People v. Nelson

• Decision Date: 29 February 2012
• Docket Number: No. A131301.,A131301.
• Citation: 2011 Daily Journal D.A.R. 16531,11 Cal. Daily Op. Serv. 13859,200 Cal.App.4th 1083,132 Cal.Rptr.3d 856
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carl NELSON, Defendant and Appellant.

200 Cal.App.4th 1083
132 Cal.Rptr.3d 856
11 Cal. Daily Op. Serv. 13,859
2011 Daily Journal D.A.R. 16,531

The PEOPLE, Plaintiff and Respondent,
v.
Carl NELSON, Defendant and Appellant.

No. A131301.

Court of Appeal, First District, Division 2, California.

Nov. 14, 2011.
Review Denied Feb. 29, 2012.

[132 Cal.Rptr.3d 858]Darren J. Kessler, Law Offices of Darren Kessler, El Cerrito, for Defendant and Appellant.

Kamala D. Harris, Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Michael E. Banister, Deputy Attorney General, Masha Dabiza, Deputy Attorney General, for Plaintiff and Respondent.

LAMBDEN, J.

[200 Cal.App.4th 1087]

Defendant Carl Nelson appeals from a traffic court judgment of guilt for violating Vehicle Code section 23123,¹ which states that persons shall not drive on public roadways using a wireless telephone unless the phone is configured for hands-free listening and talking, and used in that manner while driving. ( § 23123, subds. (a), (e).) Defendant was observed using his phone in his car as he paused at a red traffic light while driving in Richmond, California. He argues he was not “driving” because his car was stopped during his phone use, relying on our Supreme Court's determination in Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 280 Cal.Rptr. 745, 809 P.2d 404( Mercer ) that the term “drive” as used in section 23512 (prohibiting driving under the influence of alcohol or drugs) requires proof of “volitional movement.”

However, defendant's circumstances are materially different from those considered by the Mercer court, which defined “drive” as it applied to a person found asleep in a vehicle legally parked against the curb of a residential street, albeit with its engine running and lights on; in other words, the vehicle was not at the time being driven on public roadways. Here, defendant used his wireless telephone with his hands while driving on a public roadway at a time at which he paused momentarily at a red light. This situation is not addressed in Mercer or other relevant case law. We conclude, pursuant to our application of Mercer and black-letter rules of statutory interpretation, including our review of the language and legislative history of section 23123, subdivision (a), and our application of “ ‘reason, practicality, and common sense to the language at hand’ ” ( MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1084, 36 Cal.Rptr.3d 650( MacIsaac )), that the Legislature intended section 23123, subdivision (a) to apply to persons driving on our public roadways who, like defendant, may pause momentarily while doing so in order to comply with the rules of the road. Therefore, we hold that defendant violated section 23123, subdivision (a) and affirm the judgment.

BACKGROUND

On the morning of December 28, 2009, defendant was cited by a police officer for an infraction of section 23123, subdivision (a). Violators are

[200 Cal.App.4th 1088]

subject to a fine. (§ 23123, subd. (b).) Defendant contested his citation, leading to a trial before a Contra Costa County Superior Court traffic commissioner.

[132 Cal.Rptr.3d 859]According to the traffic commissioner's statement of the evidence, which defendant does not challenge for the purposes of his appeal, the police officer testified that he pulled up on his motorcycle directly by defendant's driver-side door while defendant's car was stopped at a red traffic light in Richmond, and saw defendant sitting in the driver's seat with a flip-type cell phone in the process of dialing the phone and placing it to his ear. Defendant looked at the officer, removed the phone from his ear, and closed it. After the traffic light turned green and defendant drove his vehicle through the intersection, the officer stopped him and advised him he had been on his phone in violation of the law. Defendant objected that he only used his phone while stopped at the light and not while driving, but the officer cited him nonetheless. Defendant testified that he was checking his email and pushing some buttons on his phone, which was in his hand, as he waited for the traffic light to turn green, his car in gear.

Defendant argued to the traffic commissioner that he was not “driving” his vehicle when he used his wireless telephone. He based his argument on our Supreme Court's definition of “driving” in Mercer, supra, 53 Cal.3d 753, 280 Cal.Rptr. 745, 809 P.2d 404, a case which considered whether or not a man found by police asleep and slumped over the wheel of a car legally parked against a curb of a residential street, its engine running and its lights on, who refused chemical tests was lawfully arrested without a warrant for violating section 23152, although the man's vehicle did not move in the officer's presence. ( Mercer, at pp. 756–758, 280 Cal.Rptr. 745, 809 P.2d 404.)

Defendant was found guilty of violating section 23123 and ordered to pay a fine and other penalties, totaling $103. The appellate division of the superior court affirmed his conviction. It subsequently granted his request for transfer certification to this court because it thought it necessary to determine “whether the term ‘driving’ as used in section 23123 requires contemporaneous volitional movement of the motor vehicle as an element of the offense.” We granted review of the matter by order filed on March 30, 2011.

DISCUSSION

Defendant argues in this appeal, as he argued before the traffic commissioner, that section 23123, subdivision (a) does not prohibit hand-held

[200 Cal.App.4th 1089]

wireless telephone use while a vehicle is stopped on the public roadways, relying on the Mercer court's definition of “driving.” The People argue that section 23123 prohibits such use because the statute applies to persons “operating” their vehicles on the public roadways, and that, in the alternative, substantial evidence of such motion was presented at trial in any event. We conclude defendant listened to his hand-held wireless telephone during a fleeting pause at a traffic light “while driving” in Richmond and, therefore, violated section 23123, subdivision (a), as we now explain.

I. The Meaning of “ Drive ” and “ While Driving ” in Section 23123 A. The Governing Law

Section 23123 first became effective on January 1, 2007. (Stats.2006, ch. 290, § 4, p. 1957.) Subdivision (a) of section 23123 states: “A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.” (§ 23123, subd. (a).)

[132 Cal.Rptr.3d 860]A violation of section 23123, subdivision (a) is an infraction punishable by a base fine of $20 for the first offense and $50 for each subsequent offense. (§ 23123, subd. (b).)

Certain persons are exempt from the mandate in section 23123, subdivision (a).² For example, the mandate does not apply “to a person using a wireless telephone for emergency purposes, including, but not limited to, an emergency call to a law enforcement agency, health care provider, fire department, or other emergency services agency or entity” ( § 23123, subd. (c)), “to an emergency services professional using a wireless telephone while operating an authorized emergency vehicle ... in the course and scope of his or her duties” ( § 23123, subd. (d)), or to a person while driving a motor vehicle on private property. ( § 23123, subd. (e).) ³

[200 Cal.App.4th 1090]

The Vehicle Code does not include definitions for the terms “ drive” or “while driving,” ⁴ nor are we aware of any cases discussing the application of such terms to the present circumstances, i.e., a person who engages in an activity that is prohibited “while driving” as he pauses at a traffic light. Mercer, as we will discuss, does not. Defendant cites People v. Howard (2002) 100 Cal.App.4th 94, 121 Cal.Rptr.2d 892, which, citing Mercer's definition of “driving,” determined that a vehicle stalled and stopped in the center median of a street was not “proceeding” on a public street and, therefore, defendant was improperly convicted of exhibiting a firearm in violation of Penal Code section 417.3. ( Howard, at pp. 97–99, 121 Cal.Rptr.2d 892.) Central to the Howard court's ruling was its conclusion that, unlike in the present case, defendant's vehicle was “fully stopped, inoperative, and incapable of moving in any manner (except, presumably, if pushed).” ( Id. at p. 99, 121 Cal.Rptr.2d 892.) Based on this evidence, it rejected the People's argument that the vehicle could have been moved accidentally or if taken out of gear. ( Ibid.) The court also noted that it had no reason to conclude that “ ‘proceeding on a public street or highway,’ ” as used in section 417.3, included “brief and inadvertent movement on the side of a street or highway” ( ibid.), circumstances that are not relevant to the present case.

In our independent research, we have found two cases that, in discussing the [132 Cal.Rptr.3d 861]difference between “operate” and “drive,” quoted an American Law Reports annotation in which it was indicated that a person would be “operating,” rather than “driving,” a vehicle during “ 'stops and parking on the highway.' ” ( Music v. Department of Motor Vehicles (1990) 221 Cal.App.3d 841, 849, fn. 7, 270 Cal.Rptr. 692, cited favorably in Mercer, supra, 53 Cal.3d at p. 756, 280 Cal.Rptr. 745, 809 P.2d 404;Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1028, fn. 1, 229 Cal.Rptr. 310, italics added.) Neither case, nor the quote from the annotation, addressed a driver's fleeting pauses for traffic lights while driving on the public roadways, however. In any event, the discussion of the annotation was dictum in both cases.

Defendant's argument that he was not “driving” is based on our Supreme Court's opinion in Mercer, supra, 53 Cal.3d...