In the Superior Court of California, County of Santa Clara, Appellate Department

Case No. 1-10-AP-000919

Appellants Opening Brief

The People of the State of California, Plaintiff and Respondent, v. Anthony M. Shaffer, Defendant and Appellant.

1137 E. Cliff Drive, Apt. 4 Santa Cruz, CA 95062 +1 415 317 2240 anthony_shaffer@yahoo.com

Respectfully Submitted, Anthony M. Shaffer

Table of Contents Introduction Background The need for review The statutory scheme for a failure to appear was ignored. Trials in absentia are generally prohibited. Confrontation Clause requires live testimony Traffic court exceeded judicial discretion. Efficiency does not trump fairness. 40903 and criminal rule 12 are too vague to be operative. Better alternatives to trial in absentia exists. Relief being sought. In conclusion. Certificate of word count 3 4 5 7 8 10 10 12 14 17 18 19 20

In the Superior Court of California, County of Santa Clara, Appellate Department

Introduction The appellant seeks relief for himself, and similarly situated criminal defendants, on the basis that proceedings in the Santa Clara Superior Court held under authority of Vehicle Code 40903 (permitting trial by declaration upon a failure to appear) are unlawful as implemented by the Santa Clara County Superior Court. The trial court tried and convicted the appellant in absentia for violation of Vehicle Code 26708(a)1 (material obstructing or reducing drivers view). Court records indicate that the appellant did not appear by the due date for a traffic citation so pursuant to a local rule1 the trial court conducted a trial without the appellant or citing officer present. A conviction resulted based solely on the notice to appear (citation) filed in the case absent any live testimony. Fines in excess of $400 were ordered for a fix it ticket. The superior court essentially applies the civil law concept of default judgement to criminal infractions upon a failure to appear, but it does so absent clear statutory authority and in contravention of many constitutionallybased criminal law practices. The appellant contends that any potential lack of diligence in responding to a citation does not justify the actions taken by the trial court. This brief presents several unsettled questions of law with statewide interest ripe for review.

Santa Clara County Superior Court Local Rules, criminal rule 12

Background The appellant has never had his day in court. Unquestionably the appellant could have been more diligent in the case. But any lack of diligence however does not make the appeal moot or diminish the constitutionally granted right to a fair trial. The court file contains the entire history of case since the appellant never entered a plea, nor was made aware of any specific trial date, and thus was not present at trial. Further, and perhaps even more importantly, the district attorney nor the citing officer, took any proactive actions outside filing the complaint via a notice to appear. As such the people were not present or otherwise represented at the trial, either. It is the court alone that took all the actions. The process that tried and convicted the appellant absent any plea or live testimony was based on Santa Clara County Superior Court Local Rules, criminal rule 12 (criminal rule 12). The rule incorporates Vehicle Code 40903(a) providing that:
Any person who fails to appear as provided by law may be deemed to have elected to have a trial by written declaration upon any alleged infraction, as charged by the citing officer, involving a violation of this code or any local ordinance adopted pursuant to this code.

Since the underlying state statute does not provide for trial in absentia, the respondent used its criminal rule 12 to extend Vehicle Code 40903 and provide for the trial in absentia process used in the appellants case. Criminal rule 12 reads in part:
[...] In eligible cases the [c]ourt will conduct the trial in absentia and it will be adjudicated on the basis of the notice to appear issued pursuant to Vehicle Code 40500 and any business record or receipt, sworn declaration of the arresting officer, or written statement or letter signed by the defendant that is in the file at the timbale the trial by declaration is conducted. []

Court records submitted as part of the appeal detail the specific actions taken in the instant case, but it the process used in similarly classed cases that is being challenged here. The major issue is that Vehicle Code 40903 and criminal rule 12 essentially makes the punishment for a failure to appear an almost certain conviction on the original violation that the failure to appear stems. Infractions are by statute and practice are punished by fines only - defendants should be held to answer the charges, not just essentially assumed to be guilty with high fines ordered. In order to conduct a trial by declaration in absentia, the trial court must ignore constitutional protections and other rights granted to the accused. It does so ostensibly for the sake of efficiency but the interests of justice must come first. The right to remain silent is not the same as waiver of constitutional rights. Only criminal defendants, not the court, has the power to waive the fundamental rights afforded to them under the law. The need for review While it is true that there would be no questions of law had the defendant simply appeared as promised, but that does not make the issues

presented moot or, more importantly, excuse the respondent from its obligation to pursue justice in each case. Californias courts, at even the most minor levels, should appear as places of justice. At least five other trial courts within California have adopted rules similar to Santa Claras criminal rule 12 and are foreseeably conducting trials in absentia. (See Calaveras County Superior Court Local Rules, rule 4.7; El Dorado County Superior Court Local Rules, rule 6.00.01; Napa County Superior Court Local Rules, rule 5.1; Santa Barbara County Superior Court Local Rules, rule 2107; Stanislaus County Superior Court Local Rules, rule 4.7.) There are obviously numerous other traffic courts that have not adopted in absentia procedures for failure to appear cases. This presents a situation where fundamental trial procedures vary depending the county of the violation. Multiple counties adopting rules codifying entire trials being held in absentia presents an issue of public interest that is likely to recur. As such, the appellant seeks declarative relief to resolve the statewide concerns and protect similarly situated defendants in other counties. With no published case law discussing Vehicle Code 40903, the appellate division responding to the merits of the petition is constructive to both prosecutors and defendants, regardless of any eventual holding. The lack of decisional law combined with inconsistent practices among the states traffic courts presents a clear need for action to secure uniformity of decision and settle an important question of law.

The statutory scheme for a failure to appear was ignored. Warrants are the typical remedy for failing to appear for a court hearing. The trial court certainly had the authority to issue a warrant to compel appearance. Looking to the the Self-Help Center on California Courts web site under Traffic Information does not mention trial in absentia and states in part (available at <http://www.courtinfo.ca.gov/selfhelp/traffic/ info.htm>):
If you don't go to court or pay the fine, your license can be suspended and the court can charge you with a misdemeanor and issue a warrant for your arrest.

The trial court never exercised warrant power prior to conducting a trial in absentia nor was any misdemeanor for failing to appear charged. The appellant had every expectation that any failure to appear would be processed as quoted text suggests. The appellants drivers license was not held or suspended until after the trial by declaration in absentia was conducted. Such actions are the typical remedy in traffic courts to solicit appearance but were not employed by the respondent prior to conduct the trial in absentia. Further, failure to appear or pay under Vehicle Code 40508 is a misdemeanor. Penal Code 17(d) adds two requirements to failure to appear or pay cases: (i) (ii) The defendants consent must be obtained before a failure to appear or pay charge can be reduced from a misdemeanor to an infraction. The defendant must be advised of his or her rights2 .

The statute does not enumerate the rights, but they presumably include the right to a jury trial, the right to court appointed council, the right to have the case heard by a judge not a commissioner, and presumably others. Those rights are not present if the charges are reduced to an infraction. Those rights come with a cost since misdemeanor charges carry the possibility of jail upon convection. In other words, the defendant must choose if the potential benefits of the additional civil rights outweigh the possibility of jail time.
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Despite the lack of a conviction for failure to appear, the trial court must have found that the appellant [...] failed to appear as required by law [...] (supra., Vehicle Code 40903(a)) to even be able to conduct a criminal rule 12 trial. But, the appellant never consented to the failure to appear being reduced to an infraction, and the statute does not grand the court the power to reduce the charge absent either the prosecutor's or defendants consent. Also, because of the process employed, the appellant was never advised of his rights as required by Penal Code 17(d). Since the appellant may have elected to have the failure to appear adjudicated as a misdemeanor to have his trial heard before a jury, the respondent erred by violating the statutory requirements of Penal Code 17(d). Trials in absentia are generally prohibited. There is no disputing that the trial court tried and convicted the appellant in absentia. This is corroborated by the text of criminal rule 12: the [c]ourt will conduct the trial in absentia. But what the trial court apparently fails to consider is whether holding a trial in absentia is constitutionally allowable. The California Constitution provides [t]he defendant in a criminal cause has the right to ... be personally present ... and to be confronted with the witnesses against the defendant (Cal. Const., article 1, section 15). Thus trials in absentia are largely prohibited. Now courts have held that a narrow exception exists when the defendant fails to appear in court for an ongoing trial and after reasonable efforts are made to locate the defendant. The allowance is based on that defendant is aware of his or her rights and by fleeing he or she chooses to waive them. However, it is well settled that a trial cannot proceed if the defendant is missing at the start of the trial. (See Crosby v. United States (1993) 506 U.S. 255; Diaz v. United States (1913) 223
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U.S. 442.) In Crosby the court says ... the notion that trial may be commenced in absentia still seems to shock most lawyers, it would hardly seem appropriate to impute knowledge that this will occur to their clients. [citation] (Crosby, supra., 506 U.S. at 261). In other words, the defendant's initial presence serves to assure that any waiver is indeed knowing (id.). It follows that conducting a trial in absentia without the defendants knowledge of the trial or presence at commencement is prohibited by the constitution and decisional law. Penal Code 1043 and Penal Code 977 et seq. provides the statutory requirements for a defendants presence at trial. Further, the respondents criminal rule 3(C)3 incorporates Penal Code 977s requirement that a defendant be present at trial unless a written waiver is on file.4 Since both authorities refer to misdemeanors and felonies, Penal Code 19.7 is constructive:
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.

Since Vehicle Code 40903 does not exclude the requirements of Penal Code 977 et seq., Penal Code 19.7 proviso of except as otherwise provided by law is not violated by this court enforcing the constitutional and statutory requirement that a defendant be present at an infraction trial. Vehicle Code 40903 does not use in absentia in its text, but criminal rule 12 does use the phrase in absentia in its body. But Elkins v. Superior Court (2007)
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Santa Clara County Superior Court Local Rules, criminal rule 3(C) (criminal rule 3(C))

4 Compare criminal rule 12 with criminal rule 3(C) (former providing for a trial in absentia while later requiring the defendants presence at trial thus creating conflict in the trial courts own rules)

41 Cal.4th 1337, 1351 is clear that a courts local rule cannot supersede the law:
A trial court is without authority to adopt local rules or procedures that conflict with statutes or with rules of court adopted by the Judicial Council, or that are inconsistent with the Constitution or case law.

Thus, the respondent erred by conducting a trial in absentia against the appellant and others. Confrontation Clause requires live testimony The Confrontation Clause of the Unites States Constitution requires the prosecution to produce live testimony not affidavits as evidence of guilt. Clearly the Notice to Appear used as the complaint in the instant case when offered as evidence is in fact an affidavits. In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and affirmed in Briscoe v. Virginia (2010) 559 U.S. ____, the supreme court asserts that while the defense can waive the requirement for live testimony, absent any waiver, the prosecution must produce witnesses at trial. The Court even disucss the impact the ruling might have on courts, but doe The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause like those other constitutional provisionsis binding, and we may not disregard it at our convenience. Traffic court exceeded judicial discretion. The seminal case on the role of the judge in a minor violation case is People v. Carlucci (1979) 23 Cal.3d 249. The court in that case held that the

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district attorney is not required to attend traffic trials but the court goes further to explain the requirements (id. at 258):
In approving this practice, however, we caution that the trial court must not undertake the role of either prosecutor or defense counsel. We have recognized that It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as possible, the appearance of impropriety. [citation] It is fundamental that the trial court in the conduct of infraction hearings must refrain from advocacy and remain circumspect in its comments on the evidence, treating litigants and witnesses with appropriate respect and without demonstration of partiality or bias. [citations]

The appellant alleges the respondent engaged in the very conduct that the Carlucci court warns against. Also in Carlucci: Numerous courts including our own have recognized that it is not merely the right but the duty of a trial judge to see that the evidence is fully developed before the trier of fact and to assure that ambiguities and conflicts in the evidence are resolved insofar as possible (id. at 255). A hearsay citation is not fully developed evidence when the officers live testimony is not sought. People ex rel. Kottmeier v. Municipal Court (1990) 220 Cal.App.3d 602, 661-612, provides that traffic courts must avoid the inference that the court and law enforcement are in cahoots and the result of the trial a foregone conclusion. The appellant argues that the respondents actions are a naive attempt to justify an assumption of guilt so that revenue collection goals can be achieved. The fact is the citing officers oral testimony was not sought by the respondent in the appellants case. It can be reasonably assumed that appearance at trial is an inconvenience to the officer. The trial court was complicit by unburdening the CHP of appearance and instead using the
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citation to support conviction even though a citation is hardly the best evidence available. Now the appellants failure to appear is punished by being found guilty of speeding despite clear constitutional protections being violated in the process. Thus the respondent actions go beyond an inference that the police and court are in cahoots, especially given some of the revenue generated goes to fund both (See generally Penal Code 1463.001; Manual of Accounting and Audit Guidelines for Trial Courts <http:// www.sco.ca.gov/ard/manual/rev20appc.pdf>; California Judicial Councils Civil Assessments Working Group Report, dated August 21, 2007 <http:// www.courtinfo.ca.gov/jc/documents/reports/083107item9.pdf>.) It is not only the appellant's interests that are at stake by the criminal rule 12 process, but also the respondents as the People were not represented at the appellants trial either. It is theoretically possible that the notice to appear alone could be insufficient to support conviction thus criminal rule 12 could deprive the respondent the ability to provide additional evidence of guilt. Similarly, the people might desire input on sentencing, potentially advocating for a higher or lower fine. The California Constitution, article 1, section 29 affirms the peoples rights are also violated:
In a criminal case, the people of the State of California have the right to due process of law and to a speedy and public trial.

Efficiency does not trump fairness. The respondent will likely claim efficiency as the driving force behind it decision to hold trials in absentia. Otherwise what possible justification exists for ignoring a defendants fundamental rights in a criminal trial? It could be argued that the peoples interests are harmed by delay while the court uses
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its warrant power or allow drivers license holds take effect to solicit appearance or payment. But it is highly unlikely that a delay introduced while the court attempts to compel attendance is going to harm the peoples case, especially given it took the respondent and/or the citing officer about a month to file the case. In misdemeanor criminal cases, failures to appear at arraignment are sufficiently resolved that justice does not require trials in absentia. In traffic court trials, a police officers oral testimony is typically the only evidence offered by the people. Upon issuing a notice to appear, the citing officer typically makes notes on the back of his or her copy of the citation as provided for by the form. Those notes are easily preserved while the court allows DMV hold and/or suspensions to take effect. But if for some reason the court found that delay was potentially harmful to the peoples case, then full warrant power should be exercised before even considering a trial in absentia. It follows that its a fallacious argument that the peoples interests are so harmed by delay that it requires violating a defendants civil rights by holding a trial in absentia, especially given that the respondent did not exercise warrant power first. So assuming the respondents objective in implementing Vehicle Code 40903 is efficiency, the question becomes what is more important: efficiency or fairness? The California Supreme Court took a look at the issue of efficiency versus fairness in Elkins v. Superior Court (2007) 41 Cal.4th 1337. The case concerned a superior court rule that essentially implemented trial by declaration for divorce proceedings to achieve judicial efficiencies. The court said (id. at 1366):
That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice.

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Elkins (supra., 41 Cal.4th at 1368) goes on to say:

If sufficient resources are lacking in the superior court [...], courts should not obscure the source of their difficulties by adopting procedures that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources.

Further the advisory committee commentary on the California Code of Judicial Ethics, Cannon 3(B)(8) states: The obligation of a judge to dispose of matters promptly and efficiently must not take precedence over the judges obligation to dispose of the matters fairly and with patience. Elkins, the Code of Judicial Ethics, and likely numerous other sources as well are clear that fundamental fairness cannot play second fiddle to efficiency.

40903 and criminal rule 12 are too vague to be operative. Vehicle Code 40903 is also void for vagueness. The statute is poorly harmonized thus creating conflicts and ambiguities in the law. The Vehicle Code is replete with process for failures to appear5 , yet 40903 provides no clarity on its operation with other statutes. Criminal rule 12, implementing 40903 within Santa Clara Country, suffers from similar ills. These vagaries are a violation of due process. The legislature enacted Vehicle Code 40903 with numerous other provisions centering on the merging of municipal and superior courts. One aim of that legislative action was to achieve a more uniform application of justice regardless of location (e.g. county) - something a local court rule affronts. Unfortunately beyond those generalities, the legislative history of
There are at least four statutes governing failure to appear: Vehicle Code 40508, Vehicle Code 40509, Vehicle Code 40509.5, and Vehicle Code 40515.
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Vehicle Code 40903 is missing. But the need to look at legislative intent is mitigated by Vehicle Code 40903s usage of the operative word may. In other words, the legislature has delegated to the court the power to use, or not use, the statutes provisions at its discretion. The petition argues that the trial courts usage of 40903 exceeds judicial discretion by violating due process. The legislatures usage of the word may codifies granting judicial discretion rather than a mandated action. Said another way, it was the respondents choice, not a legislative commandment, that dictated the process used against the appellant. It follows that this court is free to rule on the due process issues without looking further at apparent legislative intent since the respondents actions were discretionary. Apparently the appellant was not alone in believing Vehicle Code 40903 is problematic as the Judicial Council of California apparently had concerns too. At a December 2, 1999 meeting of the judicial council, they approved sponsoring legislation to amend Vehicle Code 40903 to provide that when a defendant fails to appear in a traffic matter, the court deems that he or she has elected a trial in absentia (rather than a trial by written declaration) and the case can be closed. (available at <http:// www.courtinfo.ca.gov/jc/documents/min1299.pdf>). At the time of filing, the statute does not reflect the judicial councils proposed change and stands as enacted. As alleged in the petition, the trial courts implementation of the statute is essentially the same as the Judicial Council recommendation but sans any legislative action. The Elkins case (See generally Elkins, supra., 41 Cal.4th 1337) makes clear such actions are not lawful. Also given the current text of Vehicle Code 40903 uses the phrase trial by declaration, it is not hard to construct alternate interpretations that do not involve trial in absentia. For example, the statute could authorize the
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court to conduct trials by declaration for fix it tickets such as not being able to provide proof of registration. In that case, DMV data can be used by the court to exonerate the defendant and would allow the court to get corrected violations off the books achieving both efficiency and fairness. Such an action would not violate due process and would be allowed by the statute's vague text. But the fact that statute allows for such broad interpretation is precisely the problem the petition raises, and likely part of the reasoning behind the judicial councils recommended change in the statutes text. Also, the judicial council highlighting that trial by declaration is not the same as trial in absentia gives credence to the appellants claim that Vehicle Code 40903 is too vague to be operative. The text of criminal rule 12 furthers the claim of vagueness. Criminal rule 12 uses the phrase [i]n eligible cases the [c]ourt will conduct the trial in absentia... without any definition on what makes a crime eligible for trial in absentia. Careful definitions are necessary to provide clarity on who is going to be ensnared by a laws provisions, including how they are going to be tried - by declaration or in absentia, or by normal means. The lack of statewide rules governing Vehicle Code 40903 trials is noteworthy since trials by declaration upon a defendants request under Vehicle Code 40902 are governed by Cal. Ct. R. 4.210. If the judicial council did not see fit to publish rules for trial by declaration upon a failure to appear (Vehicle Code 40903), it seems odd that the trial court can simply wallpaper over potential due process concerns by local rule. (Compare Cal. Ct. R. 4.210 with criminal rule 12.) In criminal rule 12 the respondent cherry picks provisions from Cal. Ct. R. 4.210 that most suit efficiency not justice. Specifically, the respondent adopts a twenty day limit to request a trial de novo from Cal. Ct. R. 4.210(b)(7) but ignores Cal. Ct. R. 4.210(b)(5)s
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requirements to both solicit the officers testimony and obtain the defendants written waiver of constitutional rights on judicial council form TR-200. Perhaps most importantly, Cal. Ct. R. 4.210(a) states: This rule establishes the minimum procedural requirements for trials by written declaration [...]. Since criminal rule 12 starts by saying The [c]ourt adopts the trial by declaration process defined in Vehicle Code 40902 and Cal. Ct. R. 4.210 is incorporated by Vehicle Code 40902(a)(2) (judicial council rules for trial by declaration supersede local rules), this puts the criminal rule 12s operation in question since it fails to meet the minimum procedural requirements. Now the court may argue that such changes are necessary given the focus of Vehicle Code 40903 on failure to appear cases, but then the vagueness issue crops up as it is unclear what provisions are applicable from a plain reading of the statutes and rules. Better alternatives to trial in absentia exists. Since the appellant alleges that Vehicle Code 40903 and criminal rule 12 are unlawful, a resulting question is: what could the court have done instead that is more efficient than the process employed by the respondent? The appellant believes assignment collection system is an inefficient use of court and government resources. The appellant would argue the trial court consenting to DMV collection of bail under Vehicle Code 14910(a) combined with a charge of failure to appear is a more efficient means of handling failure to appear cases. The statute provides that the DMV can collect bail for cases that result in a failure to appear charge. Vehicle Code 14910(a) provides that if a defendant wishes to avoid further action, they can simply pay the amount due at the DMV, avoiding any need for court processing other than cashing a DMV issued check. Since the DMV is
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already involved in a failure to appear case by managing the license suspension process, it only has to add a step to collect payment, something is already does and likely at lower costs to the courts. Instead, the respondents current process requires the accused to pay the court directly or the county department of revenue, subjecting the defendant to additional fees for paying online or with a credit card, then waiting 1-2 days for the payment information to be transmitted to the court so that the license hold can be removed, and after the court removes the hold, the defendant must still visit the DMV to clear license suspension. Vehicle Code 14910(a)s process allows a defendant who has failed to appear to choose to resolve both the license hold and payment at the same time with the DMV without any delay between payment and license clearance. Also, since the DMV operates statewide there is an additional benefit that out of county defendants can resolve their case anywhere in the state, which is important since some defendants pay in cash. In other words, the alternative suggested here does not require any involvement by the department of revenue in a fair number of cases nor place any substantially greater workload on the DMV, thus saving government resources, without any of the due process problems alleged throughout the petition. Relief being sought. The appellant prays for the following: I. Reverse the conviction and dismiss the case. Vehicle Code 40903 in hopes to protect future defendants in other counties from unconstitutional procedures. III. Any such remedy the court may deem appropriate.
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II. Declarative relief to guide traffic courts statewide on the operation of

In conclusion. The appeal is brought in large part to protect the rights of others and ensure that the public views all courts as providers of justice rather than as tax collectors. The appellant begs this court for appropriate relief.

Respectfully submitted, ________________________________ Anthony M. Shaffer Appellant, In Pro Per Dated: __________________________

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Certificate of word count Pursuant to Cal. Ct. R. 8.204(c)(1), the appellant hereby certifies that the number of words contained in this Petition for Extraordinary Writ and all attachments excluding exhibits is 4,824 words as calculated using the word count feature of the Apple Pages word processing application used to prepare the brief. Respectfully submitted, ________________________________ Anthony M. Shaffer Appellant, In Pro Per Dated: __________________________

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