People v. Oppenheimer, Cr. A

• Decision Date: 14 August 1974
• Docket Number: Cr. A,No. 12647,12647
• Citation: 42 Cal.App.3d Supp. 4,116 Cal.Rptr. 795
• Court: California Superior Court
• Parties: 42 Cal.App.3d Supp. 4 The PEOPLE, Plaintiff and Respondent, v. John G. OPPENHEIMER, Defendant and Appellant. Appellate Department, Superior Court, Los Angeles County, California

Page 795

116 Cal.Rptr. 795

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, California.

Aug. 14, 1974.

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 defenant 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 it 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

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

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). The common law respecting trial by jury as it existed in 1850 is the rule of decision in this state (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. 286, 298--299, 39 P. 627; People v. Kelly (1928) 203 Cal. 128, 133, 263 P. 226.

The fact the statute in question was enacted after the adoption of the Constituion in 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.)

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 39 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 of the laws 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.) (Emphasis added.)

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 involved 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 dricers 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 if 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, 39 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.

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...