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 Opening Brief on Appeal )

v. ) Points & Authorities )

Rik Wayne Munson )Appellant )

APPELLANTS OPENING BRIEF ON APPEAL

Appeal from the Judgment of the Superior Court of the State of

California for the County of Placer. This appeal is taken from a final

judgment of conviction in an infraction case.

Appellant seeks reversal of his convictions for traffic infraction offenses.

HONORABLE JOE O’FLAHERTY, JUDGE

HONERABLE REFEREE DAVID J BILLS

Rik Wayne Munson218 Landana StreetAmerican Canyon, California 94503707-637-5023Appellant In Propria persona

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TABLE OF CONTENTS

TABLE OF AUTHORITIES 3

STATEMENT OF THE CASE AND PROCEDURAL HISTORY 4

ARGUMENT 5

DID THE HONORABLE REFEREE DAVID J. BILLS ERROR IN RULING THAT AN INFRACTION IS A PUBLIC OFFENSE AND THAT APPELLANTS SEIZURE WAS THUS REASONABLE? 5

ARE VEHICLE CODE INFRACTIONS SUBJECT TO THE GENERAL CRIMINAL LAW UNDER PENAL CODE §19.7? 9

ASSUMING THAT VEHICLE CODE INFRACTIONS ARE NOT SUBJECT TO THE PENAL CODE, WAS THE DEFENDANT'S DETENTION VIOLATIVE OF THE FOURTH AMENDMENT AS AN ARREST WITOUT WARRANT? 11

ASSUMING THAT VEHICLE CODE INFRACTIONS ARE SUBJECT TO THE GENERAL CRIMINAL LAW UNDER PENAL CODE §19.7 WAS APPELLANTS CONVICTION UNLAWFUL UNDER PENAL CODE §689? 14

DID THE PROSECUTION PROVE APPELLANT WAS UNLICENSED OR THAT HE HAD NO PROOF OF FINANCIAL RESPONSIBILITY? 15

CONCLUSION 16

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TABLE OF AUTHORITIES

Cases

Hamilton v. Gourley (2002), 103 Cal.App.4th 351....................................................12

People v Superior Court (Simon) 7 Cal.3d 186...................................................................9

People v. Battle (1975) 50 Cal.App.3d Supp. 1 [123 Cal.Rptr. 636]..................................7

People v. Gallant (1990) 225 Cal.App.3d 200, 208....................................................17

People v. Gonzalez (1992) 7 Cal.App.4th 381, 386...................................................17

People v. Holguin (1956) 145 Cal.App.2d. 520 [302 P.2d. 635] ................................12, 16

People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4 [116 Cal.Rptr. 795]..................7, 8

People v. Rodriguez (1993) 21 Cal.App.4th 232 ........................................................17

People v. Sava 190 Cal.App.3d 935..........................................................................7, 9, 17

People v. Wohlleben 261 Cal.App.2d 461, 463 (Cal.App.2.Dist. 1968).............................9

Statutes§12500 (a)..........................................................................................................................14

Penal Code §15...............................................................................................................5, 8

Penal Code §16...............................................................................................................5, 8

Penal Code §17...............................................................................................................5, 8

Penal Code §19.7.....................................................................................................8, 14, 15

Section 836 of the Penal Code...................................................................................10, 11

Vehicle Code § 40300.............................................................................................9, 10, 11

Vehicle Code §12500(a)............................................................................................4, 6, 14

Vehicle Code §12801.5 (e)................................................................................................14

Vehicle Code §14607.6 (b)................................................................................................14

Vehicle Code §16028(a)..................................................................................................4, 6

Vehicle Code §22349(b).............................................................................................passim

Vehicle Code §26710........................................................................................................13

Vehicle Code §4000.1.........................................................................................................6

Vehicle Code §40000.1.......................................................................................................6

Vehicle Code §40000.11 (b)..............................................................................................14

vehicle code §40300.5.............................................................................................6, 10, 16

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Vehicle Code §40500....................................................................................................6, 11

Vehicle Code §40504........................................................................................................11

vehicle code §40513............................................................................................................6

Federal Cases

Brown v. Texas (1979) 443 U.S. 47, 51-52.................................................................17

United States vs. Pena-Montez (D.C. No. 1:07-CR-02436-LH-1, Dec 9. 2009)....12

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

This case was prosecuted by citation issued and filed with the court by the

states witness. On October 17, 2009 at approximately 3:30 PM officer Scholl of

the California Highway Patrol affected a warrantless seizure of appellant for an

alleged violation of Vehicle Code §22349(b), an infraction.

Officer Scholl subsequently issued NOTICE TO APPEAR No. 56329

(NTA) for alleged violation of sections; §22349(b), §12500(a) and §16028(a) of

the Vehicle Code, each charged as an infraction. Upon signing the promise to

appear section of the Notice To Appear appellant was released from police

custody.

On January 5, 2010 appellant filed a motion to quash the summons pursuant

to Code of Civil Procedure §418.10 and a demand for the court to take judicial

notice. On January 13, 2010 Referee Bills filed a tentative ruling denying

Appellants motion to quash.

Appellant appeared before the Honorable Referee Bills on January 21, 2010

at approximately 1:00 P.M. at which time the Referee was curt and interfered with

every effort Appellant made to address the court on the merits of his motion to

quash. Further, Referee Bills rejected Appellants demand for judicial notice stating

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that he did not have to follow the decisions of courts at the same level including

those from the appellate division of the Superior Court of Los Angeles because

“this is a superior court”. Referee Bills then hurried the matter to arraignment and

Appellant was ordered to appear before the clerk for issuance of a trial date.

Appellant waived no rights and signed no waiver of rights.

The matter came on regularly for trial on April 12, 2010 and Appellant

appeared before the Honorable Joe O’Flaherty without counsel and without a jury.

Appellant renewed his motion to quash at that time and Judge O’Flaherty denied

Appellants request to review the matter stating he would not review another judges

ruling.

Officer Scholl testified that (“at the above date and time in question”) he

observed the defendant's vehicle eastbound on Foresthill Rd. That the roadway is

one lane in each direction and the speed limit is thus the state speed limit of 55

mph for such roadways. The officer visually estimated the speed of a vehicle at 70

mph and used his radar to "lock in" a speed of 70 mph. Officer Scholl then turned

around, pursued the vehicle and initiated an enforcement stop. He identified the

driver as the defendant. The officer testified that his dispatch notified him that the

defendant's driving privilege was "suspended at that time" and that he issued the

defendant a citation for violation of §22349(b) of the vehicle code, exceeding the

maximum speed limit.

Appellant did not call any witnesses and did not testify. Appellant was

found guilty on all three counts.

ARGUMENT

I.

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DID THE HONORABLE REFEREE DAVID J. BILLS ERROR IN

RULING THAT AN INFRACTION IS A PUBLIC OFFENSE AND

THAT APPELLANTS SEIZURE WAS THUS REASONABLE?

In Referee Bills determination that Officer Schools observed a public

offense the court relies on Penal Code §15, Penal Code §16, & Penal Code §17.

The court also presents Vehicle Code §4000.1 for the proposition that:

“except as provided in Division 17, Chapter 1, Article 1, it is unlawful and constitutes an infraction for any person to violate, or fail to comply with, any provision of the Vehicle Code.”

Vehicle Code §4000.1 however, deals only with vehicle registration and does not

contain the quoted language. Appellant is unable to find the quoted text anywhere

in the vehicle codes. Vehicle Code §40000.1, although similar is not the same and

reads:

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 court stated in conclusion that:

“Officer Scholl cited defendant for a violation of Vehicle Code §22349(b) - an infraction, Vehicle Code §12500(a) - an infraction, and Vehicle Code §16028(a) - an infraction. He appears to have complied with the provisions of vehicle code §40300.5, vehicle code §40500, and vehicle code §40513.”

The cited language “unlawful and constitutes an infraction” does not address the

substantive nature of vehicle code infractions and does not authorize or prescribe

any particular form of enforcement action.

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The California Court of Appeals for the Fourth Appellate District, in the case of

People v. Sava 190 Cal.App.3d 935 has succinctly declared the substantive nature

of vehicle code infractions. Interestingly, Miss Sava requested a jury instruction on

the infractions of speeding and following too closely as lesser-included offenses to

driving under the influence. The trial court denied that request. The Court of

Appeals in examining the question could have concluded that neither speeding nor

following too closely could logically be viewed as lesser-included offenses to

driving under the influence but instead chose to rule on the basis of the substantive

nature of the offenses themselves concluding “infractions are not crimes” citing

to People v. Battle (1975) 50 Cal.App.3d Supp. 1 [123 Cal.Rptr. 636]

“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.)”

The Judicial Counsel of California sponsored the 1968 infraction legislation. In

their 1967 report to the Governor, the Judicial Counsel consistently regards the

proposed legislation as “noncriminal infraction” legislation.

The Battle courts discussion concludes thus:

In summation, it is questionable whether the Legislature considers an infraction to be a "crime." The Legislature enacted section 19c of the Penal Code which deprives a person committing an infraction of the right to a jury trial and the right to counsel at public expense; however, both of these rights are guaranteed to one accused of a crime by sections 15 and 16 of article I of the California Constitution. We must, if we can, construe a statute in such a fashion as to preserve it from unconstitutionality. (In re Kay (1970) 1 Cal.3d 930 [83 Cal.Rptr. 686, 464 P.2d 142].) By construing section 19c of the Penal Code to relate to noncriminal offenses we can avert a clash with the Constitution and achieve our goal, i.e., the continued viability of the statute.

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Inconsistency of Sections 19c and 1042.5 vis-a-vis 689 of the Penal Code[2] Section 16 of the Penal Code declares that "crimes and public offenses" include not only felonies and misdemeanors but also infractions. Sections 19c and 1042.5 of the Penal Code deprive a person accused of an infraction of the right to jury trial. Yet, section 689 of the Penal Code declares that "[n]o person can be convicted of a public offense unless by verdict of a jury." (Italics added.) (The 1968 amendment of section 16 of the Penal Code substituted the words "crimes and public offenses include:" for the words "crimes, how defined. Crimes are divided into.")

If the Legislature intended to treat infractions as public offenses and if the charging of a public offense invokes the right to trial by jury, sections 19c and 1042.5, which deny a jury to one who commits an infraction, conflict with section 689. However, the same (1968) Legislature enacted section 19c, the pertinent amendment of section 16 and section 1042.5. Construing these sections in accordance with the precepts laid down in In re Kay, supra, we must conclude that it was not the intent of the Legislature to enact inconsistent statutes and, further, that when it added the term "public offense" to section 16 it was not so categorizing infractions because if it did so, it would have caused inconsistency between sections 19c and 689 of the Penal Code. Support for this interpretation is found in the language of section 1042.5 which states that a defendant "charged with an infraction and with a public offense for which there is a right to jury trial" (italics added) may be accorded a jury trial. Had the Legislature intended that an infraction be treated as a public offense, it would have worded the statute differently, for example, "an infraction and with some other public offense." [50 Cal.App.3d Supp. 7]

Furthermore, this court has previously held in People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4, 7, fn. 2 [116 Cal.Rptr. 795], that inasmuch as section 689 of the Penal Code was originally enacted in 1872 and last amended in 1951, and sections 19c and 1042.5 of the Penal Code were enacted in 1968, we must read all the sections together and, in case of conflict, give effect to the latest enacted sections -- sections 19c and 1042.5. We therefore have declared in People v. Oppenheimer, supra, that sections 19c and 1042.5 qualify section 689 insofar as infractions are concerned. Hence, even though we were to treat an infraction as a public offense under section 16, we must nevertheless excise infractions from section 689 in order to effect the objective of the Legislature. (Pen.

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Code, § 4.)

II.ARE VEHICLE CODE INFRACTIONS SUBJECT TO THE

GENERAL CRIMINAL LAW UNDER PENAL CODE §19.7?

Penal Codes §15, §16 & §17 give the clear impression that an infraction is a public

offense and Penal Code §19.7 appears to extend the authority of a peace officer to

make a warrantless arrest to infractions generally however, the beginning language

of §19.7 indicates that such treatment may be had only “Except as otherwise

provided by law”.

Our courts of appeal have not only held that infractions are not crimes1 but that the

exclusive procedures applicable to all peace officers who enforce provisions of the

Vehicle Code are those contained in the Vehicle Code and not the Penal Code2.

The case of People v. Wohlleben 261 Cal.App.2d 461, 463 (Cal.App.2.Dist. 1968)

confirms the autonomy of the Vehicle Code and the principle that arrests without a

warrant for Vehicle Code violations are allowed only in limited situations:

The traffic violation for which defendant was stopped could not provide the basis for a lawful arrest. Procedure on arrests for traffic violations is specified in division 17, chapter 2 of the Vehicle Code commencing with section 40300. Section 40300 of the Vehicle Code provides: "The provisions of this chapter shall govern all peace officers in making arrests for violations of this code without a warrant for offenses committed in their presence, but the procedure prescribed herein shall not otherwise be exclusive of any other method prescribed by law for the arrest and prosecution of a person for an offense of like grade." (Italics added.) A statute is to be construed where possible to give effect to all of its terms. (Code Civ. Proc., §1858.) The insertion of the word "otherwise" in the second

1 People v. Sava 190 Cal.App.3d 9352 People v Superior Court (Simon) 7 Cal.3d 186

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clause of section 40300 can only mean that to the extent stated in the first clause the arrest procedure of the Vehicle Code is exclusive. (See People v. Maggiora, 207 Cal.App.2d Supp. 908, 911 [24 Cal.Rptr. 630]) Thus, although it is a misdemeanor for any person to violate a provision of the Vehicle Code unless the violation is expressly described by the code to be a felony or an offense punishable as a felony or misdemeanor (§ 40000, subd. (a)), the procedure on arrests without a warrant for misdemeanor Vehicle Code violations is that prescribed by the Vehicle Code and not the procedure prescribed by the Penal Code.

The procedure on arrests for traffic violations is set forth in §40300 of the Vehicle

Code and that section controls whether a person may be arrested when driving.

California Vehicle Code §40300.5 provides that an arrest without a warrant can

only be affected in certain circumstances.

Vehicle Code §40300.5 states:

In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists: (a) The person is involved in a traffic accident. (b) The person is observed in or about a vehicle that isobstructing a roadway. (c) The person will not be apprehended unless immediatelyarrested. (d) The person may cause injury to himself or herself or damageproperty unless immediately arrested. (e) The person may destroy or conceal evidence of the crime unless immediately arrested. pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code.

836. (a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur:

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(1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer's presence.

Applying the maxim "Expressio unius est exclusio alterius" to the above statute,

the Vehicle Code can be seen to have expressly detailed when an arrest without a

warrant can be made and, having done such, excludes the appellant's situation.

Clearly then the section of §40300.5 authorizing a warrantless arrest for an offense

committed in the officer's presence under “paragraph (1) of subdivision (a) of

Section 836 of the Penal Code”, is strictly limited to crime. The officer testified

that he observed a suspected infraction and for that reason he initiated a traffic

enforcement stop. The officer neither observed nor suspected a crime to be in the

offing.

III.ASSUMING THAT VEHICLE CODE INFRACTIONS ARE NOT

SUBJECT TO THE PENAL CODE, WAS THE DEFENDANT'S

DETENTION VIOLATIVE OF THE FOURTH AMENDMENT AS AN

ARREST WITOUT WARRANT?

The Legislature has identified the police contact as an "arrest"3.   A “Notice to

Appear” is only issued “Whenever a person is arrested for any violation of this

code not declared to be a felony4,”

When done in absence of a warrant they've identified it as a warrantless

arrest. Warrantless arrest is presumed to be unlawful

3 Vehicle Code §40500 et seq.4 Vehicle Code §40500, Vehicle Code §40504,

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Defendant makes a prima facie case of unlawful arrest when he establishes that

arrest was made without a warrant, and burden rests on prosecution to show proper

justification. People v. Holguin (1956) 145 Cal.App.2d. 520 [302 P.2d. 635]

The Legislature has provided procedures for peace officers when they make a

warrantless arrest for an alleged infraction of the Vehicle Code beginning at

§40300 et seq of the Vehicle Code itself.   Consider the following:

"'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.]

According to the Court of Appeal in the Hamilton v. Gourley matter, the officer's

arrest must be in compliance with the enabling statute provided by the Legislature

for the arrest to be valid, and in absence of authorization or compliance with

procedures, the officer's arrest is void.    Further, neither the officer nor the court

can change the rules to add authorization the Legislature didn't provide.  

As of Proposition 8 (1982) California courts are constrained to the federal Fourth

Amendment standards in determining search and seizure related questions. The

federal courts consistently reiterate that the criterion justifying a warrantless

seizure is in every instance “crime”. In United States vs. Pena-Montez (Appeal

from the United States District Court for the District of New Mexico (D.C. No.

1:07-CR-02436-LH-1, Dec 9. 2009) The court clearly stated

A routine traffic stop is indisputably a seizure within the meaning of the Fourth Amendment. United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1226(10th Cir. 2008). However, because a traffic stop is “necessarily [a] swift action predicated upon the on-the-spot

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observations of the officer on the beat,” an officer need only reasonably suspect that a crime is in the offing to justify such a detention. Terry v. Ohio, 392 U.S. 1, 20-21 (1968); see also Karam, 496 F.3d at1161. Terry set forth a two-step framework for determining the constitutional scope of a traffic stop: (1) the stop must be “justified at its inception,” and (2) the resulting detention must be “reasonably related in scope to the circumstances that justified the stop in the first place.” United States v. Winder, 557 F.3d 1129,1133-34 (10th Cir. 2009) (quotations omitted). “Generally, an investigative detention must last no longer than is necessary to effectuate the purpose of the stop.” Id. at 1134 (quotation omitted).

The fact is that the Legislature did not provide the authorization or a command

directed to the peace officer to make a warrantless arrest for just any infraction of

the Vehicle Code in absence of the elements specified at Vehicle Code section

40300.5.   Given this fact, the court can not amend section 40300.5 in order to

validate its belief the Legislature should have provided the authorization.   Stated

another way, the court has to take the sections as they find them.

The Appellant cannot be called upon to prove a negative. The Legislature has not

provided the authorization for a peace officer to make a warrantless arrest for the

cited conduct, as that conduct does not rise to the level of crime. If the warrantless

arrest was authorized the burden of proof is upon the prosecution. An example of

the type of authorizing language needed here, can be found at Vehicle Code

§26710

§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

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requirements of this code.

The legislature at §26710 has clearly indicated it’s intent that an officer be

empowered to “arrest the driver and give him notice to appear” for the stated

offense, an infraction. Where do we find this type of authorizing language in

regard to §22649(b)?

Vehicle Code §14607.6 (b) specifically forbids an officer from stopping a motorist

for the purpose of checking to see if they are in violation of Vehicle Code

§12500(a) and Vehicle Code §12801.5 (e) specifically forbids an officer from

detaining or arresting a person even when the officer believes the driver to be in

violation of Vehicle Code §12500 (a) even though Vehicle Code §40000.11 (b)

states that a violation of Vehicle Code §12500 (a) is “a misdemeanor and not an

infraction”.

Statutory construction compels us to presume the legislature intended to act where

they in fact acted and that they did not intent to act where they in fact have not

done so. Statutory parameters are controlling. Where is officer Scholl’s legislative

authorization to apply the police power of the state for a suspected violation of

Vehicle Code §22349(b)?

IV.ASSUMING THAT VEHICLE CODE INFRACTIONS ARE SUBJECT TO

THE GENERAL CRIMINAL LAW UNDER PENAL CODE §19.7 WAS

APPELLANTS CONVICTION UNLAWFUL UNDER PENAL CODE

§689?

Penal Code §689 exemplifies Article 1 section 16 of the California Constitution as

follows:

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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.

CALIFORNIA CONSTITUTIONARTICLE 1 DECLARATION OF RIGHTSSEC. 16. Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.

Appellant did not have a jury trial, did not waive a jury trial and did not plead

guilty. If an infraction of the Vehicle Code is a public offense Appellant could not

have been convicted except by a jury. However, one accused of an infraction is not

afforded a jury trial (PC §19.6).

There are numerous examples that the legislature makes a clear distinction

between an infraction and a public offense. At Vehicle Code 23302.5 (b) the

legislature states:

A violation of subdivision (a) is subject to civil penalties and is neither an infraction nor a public offense, as defined in Section 15 of the Penal Code…

If an infraction is a public offense subject to the general criminal law under penal

code §19.7 Appellant’s conviction was unlawful under penal code §689 and,

§689’s conflict with the later enacted sections 19.6 & 1042.5 cannot be avoided.

V.DID THE PROSECUTION PROVE APPELLANT WAS UNLICENSED

OR THAT HE HAD NO PROOF OF FINANCIAL RESPONSIBILITY?

Despite the trial Judge’s proposed modifications, neither the Appellants arguments

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nor the facts at trial can be modified by order of the court. The unofficial recorded

evidence of the trial proceedings is consistent with Appellants recollection that

Officer School did not specifically state the time or date of the occurrence other

than to say “at the above date and time in question”. Further, officer School did

not identify the defendant by name, did not identify the subject vehicle by type or

other description, did not testify that Appellant was unlicensed nor did he make

any statements as to proof of financial responsibility. Appellant clearly challenges

the people evidence as not supporting the judgment.

Either; Dispatch was in error, Officer Scholl willfully committed perjury, or

Officer Scholl was reading from the wrong set of notes. The simple fact that

Appellants License was not “suspended at that time” is exculpatory evidence the

prosecution was duty bound to provide.

CONCLUSION

The police contact for an alleged violation of Vehicle Code §22349(b) was a

COMPULSORY RESTRAINT that denied Appellant's secured rights of

association and movement. Officer Scholl did not have a warrant to search or seize

Appellant nor Appellants automobile.

It is hornbook law that, when an arrest or search is challenged as without warrant,

the burden shifts to the prosecution to prove that the arrest was legal or the search

was reasonable.

Defendant makes a prima facie case of unlawful arrest when he establishes that arrest was made without a warrant, and burden rests on prosecution to show proper justification. People v. Holguin (1956) 145 Cal.App.2d. 520.

Pursuant to the second component of §40300.5 a peace officer is authorized to

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make a warrantless arrest when the officer has reasonable cause to believe that the

person had been driving while under the influence and one of subparts (a)-(e) can

be said to apply. This portion of §40300.5 is inapplicable here.

Under the first component of §40300.5 the prosecution MUST establish that a

crime was committed in the officer's presence in order to meet their burden.

Referee Bills could not have found that Officer Scholl complied with Vehicle

Code §40300.5 without mischaracterizing infractions as crimes.

...infractions are not crimes... ...the Legislature did not intend to classify infractions as crimes. People v. Sava (1987) 190 Cal.App.3d 935, 235 Cal.Rptr. 694 [No. D005040. Court of Appeals of California, Fourth Appellate District, Division One. March 27, 1987.]

Vehicle Code infractions, unless otherwise specified in the Vehicle Code, cannot

provide a peace officer with the authority to arrest or detain a motorist. Appellant

cannot be called upon to prove a negative. Either Officer Scholl’s conduct was

authorized by the legislature or it was void. That burden of proof is on the

government.

The guarantees of the Fourth Amendment do not allow stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity. (Brown v. Texas (1979) 443 U.S. 47, 51-52 [61 L.Ed.2d 357, 362-363, 99 S.Ct. 2637]. See also People v. Gonzalez (1992) 7 Cal.App.4th 381, 386 [8 Cal.Rptr.2d 640]; People v. Gallant (1990) 225 Cal.App.3d 200, 208 [275 Cal.Rptr. 50].) People v. Rodriguez (1993) 21 Cal.App.4th 232 [No. G012327. Fourth Dist., Div. Three. Nov 29, 1993.]

Appellant's detention was violative of the fourth amendment as an arrest without

warrant and the people have failed to meet their burden of proof that said seizure

was reasonable under the law. The verdict of guilty on Counts 1, 2 and 3 should be

reversed as having been entered in want or excess of jurisdiction. Appellant herein

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so moves this court.

Dated: Thursday, October 14, 2010

___________________________Rik Munson, Appellant in Pro per

CERTIFICATION OF NUMBER OF WORDS IN BRIEF

I, RIK WAYNE MUNSON, certify and declare that the foregoing brief contains

4681 words not including this page or the PROOF OF SERVICE attached hereto.

Said word count was achieved on a functioning Microsoft Word program. I, RIK

WAYNE MUNSON, declare under penalty of perjury under the laws of the State

of California that the foregoing is true and correct and that this certification was

signed by me on Thursday, October 14, 2010

Dated: Thursday, October 14, 2010

___________________________Rik Munson, Appellant in Pro per

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