Opinion
A150386
08-22-2017
THE PEOPLE, Plaintiff and Respondent, v. FREDERICK J. STRUCK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 13454303)
We granted Frederick J. Struck's petition to transfer his appeal of a judgment finding him guilty of two traffic infractions from the appellate division of the Contra Costa Superior Court to our court in order to consider his claim that the trial court denied him his right to be present at his trial for these infraction charges. We agree with Struck that the court erred in proceeding with his trial in his absence because it did nothing to ascertain whether he voluntarily and knowingly absented himself from trial. However, Struck has not shown that the trial court's error was prejudicial. Therefore, we affirm the judgment.
BACKGROUND
At 11:25 a.m. on January 15, 2016, Officer Grubb, a police officer with the police department of Walnut Creek, California, cited Struck, then 55 years old, for driving without a license in violation of Vehicle Code section 12500, subdivision (a) and failing to stop at a stop sign in violation of Vehicle Code section 22450, subdivision (a). Subsequently, Struck appeared at his arraignment hearing for these infractions before a limited jurisdiction court of the Contra Costa County Superior Court and pled not guilty. At this same hearing, the court scheduled a trial for July 7, 2016, at 8:30 a.m.
On July 7, 2016, Struck did not appear for trial, nor did he contact the court to explain his absence. The court, with a traffic commissioner presiding, proceeded to conduct a trial of the two traffic infraction charges against Struck in his absence, at which the citing officer testified. The court found him guilty of both charges and fined him $387 for driving without a license and $237 for failing to stop at a stop sign, for a total fine of $624.
Struck wrote a letter to the trial court dated July 25, 2016, to explain why he missed his trial and was requesting an appeal. He stated: "I live with my father and am responsible to get him to his medical appointments. Due to the rapid growth of his melanoma, I had to take him to Travis [Air Force Base] for emergency radiation therapy and treatment." Struck referenced and attached three unauthenticated documents to his letter.
The first document Struck attached is a letter purportedly from the Oncology Program Manager of the Joint Radiation Oncology Center at Travis. The manager stated, "I can confirm that Mr. Frederick J. Struck did accompany his father . . . for scheduled 0920 medical treatment appointments between 6-8 Jul 2016. Additionally, Mr. Struck accompanied his father at his own discretion."
The second document Struck attached is a printed out report of patient appointments, purportedly run by the manager, listing an appointment for a "J. Struck" on July 7, 2016, at 9:20 a.m. and referring to melanoma.
The third document Struck attached is a typewritten printout purportedly from the California Department of Motor Vehicles resulting from a "driver's license/identification card information request." The printout, dated July 15, 2016, indicates the department issued a driver's license to Struck on March 28, 2016, that was to expire on April 25, 2020, Struck's birthday. In his letter, Struck stated that the printout contained information "regarding my temporary license that I had at the time of my citation." However, Struck did not explain where this might be indicated on the printout, which is full of short-hand terms and unexplained codes. We have not found any indication on it that Struck had a valid temporary driver's license as of January 15, 2016, the day he was cited for the two traffic infractions.
In response to Struck's letter, the court advised him of his right to appeal the court's judgment. Struck did so, to the appellate division of the superior court. Subsequently, he filed a motion in the trial court to vacate the judgment and for a new trial. The court ruled that it was inappropriate to act on the motion while the case was on appeal.
The appellate division affirmed the judgment against Struck. It concluded that "[a]lthough the Commissioner did not make an express finding, there is sufficient evidence to support the Commissioner's implicit finding of a knowing and voluntary failure to appear. The court file shows that [Struck] personally appeared for his arraignment, and was given the trial date. He did not appear on that known date. [Struck] did not file a request for a continuance to assist his father, and there is no record of his calling the court to indicate that he had an emergency that prevented his appearance. These facts supported a finding that [Struck] was willfully absent." The appellate division also rejected Struck's suggestion that the Commissioner abused his discretion by denying Struck a new trial, based on the facts that Struck did not request a new trial in his July 25, 2016 letter, this letter was not sworn, and Struck did not establish in the letter that his father was unable to transport himself or explain why he, Struck, had not sought a continuance. Further, the appellate division ruled, the trial court had no jurisdiction to consider Struck's subsequent motion to vacate the judgment and for a new trial because Struck filed it after he filed his notice of appeal, thereby divesting the trial court of jurisdiction to take further action.
Struck applied to the appellate division for the division's certification of the case for transfer to this court. The appellate division denied his application. We subsequently granted Struck's petition to transfer the case to this court for our review.
DISCUSSION
Struck argues that the judgment against him must be reversed because the trial court denied him his constitutional and/or statutory rights to be present and confront witnesses at trial, thereby committing prejudicial error. We agree that the court erred in proceeding with trial in Struck's unexplained absence, but Struck fails to show that the court's error was prejudicial to him in any way.
"General standards of appellate review apply to appeals transferred from the superior court appellate division for decision in the Court of Appeal." (See Huntington Continental Townhouse Assn. Inc. v. Miner (2014) 230 Cal.App.4th 590, 598.) We have the same power as the appellate division to review the trial court judgment here. (See Pen. Code, § 1471 [indicating we "have similar power to review any matter and make orders and judgments as the appellate division of the superior court by statute would have in such case, except as otherwise expressly provided"].)
We are aware of only one appellate court opinion that addresses in any detail the nature of a defendant's right to be present at a trial for traffic infraction charges. In People v. Disandro (2010) 186 Cal.App.4th 593 (Disandro), cited by both Struck and the People, the Fourth Appellate District considered whether a defendant's right to confront and cross-examine witnesses at her trial for two traffic infraction charges—driving at an unsafe speed and with a load obstructing her control of her vehicle—was violated when the traffic court tried her case in her absence. (Id. at pp. 596, 599.) In that case, the defendant first requested a continuance of the trial, which was denied. (Id. at p. 597.) Then, the day before the trial was scheduled to begin, an attorney from the United States Attorney's Office sent the traffic court a letter via facsimile and first class mail stating a notice to remove the case to federal court had been filed and that the superior court could not proceed further. (Id. at p. 598.) There was no indication in the record that the traffic court received or filed this correspondence. (Ibid.) The defendant was not present for the trial, the citing officer testified, the court found the defendant guilty and ordered her to pay $300.20 in fines and fees. (Ibid.)
The defendant appealed the judgment to the appellate division, contending her right to confrontation was violated when the court proceeded with her trial in her absence. The appellate division affirmed the traffic court's judgment, concluding "it was appropriate for the traffic court to proceed with trial in defendant's absence because she 'voluntarily absented herself from trial, albeit under the mistaken belief that her removal notice was effective.' As a result, it concluded 'she implicitly waived her rights under the confrontation clause.' " (Disandro, supra, 186 Cal.App.4th at p. 599.)
The Disandro court began with a discussion of the federal constitutional right to confrontation guaranteed under the Sixth Amendment of the federal Constitution, noting that "in order to protect the fairness of a trial and the reliability of the truth-determining process, the United States Supreme Court requires a waiver of the right to be 'knowing and intelligent.' " (Disandro, supra, 186 Cal.App.4th at p. 600.) However, the Disandro court was not aware of "any case in which the United States Supreme Court has specifically addressed the extent to which the Sixth Amendment right to confrontation applies in minor traffic infraction cases where a loss of liberty is not involved." (Ibid.) The court considered it "uncertain" whether the right "would apply fully and completely in minor traffic infraction cases that are not punishable by imprisonment under California law," and, therefore, could not conclude that defendant had "a viable claim she was denied her federal right of confrontation under the Sixth Amendment." (Ibid.)
The Disandro court then turned to California law, determining that "[t]he right to presence during the trial of a traffic infraction was created by statute under Vehicle Code section 40512.5 and 40901 with reference to Penal Code section 1043." (Disandro, supra, 186 Cal.App.4th at p. 604.) The court noted that our state Constitution contains a provision regarding a criminal defendant's right to confrontation that is similar to the Sixth Amendment, but that by statutory law a person charged with an infraction has only some of the constitutional rights afforded to a defendant in a misdemeanor criminal prosecution. (Disandro, at pp. 600-601.)
The court then turned to the Vehicle Code. As it noted (Disandro, supra, 186 Cal.App.4th at p. 601), Vehicle Code section 40901, subdivision (c), which discusses certain rights of defendants in infraction trials, states in relevant part: "Prior to the entry of a waiver of constitutional right pursuant to any rules adopted under this section, the court shall inform the defendant in writing of the nature of the proceedings and of his or her right to confront and cross-examine witnesses . . . . The court shall ascertain that the defendant knowingly and voluntarily waives his or her right to be confronted by the witnesses against him or her . . . before proceeding."
Further, as the Disandro court also pointed out (Disandro, supra, 186 Cal.App.4th at p. 601), Vehicle Code section 40512.5, subdivision (a) provides in relevant part: "[I]f at the time the case is called for trial the defendant does not appear, either in person or by counsel, and has not requested in writing that the trial proceed in his or her absence, the court may . . . act pursuant to Section 1043 of the Penal Code." Under Penal Code section 1043, subdivision (e)(4), if an unrepresented defendant in a misdemeanor case fails to appear at the time set for trial, the court, in its discretion, may "[p]roceed with the trial if the court finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held . . . ." (Pen. Code, § 1043, subd. (e)(4).)
The Disandro court continued, "A trial court abuses its discretion under Penal Code section 1043 if 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 finding that a defendant's absence is knowing and voluntary, a trial court must make reasonable inquiry and have 'sufficient 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 determination 'upon the totality of the facts; not just a portion of them.' [Citation.] 'Mere absence standing alone is purely equivocal.' " (Disandro, supra, 186 Cal.App.4th at p. 602.)
The Disandro court concluded that the traffic court violated defendant's statutory right to be present during the trial of her traffic infraction because "when defendant did not appear for trial . . . , the traffic court was obligated to follow the procedures set forth in Vehicle Code sections 40901, subdivision (c), and 40512.5 and/or Penal Code section 1043, subdivision (e)." (Disandro, supra, 186 Cal.App.4th at p. 604.) However, "[t]he record [was] silent as to whether the traffic court took any steps to determine the reason for defendant's absence. . . . On a silent record, we must assume the traffic court had no information on the reason for defendant's absence. Under these circumstances, the traffic court had a duty to proceed according to Vehicle Code section 40512.5 and/or Penal Code section 1043, subdivision (e), but it did not do so. In other words, the traffic court had several options available to it when defendant did not appear for trial. However, it was not authorized under Vehicle Code section 40512.5 and/or Penal Code section 1043, subdivision (e) to proceed with trial, unless it had sufficient facts before it to make a determination that defendant's absence was both voluntary and knowing." (Id. at p. 603.) Thus, the traffic court committed error. (Id. at p. 604.)
The Disandro court discussed other procedural facts that the parties disputed regarding the notice sent to the traffic court purporting to remove the case to federal court. (Disandro, supra, 186 Cal.App.4th at pp. 603-604.) Because these facts have no relevance to the present case, we do not discuss them further.
Nonetheless, the Disandro court concluded the error was harmless under the "miscarriage of justice" standard used to determine the potential prejudice caused by violations of rights conferred by the state, set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (Disandro, supra, 186 Cal.App.4th at pp. 604-605.) "Under that standard, reversal is only warranted for a miscarriage of justice if it 'is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] In addition, 'defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial.' " (Ibid., fn. omitted.) The court continued, "Although it is our view the traffic court erred when it proceeded with trial in defendant's absence without making appropriate inquiries into the reasons for the absence in order to determine whether it was both knowing and voluntary, the record indicates the error was harmless. The case, of course, is not a complex one as it involves only two minor traffic infractions. Defendant has not even presented a colorable argument as to why she would not have been found guilty of both traffic infractions if she had been present at trial. . . . Nor does she present anything to suggest there was a possibility the amount of the fines imposed immediately following trial could have been affected in any way by mitigating circumstances she would have presented if she was there. Defendant merely claims she could have cross-examined the officer to challenge his observations and argued she was acting within the scope of her employment duties when she was cited. Thus, there is nothing to indicate she had a viable defense to either infraction. Nor are there any reasons to believe the results of the proceeding would have been different if defendant had been present at the time of trial. Under these circumstances, we can only conclude the error was harmless." (Id. at p. 605.) The court also stated it would reach this same conclusion if "the error here was of a federal constitutional dimension." (Id. at p. 605, fn. 8.)
We follow Disandro here. As with the defendant in Disandro, the record indicates Struck knew the trial date and did not contact the court to explain his absence. This, however, sheds no light on what the trial court knew about the reasons for his absence on the day the trial was to commence. Further, the clerk's docket and minutes for the date of the trial merely indicate that Struck did not appear and that the court commenced with the trial in his absence. Thus, the record is silent regarding what the trial court knew about the reasons for Struck's absence, does not indicate the court took any steps to determine these reasons, and does not indicate the court made any finding regarding these reasons.
"On a silent record, we must assume the traffic court had no information on the reason for defendant's absence." (Disandro, supra, 186 Cal.App.4th at p. 603.) Such an absence " 'standing alone is purely equivocal.' " (Id. at p. 602.) Under these circumstances, the court "had a duty to proceed according to Vehicle Code section 40512.5 and/or Penal Code section 1043, subdivision (e)." (Id. at p. 603.) It was required to make a finding that Struck's absence was knowing and voluntary based on sufficient facts obtained after a reasonable inquiry, and after Struck had been given " 'a full opportunity to explain his absence.' " (Id. at p. 602.) "The court cannot 'look solely at the facts initially before the court' but must base its determination 'upon the totality of the facts; not just a portion of them.' " (Ibid.) The court's failure to proceed with such an inquiry and to make a decision based on a totality of the facts was an abuse of its discretion. (See ibid.)
Nonetheless, whether evaluated under the state or federal standards for evaluating whether error was prejudicial, we conclude the trial court's error here was harmless. This case is not complex. It involves two minor traffic infractions. Struck has not presented a colorable argument as to why he would not have been found guilty of both infractions if he had been present at trial. He contends only that he thought he had a valid license, based on the printout from the Department of Motor Vehicles that he attached to his July 25, 2016 letter to the trial court. However, this printout provides no factual support for a claim that he had, or had reason to believe he had, a valid license as of January 15, 2016, the day he was cited for driving without a valid driver's license. Thus, he has failed to meet his burden of showing any possible prejudice resulted from the court's error. (See Disandro, supra, 186 Cal.App.4th at p. 605.)
In his reply brief, Struck contends for the first time, without explanation and without citing anything in the record, that the Department of Motor Vehicles' recordkeeping procedures regarding the issuance of temporary and past licenses are deficient, that "[s]ince this case began," he "has found proof" that he applied for a driver's license in 2015, and that he would have been issued a temporary license upon failing the written test for a license in 2015; according to Struck these facts would have "overcome the officer's impression that [Struck] was unlicensed." We disregard these tardy and unsupported contentions. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 ["Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before"]; In re S.C. (2006) 138 Cal.App.4th 396, 407 ["[w]hen an appellant's brief makes no reference to pages of the record where a point can be found . . . [w]e can simply deem the contention to lack foundation and, thus, to be forfeited"].) --------
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.