People v. Anderson

• Decision Date: 20 April 1987
• Citation: 236 Cal.Rptr. 329,191 Cal.App.3d 207
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Stanley M. ANDERSON et al., Defendants and Respondents. F006844, F006865 to F006875, F006877 to F006880 and F006884.

Page 329

236 Cal.Rptr. 329

191 Cal.App.3d 207

The PEOPLE, Plaintiff and Appellant, v. Stanley M. ANDERSON et al., Defendants and Respondents.

F006844, F006865 to F006875, F006877 to F006880 and F006884.

Court of Appeal, Fifth District, California.

April 20, 1987.

John K. Van de Kamp, Atty. Gen., R.H. Connett, Asst. Atty. Gen., and Charles W. Getz IV, Deputy Atty. Gen., San Francisco, for plaintiff and appellant

Kit Parsons, Delano, Kuhs & Parker, Ralph Wm. Wyatt, Theresa A. LeLouis, Bakersfield, for defendants and respondents.

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

These 17 consolidated cases, involving 16 individual defendants, arise from alleged violations of Food and Agricultural Code section 5784 ¹ and title 3, California Administrative Code, section 3595 ² setting forth mandatory dates for cotton farmers to shred and plow under their cotton stalks. This "plowdown" is deemed necessary to control the pink bollworm. All 17 cases were dismissed by Kern County justice court judges because of what the judges perceived to be an unconstitutional statutory denial of the defendants' right to jury trials.

On the People's appeal to the appellate department of the Kern County Superior Court, that court ruled that, insofar as it denied respondents the right to a jury trial section 5784 of the Food and Agricultural Code was unconstitutional under both the federal and state Constitutions. (U.S. Const., art. III, § 2, clause 3; Cal. Const., art. I, § 16.) The appellate department based its decision on the potential penalties applicable to multi-acre violations of the statute including penalty assessments required by law. ³ The potential penalties including assessments for respondents would range from $1,147.50 to $23,375. The appellate department reversed the trial judges' orders dismissing the charges against respondents with directions to reinstate the charges but to allow respondents the right to a jury trial.

At the People's request, the appellate department certified these cases to this court for review "to settle important questions of law" (Cal.Rules of Court, rule 63(a)). We ordered transfer pursuant to California Rules of Court, rule 62(a).

We first hold that because the potential penalties to be imposed against each defendant for multi-acre violations of Food and Agricultural Code section 5784 necessarily arise out of a single act or omission, i.e., the defendant's decision not to plow down his acreage by a specified date, Penal Code section 654 precludes punishment for more than one violation of the statute. This means the maximum potential penalty which can be imposed on a defendant for violating Food and Agricultural Code section 5784 is $500 plus the penalty assessment of $350 for a total of $850.

We next hold that the potential penalty of $850 does not require a jury trial under either the federal or state Constitutions.

Finally, by way of dictum, we advise that if the Legislature should decide to rewrite Food and Agricultural Code section 5784 to provide multi-acre penalties for a single violation, as the statute read before its 1983 amendment, and if the penalties to be imposed for a single violation, including the penalty assessment, total $1,000 or more, a defendant would be entitled to a jury trial. Simply put, a legislative classification of a public offense as an infraction does not determine a citizen's constitutional right to a jury trial.

I. Background

When division 4, part 1, chapter 8, article 5 (which deals with host-free periods and districts) of the Food and Agricultural Code was included in the reenacted Agricultural Code in 1967, it provided that violations of the article or regulations promulgated pursuant to it were misdemeanors. (Stats.1967, ch. 15, § 2, subd. 9, p. 45.) Misdemeanors were, at that time, the lowest classification of criminal offenses in California; the category of offenses known as infractions was not added to the statutory scheme until 1969. (Stats.1968, ch. 1192.)

In 1978, Food and Agricultural Code section 5784 was amended by the Legislature. (Stats.1978, ch. 591, § 1, p. 2019.) In its revised form, section 5784 stated in part: "Any violation of this article or any regulation adopted pursuant thereto relating to the eradication or control of cotton pests is an infraction and shall be subject to a fine of one hundred dollars ($100) plus one dollar ($1) per acre not in compliance...." (Emphasis added.) The stated purpose of the amendment was so that violations "resulting from circumstances beyond the control of a farmer, will not result in such farmer having a criminal record, ..." (Stats.1978, ch. 591, § 2, p. 2019.) However, by labeling an offense under the article as an infraction, the Legislature also moved the offense into a class of violations statutorily exempt from jury trial. (Pen.Code, § 19c, ⁴ § 1042.5.) This, of course, would expedite the disposition of complaints by avoiding the delay inherent in jury trials.

The 1984 Legislature amended section 5784 again. (Stats.1984, ch. 995, No. 10 West's Cal.Legis.Service, § 2, p. 453.) While the Legislative Counsel's Digest mentions only an increase in the amount of the penalty as the reason for the change ($500 plus $5 per acre), the section as amended materially alters the way the law is to be applied. Where the 1978 revision provided that a plow-down violation constituted a single offense, punishable by a fine determined by the number of acres involved, under the 1984 revision every acre not in compliance constitutes a separately chargeable infraction, each subject to an individual fine, in addition to an infraction for the general failure to plow down. (See fn. 1, ante.) Thus, a one-acre violation would be subject to a $505 fine plus a penalty assessment of $353.50 for a total penalty of $858.50.

Although the legislative history fails to disclose the reason for this amendment to section 5784, it would appear that the modification was intended to preclude application of the federal constitutional right to jury trial as will be explained infra.

II. Penal Code section 654. ⁵

The question is whether the failure to plow down a number of acres constitutes a single "act or omission" for Penal Code section 654 analysis. Appellant contends that under the clear language of Food and Agricultural Code section 5784 a farmer may be convicted of independent violations of the statute even though the violations share common acts or are part of an otherwise indivisible course of conduct. (See In re Adams (1975) 14 Cal.3d 629, 122 Cal.Rptr. 73, 536 P.2d 473.) Thus, according to appellant, fines for the separate acts of refusing to plow down separate acres of land, although stemming from the same decision, do not constitute double punishment for a single offense. Yet appellant then concedes "[s]ection 654 provides the mechanism for a court to tailor the penalty paid to the seriousness of the offense and the ability of the defendant to pay that penalty."

Although Penal Code section 654 by its express terms applies only to Penal Code violations, and only when an act or omission "is made punishable in different ways by different provisions " of the code, neither of these restrictions is taken literally by the courts. Section 654 applies to penal provisions outside of the Penal Code. (In re Adams, supra, 14 Cal.3d at p. 633, 122 Cal.Rptr. 73.) It also precludes punishment "when an act gives rise to more than one violation of the same ... section...." (Neal v. State of California (1960) 55 Cal.2d 11, 18, fn. 1, 9 Cal.Rptr. 607, 357 P.2d 839.)

Does section 654 apply to infractions? Nothing in the language of the statute would indicate otherwise. In In re Dennis B. (1976) 18 Cal.3d 687, 692-695, 135 Cal.Rptr. 82, 557 P.2d 514, the Supreme Court assumed that section 654 applies to infractions when it ruled that a minor who pled guilty and was fined $10 for making an unsafe lane change in violation of Vehicle Code section 21658, subdivision (a), an infraction, could nevertheless be subjected to a subsequent Welfare and Institutions Code section 602 petition filed in the juvenile court alleging vehicular manslaughter arising out of the same act. The Supreme Court ruled there was no multiple prosecution bar under section 654 because the district attorney had no reason to know of the multiplicity of violations. (See also People v. Sims (1982) 32 Cal.3d 468, 494, 186 Cal.Rptr. 77, 651 P.2d 321 (dis. opn. of Kaus, J.) and People v. Smith (1977) 70 Cal.App.3d 306, 317, 138 Cal.Rptr. 783, characterizing the limited holding in Dennis B.)

Although it may be argued that the Legislature did not intend section 654 to bar separate fines for each acre in violation of the plow-down law because the Legislature specifically states in Food and Agricultural Code section 5784, subdivision (c) that each acre not plowed down is to be "a separate additional violation," the argument overlooks the constitutional underpinnings of section 654. According to Neal v. State of California, supra, the section 654 bar on punishment for two offenses arising from the same act is founded upon by "the constitutional and common-law rule against multiple punishment for necessarily included offenses...." (Neal v. State of California, supra, 55 Cal.2d at p. 18, 9 Cal.Rptr. 607, 357 P.2d 839, citing People v. Kehoe (1949) 33 Cal.2d 711, 713, 204 P.2d 321.) In People v. Kehoe, supra, the court framed the doctrine of included offenses (grand theft of auto and driving auto without owner's consent) as "part of the constitutional guarantee against double jeopardy. (Cal. Const., art. I, § 13.)" (Kehoe, supra, 33 Cal.2d at p. 713, 204 P.2d 321; see also 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, §§ 768, 785, pp. 735-736, 756-757.) Although these statements in Neal and Kehoe may be dicta, they are pursuasive in the light of the Supreme Court's reasoning. (See 9 Witkin, Cal.Procedure, op. cit. supra, Appeal, § 785, pp. 756-757.)

The ...