Munson Opening Brief on appeal 4 Napa

8/8/2019 Munson Opening Brief on appeal 4 Napa

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AUG 8 5 2010clerk of the ~apaguperio

IN THE SUPERRIOR COURT OF THE STATE OF CALIF8COUNTY OF NAPA

APPELLATE DIVISION

PEOPLE OF THE STATE OF No.: CR 151673CALIFORNIA,

Plaintiff and Respondent, (Napa Superior CourtNo. CR 149144)v.RIK WAYNE MUNSON,

Defendant and Appellant.

APPELLANT'S OPENING BRIEF

Appeal from.the Judgmeut of the Superior Court of the State ofCaliforuia For the County of Napa in a MisdemeanorIInfraction CaseHONORABLE STEPHEN T. ICROYER, JUDGE

HONORABLE COMMISSIONER MONIQUE LANGHORNE-JOHNSON

DONE. LAUGHRIDGE(SBN 85238)833 Franklin St., Suite 4Napa, Ca. 94559(707) 255-3535Attorney for Appellant byAppointmeut of the Court


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TABLE OF CONTENTSTABLE OF AUTHO RITIES 3

? .ISSUES PRESENTED ON APPEAL 4FACTS OF THE CASE 5ARGUMENT:I. WAS IT ERROR FOR THE LEARNED TRIAL JUDGENOT TO SU A SPONTE ASK THE PRO PER DEFENDANTIF HE WAN TED TO TESTIFY IN HIS OWN DEFENSE? 911. DID THEHONORABLEMONIQUE LANGHORNE-JOHNSON COMM IT ERROR BY NOT CO NSIDERING SUASPONTE APPELLANT'S MOTION TO QUA SH AS EITHER ACOMMON LAW SUPPRESSION MOTION OR A M OTION INARREST OF JUDGMEN T? 10111. DID TH E HONO RABLE STEPHE N T. IUiOYER ERR INNOT SUA SPONTE TREATING APPELLANT'S MOTION TOQUASH AS EITHER A COMMON LAW SUPPRESSION MO-TION OR A MOTION IN ARREST OF JUDGMEN T? 14IV. ARE VEHICLE CODE INFRACTIONS SUBJECT TO THEGENERAL CRIMINA L LAW UNDER PEN AL CODE S19.7? 15V. ASSUMING THAT VEHICLE CODE INFRACTIONS ARENOT SUBJECT TO THE PENAL CODE, WAS THE DEFEN-DANT'S DETEN TION VIOLATIVE OF THE FOURTHAMENDMENT AS AN ARREST WITOUT WARRANT? 16VI. DID THE PROSECUTION PROVE THAT SERGEANTHUNTER AS A DEPU TY SHERIFF HAD THE AUTHORITYTO ENFORCE TRAFFIC LAWS IN AMERICAN CANYON? 17CONCLUSIONWORD COUNT


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TABLE OF AUTHORITIES

FEDERAL CASESA~izona . Fthiinarite (1991) 499 U.S. 279, 111 S.Ct.1246,1265,113 L.Ed.2d 302,332Clznpnzmz v. C al ifo m in (1967) 386 US 18, 17 L. Ed. 2d 705CALIFORNIA CA SESI7 2 re Estate o f H om ian 265 C al.App.2d 79 6,7 1 Cal.Rptr.780 (Cal.App. 1968)People v. Holgui~z 1956) 145 Cal. App. 2d. 520People. v. Hor vath (1982) I27 C aI. App. 3d 398People v. Martinez 14 Cal.3d 533, 537, 535 P.2d 739, 741,121 Cal.Rptr. 611, 613 (Cal. 1975People v.Mor-gmz (App. 3 Dist. 1977) 141 Cal.Rptr. 863,75 C al.App.3d 32.People v. Sava (1987) 190 Cal. App. 3d 935People v. Wolilleberl 261 Cal.App.2d 461 ,463 (Cal.App.2.Dist.1968)STATUTES AN D MISCELLAN EOUS CITESEvidence Code 5320Code of Civil Procedure 55 418.10,607Penal Code $ 5 1044,152.7, 1 538.5 ,1185 ,1186 ,1004Vehicle Code $5 40300, 12801.5 (e), 4000 (a) (I), 12500 (a),16028 (a), 4,403 00.5Government Code $26613Witkin Criminal Law, Chapter XVII, 520 9


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ISSUES PRESENTED ON APPEAL

I. WAS IT ERROR FOR TH E LEARNED TRIAL JUDGENOT TO SUA SPO NTE ASIC THE PRO PER DEFEN DANTIF HE WA NTED TO TESTIFY IN HIS OW N DEFENSE?11. DID THE HONOR ABLE MONIQUE LANGHO RNE-JOHNSONCOMMIT ERROR BY NOT CON SIDERING SUA SPONTEAPPELLANT'S M OTION TO QU ASH AS EITHERA COMMON LAWSUPPRESSION MOTION OR A MOTION IN ARREST OFJUDGMENT?111. DID THE HONO RABLE STEPHEN T. KROYER ERR IN NO T SUASPONTE TREATING APPELLANT'S MOTION TO QUASH ASEITHER A COMMON LAW SUPPRESSION MOTION OR A MOTIONIN ARREST OF JUDGMEN T?IV. ARE VEHICLE CODE INFRACTION S SUBJECT TO THEGENERAL CRIMINAL LAW UND ER PENAL CODE SECTION 19.7?V. ASSUMING THA T VEHICLE CODE INFRACTIONS ARE NOTSUBJECT TO THE PENAL CODE, WAS THE DEFENDANT'SDETENTION VIOLATIVE OF THE FOURTH AMENDMENT A S ANARREST W ITOUT WARRANT?VI. DID THE PROSECUTION PROVE THAT SERGEANT HUNTERAS A DEPUTY SHERIFF HAD THE AUTHORITY TO EN FORCETRAFFIC LAWS IN AMERICAN CANYON ?


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FACTS OF THE CASE AND PROCEDURA L HISTORYTh is case w as prosecuted by a citation issued to the appellant

on October 29, 2009 allegin g violations of sections 4000 (a) (I ), 12500 (a)and 16 208 (a) of the California Vehicle Code . Sergeant Mike Hunter whoissued the citation w as a S he ri ff s Deputy working under contract to theCity of Am erican C anyon at the time of issuance. Appellant was convictedof violating $12500 (a) and $16208 (a) on March 8,2 01 0. Appellant nowattacks the jurisdiction of the court to entertain the charges and alleges thathe was denied fair hearings on December 22 ,2 00 9 and March 8, 20 10 .

When appellant failed to appear pursuant to the November 30 ,20 09date stated on the citation, a bench warrant was issued for his arrest. OnDecem ber 7,20 09 , appellant surrendered on the warrant and filed andsewed a NOTICE OF MOTION MOTION TO QUASH CCP $418.10;POINTS AND AUTHOR ITIES (Hereafter "Motion To Quash"). Althoughat first glance this filing seem s unusual in a misdem eanorlcriminal case,appellant believed that it was wholly consistent with his belief that V ehicleCode misdem eanors and infractions are subject only to the Vehicle C odeand the civil law s and not subject to the Penal Code. On Decem ber 7,2009, defendant requested that advisory counsel be appointed to assist himin the presenta tion of his case, was given Faretta Waining s and, instead ofsigning his name to the RE CORD O F FARETTA W ARNINGS, wrote "DoNot Waive Rights" above the signature line. Defendant was released on hisown recognizance on Decem ber 7,2 00 9 with a promise to appear.Appellant thereafter represented himself for all purposes through trial andconviction even thoug h his desire was to hav e adv isory counsel to assist inprotection of his rights.

Appellant's Mo tion To Quash was denied by COM MISSION ERMONIQUE LANGHORNE-JOHNSON on December 22,20 09 as not anappropriate filing. The L earned Comm issioner was of the opinion that a


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Penal Code $15 38.5 n ~ o ti o n eeded to be filed. (See electronic recording ofDecember 22,200 9 hearing).

The appellant's trial on one n~ isdemean or nd two infraction countsfor violation of the C alifornia Vehicle Code took place on M arch 8, 20 10and the appellant represented himself. Jury trial was wa ived and the trialjudge was the HON ORA BLE STEPHEN T. KROYER. Th e bulk of thetrial transcript, do cu n~ en ts ubmitted with appellant's D ecem ber 7, 2009Motion To Quash, and trial exhibits set forth the substance of appellant'sclaim that the Court had no jurisdiction to proceed against him on thecitation.

It is obvious fro m the record of the trial proceedings that defendantwas not accorded the opp ortunity to testify in his own defense. Prior tocomm encement of the trial, the trial judge only touched upon the issue ofthe appellant's testifying onc e and that was in discussions prior toconm ence me nt of the trial. The appellant told the judge at that time (priorto trial) that "My witness list is blank." (Reporter's transcript o f trialhereafter "R.T." (R .T. 3-8-10, p. 2 8, l. 24 throug hp. 29 ,l. 7). Toward theend of Sergeant Hu nter's testimony, the trial judge (in response toappe llant's questio ning-w hethe r he officer recalled certain facts col-rectly)told the defendant "Yo u're chance to testify is going to come". (R .T., 3-8-10, p. 4 3,l . 22 through p. 44,l. 8).

At the conclus ion of the prosecution's case, the trial judge askedappellant if he wanted to m ake a n opening statement to begin his defensebut appellant waived . (R.T ., 3-8-10, p. 55,1.24 through p. 55. I. 26). Thenthe C ourt asked appellant if h e wanted to "present any ad ditional evidence"and defendant introduced o ne document (Defendant's Exhibit "8", a copyof which is attached hereto) over which there was some discussionregarding its relevance. (R. T., 3-8-10, p. 5 5,I . 27 through p. 5 7 ,l . 24.)After the appellant bega n a rguing the relevance of Exhibit "8", the trial


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judge informed him that the case was not at the argument phase yet andasked whether "there a re any other items of evidence you w ant to present?"(R.T., 3-8-10, p. 25,1.25 through p. 58 ,l . 10). When appellant indicated hehad no further documentary evidence, the Court asked the prosecutor ifthere was any rebuttal case and, being informed that there was none,proceeded to explain that closing arguments would be the next order ofbusiness. (R.T., 3-8-10, p. 58 ,l. 9 -27). Defendant was never asked if hehad witnesses to present in his own defense or if he wanted to testify but,and this is som ewhat ironic, the prosecu tion was offered the opportun ity tore-open its case after appellant had started his final argument. (R.T., 3-8-10, p. 5 9 ,l . 11 through p. 6 1, l. 4). In addition, at no time did the trial judgeask the appellant if he wanted his m arked and identified exhibits movedinto evidence and, consequently, only Defendan t's exhibits 7 and 8 werereceived and made a part of the record. The prosecutor's proffereddocumen tary evidence was m arked, identified and received into evidence.

Most of the appellant's arguments at trial rested on theconcep t that the stop of his vehicle by Sergean t Hunter was an illegal ane stand not a mere detention. While making the vehicle stop, appellant wastold by Sergeant Hunter that he was not under arrest but he could not leaveuntil he signed the citation to appear. (R.T., 3-8-10, p. 4 3 ,l . 18 tl~r ou gh .44,1.6 and p. 48 ,l . 20-24) Sergeant Hunter did not have a wan ant to arrestor detain the appellant. (R.T., 3-8-10 , p. 4 8 ,l . 11-19) The scope of the stop(and whether or not it was m erely a detention or an actual arrest) cannot bedetel-inined from the ev idence because appellant did not testify. Appellantadmitted to Sergeant Hun ter that he did not have a valid driver's license.(R.T., 3-8-10, p. 33 ,l . 13 -23). Sergeant Hunter admitted that he searchedthe appellant's veh icle without consen t. (R.T., 3-8-10, p. 44 1. 20 -28.)Appellant could have testified on the scope and duration of the detentionbut was never given an opportun ity to do so. While the trial judge asked


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appellant if he had "any other items of evidence", he never asked thedefendant if he had witnesses or if he would be testifying himself. (R.T. 3-8-10, p. 58,l . 9 -13) Upon conclusion of the prosecution's case,documentary evidence was submitted by the appellant and then argumentwas invited. Defendant was never sworn to testify as a witness at any stageof the trial nor did he testify.

In his final argument, the appellant argued that his detention/aireston October 29,2009 was violative of the Fourth Amendment, that therewas no criminal jurisdietion to enforce the traffic laws which wereessentially civil and that the tsial court did not have jurisdiction of thesubject matter of his case. The trial judge acknowledged that theappellant's arguments were akin to an oral motion to suppress pursuant to51538.5 of the Penal Code hut found that no motion had been timely madebefore trial. (R.T., 3-8-10, p. 89,l. 9- 17). The tsial judge also indicatedthat, based on the record before him, he would probably deny the motion ifit was properly before him. (R.T., 3-8-10, p. 89,l . 9- 17).

The appellant made numerous attempts to get Sergeant Hunter tostate the authority under which he had detained and searched appellant onOctober 29; 2009 but &s not able to get an answer as his questions weredeemed to have called for legal conclusions. (R.T., 3-8-10, p. 35,l . 21throughp. 38., 1. 14).

Appellant complained to the trial judge that he was being denied theassistance of counsel in his case and the trial judge responded by tellinghim that it was not possible for him [the trial judge] to countermand thedecisions of "anotherjudge of equal stature". (R.T. 3-8-10, p.19, 1. 26through p. 20, l. 25.)


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WAS IT ERRO R FOR T HE LEARNED TRIAL JUDGENOT TO SUA SPON TE ASIC THE PRO PER DEFEN DANT

IF HE M7ANTEDTO TESTIFY IN HIS OWN DEFENSE?It was s t~ uc h lr al rror in the trial of this case n ot to afford the

appellant the op po rt~ ~n ityo testify in his own defense. The record show sthat the appellant had willing ly given up his right to remain silent under theFifth Amendment. Th e Sixth Amendm ent guarantees "co n~p ulso ry rocessfor obtaiuing witnesse s" i n favor of the accused. In Arizona v. F~ r l rm~~m l f e(1991) 499 US. 79, 11 1 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 332, "trial"en-ors were found to be subject to the CI~apnzun armless error standard.Clzrpina~~. Califor.izia (1967) 386 US 18, 17 L. Ed. 2d 705. Examples of"struchral errors" w hicb are per se reversible, include total dep rivation ofthe right to counsel at tria l, trial before a biased judge, unlaw ful exclusionof members of the defendant's race fiom the grand jury, denial of the self-representation right at trial, and denial of public trial. 6 WITCRIM Ch.XVII, 20. It would see m that not affording a criminal defendant his rightto testify in his own d efense would constitute a structural erro r which wasreversible per se and no t subject to the harmless error rule of Chapm an,supra. The right to testify in one's own behalf is as fundamental as theright to remain silent. A harmless en or determination on the facts of thiscase would be tantamount to saying the defendant didn't have his day incourt and the deprivation of the right to testify is of no consequence.

Pursuant to Penal Code $1044, it is the "duty of the judge tocontsol all proceedings during the trial". Section 320 of the Evide nce Codestates that "Except as o therwise provided by law, the court in its discretionshall regulate the order of proo f '. Section 607 of the Code of CivilProcedure sets forth th e suggested order of proceedings in civil and


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criminal trials. The object of these statutes is to give the judge widediscretion in providing a fair and impartial trial. In the case In re Estate ofH o i - I ~ I Z2 65 Cal.App.2d 796, 71 Cal.Rptr. 780 (CaLA pp. 1 968) thefollowing language appears with respect to the exercise of the cou rt'sdiscretion in condu cting a trial:

"A party is entitled to have received in evide nce andconsidered by the court, before findings are made, allcompetent, relevant and material evidence o n any materialissue, and while it is within cow t's sound discretion to definethe issues and direct the order of proof, the court m ay notact so as t o preclude a party from adducing competent,material and relevant evidence which tends to prove o rdisprove any material issues."Even though the trial judge was courteous, patient and attentive to

wha t he thought were erroneous argum ents being put forth by appellant attrial of this case, the appellant was effectively denied his rights under theFirst and Sixth Amendm ent to give testimony in his own behalf. Eventhough the failure to ask defendant if he wanted to testify or the failure toinform him that it was his time to testify (if he wanted) was mos t likelyinadvertent, the failure was structural error and is reversible per se.

ZI,DID THE HONORABLE MONIQUE LANGHORNE-JOHNSONCOMMIT ERROR BY NOT CONSIDERING SUA SPONTEAPPELLANT'S MOTION TO QUASH AS EITHER A C OMM ONLAW SUPPRESSION MOTION OR A MOTION IN ARREST OFJUDGMENT?

The appellant's M otion To Quash under Code of Civil Procedure$418.10 which w as filed on D ecember 7, 20 09 argued that the Court had nojurisdiction to proceed against appellant and that his seizu re in a traffic stopwithout a warrant violated his Fourth A mendm ent right to be secure fromunreasonable searches and seizures. Appellant brought this civil motion


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because he believed (based upon his reading of the law) that V ehicle Codeinfractions are not "public offenses" punishab le under the Penal Cod e. It isappellant's position that the offenses for which he was charged are offensespunishable only under the California Vehicle Code and not subject to thePenal Code. +

Defendant could have testified (had he been given the opportunity)that the duration of his detention by Sergeant Hunter exceeded the scoperequired to ticket him an d involved two searches of his vehicle even thoughhe had a lready (as the evidence at the trial confirms) adm itted that be hadno license and the vehicle registration had expired. Even thoug h he knewthe vehicle was no t registered and appellant had told him that his licensehad expired, Sergeant Hunter searched appellant's vehicle anyway .

Th e procedure for arvests for traffic violations is se t forth in $40300of the Vehicle C ode and that section controls whether a person may b earrested when driving. '-Section 12801.5 (e) of the Vehicle Code providesthat "Notwithstanding Section 40300 or an y other provision of law, a peaceofficer may not detain or arrest a person solely on the belief that the personis an u~llice nsed river, unless the officer has reasonable cause to believethe person driving is under the age of 16 years." The case of People v.Wolzlleben 261 C al.App.2d 461, 463 (Cal.App .2.Dist.1968) confirms theautonomy of theV ehic le Code and the principle that arrests withoutwa nan t for Veh icle Code violations are allowed only in limited situations:

"The trafGc violation for which defendant wa s stopped couldnot provide the basis for a lawfu l arrest. Proce dure on arrestsfor traffic violations is specified in division 17, chapter 2 ofthe Vehicle C ode comm encing with section 40300. Section40300 of the Vehicle Code provides: "The provisions of thischapter shall govern all peace officers in mak ing arrests forviolation s of this code without a warrant for offensescomm itted in their presence, but the procedure prescribed


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herein shil l not ot lwwise be exclusive of any other methodprescribed b y law for the arrest and prosecution of a personfor an offense of like grade." (Italics added.) A statute is to beconstrued w here possible to give effect to all of its tem ls.(Code C iv. Proc., 3 1858.) The insertion of the word"othenvise" in the second clause of section 40300 can onlymean that to the extent stated in the first clause the arrestprocedure of the Vehicle Code is exclusive. (See People v.hfaggiorn, 207 Cal.App.2d Supp. 908, 91 1 [2 4 Cal.Rptr.6301.) Thu s, although it is a m isdemeanor for any person toviolate a provision of the Vehicle Code unless the violation isexpressly d escribed by the code to be a felony or an offensepunishable as a felony or misdenleanor ($40000, subd. (a)),the procedu re on arrests without a w arrant for misdemeanorV eh icle O d e violations is that prescribed by the VehicleCode a nd no t the procedure prescribed by the Penal C ode.(Pen. Code, $ 833 et seq.)

In addition, $ 4 of the Vehicle Code provides that the comnlon law inexistence at the time o f adoption of the V el ~i cl e ode was not abrogated.The appellant's Motion to Quash should have been considered on its meritsby COMM ISSIONER LA NGH ORNE -JOHNSON and it was prejudicialerror not to consider th e C ourt's jurisdiction to proceed to determinewhether or not appellant's detention by Sergeant Hunter was im permissible.

Even 319.7 of the P enal Code which states that "all provisions of.law relating to misdem eanors shall apply to infractions" cannot save thecourt's jurisdiction because that statute begins with "Except as otherwiseprovided by law" which w ould mean the Vehicle Code would be the lawdeterminative of the C ourt's jurisdiction.

App ellant's M otion To Q uash was in effect a comm on law motion tosuppress which exists independently of Penal Code $1 538.5. Anevidentiary hearing should have been conducted on the M otion To Quashon December 22 ,2 00 9 and the Court should have ruled on whether or not


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the appellant was illegally detained and an est ed as well as the question ofthe court's jurisdiction.

Courts often entertain mo tions that are not properly denom inated andtake evidence and arg~urnent n those misnamed motions in accordance withtheir legal effect. Most courts do not exalt form over substance. Forinstance, an iinpermissible m otion for judgment notwithstanding the verdictin a criminal trial was treate d as a n~ o t ionn arrest of judgment unde r $ 1185of the Penal Code. People v. Mo~ g a nApp. 3 Dist. 1977) 141 Cal.Rptr.863,75 Cal.App.3d 32. In that case, a judgmen t of acquittal was enteredafter the jury (which had been dismissed) had fo~un d efendant guilty ofmanslaughter on a ch arge barred by the statute of limitations. In the case atbar, it would have been appropriate to treat the Motion T o Qu ash as acommon law supp ression motion in view of the fact that it wa s propoundedby a self-represented part y and such treatment would hav e bee n fair andjust in the circumstanc es.

COlMMISSIONER LANGHORNE-JOHNSON could also haveconsidered the appellant's motion to quash as a motion in arrest ofjudgment pursuant to Penal C ode 5 1185 because it attacked the jurisdictionof the court to proceed on groun ds other than those listed in Penal C ode$1004. Section 1186 of the Penal Code gives the court discretion to a ne stjudgment sua spo nte at any appropriate time in the proceedings.Therefore, appellant's mo tion can also be viewed as an appropriate requestto arrest judgm ent.I/


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DID THE HONORABLE STEPHEN T. ICROYER ERR IN NOT SUASPONTE TREATING APPELLANT'S MOTION TO QUASH AS

EITHER A COMMONLAW SUPPRESSION MOTION OR AMOTION IN ARREST OF JUDGMENT?^

The appellant's m ain argum ent in his Motion T o Quash and at trialwas that Sergeant H ~m ter 's etaining him was an impermissible arrest for aVehicle C ode infraction, i. e., V. C. $400 0 (a), unregistered vehicle. Hispretrial m otion to quash should hav e been considered a com mon lawmotion to su ppress as has bee n argued in the previous section of this brief.

A motio n to su


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In addition, the trial judge could have treated the motion to quash asa motion in arrest of judgment and sua sponte arrested judgment pursuant tosections 1185 and 11 86 of tbe Penal Code. This would have beenappropriate at any stage of the trial.

IV.

In People v.Suva 1987) 190 Cal. App. 3d 9 35, it was held thatVehicle Cod e infractions are not crimes.

The trial judge cited 5 19.7 of the Penal C ode for the proposition thatinfractions under the Vehicle Code are subject to the sam e treatment asmisdem eanors under the Penal Code. This was erroneous because thebeginning langua ge of that section states that such treatment can be hadonly as "Except as otherwise provided by la w.. ." Th e California VehicleCode 5 40300 .5 provicks that an arrest without a warrant can on ly beeffected in certain circuinstances:

In addition to the au thority to make an arrest without awarrant pursuant to paragraph (1) of subdivision (a) ofSection 836 o f the Penal Code, a peace officer may, w ithout awarrant, arrest a person w hen the officer has reasonable causeto believe that the person had been driving while under theinfluence of an alcoh olic beverage or any di-ug, or und er thecombined influence of an alcoholic beverage and any drugwhen any of the following exists:(a) The person is involved in a traffic ac cident.(b) The person is observed in or about a vehicle that isobstructing a roadway .(c) The person will not be apprehended unless im mediatelyarrested.(d) The person m ay cause injury to himself or herself ordamage prop erty unless immediately arrested.


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(e) The person may destroy or conceal evidence of the crimeunless immediately. aixested.Applying the maxim "expressio unio et exclusio alterius" to the

above statute, the Ve hicle C ode can be seen to have e xpressly detailedwhen an aixest without a w arrant can be made and, having don e such,excludes the appellant's situation. Sergeant Hunter was not entitled tosearch and arrest appe llant pursuant to any authority granted in the PenalCode. The trial judg e's assertion that P. C. $19.7 was co ntrolling was error.Vehicle Code infractions, unless otherwise specified in the Vehicle Code ,cannot provide a peac e offic er with the right to aiuest or sea rch a mo torist.TWieii Sergeant Hunter stopped appellant for no valid registration, he was...only entitled to write t he ticket for which appellant was stopped.

v,ASSUMING THAT VE HICLE CODE INFRACTIONS ARE NO TSUBJECT TO THE PEN AL CODE, WAS THE DEFENDANT'SDETENTION VIOLATIVE O F THE FOURTH AMENDM ENT ASAN ARREST WITOUT WAR RANT?

It is hornbook law that, when an aixest or search is mad e w ithout aw ana nt, the burden shifts to the prosecution to prove that the arrest waslegal or the search was reasonable. People v. Holglriij (1956) 145 Cal. App.2d. 520. The ev ide nc eat trial showed that Sergeant Hun ter was told thedefendant had no licen se and knew the vehicle was not registered. Despitethis inforination, he searched. Sergeant Hun ter searched even though headmitted at trial he had no consent to search in violation o f the FourthAm endment rights of the appellant. ( SeePeople. v. Honmtlr (1982) 127Cal. App. 3d 398.) The search was unreasonable. H e could have justwritten the ticket and lef t the appellant alone withou t viola ting his rights.


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Compounding the obvious illegality of the search was the fact thatthe defendan t, for whatever reason, w as deprived of the opportun ity totestify to the facts of the search as know n to him. Had appellant been ableto testify, the trial result may well have been different as the trial judge mayhave indulged the hearing of the untimely motion to suppress bec ausejustice and fairness would ha ve been served by such action.

>VI.

DID THE PROSECUTION PROVE THAT SERGEANT HUNTERAS A DEPUTY SHERIFFHADTHEUTHORITY TO ENFORCE

TRAFFIC LAWS IN AMERICAN CANY ON?

At trial, appellant asked many questions attempting to deternlineSergeant H ~~ nt er ' snowledge of the procedures that he was entitled to usein enforcing the Vehicle Code. Most of these questions me t sustainedobjections on the basis that they called for legal conclusions on the pa rt ofSergeant Hunter. (R.T., 3-8-10, p. 34 ,l . 21 thro nghp . 38,l. 14). This lineo f q~~ es t ionsas com pletely appropriate because it was de signed todetemine how a deputy She riff was entitled to enforce the traffic laws of acity.

Generally, a County Sheriff does not have authority lo enforce thetraffic laws in nlunicipal a reas. Such authority must be lega lly delegatedand appellant's questions were designed to elicit whether su ch delegationhad occulred and the actual authority of Sergeant Hun ter to stop him for aVehicle Code infraction. California Government Code 26613 providesthat "Notwithstanding the provisions of Section 29601 the board ofsupervisors in a couuty having a population in excess of 3,000,000 may..authorize the sheriff to enfo rce the provisions of the Ve hicle C ode in theunincorporated area of such county but only upon county hig hw ays .. . "


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There w as no proof that S ergeant Hunter was entitled to enforce theVehicle Code in Alilerican Canyon except his statenlent that the S h e ri ff sDepaltlnent was under Contract with the C ity of American Canyon toprovide police services.

CONCLUSIONThe appellant was denied his day in court on at least two o ccasions.First, on Decemb er 22, 2009 , his motion to quash w as denied by

Com missioner Langhom e-Johnson and he was not accorded an evidentiaryhearing. Wh ile the motion to quash appeared peculiar (a civil motion filedin a criminal action), its gravamen w as entirely appropriate and the m otion

,raised legitimate issues for consideration by the Court. Th e Court shouldhave exercised its discretion to hear and decide the motion to qu ash eitheras a comm on law motion to suppress, a Penal Code 51538.5 motion or amotion in arrest of judgment.

Second, at his trial on March 8 ,20 10 , defendant did not testify in hisown defense. Th e right to testify for one's self in a criminal case is afundamental right. It was the duty of the trial judge to protect thatfimdamental right but he failed to do so . This was structural error andundermines any co nfidence in the justness and fairness of appellant's hia l.Th e verdic t of gu ilty 0x1 Co unts 2 and 3 should be set aside an d the ca seremanded for filrtlier proceedings which protect the fully panoply ofappellant's rights. Such findings should be included in the rem ittitt~ r s theAppellate Department deems meet and proper.Dated: 8-23-10

Attorney at Law


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CERTIFICATION OF NUMBER OF WORDS IN BRIEF

I, DON E. LAU GH RIDG E, certify and declare that the foregoingbrief contains 4768 words not including this page or the PRO OF OFPERSO NA L SE RV ICE attached hereto. Said word count was achieved ona f~mctioningMicrosoft W ord program.

I, DO N E. LAUG HRIDGE , declare under penalty of perjury of thelaws of the S tate of California that the foregoing is true and correct and thatthis certification was signed by m e on August 23,2010.

DON E. LAUGHRIDGEATTORNEY FOR APPELLANT


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PROOF OF PERSONAL SERVICEI, DON E. LAUGHRIDGE, declare:

I am a citizen of the United States and a m over the age of eighteen (18)years. I am not a party t o his action. My business address is:DONE. LAUGHRIDGE, Attorney at Law, 833 Franklin St., Suite 4, Napa, Ca.94559.

On August 23,2010, I served the APPELLANTS OPENING BRIEFin appellate action number CR 151673of the Napa Superior Court on thefollowing persons and/or entities, by personally delivering copies thereof tothem at the addresses indicated below and giving the document to a person ofsuitable age and discretion who was authorized to receive service:NAPA DISTRICT ATTORNEY'S OFFICE931 Parkway MallNapa, Ca. 94559HONORABLE STEPHENT. KROYERCriminal Courts Building1111Third St.Napa, Ca. 94559HONORABLE COMMISSIONER MONIQUE LANGHORNE-JOHNSONCrimninal Courts Building1111Tlurd St.Napa, Ca. 94559

I, DON E. LAUGHRIDGE, declare under penalty of peljury of the lawsof the State of California that the foregoing is true and correct except as to tliosematters which are herein alleged on information and belief and, as to thosematters, I believe them to be true. This declaration was executed by me onAugust 23,2010, a t Napa, California.

DON E. LAUGHRIDGE

Munson Opening Brief on appeal 4 Napa

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Transcript of Munson Opening Brief on appeal 4 Napa