SUPERIOR COURT OF CALIF O RNIA, CO UNTY OF SANT A C LAR A APPELLAT E DEPART MENT PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff

and Respondent, vs. ANTHO NY SHAFFER, ) ) RESPONDENT'S O P E N I N G BRIEF ) ) N o . 1-10-AP-000919 ) ) C a s e No. 7-10-TR-699090

Defendant and Appellant. )

RESPONDENT'S O PENING BRIEF ON APPEAL F RO M T HE J UDG MENT OF T HE SUPERIOR COURT OF T HE STATE OF C ALIF O R N IA IN AND FOR THE CO UNTY OF SANT A C LAR A T HE HO NO RABLE J AMES MAD D EN

DOLORES CARR, DISTRICT ATTORNEY, #94406 ALEXAN D R A WANER ELLIS, VOLUNTEER DEPUTY DISTRICT ATTORNEY LAURA AIZPURU-SUTTON, DEPUTY DISTRICT ATTORNEY, #197438 COUNTY GOVERNMENT CENTER WEST WING, 70 W. Hedding Street San Jose, California 95110 Telephone: (408) 792-2874

Attorneys for the People/Respondent RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

SUPERIOR COURT OF CALIF O RNIA, CO UNTY OF SANTA C LAR A APPELLAT E DEPART MENT PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, vs. ANTHO NY SHAFFER, ) ) ) ) )

)
) )

Defendant and Appellant. )

No. 1 1 0 No. 7-10-TR-699090 Case AP RESPONDENT'S OPENING BRIEF 000 919

RESPONDENT'S O PENING BRIEF ON APPEAL F RO M THE J UDG MENT OF T HE SUPERIOR COURT OF THE STATE OF C ALIF O R N IA IN AND FOR THE CO UNTY OF SANT A C LAR A THE HO NO RABLE J AMES MAD D EN

DOLORES CARR, DISTRICT ATTORNEY, #94406 ALEXAN D R A WANER ELLIS, VOLUNTEER DEPUTY DISTRICT ATTORNEY LAURA AIZPURU-SUTTON, DEPUTY DISTRICT ATTORNEY, #197438 COUNTY GOVERNMENT CENTER WEST WING, 70 W. Hedding Street San Jose, California 95110 Telephone: (408) 792-2874

Attorneys for the People/Respondent

RESPONDENT'S OPENING BRIFF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

TABL E OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES I. IN TR OD U C TION STATEMENT OF THE CASE AND THE FACTS L AW AND ARGUMENT A. APPELLANT IS BARRED FROM BRINGING AN APPEAL BEFORE THE APPELLATE DIVISION BECAUSE HE FAILED TO FIRST SEEK A TRIAL DE NOVO B. APPELLANT WAIVED HIS CONSTITUTIONAL RIGHT TO BE PRESENT AND TO CONFRONT WITNESSES WHEN HE KNOWINGLY AND VOLUNTARILY ABSENTED HIMSELF FROM THE TRIAL 1. I t is Unsettled Whether Appellant is Constitutionally Entitled To All Sixth Amendment Protections for a Minor Trafc Infraction 2. Th e Constitutional Rights to Be Present at Trial and to Confront Witnesses Can Be Waived 1 0 3. Th e Commissioner's Conclusion That Appellant Knowingly and Voluntarily Absented Himself Sh o u l d Be Upheld Where Appellant Has Provided No Record on Appeal to Aftinatively Prove a Claim of Error 4. Based On All the Circumstances Now Before the Court, It Is Clear That Appellant Waived His Trial Rights By Knowingly and Voluntarily Absenting Himself From the Proceedings C. NEITHER VEHICLE CODE 40903 NOR LOCAL CRIMINAL RULE OF COURT 12 IS VOID FOR VAGUENESS 1 6 D. APPELLANT SHOULD NOT BE PERMITTED TO BENEFIT FROM HIS OWN WRONG 1 9 IV. C O N C L U S I O N 2 1 1 3 5

12

15

RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

T ABL E OF AUT HO RIT IES

Diaz v. United States (1912) 223 U.S. 442 Illinois v. Allen (1970) 397 U.S. 337 Lockheed Aircraft Corp. v. Superior Court (1946) 28 Ca1.2d 481 Lyng v Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439 People v. Concepcion (2008) 45 Ca1.4 People v. Connolly (1973) 36 Cal.App.3d 379 th 7 7 People v. 0 1 Disandro (2010) 186 Cal.App.4 , People v. Dixon (2007) 153 CalApp.4th 985 th 5 9 3 People v. Edwards (1991) 54 Ca1.3d 787 People v. Gordon (1990) 50 Ca1.3d 1223 People v. Hard (2003) 112 Cal.App.4th 272 People v. Kennedy (2008) 168 Cal.App.4th 1233 People v. Neilson (2007) 154 Cal.App.4th 1529 People v. Rubalcava (2000) 23 Ca1.4th 322 People v. Siegenthaler (1972) 7 Ca1.3d 465 People v. Williams (1976) 16 Ca1.3d 663 Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Ca1.4th 220 Scott v. Illinois (1979) 440 U.S. 367 Taylor v. United States (1973) 414 U.S. 17 United States v. Batchelder (1979) 442 U.S. 114 STATE STATUTES Evidence Code 452(d) Evidence Code 0 5 9 Penal Code 19.7 1 3 2 3

20 20 17 2 11, 20 1 1 , 12, 15 9, 13 12 13 13 16 2, 6 13, 14 16 14 2 2 9 11 17-18

RESPONDENT'S OPENING BRIEF

People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

Penal Code 1043 Veh. Code 26708(a)(1) Veh. Code 40500 Veh. Code 40901(c) Veh. Code 40903 Veh. Code 40902 OTH ER AU TH OR ITIES Cal. Rules o f Court, rule 4.210 Santa Clara County Local Criminal Rule o f Court, rule 12 Santa Clara County Local Criminal Rule o f Court, rule 11

3, 11-13, 15 1, 3, 4, 6, 7 7, 18 7 passim 5, 7, 8, 12, 19

6-8 5, 17-19 7

lit
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA APPELLATE DEPARTMENT

PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) ) vs. ) ) ANTHONY SHAFFER, ) ) Defendant and Appellant. ) )

No. 1-10-AP-000919 Case No. 7-10-TR-699090 RESPONDENT' S OPENING BRIEF

RESPONDENT'S OPENING BRIEF I. I N T R O D U C T I O N On March 30, 2010, Anthony Shaffer (hereinafter "Appellant") was cited for a violation of Vehicle Code 26708(a)(1) (material obstructing or reducing driver's view). Appellant failed to respond to the citation or appear on the date indicated on the notice to appear. On July 12, 2010, the Santa Clara County Superior Court sent Appellant a Notice of Failure to Appear and Civil Assessment. Appellant did not respond to the notice. On September 2, 2010, Commissioner James Madden of the Santa Clara County Superior Court held a trial by written declaration in absentia wherein Appellant was found guilty of violating Vehicle Code 26708(a)(1) and was ordered to pay a ne o f $474.00. Appellant challenges his conviction on the following grounds: (1) the trial 1
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

by declaration in absentia violated Appellant's constitutional right to be present and to confront witnesses; (2) the trial court exceeded its judicial discretion and/or was not permitted to conduct the trial by declaration in absentia; and (3) the Vehicle Code section and local court rule that peimits trials by declaration are too vague to be operative. As both the United States Supreme Court as well as the California Supreme Court have recognized, "[a] fundamental and longstanding principle o f judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Ca1.4th 220, 230-231 [quoting Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445].) "Applying that principle, the high court observed that i f statutory relief had been adequate in the case before it, 'a constitutional decision would have been unnecessary and therefore inappropriate." ( Id.; s e e superseded by statute on other grounds.) a l s o P e o p l e Without addressing Appellant's constitutional claims, this appeal may be v . resolved l W i on the basis that Appellant is barred from appealing his conviction l i a m because he failed to rst seek a timely trial de novo. (People v. Kennedy (2008) s ( 1 9 Cal.App.4th 1233, 1241.) However, even i f this Court considers the 168 7 6 ) 1 constitutional claims raised by Appellant, the verdict should be afrmed because: 6 C Appellant waived his constitutional right to be present and to confront a (1) 1 . 2 3 d 6 RESPONDENT'S OPENING BRIEF 6 People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919 3 , 6

witnesses when he knowingly and voluntarily absented himself from the trial; (2) the trial was properly conducted by declaration in absentia pursuant to Penal Code 1043(e) and Vehicle Code 40903(a) when Appellant failed to appear or respond to his multiple court notices; and (3) neither Vehicle Code 40903 nor Local Criminal Court Rule 12 is void for vagueness.

STATEMEN T OF TH E CASE AND TH E FAC TS'

On March 30, 2010, Appellant was cited for a violation o f California Vehicle Code 26708(a)(1). The citation was written on a California Judicial Council Form TR-130. Appellant signed the citation, which read, "Without admitting guilt, I promise to appear at the time and place indicated below." The citation indicated that Appellant was required to appear on June 3, 2010 at the Superior Court located at 1095 Homestead Road, Santa Clara, CA 95050. A telephone number for the Superior Court was also written on the bottom of the citation. In addition to the notice of Appellant's court date, the citation indicated that Appellant was to follow the instructions on the reverse o f the citation. The back of the citation contained the following warning: ...any person who fails to appear as provided by law may be deemed to have elected to have a trial by written declaration (in absentia) pursuant to
I All documents and fauns referred to can be found in the Appellate File in this case. Respondent requests that this Court take judicial notice of the contents of these folios pursuant to Evidence Code 452(d) and 459.

3
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

section 40903(a) VC upon any alleged infraction, as charged by the arresting/citing ofcer. Appellant failed to respond to the citation or appear in court on June 3, 2010. On July 12, 2010, the Superior Court of California, County of Santa Clara mailed a Notice o f Failure to Appear and Civil Assessment to Appellant's address listed on the citation, which is the same address that appears on the title page o f Appellant's Opening Brief (hereinafter "AOB") and Appellant's Notice o f Appeal. The Notice stated that Appellant was to elect one o f the following options and return the Notice by July 27, 2010: (1) pay the ticket; (2) show proof of correction; (3) request trafc school; or (4) schedule a court appearance. The Notice also contained the following warning in bold at the bottom of the page: Your failure to comply with one o f the options above by the due date will be deemed your consent to Trial by Written Declaration (in Absentia) pursuant to Vehicle Code Section 40903, thereby waiving your right to be present at trial, to testify and/or present evidence on your behalf, to be represented by an attorney, to confront and cross-examine the witnesses against your, and to use the subpoena power of the court to compel the attendance o f witnesses on your behalf. Appellant failed to respond to the Notice. On September 2, 2010, a trial by declaration in absentia was held in the Santa Clara County Superior Court. Commissioner James Madden found Appellant guilty of violating Vehicle Code 26708(a)(1) and ordered him to pay a ne o f 8474.00. The Superior Court mailed a Decision and Notice of Decision to Appellant at the address listed on the citation, which is the same address that appears on the title page o f AOB and Appellant's Notice o f Appeal. The following 4
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

information was contained at the bottom of the Decision in all capital letters: " I f you wish to request a new trial (trial de novo), you must submit a request and pay the ne amount of $174.00 (in cash, money order or cashier's check) within 20 days (plus 5 mailing days) o f the clerk's certicate o f mailing to the Superior Court." There is no indication in the court le that Appellant has led a California Judicial Council Form TR-220 "Request for New Trial (Trial de Novo)." Rather, Appellant directly led a Notice o f Appeal on September 24, 2010. Appellant has elected to proceed without a record of oral proceedings in the trial court to the appellate division, pursuant to California Rule o f Court 8.910. (See Appellant's Form CR-142, led September 24, 2010)

L A W AND ARGUMENT A. A P P E L L A N T IS BARRED FR OM BR IN GIN G AN APPEAL BEFORE TH E APPEL L ATE D IVISION BECAUSE HE FAIL ED TO FIRST SEEK A TR IA L DE N OVO Vehicle Code 40903(a) plainly states, "[a]ny 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 ofcer, involving a violation o f this code or any local ordinance adopted pursuant to this code." (Veh. Code 40903(a) [emphasis added]; see Santa Clara County Local Criminal Rule o f Court, rule 12.) Vehicle Code 40902, which governs trials by written 5
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

declaration, provides that i f a defendant is dissatised with the result of his trial by written declaration, the defendant shall be granted a trial de novo. However, i f a defendant's request for a trial de novo is not timely received, "... no new trial may be held and the case must be closed." (Cal. Rules o f Court, rule 4.210(b)(7).) In construing the statutes and court rules governing trials by declaration and their review, the Court o f Appeal held that a defendant convicted of a Vehicle Code infraction after a trial by declaration may appeal to the Appellate Division only i f the defendant is rst convicted again following a trial de novo. (People v. Kennedy, supra, 168 Cal.App.4th at 1241.) As Appellant was properly deemed to have elected a trial by written declaration, which resulted in a subsequent conviction, Appellant similarly cannot bring this appeal unless he has rst timely requested, and has received, a trial de novo. On March 30, 2010, Appellant was cited for a violation of California Vehicle Code 26708(a)(1). Appellant signed the citation, promising to appear on June 3, 2010 at the Santa Clara County Superior Court. Additionally, the citation indicated that Appellant was to follow the instructions on the reverse o f the citation, which warned a failure to appear may be deemed an election to have a trial by written declaration (in absentia). Appellant failed to respond to the citation or appear in court on June 3, 2010. On July 12, 2010, the Santa Clara County Superior Court mailed a Notice o f Failure to Appear and Civil Assessment to Appellant's address listed on the 6
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

citation, the same address that appears on the title page of AOB and Appellant's Notice o f Appeal. The Notice stated that Appellant was to elect one o f several options, which included scheduling a court appearance, and return the Notice by July 27, 2010. The Notice also warned that Appellant's failure to respond would be deemed consent to a trial by written declaration in absentia and, in compliance with Vehicle Code 40901(c), a waiver of Appellant's trial rights. Appellant failed to respond to the Notice or elect to proceed by means o f a court appearance. Accordingly, Appellant was properly deemed to have elected a trial by declaration. (See Veh. Code 40903(a).) On September 2, 2010, a trial by declaration in absentia was held in the Santa Clara County Superior Court. Pursuant to Vehicle Code 40903(b) and 40902(c), Commissioner Madden considered the notice to appear issued in accordance with Vehicle Code 00500 and found Appellant guilty of violating Vehicle Code 26708(a)(1). In accordance with Local Criminal Rule 11, Appellant was notied of the disposition o f his case, the amount of imposed nes and fees, and his right to request a trial de novo within a specied period of time. Appellant asserts that the trial by declaration in his case did not meet the "minimum requirements" for a trial by declaration set forth in California Rule o f Court 4.210(b) - namely a solicitation of the ofcer's testimony and a written waiver of the defendant's constitutional rights. Here, Appellant did not request a trial by declaration in accordance with Vehicle Code 40902, but instead was 7
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

deemed to have elected a trial by declaration by default pursuant to Vehicle Code 00903. California Rule o f Court 4.210(b) contemplates the participation of an Appellant requesting the convenience o f a trial by declaration pursuant to Vehicle Code 00902. Notably, the "minimum requirements" which Appellant refers to on page 17 o f his brief are triggered only i f Appellant is active participant in the process. Fo r example, the "requirement" that the clerk o f the court send a TR-200 form to an Appellant is triggered only "[i ]f the clerk receives the defendant's written request for a trial by written declaration...." (See California Rule o f Court 4.210(b)(2)). Also, the "requirement" that the court clerk must deliver or mail to the arresting ofcer's agency Notice and Instructions to Arresting Ofcer (Foil 1 TR-210) and Ofcer's Declaration (Form TR-235), is similarly triggered only "[i ]f the clerk receives the defendant's Request for Trial by Written Declaration (form TR-205) and bail by the due date...." Accordingly, Appellant's trial was properly conducted according to Vehicle Code 40902 and 40903 and is, consequently, subject to the requirement that Appellant rst request a trial de novo before seeking an appeal before this Court. There is no indication in the court le that Appellant has led a California Judicial Council Form TR-220 "Request for New Trial (Trial de Novo)." Rather, it appears that Appellant directly led a Notice o f Appeal on September 24, 2010, before exhausting the procedure o f requesting a trial de novo. Accordingly, Appellant is barred from bringing this appeal.

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RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

B. A P P E L L A N T WA IV E D HIS C ON STITU TION AL R IGH T TO BE PRESENT AND TO CONFRONT WITNESSES WH EN HE K N OWIN GL Y AND V OL U N TA R IL Y ABSENTED H IMSEL F FR OM TH E TR IA L I. I t is Unsettled Whether Appellant is Constitutionally Entitled To All Sixth Amendment Protections for a Minor Traf c Infraction In a recent decision by the California Court of Appeal, the court noted that it was "...unable to locate any case in which the United States Supreme Court has specically addressed the extent to which the Sixth Amendment right to confrontation applies in minor trafc infraction cases where a loss o f liberty is not involved." (People v. Disandro (2010) 186 Cal.App.4th 593, 600.) The court went on to state: To the contrary, the United States Supreme Court has in at least two cases limited the rights afforded by the Sixth Amendment to more serious criminal matters. For example, in Scott v. Illinois (1979) 440 U.S. 367, 371374, 99 S.Ct. 1158, 59 L.Ed2d 383, the United States Supreme Court held the Sixth Amendment right to counsel is limited to criminal cases which actually lead to imprisonment. In addition, the Sixth Amendment right to a jury trial does not extend to petty offenses involving a sentence o f imprisonment for six months or less. [Citation.] In other words, it is uncertain whether the Sixth Amendment right to confrontation afforded to defendants "[i ]n all criminal prosecutions," [citation] would apply fully and completely in minor trafc infraction cases that are not punishable by imprisonment under California law. Therefore, without more, we cannot conclude defendant has a viable claim she was denied her federal constitutional right of confrontation under the Sixth Amendment because the trafc court proceeded with her minor trafc infraction case while she was not present. (Id.) The court further examined the limitations o f the protection provided by the 9
RESPONDENT'S OPENING BRIEF

People vs. Anthony Shaffer, Appeal from Superior Court No. 140-AP-000919

California Constitution to persons charged with infractions: Under California statutory law, a person charged with an infraction has some, but not all, o f the constitutional rights afforded a defendant in a misdemeanor criminal prosecution. For example, Penal Code section 19.6 specically states that a person charged with an infraction does not have a right to appointed counsel or a trial by jury. Instead, "[t]rial o f an infraction shall be by the court...." [Citation.] (Id. at 600-601.) Accordingly, i t is unsettled whether Appellant enjoys all o f the Sixth Amendment guarantees, including the right to confrontation, for a minor trafc infraction case such as this.

2. T h e Constitutional Rights to Be Present at Trial and to Confront Witnesses Can Be Waived Even i f Appellant is entitled to all Sixth Amendment protections for a minor trafc infraction, which Respondent does not concede, Respondent alternatively argues that the right to be present and the right to confront witnesses are constitutional rights which can be waived. The California Supreme Court has recognized: A criminal defendant's right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause o f the Sixth Amendment and the due process clause o f the Fourteenth Amendment. It is also required by section 15 o f article I o f the California Constitution and by sections 977 and 1043. [Citations.]

(People v. Concepcion (2008) 45 Ca1.4th 77, 81.) Notably, in that same opinion, 1 0
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

the California Supreme also stated: "The right to be present [at trial] may be waived, however. [Citations.] Waiver may be express or implied. [Citations.]" (People v. Concepcion, supra, 45 Ca1.4th at 82 [Emphasis added].) Thus, the court should look to a defendant's conduct to determine whether there was an implied waiver of his right to be present at his own infraction trial as by his knowing and voluntary failure to appear. (See Taylor v. United States (1973) 414 U.S. 17, 19-20 [a defendant's voluntary absence from trial may be properly construed as an effective waiver of right to be present]; People v. Connolly (1973) 36 Cal.App.3d 379, 384-385 [a defendant's voluntary absence from trial may be construed as a waiver of the right to be present i f the absence was knowing and voluntary].) In determining whether a defendant voluntarily absented himself from his own trial, the California Supreme Court considered the application o f Penal Code 1043 (statutory waiver of right to be present at trial) without any nding that Penal Code 1043 was unconstitutional. (People v. Concepcion, supra, 45 Ca1.4th at 83-86) With regard to defendants in misdemeanor cases, Penal Code 1043 states, in relevant part, that: (e) I f there is no authorization pursuant to subdivision (a) of Section 977 and i f the defendant fails to appear in person at the time set for trial or during the course o f trial, the court, in its discretion, may do one or more o f the following, as it deems appropriate: (4) Proceed with the trial i f the court nds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held. 11
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

(Id. [Emphasis added].) The "knowing and voluntary" requirement of Penal Code 1043(e) mirrors the requirement for the waiver of a constitutional right. (See e.g., People v. Dixon (2007) 153 Cal.App.4th 985, 990 ["A defendant's waiver of the right to a jury trial, as with other fundamental rights, however, may be accepted by the court only i f done in a knowing, intelligent, and voluntary manner"]); see also, People v. Connolly, supra, 36 Cal.App.3d at 384.) Respondent asserts that Appellant's conviction was the result of a trial by written declaration, as governed by Vehicle Code 40902 and 40903, and not a trial in absentia, as governed by Penal Code 1043(e). However, should the court disagree, Respondent argues in the alternative that Appellant impliedly waived his constitutional rights pursuant to Penal Code 1043(e). Pursuant to Penal Code 19.7, except as otherwise provided by law, all provisions o f law relating to misdemeanors also apply to infractions. Thus, the portions o f Penal Code 1043 relating to misdemeanants also apply to Appellant.

3. T h e Commissioner's Conclusion That Appellant Knowingly and Voluntarily Absented Himself S h o u l d Be Upheld Where Appellant Has Provided No Record on Appeal to Af rmatively Prove a Claim of Error Under Penal Code 1043(e), the Commissioner was entitled to proceed with trial, despite Appellant's absence, so long as the Commissioner found that 12
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

Appellant had: (a) voluntarily absented himself from the trial, (b) with full knowledge that the trial was to be held. Recently, an appellate court further explained the requirements o f Penal Code 1043: A trial court abuses its discretion under Penal Code section 1043 i f it proceeds with the trial without an adequate showing that the defendant's absence is a knowing and voluntary one. [Citation.] Before it can make a nding that a defendant's absence is knowing and voluntary, a trial court must make reasonable inquiry and have 'sufcient facts before it.' [Citation.] The defendant must be given a 'full opportunity to explain his absence.' [Citation.] The court cannot 'look solely at the facts initially before the court' but must base its deteimination 'upon the totality of the facts; not just a portion o f them.' [Citation.] 'Mere absence standing alone is purely equivocal.' [Citation.] (People v. Disandro (2010) 186 Cal.App.4th 593, 602 [trial court made no inquiry on the record of whether defendant's absence was knowing and voluntary, but ultimately nding harmless error].) In the case at bar, Appellant has elected to proceed with his appeal without a record of the proceedings. Thus, there are no trial court ndings regarding Appellant's absence within the record on appeal. In the absence o f such a record, Respondent requests that this Court hold that no error with respect to the commissioner's ndings occurred. Appellate review is limited to matters contained within the record on appeal. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534) It is Appellant's burden to provide an adequate appellate record. (People v. Gordon (1990) 50 Cal. 3d 1223, 1250 overruled on other grounds in People v. Edwards (1991) 54 CaL3d 787, 835.) Without such a record of the oral proceedings, Appellant has not met 13
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

his burden to show that the trial court committed error. Furthermore, Appellant's failure to provide an adequate record precludes consideration of his contentions on appeal. (See People v. Siegenthaler (1972) 7 Ca1.3d 465, 469; see also People v. Neilson, supra,154 Cal.App.4th at 1534). In People v. Neilson, a defendant appealed a trafc infraction in pro per and failed to provide the appellate division with a record of oral proceedings in the trial court (either a transcript or settled statement). (Neilson, supra, 154 Cal.App.4th at 1531) The court found no requirement under Government Code 08081 to afford a pro per litigant an opportunity to address the issue o f an inadequate record even i f the lack o f record was the grounds for afrming a judgment on appeal. (Id. at 1534) The court acknowledged that while it may be difcult for persons proceeding in pro per to navigate the appellate process, there is no special exemption in the California Rules o f Court for pro per litigants. The appellate court afrmed the defendant's conviction. (Id.) Respondent here similarly requests that this Court hold that the trial court committed no error regarding its nding that Appellant knowingly and voluntarily absented himself, in the absence o f a record on appeal which afrmatively shows error in the trial court proceedings.

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RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

4. Based On All the Circumstances Now Before the Court, It Is Clear that Appellant Waived His Trial Rights By Knowingly and Voluntarily Absenting Himself From the Proceedings On appeal the reviewing court must deteimine on the whole record, whether Appellant's absence was knowing and voluntary. (People v. Connolly (1973) 36 Cal.App.3d 379, 385) Penal Code 1043(b)(2) is similar to Penal Code 1043(e) in that it requires a nding that a defendant "voluntarily" absented himself from proceedings. On the issue o f "voluntarily absenting" oneself under Penal Code 1043(b)(2), the court in People v. Connolly stated: Unquestionably section 1043, subdivision (b)(2), was designed to prevent the defendant from intentionally frustrating the orderly processes o f his trial by voluntarily absenting himself. A crucial question must always be, 'Wh y is the defendant absent?' This question can rarely be answered at the time the court must deteimine whether the trial should proceed. Consequently, in reviewing a challenge to the continuation o f a trial pursuant to Penal Code section 1043, subdivision (b)(2), i t must be recognized that the court's initial determination is not conclusive in that, upon the subsequent appearance o f the defendant, additional information may be presented which either aflins the initial decision o f the court or demands that defendant be given a new trial. It is the totality o f the record that must be reviewed in determining whether the absence was voluntary. (Id. at 384-385 [emphasis added].) The court also considered whether or not that defendant made any "reasonable effort" to contact the court or counsel. (Id.) As mentioned previously, Appellant's absence is the exclusive result of his failure to respond in any manner to his Notice to Appear and his Notice o f Failure to Appear and Civil Assessment, both of which contained warnings that a failure to respond would result in the now complained-of actions, including a waiver of 15
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

Appellant's constitutional rights. In addition, AOB contains multiple admissions regarding his knowing and voluntary failure to appear. Indeed, on page 4 o f AOB, Appellant states, "[u]nquestionably the appellant could have been more diligent in the case." Appellant then states on page 6 o f AOB, "...i t is true that there would be no questions o f law had the defendant simply appeared as promised..." In other words, Appellant had notice o f his court appearances and simply elected not to act. Based on the totality of the record, it is clear that Appellant knowingly and voluntarily absented himself. Accordingly, Appellant waived his right to be present and to confront witnesses. Any such argument that the trial conducted by written declaration in absentia violated Appellant's constitutional rights is, thus, without merit.

C. N E I T H E R VEH IC L E CODE 40903 NOR L OC AL C R IM IN A L RULE OF COURT 12 IS VOID FOR VAGUENESS "A law is void for vagueness only i f it 'fails to provide adequate notice to those who must observe its strictures and 'impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers o f arbitrary and discriminatory application." [Citations.]" (People v. Hard (2003) 112 Cal.App.4th 272, 281 [quoting People v. Rubaleava (2000) 23 CalAth 322].) "Al l presumptions and intendments favor the validity of a statute and mere doubt does not afford sufcient reason for a judicial declaration o f invalidity. Statutes must be upheld unless their unconstitutionality 16
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

clearly, positively and unmistakably appears. [Citations.]" (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Ca1.2d 481, 484.) A statute "cannot be held void for uncertainty i f any reasonable and practical construction can be given to its language." (Id.) AOB appears to raise two challenges to Vehicle Code 40903(a) and Local Criminal Rule 12 on the ground that each provision is impermissibly vague. As explained below, both challenges are without support. Appellant rst contends that Vehicle Code 40903(a) is impermissibly vague because the Legislature failed to mandate a trial by written declaration upon a defendant's failure to appear. Contrary to Appellant's assertion, that the court is given some discretion as to whether to proceed by means o f a trial by declaration or by some other means when a defendant fails to appear does not support a nding that the Legislature impeimissibly delegated basic policy matters to the courts. In United States v. Batchelder (1979) 442 U.S. 114, the United States Supreme Court held that the existence of two overlapping statutes available to prosecute a particular defendant at the prosecutor's discretion did not give rise to an impermissible delegation of basic policy matters. Specically, the Court found: The provisions at issue plainly demarcate the range o f penalties that prosecutors and judges may seek and impose. In light of that specicity, the power that Congress has delegated to those ofcials is no broader than the authority they routinely exercise in enforcing the criminal laws. Having infoimed the courts, prosecutors, and defendants o f the permissible 17
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

punishment alternatives available under each Title, Congress has fullled its duty. (Id. at 126.) Similarly, here, the Legislature has infoli led the courts, prosecutors, and defendants o f the permissible courses o f action available when a person fails to appearincluding the possibility that a person may be deemed to have elected a trial by written declaration. That the court may elect one course o f action or another does not, without more, support the assertion that Vehicle Code 00903 is impermissibly vague. Appellant further contends that Vehicle Code 40903(a) is vague as to whether the court can impose a trial by written declaration or a trial in absentia. In support of this argument, Appellant asserts that Local Criminal Rule 12, which governs trials by declaration, fails to explain what makes a case eligible for trial in absentia. Both arguments are without merit. Local Criminal Rule 12 provides, in relevant part: The Court adopts the trial by declaration process dened in Vehicle Code 40902. Additionally, pursuant to Vehicle Code 40903, 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 ofcer, involving a violation o f the Vehicle Code or any local ordinance adopted pursuant to the code. In eligible cases the court will conduct the trial in absentia and it will be adjudicated on the basis o f the notice to appear issued pursuant to Vehicle Code 40500 and any business record or receipt, sworn declaration of the arresting ofcer, or written statement or letter signed by the defendant that is in the le at the time the trial by declaration is conducted. (Emphasis added.) When read as a progressive whole rather than in a vacuum, it is 18
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

clear that "eligible cases" merely refers to those cases that may be held by means of a trial by declaration. In other words, what make a case eligible to be heard in absentia by the declarations and documents contained within the le, is that the case meets the requirements o f Vehicle Code 00903 (the defendant failed to appear) or 40902 (the defendant afrmatively elected to proceed by declaration). Furthermore, when Local Criminal Rule 12 is read together with Vehicle Code 40903(a), it is clear that the "trial in absentia" refers to the parties' physical absence during the adjudication o f the case by written declaration and not to some other method of trial the court may utilize. Stated differently, the "trial in absentia" referred to in Local Criminal Rule 12 is merely the procedure by which the trial by declaration must proceed. Accordingly, there is no ambiguity or vagueness as to whether and in what circumstances a court may hold a trial by declaration or a trial in absentia.

D. A P P E L L A N T SHOULD N OT BE PER MITTED TO BEN EFIT FR OM HIS OWN WR ON G In the context of felony cases in which a defendant fails to appear during an ongoing trial or is removed from the courtroom during trial for unruly behavior, courts have repeatedly stated: Neither in criminal nor in civil cases will the law allow a person to take advantage o f his own wrong. Any yet this would be precisely what it would do i f it permitted an escape from prison, or an absconding fro the jurisdiction while at large on bail, during the pendency of a trial before a jury, to operate as a shield. 19
RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

(Diaz v. United States (1912) 223 U.S. 442, 458; People v. Concepcion, supra, 45 Ca1.4th at 82; see Illinois v. Allen (1970) 397 U.S. 337, 350.) Although the holdings o f these cases are inapplicable to the present case, as they involve constitutional limits on trials in absentia for felony defendants, the aforementioned statement and underlying policy considerations are certainly applicable to this case. Indeed, Appellant is asking this Court to nd that, although he was given every opportunity to appear in court and present a defense but knowingly and voluntarily elected not to do so, his conviction should be reversed on the basis that he was not present in court. Such a holding would peimit any person cited for a trafc violation to simply do nothing and have any subsequent conviction overturned on appeal, thus benetting from his or her own wrong.

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RESPONDENT'S OPENING BRIEF People vs. Anthony Shaffer, Appeal from Superior Court No. 1-10-AP-000919

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