5

2. Jury

   Statutes
     Statute providing that person charged with infraction shall not
be entitled to public defender unless he was arrested and not released
and statute providing that, with exception, provisions of law relating
to misdemeanors shall apply to infractions are to be read together to
qualify, insofar as infractions are concerned, statute providing that
person cannot be convicted of public offense except by jury verdict,
unless jury has been waived or plea of guilty has been entered.
West's Ann.Pen.Code, sects. 4, 19c, 689, 1042.5.

3. Automobiles

     Unless otherwise expressly provided, any Vehicle Code violation
is an infraction.  West's Ann.Vehicle Code, sects. 12809, 12810,
21453, 22700, 23103, 23104,40000.1 et seq., 40000.15, 42001(a),
42001.5, 42001.7, 42003(a), 42005, 42030.

4. Jury

     If there was right to trial by jury before adoption of
constitution, there is right to such trial in cases of same class
arising thereafter.  West's Ann.Const. art. 1, sect. 7; U.S.C.A.Const.
art. 3, sect. 2; Amends. 6, 14;  West's Ann.Pen.Code, sect 19c.

5. Jury

     Under either state or federal constitutional guarantees of trial
by jury, petty criminal offenses against statutes or municipal
ordinances, not triable by jury when constitution was adopted, remain
triable without jury.  West's Ann.Const. art. 1, sect. 7;
U.S.C.A.Const. art. 3, sect. 2; Amends. 6, 14; West's Ann.Pen.Code,
sect. 19c.

6. Constitutional Law

     Federal constitutional provisions relating to jury trials are
applicable to states through Fourteenth Amendment.  West's Ann.Const.
art. 1, sect. 7; U.S.C.A.Const. art. 3, sect. 2; Amends. 6, 14; West's
Ann.Pen.Code, sect. 19c.

7. Jury

     If nature of offense is not serious, court looks to potential
penalty to classify offense as serious or petty, for determination of
right to jury trial.  West's Ann.Const. art. 1, sect. 7;
U.S.C.A.Const. art. 3, sect. 2; Amends. 6, 14; West's Ann.Pen.Code,
sect. 19c.

8. Jury

     Charge of running red light, where no claim was made that
defendant's driving record was endangered or that license was
necessary for his livelihood was "petty" offense, and defendant had no
constitutional right to jury trial.  West's Ann.Vehicle Code, sects.
12809, 12810, 21453, 22700, 23103, 23104, 40000.1 et seq., 40000.15,
42001(a), 42001.5, 42001.7, 42003(a), 42005, 42030; West's
Ann.Pen.Code. sects. 4, 16, 19c, 19d, 689, 1042.5; West's Ann.Const.
art. 1, sect. 7; U.S.C.A.Const. art. 3, sect. 2; Amends 6, 14.

		     -------------*-------------

     John G. Oppenheimer, in pro. per.

     Burt Pines, City Atty., and Margaret S. Henry, Deputy City Atty.,
for plaintiff and respondent.

			 OPINION AND JUDGMENT

     COLE, Judge.

     The principal question presented by this appeal is whether a
defendant who has been charged with, and convicted of, the commission
of an infraction in violation of section 21453 of the Vehicle Code was
unconstitutionally deprived of the right to a jury trial.  We hold
that such a defendant is not entitled to a jury trial and affirm the
judgment.

     On March 22, 1974, defendant received a citation alleging that in
violation of section 21453 of the Vehicle Code he failed to stop for a
traffic signal which required him to do so.  Thereafter, a complaint
was issued charging the same offense.  Although the record is not
entirely clear, it appears that on April 9, 1974 defendant moved to
dismiss on the ground that he was entitled to a jury trial.  The
motion was denied and he was tried by the court alone.  Having been
found guilty, the court sentenced him to pay a fine in the sum of $10
and to pay a penalty assessment in the amount of $5.50.  This appeal
followed.

     In 1968 the Legislature enacted various statutes creating a class
of offenses known as "infractions" (Stats.1968, ch. 1192).  Among
other things section 16 of the Penal Code was amended to read: "Crimes
and public offenses include: 1. Felonies; 2. Misdemeanors; and 3.
Infractions."

     Section 19c was added to the same code to read: "An infraction is
not punishable by imprisonment.  A person charged with an infraction
shall not be entitled to a trial by jury.  A person charged with an
infraction shall not be entitled to have the public defender or other
counsel appointed at public expense to represent him unless he is
arrested and not released on his written promise to appear, his own
recognizance, or a deposit of bail."

     Penal Code section 19d was enacted as follows: "Except as
otherwise provided by law, all provisions of law relating to
misdemeanors shall apply to infractions, including but not limited to
powers of peace officers, jurisdiction of courts, periods for
commencing action and for bringing a case to trial and burden of
proof."

     Section 1042.5 was also added to the Penal Code.  Insofar as is
directly relevant here it provides, "Trial of an infraction shall be
by the court, . . ."

     Defendant grounds his claim of entitlement to a jury on the
seemingly absolute language of Article I, section 7 of the California
Constitution which provides that "the right of trial by jury shall be
secured to all, and remain inviolate . . . ." ^1

     [1, 2] In implementation of the constitutional language, section
689 of the Penal Code provides, "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." ^2

     [3] Article 1 of chapter 1 of division 17 of the Vehicle Code
(commencing with section 40000.1) deals with criminal violations of
that code.  Vehicle Code section 40000.1 reads as follows: "Except as
otherwise provided in this article, it is unlawful and constitutes an
infraction for any person to violate, or fail to comply with any
provision of this code or any local ordinance adopted pursuant to this
code."  The balance of the article specifies certain offenses, not
including the one here involved, as constituting misdemeanors or
felonies.  Therefore unless otherwise expressly provided, any Vehicle
Code violation is an infraction.

     Vehicle Code section 42001, subdivision (a) provides that with
certain exceptions ^3 persons convicted of infractions for violation
of the code or ordinances adopted pursuant thereto, shall be punished
by a fine not exceeding $50, for second convictions within one year by
a fine not exceeding $100, and for third convictions by a fine not
exceeding $250.  No imprisonment or other incarceration is provided
for. ^4

     Concerning the right to jury trial in California, our Supreme
Court has said (adopting an opinion written for the then District
Court of Appeal): "[T]he right to trial by jury guaranteed by the
Constitution is the right as it existed at common law at the time the
Constitution was adopted [citation omitted].  The common law at the
time the Constitution was adopted includes not only the lex non
scripta, but also the written statutes enacted by Parliament [citation
omitted].  Any act of the Legislature attempting to abridge the
constitutional right is void [citations omitted].  It is the right to
trial by jury as it existed at common law which is preserved; and what
that right is, is a purely historical question, a fact which is to be
ascertained like any other social, political or legal fact.  The right
is the historical right enjoyed at the time it was guaranteed by the
Constitution.  It is necessary, therefore, to ascertain what was the
rule of the English common law upon this subject in 1850 . . . ."
People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 286-287, 231
P.2d 832, 835.  See also Ex parte Wong You Ting (1895) 106 Cal. 296,
298-299, 39 P. 627; People v. Kelley (1928) 203 Cal.128, 133, 263 P.
226.

     [4] The fact the statute in question was enacted after the
adoption of the Constitution is 1850 makes no difference.  If there
was a right to a trial by jury before the adoption of the Constitution
so there is a right to such a trial in cases of the same class arising
thereafter.  (People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d at
300, 231 P.2d 832, 844.)

     [5] However, it is well recognized that under the English common
law and indeed under colonial law antedating the independence of the
United States, many petty criminal offenses against statutes or
municipal ordinances were not triable by jury at the time the
Constitution was adopted.  "As to them, the right of trial by jury has
never existed; and, since they were triable without a jury when the
Constitution was adopted, they are now triable without a jury . . . ."
(ibid.) Ex parte Wong You Ting, supra, 106 Cal. 296 at 300, 39 P. 627;
In re Fife (1895) 110 Cal. 8, 9, 42 P. 299.  This is equally true
insofar as federal constitutional guarantees of trial by jury are
concerned.  (See p. 799, infra.)

     Examination of the historical fact to which we are directed
discloses that a bewildering variety of offenses were subject to
summary trial without a jury at the common law.  An exhaustive
collection of them is found in a classic article by Felix Frankfurter
and Thomas G. Corcoran in 29 Harvard Law Review 917 (1926), Petty
Federal Offenses and the Constitutional Guarantee of Trial by Jury,
(hereafter "Frankfurter and Corcoran").  As there pointed out: ". . .
. Eliminating all penal enforcements in which the informer or the
'party aggrieved' shared the fine with the Crown, we find at least one
hundred offenses for which the Crown prosecuted before a justice and
without a jury.  Violations relating to liquor, trade and manufacture,
labor, smuggling, traffic on the highway, the Sabbath, 'cheats',
gambling, swearing, small thefts, assaults, offenses to property,
servants and seamen, vagabondage and disorderly conduct were largely
in the justice's hands . . . ."  (39 Harv.L.Rev. at p. 928.)

     These offenses included some where, as here, only a fine could be
imposed.  "Another branch of summary proceedings is that before
justices of the peace, in order to inflict divers petty pecuniary
mulcts . . . ."  (4 Blackstone's Commentaries 281 (p. 399 of the 1857
New Edition adapted by Kerr).)

     A pre-revolutionary statute of the same class as the Vehicle Code
violation incolved here is the act of 13 George III, c. 84 (30 Stats.
at Large 267 et seq.)  (Pickering, 1773) which regulated in minute
detail various aspects of highway traffic.  For example, article XXI
thereof (30 Stats. at Large 276) made it unlawful for wagon and cart
drivers to drive their vehicles with more than a prescribed number of
horses or beasts of draught.  No jury trial was allowed.  In case of
violation, a magistrate could assess a forfeiture or penalty ranging
from 10 shillings to 5 pounds.  Article XL of the same statute (30
Stats. at Large 283-284) provided that for various driving offenses
including negligent driving, leaving the road, and preventing the free
passage of other vehicles, a driver was liable on conviction by a
justice of the peace to pay a forfeiture or penalty ranging from 10 to
20 shillings, with one month's confinement being possible in default
of payment.  See also the Act of 13 George III, c. 78 (30 Stats. at
Large 183).

     Various pre-revolutionary colonial enactments likewise provided
for conviction by a court without a jury is a defendant violated
ordinances or statutes relating to the use of the streets.  They are
collected along with numerous other petty offenses for which no jury
trial was required in appendices to Frankfurter and Corcoran, supra,
29 Harvard Law Review, page 983, et seq.

     Confining our inquiry then to the "purely historical question"
posed by People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d at page
287, 231 P.2d 832, and applying the English common law as it existed
in 1850, it is clear that offenses of the same class as those now
classified as infractions by the Vehicle Code were triable by courts
sitting without juries.  Under this approach sections 19c and 1042.5
of the Penal Code fully measure up to the constitutional mark.

     [6] Federal constitutional provisions relating to jury trials ^5
are applicable to the states through the 14th Amendment.  Duncan v.
Louisiana (1968) 391 U.S. 145, 194, 88 S.Ct. 1444, 20 L.Ed.2d 491,
522.  Duncan and other decisions of the Supreme Court preceding and
following it, e.g., Callan v. Wilson (1888) 127 U.S. 540, 557, 8 S.Ct.
1301, 32 L.Ed. 223, 227, 228; Natal v. Louisiana (1891) 139 U.S. 621,
11 S.Ct. 636, 35 L.Ed. 288; Schick v. United States (1904) 195 U.S.
65, 24 S.Ct. 826, 49 L.Ed. 99; District of Columbia v. Colts (1930)
282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177; District of Columbia v.
Clawans (1937) 300 U.S. 617, 624, 57 S.Ct. 660, 81 L.Ed. 843, 846; and
Baldwin v. N. Y. (1970) 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 all
recognize that "petty" offenses do not fall within the constitutional
requirement of jury trial.  In determining whether or not an offense
is "petty" the Supreme Court at least in cases not involving
imprisonment for contempt, ^6 has not looked solely to the nature of
the penalty involved.  Rather, it has inquired whether the offense was
serious by nature and if so, a jury has been required even if the
penalty for the particular offense is small.  In Callan v. Wilson,
supra, 127 U.S. 540, 557, 8 S.Ct. 1301, 32 L.Ed. 223 the charge was
"conspiracy."  Although the penalty was $25 fine or 30 days, the
offense was held "serious" with a jury trial required.  In District of
Columbia v. Colts, supra, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177, a
charge of driving a vehicle recklessly so as to endanger property or
individuals, with a statutory penalty of $25 to $100 fine and
imprisonment of 10 to 30 days was called "malum per se" and because of
the potential consequences so serious as to shock the general moral
sense; therefore a jury was required.

     [7] If the nature of the offense, however, is not serious, the
court more readily looks to the potential penalty to classify the
offense as serious or petty.  (District of Columbia v. Clawans, supra,
300 U.S. 617, 624, 57 S.Ct. 660, 81 L.Ed. 843--engaging in business as
a dealer in secondhand property without a license.  Maximum statutory
penalty $300 fine or 90 days--petty; Natal v. Louisiana, supra, 139
U.S. 621, 11 S.Ct. 636, 35 L.Ed. 288--keeping a public market in
violation of municipal ordinance, $25 or 30 days if fine not
paid--petty; Schick v. United States, supra, 195 U.S. 65, 24 S.Ct.
826, 49 L.Ed. 99--dealing in unlabeled oleomargarine, $50
penalty--petty; Baldwin v. N. Y., supra, 399 U.S. 66, 90 S.Ct. 1886,
26 L.Ed.2d 437, misdemeanor of "jostling," carrying a one-year penalty
held not to be petty in viow of the maximum potential sentence.

     Stating that ". . . the boundaries of the petty offense category
have always been ill-defined if not ambulatory . . ." 391 U.S. at page
160, 88 S.Ct. at page 1453, 20 L.Ed.2d at page 502, the court in
Duncan v. Louisiana, supra, referred to the need to examine objective
criteria and to past and contemporary community standards, 391 U.S. at
pages 161-162, 88 S.Ct. at page 1454, 20 L.Ed.2d at page 503.  It held
that a crime--there battery--punishable by two years imprisonment--was
serious, and that a jury twice was required, basing the holding,
however, on the length of the potential sentence.  (See annotation, 26
L.Ed.2d 916, Distinction Between "Petty" and "Serious" Offenses for
Purposes of Federal Constitutional Right to Trial by Jury--Supreme
Court Cases.)  For further discussion of the various factors to be
looked to in determining whether an offense is petty and hence need
not be tried by a jury see Baker v. City of Fairbanks (Alaska 1970)
471 P.2d 386, 392-393.

     [8] Tested by any measure, the infraction of which defendant was
here convicted must be classified as "petty."  It is within that class
of cases triable by a court without a jury at English common law.  The
ordinary case of running a red light is not a case to which social or
moral opprobrium attaches.  While the conduct is antisocial, in a
sense, no charge is made that defendant committed the more aggrivated
offenses of reckless driving (Veh.Code, sect. 23103) or of reckless
driving proximately causing bodily injury (Veh.Code, sect. 23104)
which are expressly declared by Vehicle Code section 40000.15 to be
misdemeanors and not infractions.  (Compare District of Columbia v.
Colts, supra, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177.)  No possible
consequences to the defendant in terms of loss of livelihood are caled
to our attention. ^7 The offense is clearly one that is malum
prohibitum only and not malum per se.  A similar result was reached in
State v. Shak (Hawaii 1970) 466 P.2d 422, and in State v. Anonymous
(1971-6) 6 Conn.Cir. 451, 275 A.2d 618. ^8

     Defendant here suffered no deprivation of any constitutional
right in being denied a trial by jury.  Other contentions raised by
him on this appeal are without merit.

     The judgment is affirmed.

     KATZ, P. J., and HOLMES, J., concur.

---------------

1.  The brief of the People in this case is not helpful.  Rather than
    discussing the issue, it simply characterizes defendant's brief as
    "frivolous," states that it has never been held that a jury trial
    is required for infractions and, citing a dictum in Mills v.
    Municipal Court (1973) 10 Cal.3d 288, 302, footnote 13, 110
    Cal.Rptr. 329, 339, 515 P.2d 273, 283, remarks that there is a
    distinction between infractions and misdemeanors since
    "incarceration is not an applicable sanction."

2.  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, and we devote our attention to the
    constitutional infirmity alleged to exist in the concept that
    infractions need not be tried by juries.

3.  One of the exceptions referred to is Vehicle Code section 42001.5.
    It states that a person convicted of an infraction for a violation
    of section 22700 of the Vehicle Code (abandoning a vehicle) shall
    be punished	by a fine of not less than $50.  Another exception
    arises from litter law violations.  Section 42001.7 calls for
    mandatory fines ranging from a minimum of $10 to a maximum of
    $500.  The section also allows the court to require on a second or
    subsequent conviction as a condition of probation that the
    defendant pick up litter for a specified number of hours.  The
    third exception relates to excess weight violations.  Depending
    upon the weight involved, fines can range from $10 to $1000
    (Veh.Code, sect. 42030).  It should also be noted that under
    Vehicle Code section 42005 traffic violators may be ordered to
    attend a school.

4.  Under section 42003 subdivision (a) of the Vehicle Code, a person
    convicted of an infraction may be given time to pay the fine
    either in a lump sum or in installments and on failure to do so
    must appear in court for further proceedings.  If such a defendant
    wilfully violates an order so to appear he may be punished for
    contempt.  Such a contempt, of courts, could entail imprisonment
    for 5 days.

5.  Article III, section 2 of the United States Constitution states:
    ". . . . The Trial of all Crimes, except in Cases of Impeachment
    shall be by Jury . . . ."  The Sixth Amendment provides, "In all
    criminal prosecutions, the accused shall enjoy the right to a
    speedy and public trial, by an impartial jury of the State and
    district wherein the crime shall have been committed . . . ."

6.  In a series of cases dealing with the contempt power, the last of
    which were decided as recently as June 26, 1974, the United States
    Supreme Court has held that a sentence of six months is the
    dividing line between "serious" and "petty" offenses, a sentence
    no longer than six months not requiring trial by jury.  Codispoti
    v. Pennsylvania (1974) -- U.S. --, --, 94 S.Ct. 2687, 41 L.Ed.2d
    912; Taylor v. Hayes (1974) -- U.S. --, 94 S.Ct. 2697, 41 L.Ed.2d
    897; Frank v. United States (1969) 395 U.S. 147, 89 S.Ct. 1503, 23
    L.Ed.2d 162; Dyke v. Taylor (1968) 391 U.S. 216, 88 S.Ct. 1472, 20
    L.Ed.2d 538; Bloom v. Illinois (1968) 391 U.S. 194, 88 S.Ct. 1477,
    20 L.Ed.2d 522; Cheff v. Schnackenberg (1966) 384 U.S. 373, 86
    S.Ct. 1523, 16 L.Ed.2d 629.

7.  No claim is made that defendant's driving record is such that this
    conviction endangers his driver's license (Veh.Code, sects. 12809
    and 12810) or even that such a license is necessary for
    defendant's livelihood.

8.  As to cases involving a charge of driving under the influence of
    intoxicating beverages, the courts have reached diverse results as
    to whether jury trials are required.  See Annotation 16 A.L.R.3d
    1377.

--
Ronald Cole           +----------------------+  internet: rjc@unify.com
Software Engineer II  |   Marrou/Lord  '92   |  uucp:     uunet!unify!rjc
Unify Corporation     +----------------------+  voice:    +1 916 928 6238
          "THE BILL OF RIGHTS --- Void where prohibited by law"
Newsgroups: ca.driving