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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF PLACER
APPELLATE DIVISION

PEOPLE OF THE STATE OF ) APPELLATE CASE No.


CALIFORNIA )
Plaintiff ) Trial Court No. 41-168622
)
) Appellants Opening Brief on Appeal
)
v. ) Points & Authorities
)
Rik Wayne Munson )
Appellant )

APPELLANTS OPENING BRIEF ON APPEAL

Appeal from the Judgment of the Superior Court of the State of


California for the County of Placer. This appeal is taken from a final
judgment of conviction in an infraction case.
Appellant seeks reversal of his convictions for traffic infraction offenses.

HONORABLE JOE O’FLAHERTY, JUDGE

HONERABLE REFEREE DAVID J BILLS

Rik Wayne Munson


218 Landana Street
American Canyon,
California 94503
707-637-5023
Appellant In Propria persona

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.....................................................................................3

STATEMENT OF THE CASE AND PROCEDURAL HISTORY............................4

ARGUMENT...........................................................................................................5

DID THE HONORABLE REFEREE DAVID J. BILLS ERROR IN RULING THAT


AN INFRACTION IS A PUBLIC OFFENSE AND THAT APPELLANTS
SEIZURE WAS THUS REASONABLE?................................................................6

ARE VEHICLE CODE INFRACTIONS SUBJECT TO THE GENERAL


CRIMINAL LAW UNDER PENAL CODE §19.7?..................................................9

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?.............11

ASSUMING THAT VEHICLE CODE INFRACTIONS ARE SUBJECT TO THE


GENERAL CRIMINAL LAW UNDER PENAL CODE §19.7 WAS APPELLANTS
CONVICTION UNLAWFUL UNDER PENAL CODE §689?................................14

DID THE PROSECUTION PROVE APPELLANT WAS UNLICENSED OR THAT


HE HAD NO PROOF OF FINANCIAL RESPONSIBILITY?................................16

CONCLUSION......................................................................................................16

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TABLE OF AUTHORITIES

Cases
Hamilton v. Gourley (2002), 103 Cal.App.4th 351....................................................12
People v Superior Court (Simon) 7 Cal.3d 186...................................................................9
People v. Battle (1975) 50 Cal.App.3d Supp. 1 [123 Cal.Rptr. 636]..................................7
People v. Gallant (1990) 225 Cal.App.3d 200, 208....................................................17
People v. Gonzalez (1992) 7 Cal.App.4th 381, 386...................................................17
People v. Holguin (1956) 145 Cal.App.2d. 520 [302 P.2d. 635]................................12, 16
People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4 [116 Cal.Rptr. 795]..................7, 8
People v. Rodriguez (1993) 21 Cal.App.4th 232........................................................17
People v. Sava 190 Cal.App.3d 935..........................................................................7, 9, 17
People v. Wohlleben 261 Cal.App.2d 461, 463 (Cal.App.2.Dist. 1968).............................9

Statutes
§12500 (a)..........................................................................................................................14
Penal Code §15...............................................................................................................5, 8
Penal Code §16...............................................................................................................5, 8
Penal Code §17...............................................................................................................5, 8
Penal Code §19.7.....................................................................................................8, 14, 15
Section 836 of the Penal Code...................................................................................10, 11
Vehicle Code § 40300.............................................................................................9, 10, 11
Vehicle Code §12500(a)............................................................................................4, 6, 14
Vehicle Code §12801.5 (e)................................................................................................14
Vehicle Code §14607.6 (b)................................................................................................14
Vehicle Code §16028(a)..................................................................................................4, 6
Vehicle Code §22349(b).............................................................................................passim
Vehicle Code §26710........................................................................................................13
Vehicle Code §4000.1.........................................................................................................6
Vehicle Code §40000.1.......................................................................................................6
Vehicle Code §40000.11 (b)..............................................................................................14
vehicle code §40300.5.............................................................................................6, 10, 16

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Vehicle Code §40500....................................................................................................6, 11
Vehicle Code §40504........................................................................................................11
vehicle code §40513............................................................................................................6

Federal Cases
Brown v. Texas (1979) 443 U.S. 47, 51-52.................................................................17
United States vs. Pena-Montez (D.C. No. 1:07-CR-02436-LH-1, Dec 9. 2009)....12

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

This case was prosecuted by citation issued and filed with the court by the
states witness. On October 17, 2009 at approximately 3:30 PM officer Scholl of
the California Highway Patrol affected a warrantless seizure of appellant for an
alleged violation of Vehicle Code §22349(b), an infraction.
Officer Scholl subsequently issued NOTICE TO APPEAR No. 56329
(NTA) for alleged violation of sections; §22349(b), §12500(a) and §16028(a) of
the Vehicle Code, each charged as an infraction. Upon signing the promise to
appear section of the Notice To Appear appellant was released from police
custody.
On January 5, 2010 appellant filed a motion to quash the summons
pursuant to Code of Civil Procedure §418.10 and a demand for the court to take
judicial notice. On January 13, 2010 Referee Bills filed a tentative ruling denying
Appellants motion to quash.
Appellant appeared before the Honorable Referee Bills on January 21, 2010
at approximately 1:00 P.M. at which time the Referee was curt and interfered with
every effort Appellant made to address the court on the merits of his motion to
quash. Further, Referee Bills rejected Appellants demand for judicial notice stating

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that he did not have to follow the decisions of courts at the same level including
those from the appellate division of the Superior Court of Los Angeles because
“this is a superior court”. Referee Bills then hurried the matter to arraignment and
Appellant was ordered to appear before the clerk for issuance of a trial date.
Appellant waived no rights and signed no waiver of rights.
The matter came on regularly for trial on April 12, 2010 and Appellant
appeared before the Honorable Joe O’Flaherty without counsel and without a jury.
Appellant renewed his motion to quash at that time and Judge O’Flaherty denied
Appellants request to review the matter stating he would not review another judges
ruling.
Officer Scholl testified that (“at the above date and time in question”) he
observed the defendant's vehicle eastbound on Foresthill Rd. That the roadway is
one lane in each direction and the speed limit is thus the state speed limit of 55
mph for such roadways. The officer visually estimated the speed of a vehicle at 70
mph and used his radar to "lock in" a speed of 70 mph. Officer Scholl then turned
around, pursued the vehicle and initiated an enforcement stop. He identified the
driver as the defendant. The officer testified that his dispatch notified him that the
defendant's driving privilege was "suspended at that time" and that he issued the
defendant a citation for violation of §22349(b) of the vehicle code, exceeding the
maximum speed limit.
Appellant did not call any witnesses and did not testify. Appellant was
found guilty on all three counts.

ARGUMENT

I.

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DID THE HONORABLE REFEREE DAVID J. BILLS ERROR IN
RULING THAT AN INFRACTION IS A PUBLIC OFFENSE AND
THAT APPELLANTS SEIZURE WAS THUS REASONABLE?

In Referee Bills determination that Officer Schools observed a public


offense the court relies on Penal Code §15, Penal Code §16, & Penal Code §17.
The court also presents Vehicle Code §4000.1 for the proposition that:
“except as provided in Division 17, Chapter 1, Article 1, it is
unlawful and constitutes an infraction for any person to violate, or
fail to comply with, any provision of the Vehicle Code.”

Vehicle Code §4000.1 however, deals only with vehicle registration and does not
contain the quoted language. Appellant is unable to find the quoted text anywhere
in the vehicle codes. Vehicle Code §40000.1, although similar is not the same and
reads:
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 court stated in conclusion that:


“Officer Scholl cited defendant for a violation of Vehicle Code
§22349(b) - an infraction, Vehicle Code §12500(a) - an infraction,
and Vehicle Code §16028(a) - an infraction. He appears to have
complied with the provisions of vehicle code §40300.5, vehicle code
§40500, and vehicle code §40513.”

The cited language “unlawful and constitutes an infraction” does not address the
substantive nature of vehicle code infractions and does not authorize or prescribe
any particular form of enforcement action.

The California Court of Appeals for the Fourth Appellate District, in the case of

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People v. Sava 190 Cal.App.3d 935 has succinctly declared the substantive nature
of vehicle code infractions. Interestingly, Miss Sava requested a jury instruction
on the infractions of speeding and following too closely as lesser-included
offenses to driving under the influence. The trial court denied that request. The
Court of Appeals in examining the question could have concluded that neither
speeding nor following too closely could logically be viewed as lesser-included
offenses to driving under the influence but instead chose to rule on the basis of the
substantive nature of the offenses themselves concluding “infractions are not
crimes” citing to People v. Battle (1975) 50 Cal.App.3d Supp. 1 [123 Cal.Rptr.
636]
“The limitation on an accused's right to jury trial of infractions has
withstood constitutional attack upon the rationale the Legislature did
not intend to classify infractions as crimes. (See People v.
Oppenheimer (1974) 42 Cal.App.3d Supp. 4 [116 Cal.Rptr. 795] and
People v. Battle, supra, 50 Cal.App.3d Supp. 1.)”

The Judicial Counsel of California sponsored the 1968 infraction legislation. In


their 1967 report to the Governor, the Judicial Counsel consistently regards the
proposed legislation as “noncriminal infraction” legislation.

The Battle courts discussion concludes thus:

In summation, it is questionable whether the Legislature


considers an infraction to be a "crime." The Legislature enacted
section 19c of the Penal Code which deprives a person committing
an infraction of the right to a jury trial and the right to counsel at
public expense; however, both of these rights are guaranteed to one
accused of a crime by sections 15 and 16 of article I of the California
Constitution. We must, if we can, construe a statute in such a fashion
as to preserve it from unconstitutionality. (In re Kay (1970) 1 Cal.3d
930 [83 Cal.Rptr. 686, 464 P.2d 142].) By construing section 19c of
the Penal Code to relate to noncriminal offenses we can avert a
clash with the Constitution and achieve our goal, i.e., the
continued viability of the statute.

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Inconsistency of Sections 19c and 1042.5 vis-a-vis 689 of the Penal
Code
[2] Section 16 of the Penal Code declares that "crimes and public
offenses" include not only felonies and misdemeanors but also
infractions. Sections 19c and 1042.5 of the Penal Code deprive a
person accused of an infraction of the right to jury trial. Yet, section
689 of the Penal Code declares that "[n]o person can be convicted of
a public offense unless by verdict of a jury." (Italics added.) (The
1968 amendment of section 16 of the Penal Code substituted the
words "crimes and public offenses include:" for the words "crimes,
how defined. Crimes are divided into.")
If the Legislature intended to treat infractions as public
offenses and if the charging of a public offense invokes the right to
trial by jury, sections 19c and 1042.5, which deny a jury to one who
commits an infraction, conflict with section 689. However, the
same (1968) Legislature enacted section 19c, the pertinent
amendment of section 16 and section 1042.5. Construing these
sections in accordance with the precepts laid down in In re Kay,
supra, we must conclude that it was not the intent of the Legislature
to enact inconsistent statutes and, further, that when it added the
term "public offense" to section 16 it was not so categorizing
infractions because if it did so, it would have caused inconsistency
between sections 19c and 689 of the Penal Code. Support for this
interpretation is found in the language of section 1042.5 which states
that a defendant "charged with an infraction and with a public
offense for which there is a right to jury trial" (italics added) may be
accorded a jury trial. Had the Legislature intended that an infraction
be treated as a public offense, it would have worded the statute
differently, for example, "an infraction and with some other public
offense." [50 Cal.App.3d Supp. 7]

Furthermore, this court has previously held in People v.


Oppenheimer (1974) 42 Cal.App.3d Supp. 4, 7, fn. 2 [116 Cal.Rptr.
795], that inasmuch as section 689 of the Penal Code was originally
enacted in 1872 and last amended in 1951, and sections 19c and
1042.5 of the Penal Code were enacted in 1968, we must read all the
sections together and, in case of conflict, give effect to the latest
enacted sections -- sections 19c and 1042.5. We therefore have
declared in People v. Oppenheimer, supra, that sections 19c and
1042.5 qualify section 689 insofar as infractions are concerned.
Hence, even though we were to treat an infraction as a public offense
under section 16, we must nevertheless excise infractions from
section 689 in order to effect the objective of the Legislature. (Pen.

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Code, § 4.)

II.
ARE VEHICLE CODE INFRACTIONS SUBJECT TO THE
GENERAL CRIMINAL LAW UNDER PENAL CODE §19.7?

Penal Codes §15, §16 & §17 give the clear impression that an infraction is a public
offense and Penal Code §19.7 appears to extend the authority of a peace officer to
make a warrantless arrest to infractions generally however, the beginning language
of §19.7 indicates that such treatment may be had only “Except as otherwise
provided by law”.

Our courts of appeal have not only held that infractions are not crimes1 but that the
exclusive procedures applicable to all peace officers who enforce provisions of the
Vehicle Code are those contained in the Vehicle Code and not the Penal Code2.

The case of People v. Wohlleben 261 Cal.App.2d 461, 463 (Cal.App.2.Dist. 1968)
confirms the autonomy of the Vehicle Code and the principle that arrests without a
warrant for Vehicle Code violations are allowed only in limited situations:
The traffic violation for which defendant was stopped could
not provide the basis for a lawful arrest. Procedure on arrests for
traffic violations is specified in division 17, chapter 2 of the Vehicle
Code commencing with section 40300. Section 40300 of the Vehicle
Code provides: "The provisions of this chapter shall govern all
peace officers in making arrests for violations of this code without a
warrant for offenses committed in their presence, but the procedure
prescribed herein shall not otherwise be exclusive of any other
method prescribed by law for the arrest and prosecution of a person
for an offense of like grade." (Italics added.) A statute is to be
construed where possible to give effect to all of its terms. (Code Civ.
Proc., §1858.) The insertion of the word "otherwise" in the second
1
People v. Sava 190 Cal.App.3d 935
2
People v Superior Court (Simon) 7 Cal.3d 186

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clause of section 40300 can only mean that to the extent stated in
the first clause the arrest procedure of the Vehicle Code is
exclusive. (See People v. Maggiora, 207 Cal.App.2d Supp. 908, 911
[24 Cal.Rptr. 630]) Thus, although it is a misdemeanor for any
person to violate a provision of the Vehicle Code unless the violation
is expressly described by the code to be a felony or an offense
punishable as a felony or misdemeanor (§ 40000, subd. (a)), the
procedure on arrests without a warrant for misdemeanor Vehicle
Code violations is that prescribed by the Vehicle Code and not the
procedure prescribed by the Penal Code.

The procedure on arrests for traffic violations is set forth in §40300 of the Vehicle
Code and that section controls whether a person may be arrested when driving.
California Vehicle Code §40300.5 provides that an arrest without a warrant can
only be affected in certain circumstances.
Vehicle Code §40300.5 states:
In addition to the authority to make an arrest without a warrant
pursuant to paragraph (1) of subdivision (a) of Section 836 of the
Penal Code, a peace officer may, without a warrant, arrest a person
when the officer has reasonable cause to believe that the person had
been driving while under the influence of an alcoholic beverage or
any drug, or under the combined influence of an alcoholic beverage
and any drug when any of the following exists:
(a) The person is involved in a traffic accident.
(b) The person is observed in or about a vehicle that is
obstructing a roadway.
(c) The person will not be apprehended unless immediately
arrested.
(d) The person may cause injury to himself or herself or damage
property unless immediately arrested.
(e) The person may destroy or conceal evidence of the crime
unless immediately arrested. pursuant to paragraph (1) of
subdivision (a) of Section 836 of the Penal Code.

836. (a) A peace officer may arrest a person in obedience to a


warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the
following circumstances occur:

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(1) The officer has probable cause to believe that the person to be
arrested has committed a public offense in the officer's presence.

Applying the maxim "Expressio unius est exclusio alterius" to the above statute,
the Vehicle Code can be seen to have expressly detailed when an arrest without a
warrant can be made and, having done such, excludes the appellant's situation.

Clearly then the section of §40300.5 authorizing a warrantless arrest for an offense
committed in the officer's presence under “paragraph (1) of subdivision (a) of
Section 836 of the Penal Code”, is strictly limited to crime. The officer testified
that he observed a suspected infraction and for that reason he initiated a traffic
enforcement stop. The officer neither observed nor suspected a crime to be in the
offing.

III.
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?

The Legislature has identified the police contact as an "arrest"3. A “Notice to


Appear” is only issued “Whenever a person is arrested for any violation of this
code not declared to be a felony4,”

When done in absence of a warrant they've identified it as a warrantless


arrest. Warrantless arrest is presumed to be unlawful

3
Vehicle Code §40500 et seq.
4
Vehicle Code §40500, Vehicle Code §40504,

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Defendant makes a prima facie case of unlawful arrest when he establishes that
arrest was made without a warrant, and burden rests on prosecution to show proper
justification. People v. Holguin (1956) 145 Cal.App.2d. 520 [302 P.2d. 635]

The Legislature has provided procedures for peace officers when they make a
warrantless arrest for an alleged infraction of the Vehicle Code beginning at
§40300 et seq of the Vehicle Code itself. Consider the following:

"'To be valid, administrative action must be within the scope of


authority conferred by the enabling statutes. . . .' . . . 'If the court
determines that a challenged administrative action was not
authorized by or is inconsistent with acts of the Legislature, that
action is void.'" (US Ecology, Inc. v. State of California (2001) 92
Cal.App.4th 113, 131-132.) Hamilton v. Gourley (2002), 103
Cal.App.4th 351 [No. C038751. Third Dist. Oct. 31, 2002.]

According to the Court of Appeal in the Hamilton v. Gourley matter, the officer's
arrest must be in compliance with the enabling statute provided by the Legislature
for the arrest to be valid, and in absence of authorization or compliance with
procedures, the officer's arrest is void. Further, neither the officer nor the court
can change the rules to add authorization the Legislature didn't provide.

As of Proposition 8 (1982) California courts are constrained to the federal Fourth


Amendment standards in determining search and seizure related questions. The
federal courts consistently reiterate that the criterion justifying a warrantless
seizure is in every instance “crime”. In United States vs. Pena-Montez (Appeal
from the United States District Court for the District of New Mexico (D.C. No.
1:07-CR-02436-LH-1, Dec 9. 2009) The court clearly stated

A routine traffic stop is indisputably a seizure within the meaning of


the Fourth Amendment. United States v. Rodriguez-Rodriguez, 550
F.3d 1223, 1226(10th Cir. 2008). However, because a traffic stop is
“necessarily [a] swift action predicated upon the on-the-spot

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observations of the officer on the beat,” an officer need only
reasonably suspect that a crime is in the offing to justify such a
detention. Terry v. Ohio, 392 U.S. 1, 20-21 (1968); see also Karam,
496 F.3d at1161. Terry set forth a two-step framework for
determining the constitutional scope of a traffic stop: (1) the stop
must be “justified at its inception,” and (2) the resulting detention
must be “reasonably related in scope to the circumstances that
justified the stop in the first place.” United States v. Winder, 557
F.3d 1129,1133-34 (10th Cir. 2009) (quotations omitted).
“Generally, an investigative detention must last no longer than is
necessary to effectuate the purpose of the stop.” Id. at 1134
(quotation omitted).

The fact is that the Legislature did not provide the authorization or a command
directed to the peace officer to make a warrantless arrest for just any infraction of
the Vehicle Code in absence of the elements specified at Vehicle Code section
40300.5. Given this fact, the court can not amend section 40300.5 in order to
validate its belief the Legislature should have provided the authorization. Stated
another way, the court has to take the sections as they find them.

The Appellant cannot be called upon to prove a negative. The Legislature has not
provided the authorization for a peace officer to make a warrantless arrest for the
cited conduct, as that conduct does not rise to the level of crime. If the warrantless
arrest was authorized the burden of proof is upon the prosecution. An example of
the type of authorizing language needed here, can be found at Vehicle Code
§26710
§26710. 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

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requirements of this code.

The legislature at §26710 has clearly indicated it’s intent that an officer be
empowered to “arrest the driver and give him notice to appear” for the stated
offense, an infraction. Where do we find this type of authorizing language in
regard to §22649(b)?

Vehicle Code §14607.6 (b) specifically forbids an officer from stopping a motorist
for the purpose of checking to see if they are in violation of Vehicle Code
§12500(a) and Vehicle Code §12801.5 (e) specifically forbids an officer from
detaining or arresting a person even when the officer believes the driver to be in
violation of Vehicle Code §12500 (a) even though Vehicle Code §40000.11 (b)
states that a violation of Vehicle Code §12500 (a) is “a misdemeanor and not an
infraction”.

Statutory construction compels us to presume the legislature intended to act where


they in fact acted and that they did not intent to act where they in fact have not
done so. Statutory parameters are controlling. Where is officer Scholl’s legislative
authorization to apply the police power of the state for a suspected violation of
Vehicle Code §22349(b)?

IV.
ASSUMING THAT VEHICLE CODE INFRACTIONS ARE SUBJECT TO
THE GENERAL CRIMINAL LAW UNDER PENAL CODE §19.7
WAS APPELLANTS CONVICTION UNLAWFUL UNDER PENAL
CODE §689?

Penal Code §689 exemplifies Article 1 section 16 of the California Constitution as


follows:

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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.

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 16. Trial by jury is an inviolate right and shall be secured to
all, but in a civil cause three-fourths of the jury may render a verdict.
A jury may be waived in a criminal cause by the consent of both
parties expressed in open court by the defendant and the defendant's
counsel. In a civil cause a jury may be waived by the consent of the
parties expressed as prescribed by statute.

Appellant did not have a jury trial, did not waive a jury trial and did not plead
guilty. If an infraction of the Vehicle Code is a public offense Appellant could not
have been convicted except by a jury. However, one accused of an infraction is not
afforded a jury trial (PC §19.6).

There are numerous examples that the legislature makes a clear distinction
between an infraction and a public offense. At Vehicle Code 23302.5 (b) the
legislature states:
A violation of subdivision (a) is subject to civil penalties and is
neither an infraction nor a public offense, as defined in Section 15
of the Penal Code…

If an infraction is a public offense subject to the general criminal law under penal
code §19.7 Appellant’s conviction was unlawful under penal code §689 and,
§689’s conflict with the later enacted sections 19.6 & 1042.5 cannot be avoided.

V.

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DID THE PROSECUTION PROVE APPELLANT WAS UNLICENSED
OR THAT HE HAD NO PROOF OF FINANCIAL
RESPONSIBILITY?

Despite the trial Judge’s proposed modifications, neither the Appellants arguments
nor the facts at trial can be modified by order of the court. The unofficial recorded
evidence of the trial proceedings is consistent with Appellants recollection that
Officer School did not specifically state the time or date of the occurrence other
than to say “at the above date and time in question”. Further, officer School did
not identify the defendant by name, did not identify the subject vehicle by type or
other description, did not testify that Appellant was unlicensed nor did he make
any statements as to proof of financial responsibility. Appellant clearly challenges
the people evidence as not supporting the judgment.

Either; Dispatch was in error, Officer Scholl willfully committed perjury, or


Officer Scholl was reading from the wrong set of notes. The simple fact that
Appellants License was not “suspended at that time” is exculpatory evidence the
prosecution was duty bound to provide.

CONCLUSION

The police contact for an alleged violation of Vehicle Code §22349(b) was a
COMPULSORY RESTRAINT that denied Appellant's secured rights of
association and movement. Officer Scholl did not have a warrant to search or seize
Appellant nor Appellants automobile.
It is hornbook law that, when an arrest or search is challenged as without warrant,
the burden shifts to the prosecution to prove that the arrest was legal or the search
was reasonable.

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Defendant makes a prima facie case of unlawful arrest when he
establishes that arrest was made without a warrant, and burden rests
on prosecution to show proper justification. People v. Holguin
(1956) 145 Cal.App.2d. 520.

Pursuant to the second component of §40300.5 a peace officer is authorized to


make a warrantless arrest when the officer has reasonable cause to believe that the
person had been driving while under the influence and one of subparts (a)-(e) can
be said to apply. This portion of §40300.5 is inapplicable here.

Under the first component of §40300.5 the prosecution MUST establish that a
crime was committed in the officer's presence in order to meet their burden.
Referee Bills could not have found that Officer Scholl complied with Vehicle
Code §40300.5 without mischaracterizing infractions as crimes.
...infractions are not crimes... ...the Legislature did not intend to
classify infractions as crimes. People v. Sava (1987) 190 Cal.App.3d
935, 235 Cal.Rptr. 694 [No. D005040. Court of Appeals of
California, Fourth Appellate District, Division One. March 27,
1987.]

Vehicle Code infractions, unless otherwise specified in the Vehicle Code, cannot
provide a peace officer with the authority to arrest or detain a motorist. Appellant
cannot be called upon to prove a negative. Either Officer Scholl’s conduct was
authorized by the legislature or it was void. That burden of proof is on the
government.

The guarantees of the Fourth Amendment do not allow stopping and


demanding identification from an individual without any specific
basis for believing he is involved in criminal activity. (Brown v.
Texas (1979) 443 U.S. 47, 51-52 [61 L.Ed.2d 357, 362-363, 99 S.Ct.
2637]. See also People v. Gonzalez (1992) 7 Cal.App.4th 381, 386
[8 Cal.Rptr.2d 640]; People v. Gallant (1990) 225 Cal.App.3d 200,
208 [275 Cal.Rptr. 50].) People v. Rodriguez (1993) 21 Cal.App.4th
232 [No. G012327. Fourth Dist., Div. Three. Nov 29, 1993.]

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Appellant's detention was violative of the fourth amendment as an arrest without
warrant and the people have failed to meet their burden of proof that said seizure
was reasonable under the law. The verdict of guilty on Counts 1, 2 and 3 should be
reversed as having been entered in want or excess of jurisdiction. Appellant herein
so moves this court.

Dated: Thursday, October 14, 2010


___________________________
Rik Munson, Appellant in Pro per

CERTIFICATION OF NUMBER OF WORDS IN BRIEF

I, RIK WAYNE MUNSON, certify and declare that the foregoing brief contains
4681 words not including this page or the PROOF OF SERVICE attached hereto.
Said word count was achieved on a functioning Microsoft Word program. I, RIK
WAYNE MUNSON, declare under penalty of perjury under the laws of the State
of California that the foregoing is true and correct and that this certification was

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signed by me on Thursday, October 14, 2010

Dated: Thursday, October 14, 2010


___________________________
Rik Munson, Appellant in Pro per

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