IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF PLACER
APPELLATE DIVISION

PEOPLE OF THE STATE OF ) APPELLATE CASE No.

CALIFORNIA )
Plaintiff ) Trial Court No. 41-168622
)
) Appellants Answer to
) Respondents Reply
v. )
)
Rik Wayne Munson )
Appellant )

Appeal from the Judgment of the Superior Court of the

State of California for the County of Placer

Rik Wayne Munson

218 Landana Street
American Canyon,
California 94503
707-637-5023
Appellant In Pro per

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 TABLE OF CONTENTS
RESPONDENTS ARGUMENT..........................................................................................4
APPELLANTS ANSWER..................................................................................................4
MEMORANDUM ON RESPONDENTS CASE AUTHORITIES.....................................9
CONCLUSION..................................................................................................................11

Cases
California Vehicle Code 40300.5......................................................................................12
Hamilton v. Gourley (2002), 103 Cal.App.4th 351...........................................................12
People v Holguin 145 Cal.App.2d 520..............................................................................10
People v Mckay (2002) 117 Cal.Rptr. 2d 236...................................................................10
People v Sava 190 Cal.App.3rd 935 235 Cal.Rptr. 694.................................................5
People v Statum (2002) 28 Cal.4th 682.........................................................................11
People v. Brown (1998) 62 Cal.App.4th 493 , 72 Cal.Rptr.2d 793...................................10
People v. Campbell (2002)104 Cal.App.4th Supp. 1..................................................10
People v. Citrino, 46 Cal.2d 284, 287 [294 P.2d 32].........................................................10
People v. Farrara, 46 Cal.2d 265, 268-269 [294 P.2d 21].................................................10
People v. Geiger (1984) 35 Cal.3d 510........................................................................11
People v. Hernandez (2003) 110 Cal. App. 4th Supp. 1............................................11
People v. Oppenheimer (1974) 42 Cal.App.3d. Supp.4.....................................5, 6, 10

Statutes
Code Civ. Proc., § 1963 subds. 1, 15, 33...........................................................................10
CVC 12500(a)............................................................................................................11, 12
CVC 27361.........................................................................................................................8
CVC 40000.11(b)..............................................................................................................11
CVC 40500(a)......................................................................................................................7
Penal Code 689..................................................................................................................6
Penal Code sections 19.6 and 1042.5.............................................................................6
Vehicle Code 12801.5(e)................................................................................................12
Vehicle Code 16028..................................................................................................7, 8, 12
Vehicle Code 22349(b)...................................................................................................12

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vehicle code 40610............................................................................................................9
Vehicle Code Section 14607.6(b).................................................................................12
Vehicle code section 27610.............................................................................................9
vehicle codes 40600-40604........................................................................................9

Other Authorities
2001 Annual Report of the Judicial Council of California....................................4
Joint Legislative Rule 8.5.................................................................................................6
Judicial Councils’ 1967 Report to the Governor and the Legislature..........................4
People v . Superior Court (Simon) (1 972) 7 Cal.3d.186............................................7
table of sections affected by the 1968 infraction legislation........................................6

Federal Cases
Atwater v. City of Lago Vista (2004) 532 U.S. 3 18.....................................................8

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 RESPONDENTS ARGUMENT

1. Respondent argues that an infraction of the vehicle code is a “crime”

and by virtue of that fact a peace officer is authorized to perform a
warrantless “detention or arrest” to cite for the observed “criminal
offense”.
APPELLANTS ANSWER
1.
In the 2001 Annual Report of the Judicial Council of California1, on
page 6 under the heading “Milestones” it lists the following:

“1967 Council-sponsored legislation reclassifies

minor traffic violations as noncriminal infractions.”

The potential conflicts of the infraction legislation with established

constitutional precepts was discussed in the Judicial Councils’ 1967 Report to
the Governor and the Legislature2 wherein the council explains the
“noncriminal infraction legislation” which the Judicial Council was sponsoring.
The Judicial Council not only recommended the noncriminal infraction legislation,
they provided the draft copy of the proposed legislation along with their
explanation of the concept.

Despite all the authorities and rational to the contrary Respondent insists
that an infraction of the vehicle code is conduct rising to the level of “crime”
justifying warrantless seizure of the person, while at the same time, not conduct
rising to the level of “crime” for Due Process purposes. Such a conclusion seeks
refuge in contradictions, ambiguities and assumptions.

1
http://www.courtinfo.ca.gov/reference/2_annual.htm (page 6 attached)
2
Digital archives of the Judicial Council do not yet go back that far. (1 copy attached as a
convenience to the reviewing court.)

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 The notion that an infraction is a petty criminal offense and that one
accused of an infraction is not entitled to appointment of counsel or a jury trial
because the claim that “one cannot be deprived of their physical liberty” is given
the lie by respondent’s own argument. Stopping an automobile and detaining its
occupants is inarguably a seizure within the meaning of the Fourth Amendment. A
seizure is inarguably a deprivation of physical liberty.
It seems rather odd for Respondent to believe that this thing called
infraction somehow rises to the level of crime when one is being deprived of the
liberty to go about their daily schedule unimpeded but somehow fails to rise to the
level of crime when one is being deprived of the contents of their wallet.
Not only does Respondent ignore the obvious conflicts inherent in the very
clear language of the statutes they cite, but then attempt to minimize that conflict
with the proffered notion of a “petty” offense. It’s difficult to perceive how
respondent counsel can be so cognitively dissonant.
Penal Code section 689 states no exceptions.
California Constitution Article I section 16 states no exceptions.
Respondent invites this court to ignore the very clear holding of the Court
of Appeals in People v Sava 190 Cal.App.3rd 935 235 Cal.Rptr. 694 [No.
D005040. Court of Appeals of California, Fourth Appellate District, Division One.
March 27, 1987.]

“The limitation on an accused's right to jury trial of

infractions has withstood constitutional attack upon the rationale the
Legislature did not intend to classify infractions as crimes. (See
People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4 [116
Cal.Rptr. 795] and People v. Battle, supra, 50 Cal.App.3d Supp. 1.)”

Respondent then cites to the Las Angeles Superior Court Appellate

Division in People v. Oppenheimer (1974) 42 Cal.App.3d. Supp.4, for the

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proposition that Penal Code sections 19.6 and 1042.5 qualify section 689, and
modify it with regard to infractions.
Such a conclusion not only ignores the underlying theory of “amendment
by implication”, it also ignores Joint Legislative Rule 8.53 and the absence of
Penal Code 689 from the table of sections affected4 by the 1968 infraction
legislation5.

Digest of Bills Introduced

8.5. A bill may not be introduced unless it is

contained in a cover attached by the
Legislative Counsel and it is accompanied by a
digest, prepared and attached to the bill by
the Legislative Counsel, showing the changes
in the existing law that are proposed by the
bill. A bill may not be printed where the body
of the bill or the Legislative Counsel's
Digest has been altered, unless the alteration
has been approved by the Legislative Counsel.
If any bill is presented to the Secretary of
the Senate or Chief Clerk of the Assembly for
introduction, that does not comply with the
foregoing requirements of this rule, the
Secretary or Chief Clerk shall return it to
the member who presented it. The digest shall
be printed on the bill as introduced,
commencing on the first page thereof.

A theory of amendment by implication not only guarantees ambiguity but

also embraces the notion that the legislature can do by implication what they
cannot do directly, and that is to amend the constitution by statute. Even more
ironic, the ultimate goal of the Oppenheimer Court, to avoid the conclusion that
the legislature acted improperly in enacting conflicting statutes, is undermined by

3
http://www.leginfo.ca.gov/rules/joint_rules.html
4
Legislative Archive http://192.234.213.35/clerkarchive/
5
Legislative Archive http://192.234.213.35/clerkarchive/

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the implication inherent in the notion that the legislature failed to follow the
applicable rules in enacting the legislation to begin with and was therefore
incompetent in doing so. Appellant here disagrees!

Although Respondent provides numerous penal code provisions on

procedures for the notion that a peace officer is authorized to seize a motorist for
any infraction of the vehicle code, they cite to People v . Superior Court (Simon)
(1 972) 7 Cal.3d.186. However, Simon won his suppression motion and the court
in its opinion cites, as Appellant does, to People v. Wohlleben , 261 Cal.App.2d
461, for the proposition that “unless the violation is expressly described by the
code to be a felony6” the controlling procedures are those found in the vehicle
code and not the penal code. The penal code argument is moot.

Reading all of the statutes in para materia, the only interpretation of the
statutory scheme that does not appear to create conflict is that (1) infractions are
not crimes and, (2) an infraction is not an independently arrest-able or
independently citable offense but requires either a specific “delegation of
authority” or a “qualifying event”. Support for this interpretation is founded in the
statutory framework itself.

As can easily be seen an alleged violation of California Vehicle Code

16028(a) can only be cited under the conditions set forth in CVC 16028 (b) or (c).
In each instance in which an officer is authorized to cite for an alleged
violation of VC 16028(a), police contact must be the result of a valid police action
or arrest and those conditions are clearly defined by the enabling statutes.

16028. (a) Upon the demand of a peace officer pursuant to

subdivision (b) or upon the demand of a peace officer or traffic
collision investigator pursuant to subdivision (c),…
6
CVC 40500(a)

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 (b) Whenever a notice to appear is issued for any alleged violation of
this code…

(c) Whenever a peace officer, or a regularly employed and salaried

employee of a city or county who has been trained as a traffic
collision investigator, is summoned to the scene of an accident
described in Section 16000…

An examination of the procedures authorizing issuance of a “Notice to

Appear”7 we find that it is only after someone has been arrested that they can be
cited and released or, under certain conditions taken before a magistrate, for an
alleged violation of the vehicle code not declared to be a felony.8

Respondent cites Atwater v. City of Lago Vista (2004) 532 U.S. 3 18,
attempting to justify a warrantless seizure by clinging to the notion that infractions
are crimes. Atwater argued that she should not have been seized without a warrant
for a “fine only offense”. However, the conduct for which Atwater was seized,
unrestrained children in her pickup, is a misdemeanor in Texas.
Despite the fact that a violation of the child vehicle restraint law in
California is an infraction the legislature has given specific authorization to a
peace officer to seize and to cite for a suspected violation of those vehicle code
sections.
CVC 27361. A law enforcement officer reasonably suspecting a
violation of Section 27360 or 27360.5, or both of those sections,
may stop a vehicle transporting a child appearing to the officer to be
within the age or weight specified in Section 27360 or 27360.5. The
officer may issue a notice to appear for a violation of Section 27360
or 27360.5.

Vehicle code section 27610, relating to inspections, grants another specific

infraction arrest authorization in another specific instance:

7
Judicial Council Form TR-130, CVC 40500 et. seq
8
CVC 40500 et seq.

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 26710. It is unlawful to operate any motor vehicle upon a highway
when the windshield or rear window is in such a defective condition
as to impair the driver's vision either to the front or rear.
In the event any windshield or rear window fails to comply with
this code the officer making the inspection shall direct the driver to
make the windshield and rear window conform to the requirements
of this code within 48 hours. The officer may also arrest the driver
and give him notice to appear and further require the driver or the
owner of the vehicle to produce in court satisfactory evidence that
the windshield or rear window has been made to conform to the
requirements of this code.

There is another specific authorization under vehicle codes 40600-

40604.

Peace Officer Standards and Training, in the investigation of traffic

accidents may prepare, in triplicate, on a form approved by the
Judicial Council, a written notice to appear when the peace officer
has reasonable cause to believe that any person involved in a traffic
accident has violated a provision of this code not declared to be a
felony or a local ordinance and the violation was a factor in the
occurrence of the traffic accident.

Another example of the qualifying event maxim can be provided by

examination of vehicle code 40610 where a peace officer is authorized to issue a
“Notice to Appear” after an arrest, accident investigation, or other law
enforcement action, provided exceptions in subsection “(b)” are not met.

MEMORANDUM ON RESPONDENTS CASE AUTHORITIES

None of Respondents’ cited cases support the propositions for which they are
proffered. Not pressed and not passed upon equals mandatory presumption. The
cases where this presumption is not indulged deal entirely with felonies and
misdemeanors.
Respondent cites to:

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 People v. Brown (1998) 62 Cal.App.4th 493 , 72 Cal.Rptr.2d 793. Brown
was seized without a warrant while riding a bicycle at night without a light and
consented to a search of his person.
People v Mckay (2002) 117 Cal.Rptr. 2d 236. Mckay was seized without a
warrant while riding a bicycle and subsequently admitted to not having
identification. Mckay challenged a search incident to arrest for not having
identification arguing that he should have been cited and released.
Neither Brown nor Mckay challenged the initial police contact as a
warrantless seizure violative of the Fourth Amendment. Both the trial and the
reviewing courts in these cases were compelled to presume the officers regularly
and lawfully performed their duties. See (Code Civ. Proc., § 1963 subds. 1, 15,
33), People v Holguin 145 Cal.App.2d 520, People v. Farrara, 46 Cal.2d 265, 268-
269 [294 P.2d 21], People v. Citrino, 46 Cal.2d 284, 287 [294 P.2d 32]. Any
reference in these cases to the substantive nature of an infraction is neither pressed
nor passed upon but presumed.
Such a presumption is not proper where, as here, the initial police contact
has been challenged as a warrantless seizure in violation of the Fourth Amendment
and Appellant has both pressed and had the matter passed upon in the courts
below.

People v. Campbell (2002)104 Cal.App.4th Supp. 1. Campbell begins their

discussion by restating the proper steps in the process of statutory construction that
doesn’t help Respondents reliance on Oppenheimer. The singular issue presented
on appeal was whether the trial court, with the consent of the accused and over the
objection of the prosecutor, is authorized by statute to reduce a misdemeanor
charge of petty theft to an infraction. The superior court appellate division in that
case answers the question in the negative.
Campbell only bears upon the question of whether or not Appellant could be cited
and prosecuted for an alleged violation of CVC 12500(a) as an infraction, when

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the legislature has declared violation of section 12500(a) to be a misdemeanor and
not an infraction9. Respondent has provided no beneficial authority to their cause
here.

People v Statum (2002) 28 Cal.4th 682 Respondent cites to a dissenting

opinion in Statum. There is no infraction issue here. Statum was convicted of
violating Vehicle Code section 2800.2, an alternative felony/misdemeanor offense.
His attention was brought to Los Angeles County Deputy Sheriff Joseph Garrida
in the area of 103d Street and Western Avenue to report that her purse had been
stolen. She pointed the officer to defendant and the beige 1984 Buick Skylark he
was driving.

People v. Geiger (1984) 35 Cal.3d 510 , 199 Cal.Rptr. 45; 50; 674 P.2d
1303 Defendant appeals from a judgment imposed on a jury verdict finding him
guilty of second degree burglary. (Pen. Code, § 459. Wanted instruction on
Vandalism as lesser included. There is no infraction issue here.

People v. Hernandez (2003) 110 Cal. App. 4th Supp. 1; 2 Cal. Rptr. 3d 181.
The holding in Hernandez: Officer Powell’s Mistake of Law Cannot Be the Basis
for the Car Stop! There is no infraction issue here.

CONCLUSION
An examination of the enabling statutes10 reveals no broad grant of
9
CVC 40000.11(b)
10
California Vehicle Code 40300.5 (Specific authorization to stop limited to PC 836(a)1
“crime” or, an Accident (qualifying event), one of the drivers appears to be under the
influence and one of the exceptions (a) through (e) of section 40300.5 can be said to

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warrantless arrest authority for infractions and Respondent cites to none.
"'To be valid, administrative action must be within the scope of
authority conferred by the enabling statutes. . . .' . . . 'If the court
determines that a challenged administrative action was not
authorized by or is inconsistent with acts of the Legislature, that
action is void.'" (US Ecology, Inc. v. State of California (2001) 92
Cal.App.4th 113, 131-132.) Hamilton v. Gourley (2002), 103
Cal.App.4th 351 [No. C038751. Third Dist. Oct. 31, 2002.]

Respondent cites to no statutory delegation of authority for a peace officer

to initiate a warrantless seizure for a suspected noncriminal infraction of Vehicle
Code 22349(b).
Respondent cites to no statutory delegation of authority for a peace officer
to initiate a warrantless seizure for a suspected noncriminal infraction of Vehicle
Code 12500(a) and Appellant has authoritatively shown that Vehicle Code
12801.5(e) and Vehicle Code Section 14607.6(b) strictly prohibit a peace officer
from taking any such action.
Respondent cites to no statutory delegation of authority for a peace officer
to initiate a warrantless seizure for a suspected noncriminal infraction of Vehicle
Code 16028(a).

Respondent’s entire case depends upon interpreting a vehicle code

infraction to be a double-edged sword that cuts away at the citizens’ rights from
both ends. In support, Respondent’s trivializes the most egregious of all
governmental intrusions, the transgression against individual liberty.

The notion that it is reasonable for a man to be “seized” without a warrant,

in the street, by armed paramilitary, for an alleged crime, where one receives no
Miranda Warning, has no right to remain silent, no right to assistance of counsel,
no right to a jury of ones peers, no right to a proper record on appeal nor any other

apply.

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Due process protections and he can be forced to give a “Promise to Appear” on a
“Notice to Appear” or be dragged before a magistrate, is the equivalent of saying
we have a word that nullifies all constitutional Due Process protections. This
makes perfect sense to morally bankrupt actors in an institutionalized color of law
extortion racketeering monopoly.

It would serve Respondent to keep mindful of public policy.

*63C Am.Jur.2d, Public Officers and Employees, §247* “As

expressed otherwise, the powers delegated to a public officer are
held in trust for the people and are to be exercised in behalf of the
government, or of all citizens who may need the intervention of the
officer. [1] Furthermore, the view has been expressed that all public
officers, within whatever branch and whatever level of government,
and whatever be their private vocations, are trustees of the people,
and accordingly labor under every disability and prohibition
imposed by law upon trustees relative to the making of personal
financial gain from a discharge of their trusts. [2] That is, a public
officer occupies a fiduciary relationship to the political entity on
whose behalf he or she serves. [3] And owes a fiduciary duty to the
public. [4] It has been said that the fiduciary responsibilities of a
public officer cannot be less than those of a private individual. [5]
Furthermore, it has been stated that any enterprise undertaken by the
public official who tends to weaken public confidence and
undermine the sense of security for individual rights is against public
policy. Fraud in its elementary common law sense of deceit-and this
is one of the meanings that fraud bears [483 U.S. 372] in the statute.
See United States v. Dial, 757 F.2d 163, 168 (7th Cir1985) includes
the deliberate concealment of material information in a setting of
fiduciary obligation. A public official is a fiduciary toward the
public, including, in the case of a judge, the litigants who appear
before him and if he deliberately conceals material information from
them, he is guilty of fraud. McNally v United States 483 U.S. 350
(1987)

Infractions are not crimes. The legislature never intended to classify

infractions as crimes. If Respondent wants a different opinion the proper
procedure is not to ignore the law but to ask this court to issue a Certificate of

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Probable Cause to the Third District Court of Appeals explaining why they should
get a different answer. Respondent has failed to provide a viable reason.

Respectfully submitted Friday, December 10, 2010

Rik Munson

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 PROOF OF SERVICE
1. At the time of service I was over 18 years of age and not a party to this action.
2. My residence or business address is:
1215 Ulfinian Way, Martinez, CA 94553
On (date): Friday, December 10, 2010 I served the following document(s):

Appellants Answer to Respondents Reply

3. I served the above documents on the person or persons below by placing a

true copy in a seal envelope with postage fully prepaid and depositing said
envelope(s) in the United States Mail addressed as follows:

Bradford R. Fenocchio
10810 Justice Center Drive Suite #240
Roseville, CA 95678

Clerk of the Superior Court

Court Executive Office
10820 Justice Center Drive, Roseville CA 95678

4. I served the above documents on the person or persons below by placing the
original and three copies in a seal envelope with postage fully prepaid and
depositing said envelope(s) in the United States Mail addressed as follows:

Clerk of the Superior Court

Appeals Division
11270 B Avenue
Auburn, CA 95603

At the time of service, I was over 18 years of age. I am not a party to the above-
referenced legal proceeding.

I served the envelope or package, as stated above, on (date): Friday, December 10, 2010

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Date:______________________ _______________________________
Candace Curtis

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