People v. Foote

Citation110 Cal.Rptr.2d 260,91 Cal.App.4th Supp. 7
Decision Date19 June 2001
Docket NumberNo. BR 40928.,BR 40928.
PartiesThe PEOPLE, Plaintiff and Respondent, v. Henderson Garland FOOTE, Defendant and Appellant.
CourtUnited States Superior Court (California)

APPEAL from a judgment of the Los Angeles Superior Court, Santa Monica Trial Court, Julius M. Title, Judge. Affirmed.

Henderson Garland Foote, in propria persona, for Defendant and Appellant.

Marsha Jones Moutrie, City Attorney, Betty Haviland and Patrick T. Brooks, Deputy City Attorneys, for Plaintiff and Respondent.

OPINION AND JUDGMENT

LEE, J.

On April 2, 2000, appellant was cited by Santa Monica Police Officer Michael Solis for violation of Santa Monica Municipal Code section 6.36.040, subdivision (a),1 vending in the City of Santa Monica without first obtaining and possessing a vendor permit issued by the Chief of the Santa Monica Police Department. Appellant was subsequently charged with the same violation in a misdemeanor complaint filed on April 27, 2000. On June 13, 2000, respondent filed an amended complaint charging appellant with the same offense, but this time as an infraction.

Trial began on July 12, 2000.2 The citing officer testified on behalf of respondent and appellant testified on his own behalf. At the expiration of testimony, the court continued trial until August 17, 2000, for further briefing and argument by the parties on the issue of whether the section in question was unconstitutional and in violation of appellant's United States Constitution First Amendment rights. On August 17, 2000, after hearing additional argument, the court found the ordinance constitutional and appellant guilty of the charged offense. Appellant was sentenced to 10 hours of community service. Appellant filed a timely notice of appeal on September 15, 2000.

At trial, Michael Solis, a police officer with the Santa Monica Police Department, testified that about 2:30 p.m. on April 2, 2000, he was on bike patrol in the 1300 block of Third Street Promenade. He observed appellant outside a Starbucks coffee shop. Appellant had placed about 30 canisters, each containing several sticks of incense, labeled by scent or aroma, such as cherry or vanilla, on a table. According to Officer Solis, appellant was at "his usual spot" where he was "pretty regularly on the weekends." Next to the table was a light pole, on which a sign was affixed bearing the word "INSCENTS," a play on words for incense. Also on the sign were the words "FOR DONATION," or words to that effect. Furthermore, the sign contained language to the effect that "IF YOU HAVE MORE MONEY, YOU GIVE MORE. THE POOR GIVE LESS."

When Officer Solis informed appellant that he was going to cite him for vending without a permit, appellant responded that he was a religious organization, his church was legitimate, incense was a very important part of his religious beliefs, and he had a constitutional right to sell incense. Undeterred, Officer Solis cited appellant for a violation of section 6.36.040, subdivision (a). While completing the citation, the officer observed several people approach the table and talk with appellant. The people asked how much the incense cost, and appellant answered that it was whatever they could afford.

Appellant testified at trial. He stated that he did not have a vending license, but he did not need to have one. Appellant's theory was that as a member of the First Church of Rasta, Incorporated (hereafter the Church), he was not required under the municipal code to obtain a business license, which meant that he did not have to obtain a vending license. The court responded that a business license and a vending license were two different things, and the issue before the court was whether appellant, since he admitted he did not have a vending license, fell into one of the exemptions in the code to the vending license requirement. (§ 6.36.030.) Appellant asserted that he fell under the exception for organizations vending newspapers, leaflets, and pamphlets. The court commented he was not charged with vending these items, but rather incense.

At trial, appellant held up a piece of paper that appeared to be a list of organizations recognized by respondent as nonprofit organizations that did not require a business license, as well as several court opinions that appellant claimed supported his arguments in the case. When the court commented it did not have the Los Angeles ordinance that was the subject of one of appellant's federal cases, respondent asked for time to respond to the authority offered by appellant. The court continued the trial until August 17, 2000, to allow consideration of appellant's argument that the Santa Monica ordinance was unconstitutional. The court ordered appellant to give respondent, within 10 days, a list of the legal authority he was relying on, and provided that respondent could file a supplemental brief, not later than one week before August 17, 2000, on the constitutional issues. On July 28, 2000, well before the deadline, respondent filed with the court and served on appellant its supplemental brief, along with copies of federal opinions referenced therein.

At the continued proceeding on August 17, 2000, respondent asserted the ordinance made a constitutionally permissible distinction, not on types of organizations or their ideological, communicative, or expressive messages, but rather on things or products, such as newspapers, jewelry, housewares, and the like. Items that were inherently communicative, such as newspapers and pamphlets, and had nominal value apart from the communication, could be sold without a vending license, while items such as jewelry or incense, which did not have these characteristics, could not. Appellant responded that his sale of, or solicitation of donations in exchange for, incense, or anything else for that matter, was protected under the freedom of religion clause of the First Amendment, as long as he believed the item was somehow related to his religion.

In response to appellant's contention that all encyclopedias stated that incense was a religious item, the court responded that "[i]t's not communicative. That's your problem." Appellant countered that incense was communicative, since, "you burn incense, and they [sic] go to the heavens. And you make the prayer to the gods." The court rejected appellant's arguments, finding the ordinance constitutional and appellant guilty of the charged infraction.

Appellant makes the following argument on appeal: (1) he had been found not guilty of the same type of offense many times in the past, and such charges against him had also previously been dismissed in other courts; (2) his constitutional rights were denied, in that the "[statement of rights for misdeamer [sic] denied" and "[n]o speedy trial, jury trial, lawyer or to present evidence, [sic] [a]nd finish case argument"; (3) "[j]udge ignores appellate [sic] constitutional rights of freedom of religion and speech and press"; (4) "[j]udge orders appellate [sic] to furnish list of all federal authorities for city attorney to respond, but states that city attorney need not respond to all that were furnished"; (5) "appellate [sic] found guilty altho [sic] city attorney stated appellate [sic] fell under city law exceptions and exemptions. Judge refused to see evidence because `it is not relevant'"; and (6) the judge admitted there were exemptions to the ordinance, but he improperly separated "`incense' from religion, and `religious' organizations from individuals and organizations, as stated in the law."

As regards appellant's first contention, that he previously had been found not guilty of the same type of offense and similar charges had been dismissed, appellant fails to cite any legal authority for his apparent argument that an acquittal or dismissal of the same or similar charges in prior cases precludes prosecution in a new case involving new facts. Since appellant cites no authority for his legal theory, this contention is deemed without foundation and requires no discussion. (People v. Ham (1970) 7 Cal.App.3d 768, 783, 86 Cal. Rptr. 906, disapproved on other grounds in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3, 98 Cal.Rptr. 217, 490 P.2d 537.) A failure to cite any relevant authority in support of an assertion results in a waiver of the right to appellate review of that assertion. (People v. Stanley (1995) 10 Cal.4th 764, 793, 42 Cal.Rptr.2d 543, 897 P.2d 481; People v. Diaz (1983) 140 Cal. App.3d 813, 824, 189 Cal.Rptr. 784.) In any event, as the trial court correctly noted, other charges and their outcomes were completely irrelevant to the issue of whether appellant was guilty of the offense charged in this particular case.

Appellant's second contention is that his constitutional rights were denied, in that the "[s]tatement of rights for misdeamer [sic] denied," and "[n]o speedy trial, jury trial, lawyer or to present evidence. [sic][a]nd finish case argument." He also asserts that the trial court improperly refused to allow him to show a videotape of Hare Krishna activity. These arguments, however, are subject to the same infirmity noted above, namely, they lack citation to legal authority and are deemed without foundation and waived.

In any event, appellant was tried for a violation of Santa Monica Municipal Code section 6.36.040 as an infraction, not a misdemeanor. As provided in Penal Code section 19.6, an infraction is not punishable by imprisonment, and a person charged with an infraction "shall not be entitled to a trial by jury" and "shall not be entitled to have the public defender or other counsel appointed at public expense. . . ." (See People v. Oppenheimer (1974) 116 Cal. Rptr. 795, 42 Cal.App.3d Supp. 4, 12.) Also, the docket reflects that appellant was advised of his constitutional rights and properly provided with counsel on May 2, 2000, when the matter was filed as a misdemeanor, and that appointed counsel was just as properly...

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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 14 Enero 2009
    ......City of New York, 435 F.3d 78 (2d Cir.2006), and People v. Foote, 91 Cal. App.4th Supp. 7, 110 Cal.Rptr.2d 260 (2001). .         The 2006 version of § 42.15 provided that "[n]o person shall ......
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