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CHAPTER 1

A SYSTEM FOR CLASSIFYING MINOR TRAFFICVIOLATIONS AS NONCRIMINAL TRAFFIC

INFRACTIONS

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A. RECOMMENDAnONThe Judicial Council recommends the enactment of legislation re­

classifying minor traffic violations as noncriminal traffic infractions,punishable by a money penalty, license suspension, attendance at aschool for traffic violators or any combination thereof. There wouldbe no right to a jury trial or to the appointment of counsel in suchcases.

California law now classifies all traffic violations, including viola­tions of statutes and ordinances relating to parking, as crimes or publicoffenses subject to fine and imprisonment. Under this system almostevery motorist in the state at one time or another is technically classi­fied as a criminal and subject to a possible sanction of imprisonment,however trivial the offense. All the time-consuming procedures pro­vided for trial of serious offenses including the right of a trial byjury and to have appointed counsel are applicable to these minor vio­lations although it would appear to be in the public interest to havethese cases disposed of more expeditiously and without including de­privation of liberty as one of the penalties.

The classification of a traffic violation as something less than a mis­demeanor is not unique and the elimination of jury trials and theright to appointed counsel in such cases raises no substantial constitu­tional issues and has precedent in other jurisdictions1 The effectiveenforcement of traffic laws does not require that violations be classi­fied and treated as crimes, and the proposed reclassification is not in­tended to minimize the importance of enforcing such laws. Rather, theproposal is aimed ultimately at developing effective procedures andpenalties that are uniquely adapted to the lesser traffic cases and giverecognition to the fact that minor traffic violations are not viewed bythe public as crimes.2

1. Classification of Motor Vehicfe Violations

The category of noncriminal traffic infractions that is proposed inthis recommendation would include most violations of the rules of theroad including those governing obedience to signs and signals, driving

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1 See Study. infra.J Some question has been raised as to whether the reclassification of traffic offenses as

noncriminal infractions would affect the presumption of negligence which may nnwarise from a violation of the Vehicle Code regulating the op"-ration of motor ve~

hicles. (See Study, infra at 56.) The Council by its recommendation does not in­tend to modify the opera.tian of this presumption, and there would 2.J)pear to be noreason for a court to hold that the presumption does not apply merely because aviolation has been classified as an infraction for Which a jail sentence may not beimposed.

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14 JUDICIAL COUNCIL OF CALIFORNIAT

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'Veh. Code § 40508(Rules of the Rmade applicablE

8 Proposed Veh. Cod·10 Proposed Veh. CoeU Proposed Veh. CoeU See StudY, infra:

demeanor ballThis change w,purposes only JGoverning Pro'procedures rnabefore the cler

11 See Study, infra:

3. Jury TrialsIt is clear that

be provided in nof the penalty (to be unjustified.

The use of jumally result in aof time and expe:to the defendant.than 50 percentcourts are for mand about one-tJ

The threat of sufine. Upon the failsuspend the drivinevery $2 of the finseparate and seriol

The court wouldments of fines butdefendant giving 1quired or ~o appe~

tion of thIS promltute a misdemeano

Generally, theinfractions. For I

meanors would gofficers, burden 0

bringing cases to tOther provisior

offense and an inmanded, the COUI

jury and the infrbe tried by jury.find the defendanin a criminal offer

The two majorare recommendedthe right to appHowever, the rec'would make PoS!trial procedures 1infractions. 12

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• This proposed classification of lesser offenses is based upon the Legislature's establish­ment of a class ot special traffic misdemeanors that are subject to a penalty not eX­ceeding a $50 fine or five days in jail upon a first conviction with provision for at­tendance at a school for traffic violators for not more than 12 hours' instruction.(Veh. Code § 42001.) See APpendix, infra, for a listing of the offenses suggested forclassification as infractions. Other bases for classification could be used, of course,and the precise list of offenses to be treated as traffic infractions should depend upona legislative determination of the policy issue as to each offense.

• Veh. Code §§ 23102-23108. 20002. 14601; Diy. 14. Diy. 14.5 and Diy. 14.7.Ii E.g.~ Veh. Code, Div. 13 (Towing and Loading Equipment). .e To improve the effectiveness of court-ordered license suspensions, Vehicle Code SectlO~

1803 would be amended to require that whenever suspension is ordered by the courthe abstract of the case shall be forwarded to the Department of Motor Vehicleswithin two court days after conviction.

7 Fisher, Vehicle Traffic Law (1961) p.359.

on the right, lane markings, passing, right of way, pedestrians, turn.ing and stopping, lesser speeding offenses, parking and equipment.3

Misdemeanors now identified as the more serious ones, by the heavierpenalties provided, would continue to he classified as crimes with theright to a jury trial and would be subject to the usual criminal sanc­tions upon conviction. These violations include drunk driving, reck­less driving, driving under the influence of narcotics or drugs, hit andrun incidents, driving with a suspended or revoked license and illegaltransportation of explosives, radioactive materials and flammable li­quids· Speed contests, speeds of 25 miles or more an hour above thelawful speed and speeds of 85 miles or more per hour, as well as eer­tain offenses of a commercial nature,5 would also be classified as mis­demeanors.

2. Penalties and Procedure

A defendant convicted of a traffic infraction under the recommendedsystem could be penalized by a fine of not more than $50 or by sus­pension of his driving privilege for not more tban 30 days or both.6

For a second conviction within a year the defendant would be subjectto a maximum $100 fine and a 50-day suspension of his driving privi­lege. Upon a third or subsequent conviction within a year he could befined not more than $250 and bis license could be suspended for notmore than 90 days. In addition, the court would be authorized to orderthe defendant to attend a school for traffic violators, but jail could notbe imposed.

Fines and attendance at a school for traffic violators are now nor­mally ordered upon conviction for minor traffic violations and aresufficient penalty for those who commit an inadvertent violation butare willing and able to be safe drivers. Other drivers, however, whoreveal an attitude of disregard for traffic regulations, whether upon afirst or subsequent violation, may require more severe treatment. "Ex­perience with traffic laws through the years brought the realization thatregulation of driver conduct through control of the driving privilegeoffers one of the most hopeful and effective methods whereby compli­ance with safety rules may be enforced. Fines and even jail sentencesas deterrents to unsafe driving fade in effect when compared to the lossof driving privilege, even for periods of short duration." 7 A driverwho is able but apparently unwilling to abide by traffic laws shouldnot be able to buy his way out by paying a fine. For these reasons thecourts would be granted authority to suspend the driver's license when­ever a violator's conduct indicates a need for such treatment.

1967 REPORT TO THE GOVERNOR AND THE LEGlSLA1'URE 15

8Veh. Code § 40508 (b), This provision now applies only to violations of Division 11(Rules of the Road) of the Vehicle Code. Under the Council's proposal it would bemade applicable to all infractions.

tproposed Veh. Code § 43003.10 Proposed Veh. Code § 43004.U Proposed Veh. Code § 43007.ti See Study, infra at 46, 53-56. One of the possible modifications is a revision of mis­

demeanor bail procedures to permit a monetary payment to be made to the clerk.This change would eliminate the procedure whereby bail is posted for forefeiturepurposes only rather than to secure the defendant's appearance. (See Model RulesGoverning Procedure in Traffic Cases, Rule 1 :3-7.) Simplification of arraignmentprocedures may also be desir'able to permit the defendant to plead "not guilty"before the clerk and have his case set for trial.

U See Study, infra at 36-40.

The threat of suspension would also serve to enforce payment of thefine. Upon the failure to pay a fine the court would be authorized tosuspend the driving privilege for a period not to exceed one day forevery $2 of the fine. Wilful failure to pay the fine would constitute aseparate and serious misdemeanor under an existing provision of law8

The court would be authorized to permit delayed or installment pay­ments of fines but such permission would be made contingent upon thedefendant giving his written promise to pay the fine within the time re­quired or to appear in court on the day the fine is due. 9 A wilful viola·tion of this promise to pay the fine or appear in court would consti­tute a misdemeanor.

Generally, the rules governing misdemeanor cases would apply toinfractions, For example, the provisions of law relating to misde·meanors would govern the jurisdiction of courts, powers of peaceofficers, burden of proof, statutes of limitation and the periods forbringing cases to trial.1°

Other provisions of the bill would provide that, when a criminaloffense and an infraction are joined for trial and a jury trial is de­manded, the court may order that the criminal offense be tried byjury and the infraction by the court or the court may order that bothbe tried by jury. Provision is also made to permit the trier of fact tofind the defendant guilty of an infraction which is necessarily includedin a criminal offense charged.H

The two major departures from ordinary criminal procedure thatare recommended are the elimination of the right to a jury trial andthe right to appointed counsel when a traffic infraction is charged.However, the reclassification of these violations as noncriminal matterswould make possible future modifications of bail, arraignment andtrial procedures to establish a simple and expeditious system for trafficinfractions. 12

3, Jury TrialsIt is clear that there is no constitutional requirement that jury trial

be provided in minor traffic cases,13 and with the proposed eliminationof the penalty of imprisonment, the retention of jury trial appearsto be unjustified.

The use of jury trials in cases of minor traffic violations that nor­mally result in a penalty of $25 or less involves an inordinate amountof time and expense, without any commensurate benefits to the public orto the defendant. A recent two-month special survey disclosed that morethan 50 percent of all misdemeanor traffic jury trials in the municipalcourts are for matters which would fall within the infraction category,and about one·third of all municipal court jury trials, civil and crim-

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Legislature's establish­~ct to a penalty not e,x­with provision for at­

I 12 hours' instruction., offenses suggested forluld be used, of course,IDS should depend upon~nse.

Div.14.7.

s, Vehicle Code Sectionis ordered bY the courtlent of Motor Vehicles

ltors are now nor·nolations and are-tent violation but"ers, however, whoLS, whether upon a'e treatment. "Ex­:he realization that, driving privileges whereby compli­lven jail sentences,mpared to the lossttion, "7 A drivertraffic laws shouldr these reasons thever's license when­atment.

r the recommended,an $50 or by sus·30 days or both.6

t would be subject, his driving privi.a year he could besuspended for notmthorized to orderbut jail could not

pedestrians, turn.sand equipment.3

les, by the heavieras crimes with thelual criminal sane·unk driving, reck.l or drugs, hit andlicense and illegaland flammable li.an hour above theour, as well as cer·e classified as mis·

17Id. at 47-48.laId. at 47.1; California Traffic Law:!l) Propo~ed Veh. Code § ~

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A repeated refrainjeopardy there is a :not be imposed uponcial Counsel's proposto have counsel appoithat every defendan1

invidious distinctionable to afford counse'fendants charged witone. '8 Insofar as thetions are concerned,I tion, not the rule. Thment of counsel app

I adequately represent

Isimple factual andcounsel may be far II to incur. Therefore,are financially able t

I tion is involved."9 Thwith an infraction ,

I others.

\Other reasons sug

should not be applie! the purpose of proviport into the noncrirto protect the righttorney in a crimina'criminal violation isment; they appearwith a minor offens.threatened.

For the foregoin~

plates that the rightsame as the right ofthere be no depriVEexcept upon properrio-bt to counsel au(., .a traffic infractJOn .provided by law20

The Judicial Cotsystem should be acsimple means of enthe effectiveness ofjudicial time in disties of criminal Jawtime for the seriominfringing upon thimpartial tribunal.

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JUDICIAL COUNCIL OF CALIFORNIA

• Data Oil traffic jury trials compiled from special survey of municipal courts. Data on other criminal and civil trialsI' compiled from regular monthly reports from same courts.

in aI, are for infractions. Applying the ratios obtained in the specialstudy to statistics collected by the Council from municipal and justicecourts for the 1965-66 fiscal year,14 it may be estimated that about4,000 jury trials held in the 1965-66 fiscal year were in cases thatwould be classified as traffic infractions. The average time required totry a jury case of this nature was almost two hours 15 as compared toabout 15 minutes per case for a court triaL

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14 The total number of juries sworn in traffic cases in municipal and justice courts duringthe 1965-66 fiscal year was 7,460.

15 Jury Trials Held in 58 Municipal Courts August and September 1966.·1AI See Study I tn/ra at 51.

These figures do not reflect the full burden that is imposed upon thecourt system and the public by the application of the right to jury.There are many more jury demands than jury trials. The clerical andjudicial processing of such demands, with the later waivers or changesof plea, and the impaneling of jurors that may not be used constitutean undetermined but substantial expense. Moreover, service as a juroris often a considerable burden on the individual citizen. He may wellquestion the need for his services and the rationality of a judicialsystem that requires them in the trial of cases that normally result ina fine of $25 or less.

The Council has recommended, therefore, that there be no right totrial by jury in traffic infractions.

4. Right to CounselThe California Supreme Court has held that the right to counsel

extends to all criminal prosecutions including misdemeanors 16 and nodefendant charged by the State of California with a crime may bedeprived of life or liberty without the aid of counsel, absent a waiverthereof. However, the proposed reclassification of minor traffic viola­tions as noncriminal infractions and the elimination of imprisonmentas a sanction remove any constitutional requirement that free counselbe supplied in such cases.

In the absence of any constitutional mandate for extending theright to appointed counsel to traffic infractions, the issue should stillbe considered as a matter of basic policy. Such a consideration sug­gests that the reasons for affording the right to appointed counsel incriminal proceedings do not apply when infractions are involved.

Traffic AJl~proceediog5

Traffic

Infrac- Misde- Infrae- Misde-- OtherTolal tions meanors Total tions meanors criminal Civil

Juries SWOrD .• ________ 834 451 383 1.384 451 383 491 59Percent of trials_______ 100% 54.]% 45.9"3 100% 32.6% 27.7% 35.3% 4.3%Houts oftriaL ________ 3,211 852 2,35 -- -- -- -- --Percent of hours. ______ 100% 26.6% 73.5~ .. .. -- -- ..Hours per trial (avg.) __ 3.8 1.9 6. -- -. -- .. ..

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I 1967 REPORT TO TIlE GOVERNOR AND TIlE LEGISLATURE 17

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ding the)uld stilltion sug­)unsel inlved.

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A repeated refrain in many cases is that where a man's liberty is injeopardy there is a right to counse]l7 However, imprisonment couldnot be imposed upon conviction of a traffic infraction under the Judi­cial Couusel's proposal. .i\Iorcover, the right of an indigent defendantto have counsel appointed at the public's expense is illtended to insurethat eyery defelldant is tried fairly, and is designed to prevent aninvidious distinction between indigcnts and those defendants who areable (0 afford counsel. Mr. .Justice Black has pointed out that few de­fendants charged with a crime who can afford an attorney fail to hireone. IS Iusofar as the traffic cases that would be reclassified as infrac­tions are concerned, howcver, representation by counsel is the excep­tion, not the rule. The disinclination (0 hire counselor request appoint­ment of counsel apparently is based on the belief that a layman canadequately represent himself since minor traffic matters usually involvesimple factual and legal issues. Furthcrmore, the cost of engagingcounsel may be far greater than the penalties the defendant is likelyto incur. Therefore, it is not economically reasonable for persons whoare financially able to hire counsel to do 80 when a minor traffic viola­tion is involved. '9 Thus, to provide free counsel to an indigent chargedwith an infraction would give such a person an advantage over allothers.

Other reasons surtgest that the right to connsel in criminal casesshould not be applied to traffic infractions. It seems inconsistent withthe purpose of providing a simplified and less costly procedure to im­port into the noncriminal infraction category the procedures necessaryto protect the right of every defendant to be represented by an at­torney in a criminal case. These procedures are appropriate when acriminal violation is charged or the defendant is subject to imprison­ment; they appear inappropriate when applied to a person chargedwith a minor offense, such as overtime parking, whose liberty is notthrea tened.

For the foregoing reasons, the Council's recommendation contem­plates that the right to counsel in a traffic infraction case shall be thesame as the right of a civil litigant. In order, howevcr, to assure thatthere be no deprivation of liberty without the assistance of counselexcept upon proper waiver, special provision is made for advice on theright to counsel and for assignment of counsel when a defendant ina traffic infraction proceeding has been arrested and not released asprovided by 1aw.20

The Judicial Council believes that the proposed traffic infractionsystem should be adopted. It will meet the needs of the public for asimple means of enforcing the rules of the road without decreasingthe effectiYeness of the state's traffic safety efforts. It will savejudicial time in disposing of minor violations without the technicali­ties of criminal law procedure in such cases and thereby allow moretime for the seriollS offenses. It will accomplish these things withoutinfringing upon the right of a dcfendant to a fair trial before animpartial tribunal.

17 ld. at 47-48.lAId. at 47.IICahjontio Traffic Law Jl(l1ninist1'arion (1960) 12 Stan. L. Re\", 388, 411-12, 436.2lPropo~edVeh. Code § 43006.

18 JUDICIAL COUNCIL at' CALIFORNIA

The following bill contains the Council's recommendation :21

An act to amend Section 15 of the Penal Code and to add Section22365 and Division 19 (coJnmencing with Section 43000) to, toa,mend Sections 1803, 12951, 21714, 2310,2, 23103, 23109, 23111,23112, 27003, 27460,S, 27461, 27500, 28501, 28511, 35784, 35790,40000, 40508, 42001, 42003, and 42004 of, and to repeal Section42005 of, the Vehiele Code, relating to trajJic infractions.

The people of the State of Califo1'11ia do enact as follows:

Section 1. Section 15 of the Penal Code is amended to read:]5. A crime or public offense is an act committed or omitted in

violation of a law forbidding or commanding it, and to which is an­nexed, upon conviction, either of the following punishments:

1. Death;2. rmprisonment;3, Fine, except when imposed f01" a tmjJic infraction p11rsuant to

Division 19 (commencing with Section 43000) of the Vehicle Code;4, Removal from office; or,5, Disqualification to hold and enjoy any office of honor, trust, or

profit in this state,Sec. 2, Division 19 (commencing with Section 43000) is added to

the Vehicle Code, to read:

DIVISION 19, TRAFFIC INFRACTIONS

43000. It is a traffic infraction for any person to violate any of thefollowing provisions of this code, or any ordinance, order, rule orregulation adopted pursuant to such provisions, unless a violationthereof is specifically declared to be a misdemeanor, a felony or punish­able by imprisonment:

(a) Sections 4159, 4160, 4454, 12951 or 14600;(b) Any provision of Division 11 (commencing with Section 21000),

except Chapters 11 (commencing with Section 22950) and 13 (com­mencing with Section 23250) ; or

(c) Any provision of Division 12 (commencing with Section 24000),Division 15 (commencing with Section 35000) or Division 16 (com­mencing with Section 36000),

43001, Every person convicted of a traffic infraction for whichanother penalty is not provided shall for a first conviction thereofbe punished by a fine of not more than fifty dollars ($50) or by asuspension of his driving privilege for a period of not more than 30days or by both such fine and suspension; for a second conviction withina 12-month period such person shall be punished by a fine of not morethan one hundred dollars ($100) or by suspension of his driving privi­lege for not more than 60 days, or by both such fine and suspension;upon a third or subsequent conviction within a 12-month period suchperson shall be punished by a fine of not more than two hundred andfifty dollars ($250) or by suspension of his driving privilege for notmore than 90 days, or by both such fine and suspension. A prior con­viction for a traffic infraction or for a violation of the Vehicle Code

21 The statutory language submitted here is generally based on Assembly Bill No. 845 ofthe 1965 General Session of the Legislature.

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43002.by Sectioninfractionthe opera'this code,

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43003,infractiongrant penof time OJ

contingentwithin thethe fine or

Any pelappear in

(b) If'of a traffi<thereof, tlperson tosllspendinlthe extenttwo dollar

43004,or after JExcept asmisdemearpeace offi<and for br

43005.to a trial t

43006,titled to hdefender:as provide

43007,been join€court mayfraction tJtion be tri

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add Section3000) to, to }

3109, 23111,I.'5784, 35790,

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te any of the'der, rule or; a violationly or punish- I,

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,n for whichction thereof~50) or by a ,nore than 30Tiction within Il of not more iiriving privi- !i suspension;I period suchhundred and,ilege for notA prior con-Vehicle Codey Bill No. 845 of

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 19

designated as a crime shall constitute a conviction for the purpose ofmaking applicable the greater penalties provided by this section forsecond and subsequent offenses. For the purpose of determining thepenalty to be imposed pursuant to this section, the court may considera report from the Department of Motor Vehicles containing informa­tion from its records showing prior convictions; and the report isprima facie evidence of such convictions, if the defendant admits them,regardless of whether or not the complaint commencing the proceed­ings has alleged prior convictions.

For purposes of this section, a prior bail forfeiture shall be deemedto be a conviction of the offense charged.

43002. In addition to imposing any other punishment authorizedby Section 43001, the court may order any person convicted of a trafficinfraction to attend a school for traffic violators for instruction inthe operation of a motor vehicle consistent with tbe provisions ofthis code.

The court may suspend for not more than 90 days the driving priv­ilege of any person who wilfully fails to comply with such an orderto attend a school for traffic violators

43003. (a) When a person is sentenced to pay a fine for a trafficinfraction the fine shall be payable forthwith, except that the court maygrant permission for the payment to be made within a specified periodof time or in specified installments. Such permission shall be madecontingent upon the person giving his written promise to pay the finewithin the time authorized or to appear in court on the date on whichthe fine or any installment thereof is due.

Any person wilfully violating his written promise to pay the fine orappear in court is guilty of a misdemeanor.

(b) If within the time authorized by the court a person convictedof a traffic infraction fails to pay the fine imposed or any installmentthereof, the court may suspend the driving privilege and order theperson to surrender his driver's license to the court. Every such ordersuspending the driving privilege for nonpayment of a fine shall specifythe extent of the suspension which shall not exceed one day for everytwo dollars ($2) of the fine.

43004. Acts defined by law as traffic infractions and committed onor after January 1, 1968, do not constitute crimes or public offenses.Except as otherwise provided by law, all provisions of law relating tomisdemeanors shall apply, including but not limited to powers ofpeace officers, jurisdiction of courts, periods for commencing actionand for bringing a case to trial and burden of proof.

43005. No person charged with a traffic infraction shall be entitledto a trial by jury.

43006. A person charged with a traffic infraction shall not be en­titled to have counsel appointed to represent him or to have the publicdefender represent him, except when he is arrested and not releasedas provided by law.

43007. (a) When a criminal offense and a traffic infraction havebeen joined or consolidated for trial and a jury trial is demanded thecourt may order that the criminal offense be tried by jury and the in­fraction tried by the court, or that the criminal offense and the infrac­tion be tried by jury.

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(b) When a defendant is charged with a criminal offense the jury, orthe judge if a jury trial is waived, may find the defendant guilty ofany infraction, the commission of which is necessarily included in theoffense charged. .

Sec. 3. Section 1803 of the Vehicle Code is amended to read:1803. (a) Every clerk of a court, or judge if thcre be no clerk, in

which a person was convicted for any violation of this code, and ofany narcotic offense under Division 10 ('commencing with Section11000) of the Health and Safety Code, and of any violation of anyother statute relating to the safe operation of vehicles, shall preparewithffi W~ aitei' eeffi4etioo and immeEl-iMcly forward to the depart­ment at its office at Sacramento an abstract of the record of the courtcovering the case in which the person was so convicted which abstractmust be certified by the person so required to prepare the same to betrue and correct. In those cases in which the cour-t has sllspended thedr-iving pr-ivilege of the pel'son convicted, the abstr-act shall be for-war-dedwithin two court days aftel' the wspension is imposed. All other- ab­stracts shall be forwar-ded within 10 days after conviction.

For the purposes of this section, a forfeiture of bail shall be equivalentto a conviction.

(b) Violations of Sections 22500, 22502, 22503, 22.508, and 22514 re­lating to the parking of vehicles, and violations for which a person wascited as a pedestrian or while operating a bicycle, are not required tobe reported under (a) above, unless the COltrt has suspended the dl'iv­ing pl'ivilege .

Sec. 4. Section 12951 of the Vehicle Code is amended to read:12951. (a) The licensee shall have the license issued to him in his

immediate possession at all times when driving a motor vehicle upona highway.

Any charge under this subdivision shall be dismissed when the per­son charged produces in court a driver's license duly issued t~ suchperson and valid at the time of his arrest, except that upon a thIrd orsubsequent charge the court in its discretion may dismiss the char~e.

When a temporary, interim, or duplicate driver's license is produced III

court the charge shall not be dismissed unless the court has been fur­nished proof by the Department of Motor Vehicles that such tempo­rary, interim, or duplicate license was issued prior to the arrest, thatthe driving privilege and license had not been suspended or revoke~,

and that the person was eligible for such temporary, interim, or duplI­cate license.

(b) The driver of a motor vehicle shall present his license for exam­ination upon demand of a peace officer enforcing the provisions of thiscode.

fe+ GefWtet.i_ :~nder tffis seeti6fi shaH Btl punish~ ~ a ~ netezeeeffing Mty- dellars ($50) er~ imprisenffiefH; ffl the eellnty ;fail netexeeeding ffie day&.-

Sec. 5. Section 21714 of the Vehicle Code is amended to read:21714. Ne It is a misdemeanor for the owner of a publicly or pri­

vately owned ambulance sficll to permit the operation of such ambu­lance in emergency service unless either the operator thereof or anattendant on duty therein possesses an Advanced American Red CrossFirst Aid Certificate or an Advanced First Aid Certificate issued by

20 JUDICIAL COUNCIL OF CALIFORNIA1967 REPORT j

the United States BUllance is operated in vtion, the Commissionenotice and hearing, 1"

owner to operate am]may order that no alIas an authorized emerand regulations to imp

Sec. 6. Section 22,22365. Violations'

driving at a speed ofspeed or, in any evenmeanor.

Sec. 7. Section 2323102. (a) It is 1

under the influence ojence of intoxicating Ihighway. Any p~rs?r

upon a first convlctlothan 30 days nor mOl

hundred fifty dollarsor by both such fin<subsequent convictiorprisonment in the c,than one year and b;($250) nor more thunder this section s1has previously beencode.

(b) If any perso'under this section .granted probation, json be confined in jaand pay a fine of amore than one thOUSl

( c) If the personyears and the vehic:persotl, the vehicle:less than one day no

Sec. B. Section:23103. Any pen

ful or wanton disre:of reckless drivingthereof shall be pu:less than five daystwenty-five dollars($250) or by bothSection 23104.

Sec. 9. Section23109. (a) Ne

gage in any motor

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 21

lense for exam­ovisions of this

nse the jury, orldant guilty ofincluded in the

ed to read:~d to him in hisor vehicle upon

3, and 22514 re­ch a person wasnot required to,ended the dr·iv-

the United States Bureau of Mines. In any case in which an ambu­lance is operated in violation of the preceding provisions of this sec­tion, the Commissioner of the California Highway Patrol may, afternotice and hearing, revoke any permit that has been issued to suchowner to operate ambulances as authorized emergency vehicles andmay order that no ambulance owned by such owner may be operatedas an authorized emergency vehicle. The commissioner may issue rulesand regulations to implement this section.

Sec. 6. Section 22365 is added to the Vehicle Code, to read:22365. Violations of this chapter are traffic infractions except that

driving at a speed of 25 miles or more per hour in excess of the lawfulspeed or, in any event, driving 85 miles or more per hour is a misde­meanor.

Sec. 7. Section 23102 of the Vehicle Code is amended to read:23102. (a) It is unlawfal a misdemeanor for any person who is

under the influence of intoxicating liquor, or under the combined influ­ence of intoxicating liquor and any drug, to drive a vehicle upon anyhighway. Any person convicted under this section shall be punishedupon a first conviction by imprisonment in the county jail for not lessthan 30 days nor more than six months or by fine of not less than twohundred fifty dollars ($250) nor more than five hundred dollars ($500)or by both such fine and imprisonment and upon a second or anysubsequent conviction, within seven years of a prior conviction, by im­prisonment in the county jail for not less than five days nor morethan one year and by a fine of not less than two hundred fifty dollars($250) nor more than one thousand dollars ($1,000). A convictionunder this section shall be deemed a second conviction if the personhas previously been convicted of a violation of Section 23101 of thiscode.

(b) If any person is convicted of a second or subsequent offenseunder this section within seven years of a prior conviction and isgranted probation, it must be a condition of probation that such per­son be confined in jail for at least five days but not more than one yearand pay a fine of at least two hundred fifty dollars ($250) but notmore than one thousand dollars ($1,000).

(c) If tl'le person convicted under this section is under the age of 21years and the vehicle used in any such violation is registered to suchperson, the vehicle may be impounded at the owner's expense for notless than one day nor more than 30 days.

Sec. 8. Section 23103 of the Vehicle Code is amended to read:23103. Any person who drives any vehicle upon a highway in wil­

ful or wanton disregard for the safety of persons or property is guiltyof reckless driving, which is a misdemea.nor, and upon convictionthereof shall be punished by imprisonment in the county jail for notless than five days nor more than 90 days or by fine of not less thantwenty-five dollars ($25) nor more than two hundred fifty dollars($250) or by both such fine and imprisonment, except as provided inSection 23104.

Sec. 9. Section 23109 of the Vehicle Code is amended to read:23109. (a) Ne It is a. misdemeamor for any person sfiall to en­

gage in any motor vehicle speed contest or exhibition of specd on a

to read:ublicly or pri.of such ambu­thereof or ancan Red CrosScate issned by

~ by ft Roo llilt (ooffiHy jailllilt I

f

1 when the per-issued to such

upon a third or~iss the charge.) is produced in·t has been fur-at such tempo- I,

the arrest, thatled or revoked,:erim, or dupli-

to read:be no clerk, in

is cod e, and of5 with Sectioniolation of any>, shall prepared to the depart­,rd of the courtwhich abstractthe same to be

; S1I spended theIII be forwardedl. All other ab­tion.111 be equivalent

--~------_.........--~-

22 JUDICIAL COUNCIL OF CALIFORNIA

highway and no person shall aid or abet in any motor vehicle speedcontest or exhibition on any highway.

(b) Ne It is a misdemeanor for any person , shall for the pur­pose of facilitating or aiding or as an incident to any motor vehiclespeed contest upon a highway, to in any manner obstruct or place anybarricade or obstruction or assist or participate in placing any barri­cade or obstruction upon any highway.

(c) Any person who violates this section shall upon convictionthereof be punished by imprisonment in the county jail for not morethan 90 days or by fine of not more than two hundred fifty dollars($250) or by both such fine and imprisonment.

Sec. 10. Section 23111 of the Vehicle Code is amended to read:23111. Outside of a business or residence district no person in any

vehicle and no pedestrian shall willfully or negligently throw or dis­charge from or upon any road or highway or adjoining area, puhlicor private, any lighted cigare'tte, cigar, ashes, or any other flaming orglowing substance. A.ny violation of the provisions of this section is amisdemeanor. This section shall be known as the Paul Buzzo Act.

Sec. 11. Section 23112 of the Vehicle Code is amended to read:23112. (a) No person shall throw or deposit, nor shall the regis­

tered owner or the driver, if such owner is not then present in thevehicle, aid Or abet in the throwing or depositing upon any highway anybot~l~, can, garbage, glass, nai~, offal, p?-per, wir" any substance likelyto lllJure or damage traffic usmg the hIghway, or any noisome, nause­ous or offensive matter of any kind.

(b) No person shall place, deposit or dump, or cause to be placed,deposited or dumped, any rocks or dirt in or upon any highway, in­cluding any portion of the right-of-way thereof, without the consentof the state or local agency having jurisdiction over the highway.

(c) Any violation of the provisions of this section is a misdemeanor.Sec. 12. Section 27003 of the Vehicle Code is amended to read:27003. An armored car may be equipped with a siren which may be

used while resisting armed robbery. At all other times, the siren shallnot be sounded. The authority to use a siren granted by this sectiondoes not constitute an armored car an authorized emergency vehicle,and all other provisions of this code applicable to drivers of vehiclesapply to drivers of armored cars. Any violation of the provisions ofthis section is a misdemeanor.

Sec. 13. Section 27460.5 of the Vehicle Code is amended to read:27460.5. Ne It is a misdemeanor tor any person shall knowingly

to sell or offer or expose for sale any motor vehicle tire except a com­mercial vehicle tire, or any motor vehicle equipped with any tire ex­cept a commercial vehicle tire, which has been recut or regrooved. Forpurposes of this section a recut or regrooved tire is an unretreadedor unrecapped tire into which new grooves have been cut or burned.

Sec. 14. Section 27461 of the Vehicle Code is amended to read:27461. Ne It is a misdemeanor tOl' any person shall to cause

or permit the operation of an ~ for any driver shaH knowinglYto operate any motor vehicle except a commercial vehicle, on anystreet or highway, which is equipped with one or more recut or re­grooved tires. For purposes of this section a recut or regrooved tire

is an unretreadelcut or burned.

Sec. 15. Sect27500. (a) 'I

standards and ci. vehicle type as

(b) In adopti

tevidence of genwhich have beersion.

I (c) In adoptiI cass strength, si:I acteristics.\ (d) Ne It i.l offer for sale al

(in compliance werative six mon1

"

become effective.(e) This sect

I cars.o Sec. 16. Sec!

128501. Ne I

. station unless aSec. 17. Sec28511. It is

a licensed staticchapter.

Sec. 18. Sec35784. It is 1

i any of the term\ in an incorpora( the permit wou

I, permittee may I

provided that tlroute. A detour

l streets.

!Sec. 19. Sec35790. (a)

with respect to

I, application in

annual permit;coach in exces,

~ width, exclusiv

(

35109, and 35:party granting

(b) A publipermits for theing the individor relocation of

(c) The aprl the trailer coal

I1

-.

. vehicle speed

, for the pur­motor vehicle

;t or pla.ce any.ing a.ny barri-

Jon convictionI for not more:d fifty dollars

i to read:person in any

. throw or dis­19 area, public.her flaming orhis section is auzzo Act.ded to read:;hall the regis­present in the'y highway anyubstance likely10isome, nause-

e to be placed,y highway, in­,ut the consent,ighway.a. misdemeanor.d to read:1 which may bethe siren shallby this section,rgency vehicle,,ers of vehiclese provisions of

ended to read:llffill knowingly~ except a com­th any tire ex­regrooved. Foran unretreadedcut or burned.

ld to read:siHHl to causehaH knowingly,ehicle, on any,re recut or re-

regrooved tire

I\

I1

I1

(III

}

rI

~l

I\.\

I1I

J967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 23

is an unretreaded or unrecapped tire into which new grooves have beencut or burned.

Sec. 15. Section 27500 of the Vehicle Code is amendcd to read:27500. (a) The department shall adopt regulations relating to

standards and certification procedure for new tires of the passengervehicle type as it determines necessary to provide for public safety.

(b) In adopting these regulations, the department shall consider asevidence of generally accepted standards, the rules and regulationswhich have been adopted by the Vehicle Equipment Safety Commis­sion.

(c) In adopting these regulations, the department shall consider car­cass strength, size and load capacity, performance and mounting char­acteristics.

(d) Ne It is a misdemeanor for any person shaH to sell oroffer for sale any new tire of the passenger vehicle type that is notin compliance with such regulations. This subdivision shall become op­erative six months after the date upon which the regulations adoptedbecome effective.

(e) This section shall have no application to motorcycles or housecars.

Sec. 16. Section 28501 of the Vehicle Code is amended to read:28501. Ne It is a misdemeanor for any person shaH to operate a

station unless a license therefor has first been issued by the department.Sec. 17. Section 28511 of the Vehicle Code is amended to read:28511. It is uRlavtful a misdemeanor for any person, other than

a licensed station, to issue a certificate of compliance required by thischapter.

Sec. 18. Section 35784 of the Vehicle Code is amended to read:35784. It is a misdemeanol- traffic infraction for any persou to violate

any of the terms or conditions of any such special permit, except thatin an incorporated city where compliance with the route described inthe permit would result in a violation of local traffic regulations thepermittee may detour from the prescribed route to avoid such violationprovided that the permittee returns as soon as possible to the prescribedroute. A detour under this section shall be made ou only nonresidentialstreets.

Sec. 19. Section 35790 of the Vehicle Code is amended to read:35790. (a) The Department of Public Works or local authorities

with respect to highways under their respective jurisdictions may uponapplication in writing and if good cause appears issue a special orannual permit in writing authorizing the applicant to move any trailercoach in excess of the maximum width but not exceeding 10 feet inwidth, exclusive of lights and devices provided for in Sections 35112,35109, and 35110, upon any highway under the jurisdiction of theparty granting such permit.

(b) A public agency in the exercise of its discretion in grantingpermits for the movement of overwidth trailer coaches, and in consider­Ing the individual circumstances of cach case, may use merchandisingor relocation of residence as a basis for movement for good cause.

(c) The application for a special permit shall specifically describethe trailer coach to be moved and the particular highways over which

___J.-------------~

24 JUDICIAL COUNCIL OF CALIFORNIA

declared to be a felthe permit to operate is requested, and whether the permit is requested 'as a felony or misdfor a single trip or for continuous operation. tion as defined by ~

The application for an annual permit shall specifically describe the (b) The period fpower unit to be used to tow the overwidth trailers and the particular having filed or cauhighways over which the permit to operate is requested. The annual or counterfeit docmpermit shall be subject to all of the conditions of this section and any Department of theadditional conditions imposed by the public agency. I' a misdemeanor, eXf

(d) The Department of Public Works or local authority is author- (c) The period fized to establish seasonal or other time limitations within which a trailer I having filed or caucoach may be moved on the highways indicated, and may require an ,or counterfeit doclundertaking or other security as may be deemed necessary to protect 'the ilepartment ofthe highways and bridges from injury or to provide indemnity for any I is a felony, expireinjury resulting from the operation. . .. (d) The time all

(e) Permits for the movement of traIler coaches as provIded for m vided in paragraplthis section may not be issued except to licensed manufacturers, dealers yond five years frODand transporters and only under the following conditions: Sec. 21. Section

1. The power unit used to tow overwidth trailers baving a gross 40508. (a) Anyweight of 18 000 pounds or less must be a three-quarter-ton truck or appear in court ortractor or a' truck or tractor of greater power, equipped with dual bail is guilty of awheels.' The power unit used to tow an overwidth trailer having a gross charge upon which.weight of more than 18,000 pounds must be a ton-and-one-half truck (b) Any personor tractor or truck or tractor of greater power, equipped with dual a criminal violatiorwheels. Section 21000) of 1

2. The trailer coach for which tbe permit is issued shall comply authorized by thewith the provisions of Sections 35550 and 35551 of this code. . lull payment of the

3. A permit which has been issued for the movement of anJ: traIler Sec. 22. Sectiorcoach shall not be valid between sunset and sunnse of the followlllg day, I 42001. Every pnor between sunset on Friday to sunrise on Monday following, nor on . Division 10 (commany days declared to be legal holidays by the State. . ffig with £e%i_ g

(f) The Department of Public Works or local aut~ority shaP. have I~ 229130) aOO ±<lthe authority to establish additional reasonable permIt regulatIOns as ~~ as it ilflthey may deem necessary in the interest of public safety, which regu- ¥isiffll:j,g (eemmeBlations shall be consistent with this section. ' with Section 29000

(g) Every permit shall be carried in ~he trailer coach or power unit . and Sections 2800,to which it refers and shall be open to mspectIOn of any peace officer to stop and submitor traffic officer any authorized agent of the Department of Public tion endangering a:Works or any other officer or employee charged with the care and pro- 23112, 27003, 2746tection of the highways. . different penalty i,

W ±t, it; ib misElemeal'lel' fui' ibl'lJ' pef'sel'l ffi vielate ibl'lJ' * the terms ished upon a first (eP eel'lditisl'ls * ibl'lJ' &aeft pel"mit. . or by imprisonmer

fit for a second convi(h) To the extent that the application of this section to highways exceeding one hu:

which are a part of the National System of Interstate and Defense county jail for noHighways (as referred to in subdivision (a) of Section 108 of the prisonment and foFederal-aid Highway Act of 1956) would cause thIS State to be de- riod of one year b~prived of any federal fUJ:.lds for hig~way purpo~es, this section to such or by imprisonmelextent shall not be applIcable to highways which are a part of such or by both such fitsystem. iug the penalty to

Sec. 20. Section 40000 of the Vehicle Code is amended to read: consider a teletrr40000. (a) It is unlawful and constitut.es a misdeme~n.or fo~ an:", Motor Vehicles COl

person to violate, or to fail to comply ":'l~h, any ~rovlsIOn of thiS convictions; and tcode unless the violation is under the prOVISIOns of thiS code expressly,

·.

:mit is requested

:illy describe theLd the particularted. The annualsection and any

10rity is author­n which a trailermay require an~ssary to protectdemnity for any

provided for in'acturers, dealers]s:

having a gross·ter-ton truck oripped with dual~r having a grossLd-one-half truckipped with d,ual

ed shall complycode.nt of any trailer'he following day,'ollowing, nor on

aority shall haveit regulations as'ety, which regu-

ch or power unitany peace officer-tment of Public;he care and pro-

tion to highways.ate and Defensection 108 of the: State to be de­is section to suche a part of such

lded to read:emeanor for anyprovision of thislis code expressly

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 25

declared to be a felony or a public offense which is punishable eitheras a felony or misdemeanor, or unless the violation is a traffic infrac­tion as defined by Section 43000 .

(b) The period for commencing criminal action against any personhaving filed or caused to be filed any false, fictitious, altered, forgedor counterfeit document with the Department of Motor Vehicles or theDepartment of the California Highway Patrol shall, if the offense isa misdemeanor, expire one year from time of discovery of such act.

(c) The period for commencing criminal action against any personhaving filed or caused to be filed any false, fictitious, altered, forgedor counterfeit document with the Department of Motor Vehicles orthe Department of the California Highway Patrol shall, if the offenseis a felony, expire three years from time of discovery of such act.

(d) The time allowed for commencing criminal proceedings as pro­vided in paragraphs (b) and (c) of this section shall not extend be­yond five years from tbe date of commission of the act.

Sec. 21. Section 40508 of the Vehicle Code is amended to read:40508. (a) Any person willfully violating his written promise to

appear in court or before a person authorized to receive a deposit ofbail is guilty of a misdemeanor regardless of the disposition of thecharge upon which he was originally arrested.

(b) Any person willfully failing to pay a lawfully imposed fine fora criminal violation of any provision of Division 11 (commencing withSection 21000) of this code or for a traffic infraction within the timeauthorized by the court is guilty of a misdemeanor regardless of thefull payment of the fine after such time.

Sec. 22. Section 42001 of the Vehicle Code is amended to read:42001. Every person convicted of a misdemeanor for a violation of

Division 10 (commencing with Section 20000), Di':isisn H (esHlmeneffig wt-tfi See4;ioo ~OO% exeept Gllaptel's H (esmmeBeiRg with See­tioo 229130) iHHl ±3 (esmmeneing with Seetisn 2g2aO) iHHl exeept See­tioo 21461 as it applies te Yeflie~~lar eFsssings, iHHl SeetisB 259 64, D-t­YisieR ±2 (esmmeneIDg wi#i Seetioo 24OOlB-; Division 13 (commencingwith Section 29000), iHHl PWffiien ~ {$mmeneiug with Seetisn g5000)and Sections 2800, 2801, 2802, 2803, 2804 insofar as they affect failureto stop and submit to inspection of equipment or for an unsafe condi­tion endangering any person, 2806, 2809, iHHl 2812, 21714,23110, 23111,23112, 27003, 27460.5, 27461, 27500, 28501 and 28511, except where adifferent penalty is expressly provided in said provisions, shall be pun­ished upon a first conviction by a fine not exceeding fifty dollars ($50)or by imprisonment in the county jail for not exceeding five days andfor a second conviction within a period of one year by a fine of notexceeding one hundred dollars ($100) or by imprisonment in thecounty jail for not exceeding 10 days, or by both such fine and im­prisonment and for a third or any subsequent conviction within a pe­riod of one year by a fine of not exceeding five hundred dollars ($500)or by imprisonment in the county jail for not exceeding six monthsor by both such fine and imprisonment. For the purpose of determin­ing the penalty to be imposed pursuant to this section, the court mayconsider a teletype esmffiuRieatien report from the Department ofMotor Vehicles containing information from its records showing priorcQnvictions; and the eeffiffiuBieatisn report is prima facie evidence of

26 JUDICIAL COUNCIL OF CALIFORNIA

such convictions, if the defendant admits them, regardless of whetheror not the complaint commencing the proceedings has alleged priorconvictions.

In addition to imposing any other punishment authorized by thissection, the court may require o1'der any person convicted of a misde­meanor described in this section involving a traffic violation to attenda traffic ffiH~ school for t1'affic vio~at01's fup n&t mere than ~fttffirs for instruction in the operation of a motor vehicle consistentwith the provisions of this code.

The court may suspend for not more than 90 days the driving privi­~e(Je of any p'erson who willfully fai~s to cornp~y with such am orderto attend a schoo~ for traffic vio~ators.

For the purposes of this section, a prior bail forfeiture shall bedeemed to be a conviction of the offense charged.

Sec. 23. Section 42003 of the Vehicle Code is amended to read:42003. A judgment that a person convicted of any fe~ony or mis­

demeanor violation of this code be punished by a fine may also order,adjudge and decree that the person be imprisoned until the fine issatisfied. In every such case, the judgment shall specify the extent ofthe imprisonment which shall not exceed one day for every five dol­lars ($5) of the,fine, nor extend in any such case beyond the term forwhich the defendant might be sentenced to imprisonment for the of­fense of which he was convicted.

Sec. 24. Section 42004 of the Vehicle Code is amended to read:42004, Any driver or operator of a trolley coach is guilty of a

traffic infraction, a misdemeanor, or a felony H the ~tffi!ar seetienBe p,'eYides, as provided by provis1:ons of this code applicable to theparticu~ar section, upon the violation of any of those sections enumer-ated in subdivision (c) of Section 21051. (

Sec. 25. Section 42005 of the Vehicle Code is repealed. r4200Ei. Eve'7 pe,'sen eenvieted ffi a vielatien ffi £eetiens 21709,

219EiO el' 219Eil sl<aH 00 punished by a fiM ffi n&t exeeeding fifty dellaFs($EiO) el' by imflrisenmeut in the eeuuty jaH fup n&t exeeedifig fi¥e~exeept that suffi a yielatien pFeximatel;y eausing l3edily injury ~ thepedes:,'ian shall 00 punished as a misdemeaner.

Sec. 26. The provisions of this act shall become operative on Jan­uary 1, 1968.

LIST OF VEHICLE COl

4159 Notice of Cbang,4160 Cbange of Addre4454 Display of Regis

12951 Possession of Li,14600 Notice of Cbang,21106 Establisbment 0121113 Public Grouuds21201 Equipment Requ21202 Keep to Right21203 Hi tching Rides21204 Riding on B icyc:21205 Carrying Article21370 Regulation of T,

struction Zone21406 Contractor's W.21451 Green or "Go'.'21<152 Yellow or "Caut21453 Red or "Stop"21454 Green Arrow21455 Streetcar at Rei

Signal21456 Walk, Wait, or21457 Flashing Signal,21460 Double Lines21460.5 Two-way Turnil21461 Obedience to Oft

Control Devices21462 Obedience to Tr

Signals21463 Illegal Operatio21464 Interference Wi

Devices21465 Unautborized T21466 Unlawful Displ:21650 Rigbt Side of R21651 Divided Highw,21652 Entrance to Pul

From Service R21653 One-way Traffic21654 Slow-moving V,21655 Designated Lan21656 Turning Out of

moving Vehiclel21657 Offcen ter Lanes21658 Laned RoadwaJ21659 Tbrec-Ianed Hi!21660 Approacbing V,21661 Narrow Roadw'21662 Mountain Drivi21663 Driving on Sid,21664 On-Ramp Exit21700 Obstruction to :21701 Interference Wi

Mechanism21703 Following Too21704 Distance Betw,

28 JUDICIAL COUNCIL OF CALIFORNIA1967 REPOR

25951 Direction of Bef221H Hand Signals 24404 Spotlamps 25953 Compliance wit!22H2 School Bus Signal 24405 Maximum Number of Lamps Hegulations22349 Maximum Speed Limit 24406 Multiple Beams 26100 Mandatory Test22350 Basic Speed Law 24.07 Upper and Lower Beam Approval22356 Increase of Freeway Limit 24408 Beam Indicator 26101 Approval of MOt22400 Minimum Speed Law 24409 Use of Multiple Beams 26301 Motor Vehicles (22405 Violations on Bridges and 24410 Single Beams Tons

Structures 24600 'l.'aillamps 26302 Trailers22406 '.rruck Speed 24601 License Plate Lamp 26303 Trailer Coaches22407 Decreasing Truck Speed Limit 24602 Taillamps on Trucks 26304 Breakway Brakf22408 Passenger Vehicle or Bus as 24603 Stop Lamps 26309 Disapproved Brl

Towing' Vehicle 24604 Lamp or Flag on Projections driven Cycle22409 Solid Tire 24605 Tow Ca,·s and Towed Vcbicles 263H Service Brakes (22410 ~Metal Tires 24606 Backup Lamps 26450 Reqnired Bral\.e22412 Scbool Buses 24607 Reflectors on Rear 26451 Parking Brake t22414 Farm Labor Bus or Truck 24608 Reflectors on Front and Sides 26452 Brakes After En22450 Stop Requirements 24609 Reflectors on Trucks 26453 Condition of Br:i22451 Train Signal 24800 Lighted Parking Lamps 26454 Control and Stol22452 Railroad Crossings 24950 Turn Signal System Required ments22454 School Bus 24951 rI'urn Signal System 26457 Exemptions22500 Prohibition of Stopping, 24%2 Yisibilit;y Requirements of 26458 Power Brake: S:

Standing, or Parking Signals 26502 Adjustment and22502 Curb Parking 249,,3 Turn Signal Lamps Devices22504 Unincorporated Area Parking 25100 Clearance and Side-marker 26503 Safety Valve22505 State Highway Parking Lamps 26504 Air Governor22510 Parking in Snow Areas 25101 Clearance Lamps on Trailer 26505 Pressure Gauge22514 Fire H~ydrants Coaches 26500 ';Yarning Device22515 Unattended Vehicles 25102 Lamps on Sides of Vehicles 26507 Check Valve22516 Locked Vehicle 25103 Lamp or Flag on Projecting 26508 Emergency StoPI22517 Opening and Closing Doors Loacl 26520 Vacuum Gauge22520 Stopping on Freeway 2GI04 Red Flag on ~7ide Vehicles 26521 Warning Device22650 Prohibition of Removal 25105 Courtesy Lamps 26522 Cbeek Valve22700 Abandonment Prohibited 25106 Side, Cowl, or Fender Lamps 26700 Windshields23114 Spilling Loads on Highways 25107 Cornering Lamps on Feu~ers 26701 Safety Glass23115 Ruhbisb Vehicles 25108 Pilot Indicator Lamps 26703 Safety Glass Rep23120 Temple Widtb of Glasses 2GI0n Running Lamps Z 26706 Windsbield Wipe23121 Drinking in 'l\ilotor Vehicle 252;:;0 Flashing Lights ( 26707 Condition and U~23122 Possession of Opened Con- 25252 Warning Lamps ou Authorized shield Wipers

tainer Emergency Vehicles[ 26708 Restricted View:

23123 Storage of Opened Container 25253 ';Varning Lamps on Tow Cars or l\1aterial23123.5 Possession by Minor 25257 School Bus Warning Signal

[26709 Mirrors

23341 Commercial Vehicles System 26710 Defective Windsb23343 Violation of Rules and 25268 Use of Flashing Amber Warn- Rear Windows

Regulations ing Ligbt 26711 Eyeshades on Bn:24002 Vehicle Not Equipped or 2,,269 Use of Red Warning Light Coacb

Unsafe 25300 Warning Devices on Disabled 26712 Defroster Requirl24003 Vebicle Witb Unlawful Lamps or Parked Vebicles 27000 Horns or Warnin24004 Unlawful Operation After 25301 Utility and Public Utility 27001 Use of Horns

Notice by Officer Vehicles 27002 Sirens24005 Sale, Transfer or Installation of 25305 Use of Fusees 27150 Mufflers

Unlawful Equipment 25350 Identification Lamps and Signs 27151 Modification of E:24006 Name or Trademark 25351 Identification I...amps and Signs Systems24007 Dealer's Responsibility 25400 Lighting Requirements 27152 Exha ust Pipes24008 Modification of Vebicles 25401 Diffused Lights Resembling 27153 Exhaust Productf:24250 Lighting During Darkness Signs 27154 Gases and Fumes2-J252 Maintenance of Lamps and 25452 Glare of Lights 27155 Fuel Tank Caps

Devices 25502 Limitations on Reflectorizing 27156 Air Pollution Con24400 Headlamps on Motor Vebicles Material 27300 Safety Belts24401 Dimmed Lights on Parked 25650 Headlamps on Motorcycles 27302 Use of Approved 1

Vehicles 25651 Headlamps on Motor-driven 27303 Safety Belt Ancb,24402 Auxiliary Driving and Passing Cycles

(27304 Driver Training \

Lamps 25803 Lamps on Otber Vehicles 27305 Firefighting Vehic24403 Fog Lamps 25950 Color of Lights and Reflectors

}

'.

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 29

259:>1 Direction of Beam 27309 New Passenger Vehicles25953 Compliance with Mounting 27450 Thickness of Solid Tire

mber of Lamps Regulations 27452 Condition of Solid TireJS 26100 Manda tory '.resting and 27453 Dual Solid Tireswer Beam Approval 27454 Protuberances on '.riresor 26101 Approval of :M.odifying Devices 27459 Snow-tread TiresIe Beams 26301 Motor Vehicles Over Seven 27460 Four-wheel Drive Vehicles

, TOllS 27600 Fenders and Mudguards( 20302 Trailers 27601 Radiator Ornaments

Lamp I 20303 Trailer Coaches 27602 TelevisionTrucks 26304 Breakway Brakes 27603 Former School Bus Coloring

20309 Disapproved Brake on l\1otor- 27700 Required Equipment, on Projections I driven Cycle 27800 Equipment for Passenger1Towed Vehicles 26311 Service Brakes on All Wheels 27801 Required Position of EquipmentJS 26450 Required Brake Systems 27900 Identification RequiredRear 26451 Parking Brake System 27001 Name and TrademarkFront and Sides

i26452 Brakes After Engine li'ailure 27903 DesigIHI tion of Cargo

rl'rucks 26453 Condition of Brakes 27005 Fire Departments{

ing Lamps \ 20454 Control ano Stopping Require- 27906 School BusesSystem Required ments 27907 Tow CarsSystem I 20457 Exemptions 28000 Refrigerator Vansquirements of 26458 Power Brake: Single Control 35100 ,Vidth

l 26502 Adjustment and Use of Special 35101 Pneumatic TiresLamps Devices 35102 Loo1'e Loadsld Side-marker 26503 Safety Valve 35103 Plywood Loads

( 26504 Air Governor 35104 Vehicles Limited to 120-inchlIDPS on Trailer

\26505 Pressure Gauge Width20506 ';Yarning Device 35109 Projecting Lights or Devices

des of Vehicles 26507 Check Valve 35110 Projecting Equipment19 on Projecting 26508 Emergency Stopping System 35111 Loads on Passenger Vehicles26520 Vacuum Gauge 35115 Projecting Devices for Agricul-Wide Vehicles 26521 Warning Device tural Products

mps 26522 Check Valve 35250 Heightor Fender Lamps 26700 Windshields 35400 General Limitation,amps on FelH~ers 26701 Safety Glass 35401 Combinations of Vehiclestor Lumps 26703 Safety Glass Replacement 35403 Passenger Buses in Urban or,

26706 Windshield Wipers Suburban Servicemps ,ghts

,20707 Condition aod Use of Wiud- 35404 Passenger Buses Equippedtmps on Authorized \ shield Wipers 'Vith Tbree or More Axles

Vehicles(

26708 Restricted View: Signs, Stickers 35405 Length of Trolley Coachnnps 00 Tow Cars Or 1\1aterial 35406 LoadsWarning Signal ) 26709 Mirrors 35408 Front Bumper,

\26710 Defective Windshields and 35409 Moving Picture Equipment.bing Amber -VVarn· Rear Windows 35410 Projections to the Rear26711 Eyeshades on Bus or Trolley 35411 Combination of VehiclesWarning Li~ht

ICoach 35413 Tires on Front of Vehicleevices on Disabled 26712 Defroster Required 35417 Logging Dolly Combination

Vehicles 27000 Horns or Warning Devices LimitPublic UtilityI 27001 Use of Horns 35550 Axles

27002 Sirens 35551 Ratio of Weight to Length-ees

\27150 Mufllers COllier-Porter Acton Lamps ano. Signs 27151 Modification of Exhaust 35600 Solid Tireson Lamps and Signs Systems 35601 Metal Tires.equi rements 27152 Exhaust Pipes 35655 Violation of Decreasedights Resembling 27153 Exhaust Products Restriction27154 Gases and Fumes 35753 Violation of Decreased

ights 27155 Fuel Tank Caps Restrictionss on Reflectorizing 27156 Air Pollution Control Device 35783 Possession of Permit27300 Safety Belts 35784 Violation of Permit

.5 on Motorcycles 27302 Use of Approved Belts 35785 Hauling of Saw Logsson l\1otor-driven 27303 Safety Belt AncDors 35789 Building Mover's Notice to

\ 27304 Driver Training Vehicles RailroadOther Vehicles

( 27305 Fil'efigh ting Vehicles 35790 Overwidtb Trailer CoaChesrights and Reflectors

l,1

30 JUDICIAL COUNCIL OF CALIFORNIA

3579336125

3640036510

Permits for Vehicle CarriersIdentification Plate Required

Lift-carrier LimitStopping Distance Require­ments

36600 Width Exemptions and Limita­tions

36605 Limit of 120 Inches for CertainVehicles

36620 Cotton Trailer Comhination­70 Feet Length Limit

i

\

I,ntroductionThe classificatic

is receiving increi but in other juri~, problem in the CI

are proposing thoffenses be definlesser violations (the creation of atence authorizedsuch as the SUSplviolators. 2 Jail "visions of law onmeanor cases wooduct trials with:without all theeliminate inapprplea might be corequired of defe]constitutional anadopted in Calif

Background on InlIn New York

enacted in 1934with a misdememinor traffic vio:law-abiding andin number, were

" A.ccordinglyin what is now ~

, ... punishmen·a penal or crirr• This assignment v

at the directionstudy.

1 Wechsler, The Am(1956) 42 A.B.10, 1965, Vol. .Penal Code, PlOffenses as CivOffense (1952)Colum. L.Rev.Enforcement O'Law oj New Yto aNew Pena:

t See Assembly BirPenal Code, Prplied on conturon proof of thelatter would ptappear (Veh. (

& Association ofBergan, J. (cOnell

and 266 N.Y.S.

1ions and Limita·

lches for Certain

Corobination­. Limit

,I

Ii

I

B. STUDY *Introduction

The classification of minor traffic violations as noncriminal infractionsis receiving increasing attention in recent years, not only in Californiabut in other jurisdictions, as a basis for more realistic treatment of theproblem in the courts. Leading authorities in the field of criniinal laware proposing that the historic distinction between petty and seriousoffenses be defined more systematically to facilitate enforcement oflesser violations of police regulations l The system under study involvesthe creation of a category of non-criminal offenses for which the sen­tence authorized upon conviction would be a fine or other civil penalty,such as the suspension of a license or attendance at a school for trafficviolators.2 Jail would not be authorized as a sanction. Existing pro­visions of law on arrest, evidence, presumptions and defenses in misde­meanor cases would apply to traffic infractions and judges would con­duct trials within the present framework of criminal procedure butwithout all the paraphernalia of jury trial. Other modifications toeliminate inappropriate criminal procedures on arraignment, bail andplea might be considered in order to reduce the number of appearancesrequired of defendants who wish to appear on their traffic citations. Noconstitutional amendment would be required and the proposal could beadopted in California by appropriate amendments to the codes.

( 31 )

Background on Infraction System

In New York" [T]he traffic infraction was first created by a law; enacted in 1934 (L.1934, Ch. 485) after it bad become apparent that,~ with a misdemeanor criminal status attached to convictions even forI minor traffic violations, the automobile drivers of the State, a generally. law-abiding and responsible group of citizens then rapidly increasing

lin number, were incurring misdemeanor convictions in vast number." 3

"Accordingly, the Vehicle and Traffic Law was amended to provide

'

in what is now Section 155 '[a] .traffic infraction is not a crime and the. . . punishment imposed therefor shall not be deemed for any purpose

(: a penal or criminal ... punishment, and shall not affect or impair

• This assignment was underta]<en by the Administrative Office of the California Courtsat the direction of the Judicial Council. Mr. Eugene J. Didak. attorney, prepared thestudy.

1 Wechsler, The American Law Institute: Some Observations On Its Model Penal Code(1956) 42 A.B.A.J. 321 ; Justice of the Peace and Local Government Review, July10, 1965. Vol. 129. pp. 442-443, and September 11, 1965, Vol. 129, p. 594; ModelPenal Code. Proposed Official Draft, 19G2; Gausewitz, Reclassification of CertainOffenses as Civil Instead of Criminal (1937) 12 Wis. L.Rev. 365; Perkins, The CivilOffense (1952) 100 U. of Pa. L.Rev. 832; Sayre, Public WeZfare Offenses (1933) 33Colum. L.Rev. 55; Perkins on Criminal Law (1957) pp. 692-710; Lord Devlin, TheEnforcement of Morals (1965) pp. 26-42, Oxford Univer~ity Press; Proposed PenaZLaw of New York (1964) 64 Colum.L.Rev. 1469; Gausewitz, Considerations BasictoaNew Penal Code (1936) 11 Wis. L.Rev. 346, 480.

~ See Assembly Bill No. 845 of the 1965 session of the California Legislature; ModelPenal Code, Proposed Official Draft, 1962. Provision could be made for jail to be ap­plied on contumacious failure to pay a fine. as provided in the Model Penal Code oron proof of the violation of a written promise to pay a fine, or appear in court. Thelatter would parallel the California procedure upon violating a written promise toappear (Veh. Code § 40508) and has been suggested by a special committee of theAssociation of Municipal Court Clerks.

\ 'Bergan, J. (concurring) People v. Letterio and People v. Kohler (1965) 16 N.Y.2d 307(. and 266 N.Y.S.2d 368.

l__1 ----

32 JUDICIAL COUNCIL OF CALIFORNIA

the credibility as a witness, or otherwise, of any person convictedthereof.' By the same statute of 1934, the definitions of 'crime' in sec­tion 2 of the Penal Law were amended to state 'Except that the actsdefined as traffic infractions by the vehicle and tra[-fic law. hereto­fore or hereafter committed, are not crimes.' " 4

The same condition that prevailed in New York in 1934 exists to aheightened degree in California today. Section 15 of our Penal Codedefines as a crime or public .pffense an "act committed or omitted inviolation of a law forbidding or commanding it, and to which is an­nexed, upon conviction, either of the following punishments: (1)Death; (2) Imprisonment; (3) Fine; (4) Removal from office; or, (5)Disqualification to hold and enjoy any office of honor, trust, or profitin this state." During the 1965-66 fiscal ycar 9,041,374 cases involv­ing traffic violations were filcd in the municipal and justice courts ofCalifornia.5 Fines and jail being authorized upon conviction in thesecases, the net effect is that practically every person who drives a car inthis state either is or can expect to be classified a misdemeanant. 6 Vilbilecriminal designation may be appropriate for wilful and serious trafficviolations such as reckless or drunken driving, or driving without alicense or with a suspended or revoked 'license, it may be less appropri­ate for that vask bulk of vehicle law violations such as parking andminor" moving" violations now subject to a maximum penalty of $50fine or five days in jail upon a first conviction. 7

In addition, California, unlike New York, thc federal governmentand many of the states, allows a jury trial, however trivial the offense.s

The cost to the state and counties of conducting a jury trial has beenestimated at several hundred dollars per day.9 In the 1965-66 fiscalyear there were almost 7,500 jury trials of tra[-fic violations in Cali­fornia municipal and justice courts. 10 The number of tra[-fic jury trialsin the municipal courts increased 288 percent within the past 10 years,as compared to about a 67 percent increase in total tra[-fic filings dur­ing the same periodll Reliable estimates are that about half the trafficjury trials are for minor violations subject to a maximum penalty of$50 fine or five days in jail. There is further cause for concern in thefact that traffic jury cases take so long to try, from one-half day to oneweek or longer for each case.12 Not only are the judge, clerk, bailiff and

Icourtroom tand listen ~

.parking tidtiously byother litigmon such relawith import

. and cost of (, violations 11:

j the 3,000,00tions that 11

a minute orjudges for t

EnglandIn Ellgla

the Lord Cport that rnal jurisdi,vation is toof those wIconsequencitach to thecriminal onlish tra[-fic (

United StateIn the l

acknowledgforcement ithe condu(to satisfywhich theor fine andcancellati OJ

serve the l(of crime (

2-8218

13 12 Stan.L.IAngelessuperiormonthsnoted thduring tless tharport offigures (

U The AmerifacilitiesnecessarVehicle'

15 See note 1"Trial bof cour.:Which itinhere itages. M

16 Justice of442-443.

11 Newkirk, 1118 See note 1!

, Ibid.5 Based on statistical reports filed with the Judicial Council by the municipal and justice

courts.6 Pen. Code § 19; Veh. Code § 4200l.7Veh. Code § 42001. Of the more than nIne million traffic filings last year, close to 5 mil­

lion were parking violations and probably well over 95 % of the balance were minormoving violations. Note 5, supTa, Wechsler, 'l'he American Law Institute: SomeObservations On Its Mfldel Penal Code (1956) 42 A.B.A.J. 321, 324; Perkins onCriminal Law (1957) p. 701.

8 Pen. Code § 689. The 1964 Annual Traffic Court Inventory by the American Bar As­sociation showed that 265 cities of at least 10,000 population do not provide a jurytrial in minor traffic cases. ('.C.raffic Court Justice, VoL 7, No.1, January 1966, pub:lished by the A.B.A.) The 1$lt3 Inventory showed that courts in 22 states do nOlafford a jury trial for traffic offenses in their courts.

9 A recent five-day jury trial in San Francisco on seven parldng tickets was estimateClto cost the taxpayers between $3,000 and $3,750, or an average of $600 to $750 perday. (People Y. Muller, reported by the San Francisco press in January, 1966;Letter from lVfr. James Cannon, Clerk of the San Francisco Municipal Court toMr. Ralph N. Kleps, January 19,1966).

II} Based on statistical reports filed with the Judicial Council by the municipal and justicecourts.

11 Ibid. l12 See California Traffic Law Admini.stration (960) 12 Stan.L.Rev. 388, 413; The re-

cent parking violation cases of People v. Muller, note 9, supra, which took five daYSto try before a jury. is not an isolated example. See Warren, Traffic Courts (1942)

p.74. f

'.

l'son convicted'crime' in sec­t that the acts,w ' , , hereto-

934 exists to aur Penal Code

or omitted in;0 which is an­lishments: (1)1 office; or, (5)trust, or profit'4 cases involv­1stice courts ofliction in thesedrives a car in

leanant.6 While:I serious trafficving without ae less appropri­as parking andpenalty of $50

ral government'ial the offense.8

y trial has beenl 1965~66 fiscal,lations in Cali­raffic jury trialse past 10 years,affic filings dur­t half the trafficnum penalty of: concern in the-half day to one;lerk, bailiff and

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 33

courtroom tied up but 12 jurors, at considerable personal loss, must sitand listen as long as a week on the issue, for example, of guilt on aparking ticket, whereas the same issue can be heard much more expedi­tiously by the court without a jury. It seems unfair to the jurors,other litigants and the public to spend so much time, effort and moneyon such relatively minor cases, particularly when our courts are jammed

I with important cases waiting months for trial.l3 The considerable time( and cost of conducting these several thousand traffic jury trials on minor

violations may be used to better advantage in giving more court time to

I the 3,000,000 other citations issued annually for" moving" traffic viola­tions that now can receive but scant attention at a bail window or for

Ia minute or two in congested courts,14 or in providing more courts and

, judges for the trial of substantial and serious civil and criminal cases.'5

EnglandIn England the Council of the Law Society last year recommended to

, the Lord Chancellor, the Home Secretary and the Minister of Trans­port that noncriminal traffic offenses should be removed from crimi­nal jurisdiction and transferred to traffic courtS.'6 The main moti­vation is to end the" stigmatising as criminals of more than 62 percentof those who . . . come before the courts" which "has the inevitableeonsequence of diminishing the obloquy which ought properly to at­tach to those who commit what the public normally regard as trulycriminal offences." 17 Magistrates would preside in the proposed Eng­lish traffic courts, and would not have the power to give jail sentences,'s

United States

In the United States, the drafters of the Model Penal Code haveacknowledged the need for a public sanction calculated to secure en­

I forcement in situations where it would be impolitic or unjust to condemn\ the conduct involved as criminal. In their view, "the proper wayt. to satisfy that need is to use a category of noncriminal offense, for

which the sentence authorized upon conviction does not exceed a fineor fine and forfeiture or other civil penalty, such, for example, as thecanceJJation or suspension of a license. This plan, it is believed, willserve the legitimate needs of enforcement, without diluting the conceptof crime or authorizing the abusive use of sanctions of imprison-

2-82189

18 12 Stan.L.Rev., supra note 12 at 413. It was reported that civil cases in the LosAngeles Municipal Court were required to wait 18 months for trial. In thesuperior courts on June 30, 1965, there 'Was an average delay of from 4 to 13months for civil jury trials in courts with nine or more judges. It should benoted that there were 7,984 jury trials in all the superior courts of the stateduring the 1964-65 fiscal year, of which 3,000 were criminal cases, Which wasless than the number of jury trials on lesser traffic offenses. (See Annual Re­port of the Administrative Office of the California Courts (1966) 27-32, forfigures on superior court backlog, delay and number of jury trials.)

a The American Bar Association Traffic Court Program has consistently urged thatfacilities be provided to bring more violators into courts staffed by judges as anecessary part of an effective program to promote traffic safety. (See Fisher,Vehicle Traffic Law (1961) p. 52.)

15See note 13, sU1Jra. As pointed out by Warren (Traffic Courts (1942) pp. 74-75):"Trial by jury has come to be applied to all types of cases at law as a matterof course, with the result that it Is occasionally used under conditions forwhich it is not well fitted, Le., under circumstances where the advantages whichinhere in the jury system are outweighed by a number of practical disadvan­tages. Most traffic cases fall into this category."

leJustice of the Peace and Local Government Review, July 10, 1965, Vol. 129, pp.442-443.

11 Newkirk, Motoring ()ffen8es~ 115 Law Journal 655, Oct. 1, 1905.18 See note 174, inJ'l"u.

\

(

l_ ___ J,, _

.. --sc

v, 388. 413: The re­which took five dayS

'raffle Courts (1942)

year, close to 5 mil­balance were minoraw Institute: SomeH. 324; Perkins on

~ American Bar ,As­o not provide a JuryJanuary 1966, pub:in 22 states do nOt

c1<ets was esti materl• of $600 to $750 per; in January, 1966;Municipal Court to

nunicipal and justice

.unicipal and justice

34 JUDICIAL COUNCIL OF CALIFORNIA

As noted inproviding in:With respecproposes toPenal Law,breach of antD imprisonn

27 I bid.28 Ibid."1962 Study

lion of 1Office ofCommitt(the law tdemeanOlSpeech tLawyersDaily Jo·15, 1963.Safety Cof certaiGovernorclassified(See Tntion of trecommereportedJudges, :Commer<AnaheimsponsoreFrancisc

~ Introducedn Letter fror.

Judge :RNovembf

Q Los Angele1965.

aa Los Angele

ment. "19 Accordingly, the Model Penal Code provides in paragraph(5) of Section 1.04: "( 5) An offense defined by this Code or by anyother statute of this State constitutes a violation if it is so designatedin this Code or in the law defining the offense or if no other sentencethan a fine, or fine and forfeiture or other civil penalty is authorizedupon conviction or if it is defined by a statute other than this Codewhich now provides that the offense shall not constitute a crime. A vio­lation does not constitute a crime and conviction of a violation shallnot give rise to any disability or legal disadvantage based on convic­tion of a criminal offense. " 20

V pon conviction of a violation the Model Penal Code authorizes thecourt to suspend imposition of sentence 21 or impose a fine not exceeding$500 22 and suspend or cancel a license.zs When a fine is imposed, thecourt may order jail commitment for contumacious failnre to pay thefine at a rate not exceeuing one day per each five dollars or a totalof thirty days.24

Comparing these provisions with those authorizing jail as an imme­diate sanction the drafters said: "A petty offense category, less thana misdcmeanor, is, of course, widely employed, though generally suchoffenses are denominated criminal. See, e.g., V.S. Code, Title 18, Sec. 1.Motivated mainly by a wish to facilitate enforcement, there has beensome development of a petty offense category, which, though sentenceof fine or imprisonment is authorized, is declared not to constitutea 'crime.' See, e.g., N.Y. Vehicle and'Tra:ffic Law Sec. 2 (29), Con­servation Law Sec. 678 (' traffic infractions '); .... It is submittedthat this plan is undesirable. If a sentence of imprisonment is author­ized (as an immediate sanction upon conviction rather than merelyto coerce the payment of a penalty) it is an inadmissible semanticmanipulation to declare that the offense is not a crime. Imprisonment,it is submitted, ought not be available as a punitive sanction, unless theconduct that gives rise to it warrants the type of social condemnationthat is and ought to be implicit in the concept crime." 25

New YorkThe approach taken in the Proposed Penal Law of New York is

similar to that of the Model Code in that every offense that is not acrime is a "violation." 26 Proposed section 15.15 provides that" Anoffense is a violation if . . . a person convicted thereof may be sen­tenced to a term of imprisonment which cannot exceed 15 days.... "'9 Model Penal Code, Tentative Draft No.2, 1954, Comment, pp. 8-9. For proposals

of this kind the comment refers to G~\.usewitz, Reclassification of CertainOffenses as Civil Instead of Criminal (1937) 12 Wis. L.Rev. 365; Perkins, TheCivil Offense (1952) 100 U. of Pa. L.Rev. 832.

20 ModeJ Penal Code, Proposed Official Draft, 1962. The Model Penal Code is notintended to establish uniformity, but rather to supply an integrated body ormaterial which can be useful in any cf(ort to revise substantive penal laWS.It has been in formulation for more than 10 years and has served as a guidefor tho.5'e stales which have revised or are revising their criminal laws. Packer,The Case for Revision of the Penal Code (1961) 13 Stan.L.Rev. 252; Turner,Why No Revised Criminal Code' (1961) 49 Ky.L.J. 477; Remington and Rosen~blum, Cun'ent Problems in Criminal Law: The Cr'iminal Law and the Legi3la·tive Process (1960) U. Ill. L.F. 481.

"§ 6.02(4)."§6.03(4)."§ 6.02(5)." § 302.2.25 See note 19, supra.26 P"ol)Osed Penal Law of New York (1964) 64 Colum. L.Rev. 1469.

California

Since 196:tion of minoto trial witlduced in th,Council, byof a trafficBill No, 84fmeasure wathe highestspecial comlship of Ju'Court, andmendations

Judge Fripal Courtfrom the i1,000 jury'civil cases tCounty Gr~

of legislatic\ the Los AIl of such lee

l[

-, l 1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 35

27 Ibid.:til/bid.29 1962 Study of the New York Law on Infractions and Offenses made at the direc­

tion of the Judicial Council by Mr. Eugene Didak, attorney, AdministrativeOffice of the Courts. H.R. 61, 1963 Reg. Sess., requesting the Assembly InterimCommittee on Transportation and Commerce to study the subject of revision ofthe law to the end that many of the motor vehicle offenses now classed as mis­demeanors instead be treated as administrative rather than criminal offenses.Speech by Judge Raymond R. Roberts, Los Angeles Superior Court, to theLawyers Club of Los Angeles, August 14, 1963, reported in the Los AngelesDaily Journal for that date and in the Los Angeles Metropolitan News, August15, 1963. The judges and prosecutors division of the 1963 Governor's TrafficSafety Conference recommended that study be given to possible reclassificationof certain traffic offenses as infractions. An earlier recommendatlon by the 1958Governor's Traffic Safety Conference was that certain traffic misdemeanors beclassified as "petty offenses," limited in penalty and triable without a jury.(See Traffic Law Admt,nistTation~ 12 Stan. L.Rev. 388, fn. 189 at 415.) Resolu­tion of the Municipal Court Judges vVorkshop, April 18, 1964, in San Francisco,recommending the classification of minor traffic violations as infractions, andreported by the Municipal Courts Section to the Conference of CaliforniaJUdges, September 26, 1964. Assembly Interim Committee on Transportation andCommerce, F'inal Report (1965) 21. Reports by Judge Claude M, Owens,Anaheim-Fullerton Municipal Court to the Municipal Court Judges Workshopssponsored by the Conference of california Judges at Palm Springs and SanFrancisco in April, 1965.

IKl Introduced by Assemblymen Carren and Kennick.11 Letter from Mr. Ralph N. Kleps, Director, Administrative Office of the Courts, to

Judge Raymond R. Roberts, September 28, 1965. Los Angeles Daily Journal,November 26, 1965.

ul.A:>s Angeles Herald-Examiner, May 17, 1965; Los Angeles Daily Journal, May 18,1965.

II Los Angeles Times, December 12, 1965.

As noted in the comment above, however, the New York practice ofproviding imprisonment as an immediate sanction has been criticised.27

With respect to traffic infractions it does not appear that New Yorkproposes to change the position it adopted in 1934, for the ProposedPenal Law defines an offense, of which crime is a subcategory, as abreach of any law other than a traffic regulation, for which a sentenceto imprisonment or to a fine is authorized upon conviction?S

California

Since 1962 interest has been growing in California in the classifica­tion of minor vehicle law offenses as noncriminal" infractions" subjectto trial without jury,29 and in 1965 Assembly Bill No. 845 was intro­duced in the Legislature to create such a classification.3o The JudicialCouncil, by action taken at its May 1965 meeting, endorsed the conceptof a traffic infraction system for California and supported AssemblyBill No. 845, provided certain amendments could be made. After themeasure was assigned for interim legislative study, the Council gavethe highest priority to this subject and, acting in cooperation with aspecial committee of the State Bar of California under the chairman­ship of Judge Raymond R. Roberts, of the Los Angeles SuperiorCourt, and other interested groups, proposes to submit its recom­mendations to the 1967 Legislature and to the Governor.31

Judge Francis Cochran, Presiding Judge of the Los Angeles Munic­ipal Court in 1965, said both the public and the courts would benefitfrom the infractions system and estimated that it would eliminate1,000 jury trials per year in the Los Angeles court, freeing judges forclvil cases then waiting nearly 18 months for triaP2 The Los AngelesCounty Grand Jury report of December 1965 recommended enactmentof legislation to provide for nonjury trials of traffic infractions 33 andthe Los Angcles County Board of Supervisors favors the adoptionof such legislation as a convenience to the citizens with savings to

,~

l

I\

[III

in paragraphJode or by anys so designatedother sentence

y is authorizedthan this Codea crime. A vio­violation sball

ised on convic-

, authorizes thee not exceedingis imposed, thelure to pay theHal's or a total

,f New York isse that is not avides that "An)Of may be sen­I 15 days.... "8-9. For proposals

lication of Certain365; Perkins, The

Penal Code is notintegrated body ortantive penal laws.: served as a guideminal la \VS. Packer,~.Rev. 252; Turner,nington and Rosen­.w and the Legisla-

(

____1 _

ail as an imme­19ory, less thangenerally sucb

Title 18, Sec. 1.there has been

:hough sentenceIt to constitute~. 2 (29), Con­It is submittedment is author­er than merelyissible semantic. Imprisonment,ction, unless thetl condemnation

36 JUDICIAL COUNCIL OF CALIFORNIA

the ~axpayers.34Of the more than 100 municipal court judges attendingsemmars held by the Conference of California Judges in Palm Springsand San Francisco in April 1965, all but three favored adoption ofan infraction system for traffic cases. 35 Declaring that" the ordinarytraffic offense is not a crime and should not be treated as such," As­semblyman Song, Chairman of the Assembly Subcommittee on Admin­istration of Justice, announced that a series of public hearings on thesubject will be held throughout the sta~e by his committee.36 As pointedout by Assemblyman Song the gravity of the problem involving 10million licensed drivers and more than 200,000 accidents per year isundeniable and a new approach is needed in the interests of justiceand to reduce our court congestionB7

Constitutionality of Infractions ProposalGeneral

The proposal to eliminate jury trials for traffic infractions requiresconsideration of the constitutional guaranties of jury trial in criminalcases.

The third clause of Section 2, Article III, of the United States Con­stitution provides that" the trial of all crimes, except in cases of im­peachment, shall be by jury," and the Sixth Amendment provides that"in all criminal prosecutions the accused shall enjoy the right to aspeedy and public trial by an impartial jury."

With respect to the federal and similar state 'constitutions it is firmlyestablished that certain minor or petty offenses can be excepted by Con­gress and the legislatures from the provisions requiring a jury trialin criminal casesB8 In a dictum in Callan v. Wilson (1887) 127 U.S.540, Mr. Justice Harlan for the court said: "According to many ad­judged cases, arising under Constitutions which declare, generally, thatthe right of trial by jury shall remain inviolate, there are certain minor84 Los Angeles Daily Journal, May 18, 1965.35 Informal poll of the judges conducted by Judge Claude M. Owens, Anaheim­

Fullerton Municipal Court, following his report on infractions to the seminars.Judge Luther N. Hussey, 1965 Chairman of the Municipal Courts Section of theConference of California Judg-es, reported the favorable vote to the Conference.Los Angeles Metropolitan News, September 21, 1965.

86 Los Angeles Daily Journal, November 9, 1965. Los Angeles Metropolitan News,November 11, 1965.

81 Ibid.38 Frankfurter and Corcoran, Petty Federal Offenses and the Constitutional Guaranty

Of Trial by J1try (1926) 39 Harv. L. Rev. 917; 50 C.J.S., Juries, § 77; 31 Am.Jur., Jury, §§ 7~37 at 13-43; 29 Cal. Jur.2d, Jury, § 11 at 499; Fisher, VehicleTraffic Law (1961) pp. 451-455; Perkins on Criminal Law (1957) pp. 13-14,692-710; 75 L.Ed. Anno. 177-220; Rose's notes, pp. 209-211 and 1932 Supple­ment, Vol. 6, notes on Schick v. U.S. (1904) 195 U.S. 65. See 75 L.Ed. annota­tion, for U.S. and state citations illustrating or adhering to the following ruleof construction: the U.S. constitutional guaranties of jury trial in all criminalprosecutions, as well as provisions in the state constitutions which, in variousforms, guarantee the right of trial by jury, are to be construed in the lightof the common law as it existed when the constitutions were adopted, and theconstitutional right of trial by jury limited to that class of cases which, at thecommon law, or at the time of the adoption of the constitution, were triable byjury. The California cases cited are: Cassidy v. Sullivan (1883) 64 Cal. 266;People v. Powell (1891) 87 Cal. 348; Ex parte Wong You Ting (1895) 106 Cal.296; Re Mana (1918) 178 Cal. 213; People v. Martin (1922) 188 Cal. 281. Seealso Taylor v. Reynolds (1881) 92 Cal. 573; In re Fife (1895) 110 Cal. 8;People v. Kelly (1928) 203 Cal. 128, 133; People v. One 1941 Chevrolet (1951)37 Cal. 2d 283, 287, 300. "Constitutional guaranties of a jury trial of all crimes,and of the right to a speedy and public trial by an impartial jury in all criminalprosecutions, do not refer to minor or petty offenses, which according to thecommon law, may be proceeded against summarily." Anno., 75 L.Ed. 183. ForColonial and state legislation concerning summary disposition of petty offenses,see: Appendices A-D, Petty Federal Offenses and the Constitutional Gttaranty ofTrial by Jury, supra at 983-1019.

or petty offenses tla jury; and, lU.J

went is satisfied 1

accorded to the a(an illustration ofwhile the foundewith them to thethat mode of tri3sacred to be surreoffenses against f

supposed to be inSo in State v. Gl

, notwithstanding', 46 and in that c, .

shall be taken, llY

peers, or by theleO'islation in tha

b .

diction upon JUS!

for minor and s'that the party i:must be underst<by the regular c<as theretofore Phave been inteneither criminalthe Constitutioninviolate,' the (constantly exer<breaches of theposed to conflicitizen a trial b;

Upon a prose·a penalty of $5United States (for violating aone necessarilyhave been thewith approvalsions of statewithin any co

. "cnmes.In a reckles

bia v. Colts (cases, said tha" ... is to bewhich petty cmagistrate sit:called 'petty'the meaning (pense with a89 At 72-73. See J

" I, 1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 37

udges attendingn Palm Springs:ed adoption of; "the ordinaryi as such," As.ittee on Admin.hearings on the.ee.36 As pointedm involving 10:nts per year islrests of justice

actions requires;rial in criminal

ited States Con·in cases of im·

nt provides thatthe right to a

tions it is firmlyxcepted by Con..ng a jury trial(1887) 127 U.S.ng to many ad·" generally, thatre certain minor

Owens, Anaheim­IS to the seminars.,urts Section of theto the Conference.

Metropolitan News,

titutional Guaranty:ries, § 77; 31 Am.99; Fisher, Vehicle

(1957) pp. 13-14,and 1932 Supple­

e 75 L.Ed. annota-the following rule

rial in a1l criminal; which, in variousstrued in the light'6 adopted, and thecases which, at theon, were triable byl883) 64 Cal. 266;ng (1895) 106 Cal.) 188 Cal. 281. See'1895) 110 Cal. 8;1 Chevrolet (1951)tria] of all crimes,

jury in all criminalh according to the

75 L.Ed. 183. Forn of petty offenses,4-tional Guaranty 0/

I

!

\lI

(I

I

(

I

or petty offenses that may be proceeded against summarily, and withouta jury; and, in respect to other offenses, the constitutional require­ment is satisfied if the right to a trial by jury in an appellate court isaccorded to the accused. Byers v. Commonwealth, 42 Pa. 89, 94, affordsan illustration of the first of the above classes. It was there held thatwhile the founders of the Commonwealth of Pennsylvania broughtwith them to their new abode the right of trial by jury, and whilethat mode of trial was considered the right of every Englishman, toosacred to be surrendered or taken away, 'summary convictions for pettyoffenses against statutes were always sustained, and they were neversupposed to be in conflict with the common-law right to a trial by jury.'So, in State v. Glenn, 54 Md. 573, 600, 605, it was said that 'in England,notwithstanding the provision in the Magna Charta of King John, art.46, and in that of 9 Hen. 3, chap. 29, which declares that no freemanshall be taken, imprisoned, or condemned but by lawful judgment of hispeers, or by the law of the land, it has been the constant course oflegislation in that kingdom, for centuries past, to confer summary juris­diction upon justices of the peace for the trial and conviction of partiesfor minor and statutory police offenses .... And when it is declaredthat the party is entitled to a speedy trial by an impartial jury, thatmust be understood as referring to such crimes and accusations as have,by the regular course of the law and the established modes of procedure,as theretofore practiced, been the subject of jury trial. It could neverhave been intended to embrace every species of accusation involvingeither criminal or penal consequences.' So, also, in New Jersey, wherethe Constitution guaranteed that' the right of trial by jury shall remaininviolate,' the court said: 'Extensive and summary police powers areconstantly exercised in all the States of the Union for the repression ofbreaches of tbe peace and petty offenses, and these statutes are not sup­posed to conflict with the constitutional provisions securing to thecitizen a trial by jury.' "

Upon a prosecution for violation of an oleomargarine statute imposinga penalty of $50, Mr. Justice Brewer, writing the opinion in Schick v.United States (1903) 195 U.S. 65, 67 and 70, said: "So small a penaltyfor violating a revenue statute indicates only a petty offense. It is notone necessarily involving any moral delinquency. Tbe violation mayhave been the result of ignorance or thoughtlessness ...," and citedwith approval the reference made in the Callan case to the" many deci­sions of state courts, holding that the trial of petty offenses was notwithin any constitutional provision requiring a jury in the trial ofcrimes. "

In a reckless driving case, the Supreme Court in District of Colum­bia v. Colts (1930) 282 U.S. 63, citing both the Callan and Schickcases, said that the constitutional guaranty of jury trial of all crimes" ... is to be interpreted in the light of the common law, according towhich petty offenses might be proceeded aga.inst summarily before amagistrate sitting without a jury .... That there may be many offensescalled' petty offenses' which do not rise to the degree of crimes withinthe meaning of Article III, and in respect of which Congress may dis­pense with a jury trial, is settled." 39 Continuing, the court said:

llllAt 72-73. See A.nno.: 75 L.Ed. 177-221.

:

--_.~--------- .n_T

:38 ,)1]]))C[,IL COUOiC1L OJ' CAL!FOR~IA

iL

"IVhether a given offcuse is to be classed as a c:rime, so as to requirea jury tri<11, or as a pdty offense, triable summarily without a jury, de­pends primarily UpOll the llili lHP of the offense, The oircllse heredWl'ge(] is not lllerely malum prohibitum, but in its wry nature isma]'11l1 in se," ,HI [j "ii",] with aJ'prllva] lhe di,tindiolllllaclf.' by the New,Terse,i' CalIri of ErrOl'S auri Appea]s ill Siale r, Rod!!CI's (K,T. 1917) 102AU, 4:33, "beliwcll traffic (,ffcu,es (If a petti' character, subject to sum­mHry jJl'lJ':eeclinc:, wilh>ltlt il1l]idmellt aud tria] b~- jl1r~', and those of a~rril)US (·li;:ILWt.Pl'. al1l()Ullj-jl1.~' to, IHluJie ll11i:.:ances j]]dictable at COlnnlon

]il\\,;, ," 4] Till' .'-:UpJ'f'I'IC ('ollrt pointccl Ollt tbat the defendantin the Colts c"';e iI'a, "Ilot t'harg'('clmcre]y with the compal'ftiii'eJ.v slightoll'eu'p of px~ee(]ing the 23 mile ~Jlecd limit, , , " 01' merely ,,,ith driv­iug rp(']dp"l~-, ,; lmi w'ith the grilYP offellse of lUJ\'illg chinn at thef'lrbir1deli rate of speed anri l'pc-klr,ss]y, 'so as to ellclan,Q'er property andindi\'j(]uals! " and aecordingl,i- JI('I(ll1lat sueh an offell.'ie is sllbject tolht' ('oJhtitntiolla] ~'l!(1t·(111t~· nf l),jc-ll by ,i nr:'i·.-:l2

Tn Disll'let of ('o7/1lllln'a 1', ('lale(/1/s (J0T7) :;00 U,S, G17, respondenti"as ('('Ili-ided uf the st,ltlliol',\- offense of eJl~aging in a second~hand busi­n,'s>, ,,'itho!]t a lieemc anri sentenced to ]1il~- a fine of ;j;:300 and to beeOJlfinrd ill j<!il for (iO c]a~-s, rnder a District of CO]llJnbia statute no,illr,i' tTial "'II> pl'm'iclrd fol' such pro;;Ulltious ex(:ept iu e'tses where thefine c0111d be more tkln :);:l(JO or the term of imprisllnlllent more than90 (lays, TIIP statute llll(]"I' whiell the resj)(l]}(lellt ,,-as c(ll1i'icted pro­\'ided for a maximum PllllislllllPnt of ;j;:](J0 tille and 00 c1ays in jail. The)'esj)nnr"[(>nt ll(ld (lenHlJlc1e(l and \\'ns 1'(:'['11.,,('(1 A .int',Y 1rial. nlllillg' on theiSSl18 the c-oud helc] that nIl' dcmand fflJ' jmT trial '''~s rig-llil" denied,

In the opinion for the Cflud, :\Il', .lllslice StOlle citee] its prior opin­ions whieh lwd sptilcc] that the right <If jnr,v trial seemed by theUnitee] States C'oll"titntion d<lcs not c~t(,lld tl) eYPl'~' criminal proceeding,H,' ('a liN] aHclltion to the fnd that 8t the time of the acln]ltion of theCOllstitution 11lll1lCrOnS petty offenses "('I'C trice] sllll1l1lari]~- v:ithnut ajury b,i- ,iustices of thp pe'lCC in Englallel alJC] hy poli"p lIla~'i"trates ort"'l'rpspoll(]ing' ,inclical omt'rt's in the Co]ollies an(] pllnishpc] by cOJllmit~mell! tn jail, workhouse. 01' hOllse of c'onrction, i]nd saiel tllat were itnot for the seveI'd," of the pnnishmcnt, nIP ofJ'emler <'onld not, underthc Court's decisions, c1c:im a trial by jllr,V ai'; of J'ig'ht, 1'nrnillg to thequpstion whether tile DO (1H~-s jail wnalty is ;31lfljc-jent to bring it i"ithinthe class of ma,ior (lffellse" for i\'hich a j t1l'Y trial llJay bc demanded,padiclllarJ,'- i"here lilt' ,st;Itlltc nUoi\'s no ap1)(',tl as of rig'ht, he said:"If i\e look to the staJl(]a1'(] il'1lieh ]l1'('nlilcd at the timp -of the adop­tioll of the COllstitlltioJl, "'e find that cOllfinenwJlt for il periu,] of ninet)'(la,'-s or more ,,'as llot an llllllsual pUliishmcnt fur pdt,- ofrenses, tried,,'illtOlit a ;illJ'y, La~-ing asicle iltosr fur ,,'hielt the punishment was of at,i'pC no luugcr eommonl)' ('lnp]"yed, Stll,ll 11S ,dlippin~, cunfinement in~iocks <l11(] th" ]i!;,', all'] uth"I'S, pl111isltetl ],,'- (,01l1l1litJlll'1I1 for an indefi­nite ppriod, we !;llOi\' titat th"l''' iI-en' petty ulf'''IISCS, triahle summarilyunder EllgJish statutcs, ,,-hich caniefl possiule sentences of imprison-101d_ at 73.n fl,irl. State v. Ho(1gcrs llf'Jd t113t the OfrCllSC (if Ilriying nn :lutomnbl\E- ,'idlile under

the iJlfluell(,(, 'If intDxir'atillg liquor clops llut rc'ql1il'(,' a jury tri<-ll ull'ler the con­~tituUfm. nnd in the Jatpr c'ast- of L8til1ler '1/. \\'il.'-'on (.\i.J. 1026) 134 Atl. 750,this \\":1$ held to bi..' :;:.n even tll('I1;.:.11 the so:>ntclll'e nllthorizcd upn!1 summary con~victivn \\as nelt l,~ss than 3() d<l~'s 11('1" nl'!1'(, 1.11;111 !-;ix nl011tlls in jail.

H District of Columhia v. Colts (1':J32) 282 U.S. B3, 72.

ment for pEpassed prioor sh"rt]v ,punishment1110re, Andsix months,

"Tilthc.da\' pena1t:do~s not c(

was ilr:Jopteing the COlaffeeterl u,, 1 t " 43ng 1 >

'l'hus, a~

by jnn' alin tIle ,all'even ",he>1'mary COil"portance c

CaliforniaSection

(, rrhe rig], late," TnI person ('a

h\' a0; bya [1]

Be('(11.1S

tntionaJ 'Supremefor snlllllso triab],clared b)within tlbraced i'\Ya~ l?ntilto nHllll<ize' the ~

of. tlw)'the offenthe legi<sneh a cJ nstice :I thinktiOliS fOJhut soleViSlOll~ I

III a 'boa n1 0

!3 At f;2:;~

«l~.S. \".:-,~\ F

l~ Sl-(' t.:a·~'J Tayl;,r

39

(1950 )

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE

ment for periods from three to twelve months. At least sixteen statutes,passed prior to the time of the American Revolution by the Colonies,or shortly after by the newly created States, authorized the summarypunishment of petty offenses by imprisonment for three months ormore. And at least eight others were punishable by imprisonment forsix months.

"In the face of this history, we :find it impossible to say that a ninetyday penalty for a petty offense, meted out upon a trial without a jury,does not conform to standards which prevailed when the Constitutionwas adopted or was not then contemplated as appropriate notwithstand­iog the constitutional guaranty of a jury trial. This conclusion is un­affected by the fact that respondent is not entitled to an appeal as ofrigh t. " 43

Thus, as stated in these opinions, certain petty offenses not triableby jury at the time of the adoption of the Constitution may be triedin the same way under the authority of Congress and the legislatures,even where three months' or more imprisonment is provided upon sum­mary conviction. Recent federal court opinions have emphasized the im­portance of the exercise of legislative authority in applying the rule.44

CaliforniaSection 7 of Article 1 of the California Constitntion declares that

"The right of trial by jury shall be secured to all, and remain invio­late." In addition, the Penal Code provides in Section 689 that "Noperson can be convicted of a public offense unless by verdict of a jury,... by a finding of the court in a case where a jury has been waived,or by a plea of guilty."

Because of Section 689 there are no holdings squarely on the consti­tutional question in California, but there are dicta by the CaliforniaSupreme Court recognizing the authority of the legislature to providefor summary proceedings without a jury of petty offenses of the typeso triable at common law.' 5 In the case of an ordinance violation de­clared by statute to be a misdemeanor and found by the court to fallwithin the common-law notion of crime or misdemeanor and to be em­braced in the state criminal code, the court held that the defendantwas entitled to a jury trial.46 It was noted by the court with referenceto municipal ordinance violations that" 'The legislature may author­ize' the summary trial without a jury, of the above class of cases spokenof, they not being embraced in the criminal legislation of the state; butthe offense charged here is declared by statute to be a misdemeanor, andthe legislature of this state has not attempted to authorize the trial ofsuch a case witbout a jury, unless a jury be expressly waived." ChiefJustice Beatty concurred in that opinion, in his words, " ... not becauseI think the constitution secures the right of trial by jury in prosecu­tions for petty misdemeanors created by statute or municipal ordinance,but solely upon the ground that the right seems to be conferred by pro­visions of the Penal Code."

In a prosecution for practicing medicine without a certificate from aboard of examiners, a statutory offense punishable by a $500 fine and one

!,IIr

l))

,1

lI,l,(

I

"

) as to requireout a jury, de.e offense herevery nature is,de by the NewN.J. 1917) 102mbject to sum­and those of able at commonthe defendantlratively slightrely with driv­~ driven at the~ property and;e is subject to

17, respondentond-hand busi­;300 and to be,bia statute noases where theent more thanconvicted pro­.ys in jail. TheRuling on the

rightly denied.its prior opin­ecured by the1al proceeding.doption of the.rily 'without amagistrates or.ed by commit­d that were itaId not, underrurning to thebring it wi thinbe demanded,~ight, he said:e of the adop­lriod of ninetyoffenses, triedment was of a~onfinement in; for an indefi­.ble summarilys of imprison-

obIle while under11 under the con­26) 134 AU. 750,)n summary con·In jail.

\(

---J.z--------- ZIliiZ__IiifliiiiiR..

40 JUDICIAL COUNCIL OF CALIFOR IA

year imprisonment, the court held that the defendant 'I"as entitled to ajury trial thr offense being ulle so triable at <-ommon law, but in its dic­tnm said "thr gnaranties in the various state constitutions of the rio-htof jury trial do not prohibit the Irg'islature from providing for st~m­marc- pr\lf'erdings without a jury, in cascs or such petty offenses as areennl1lpratcd in said English statutes, or in rascs where the offenses solll'alt with arp illtrinsi('alIv of the Silll1/" nilture and deo-ree as those men-

o • 0 .

tir)11r(] ill said statnjrs." 47

Oil a petition for writ of habeas corpus, denied for the reason thatthe r01'nsnl of a .iury trinl in a rase not amounting to a felony was merelyPITOr and not jlll·jsdie-tional, the. coud SI1Paking on the kinds of offensesthe legislature is empowere(] to except from the right to trial by jurysaid: "Yagrancc- is, 'I"C think, one of those offcllses, and the legislaturemight proyicle bc' a general law for the summary trial without a jury ofpersons charged with saicl offense; bnt we agree with thc snperior courtof IJos Angeles county sitting in bank, whose learned opinion on the sub­jed was presentee] to liS at the argunwnt here, that there is no valid stat­utory proyision for such a trial without a jury. " 48

On the basis of the historical provision for summary trial of pettyoffensps, the distinction made by the United States Supreme Courtbetween offenses mala in se and mala prohibita, and the recognitiongiwn by the California Supreme Conrt to the power of the legislaturein such cases, it is clear that manc' "moving" violations of the VehicleCode could lw ell1ssifled by statllte as infraetions triable without aj ury4a

Noncriminal Classification of Minor Offenses

The union of act and wron~ful intent" is an im-ariable element ofevery crime unless exclnded e~pressly or by necessary implication_" 50

As noted by Chicf Justice Traynor in People v. l'ogel, some offensesare exelnded from this rule: "Under many statntcs enacted for theprotection of the public health and safety, e.!!., traffic and food anddrug regulations, criminal sanctions are relied upon even if there isno wrongfnl intent. These offenses usually involve light penalties andno moral obloq lly or damage to reputation. Although criminal sanctionsare relied upon, the primary pm'pose of the stautes is regulation ratherthan pllnishment 01' correction. 'l'he offenses are not crimcs in the ortho­dox scnse, and wrongful intent is not required in the interest of en­forcement." 51 Professor 'Wechsler has pointed out that there is neither

H b:x parte '''Tong You Ting, supra note 38 at 300-301; 31 Am. Jur., JW"Y, § 12 at19-20.

48 10 re Fife, S1t1n-a note 38 at 9-10. _ ..49See ('ali/oMlia Traffic flaw Ad.ministnttion (1960) 12 Stan. L.Rev. 3S8. 41<>; DIVI­

sion 11 of the Vehicle Corle, Rules of the Road, except Chapter ]2. conlaio!ngseriollS offenses such as drunk driving, recl\less drivillg', sp(>en contests, throwmgsubstances at vehicles ami the prohibited u:'>e of a vehicle by })('t"sons addictedto or under the inOuence of drugs,

rLJChie( Justice Roger J. Traynor, (hen Associate Justict', in Pc-ople Y. Vo~el (1956)46 CaI.2d 198, fn. 2 at 801, citing Pen. C0de § 20 and noting the code com­missioner's quotation of Bishop (1 Bishop's Crim. Law, § 227) that "It is, thcre­ror~, a principle of our leg'a} sYS1Pm, :1S probahly pvery othc-r, that the essenceof the offense is the wrongful intent, withollt "'hiclt it cannot f'xist."

iii People v. Vogel, 81tJ)1'(L note 50 at SOl, fn. 2, citing Say,-e, Public 11·rlf(l,re. Offenses,33 Colum. L.Rev. 55, 72-75: Hall, Prologomc11U to (I, Scir1tce (If Cnmmal Law.89 U. Pa. L.Rev. 549, 568-569; \Vechsler, 7'he Amen',can La.w Institute: So?neObSC1"Vatiolls 01/ Its MorIel Penal Code, 42 A,B.A,J, 321, 32·\. See also, Pel"kmson Criminal Law, p, 693.

time nor peroffensrs. 5~

'fhat thesrecognized c.label [or Ih(offenses, 07 Ipublic reg1

violations,G4ticulal' refefenses,6' di,

While noand grantproof of wtheless, thEconc1uet J1(

destrueti yeThat the

is unjust i,give a jailalternative" "Vithoutwithout pIevidencedadopted athe cleposimost mino62 Wechsler,:>3 Ibid.; ChiE

Kot ReLocal (Olfellce(1952)100-10~Crimi'"the MIseveralLa10ycJ

(1.963)&t Perkins 0f>5 18 U.S.C,~

6G Public To67 S'ayre, p~

lVcl.fw68 1 Bl. CanM.l Regina v.60 Morissettl:lt Hamlnonfl2 KirchheiJ603 Fitzgeral

DevlinStroud

III Model 1'4

6.'; Fisher, Vat 42-Illino;

fill Gausewi( 193"sup'"a

" § 1.202. Ff!8 State v.:&9 § 155. K.70 Lord Den Sayre. 8172 WechsJe

nJl(1 D7ll Perkins74 Cal. Rul

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 41

was entitled to a.w, but in its dic­tions of the rightwiding for sum_ty offenses as are'e the offenses soree as those men-

r the reason thatclony was merelykinds of offenses

; to trial by jury1d the legislaturewithout a jury ofhe superior courtJinion on the sub­'e is no valid stat-

ry trial of pettySupreme Court

I the recognitionof the legislaturens of the vehicleriable without a

riable element ofI' implication." 50/el, some offenses: enacted for thefic and food and

even if there isiht penalties and:riminal sanctionsregulation ratherimes in the ortho­1e interest of en­~t there is neither

I. Jur" Jury, § 12 at

Rev. 388, 415; Divi­lapter 12, containing~d contests, throwingby persons addicted

ople v. Vogel (1956)oting the code com­7) that "It is, there~

her, that the essencenot exist,"lie 1Velfare Offenses,ce oj Cr,j,minal Law,Law Institute: Some24. See also, Perkins

I

l

\)

l.[

[,,

iI

I(

I

II

time nor personnel to litigate the issue of wrongful intent in these minoroffenses.52

That these regulatory offenses are not true crimes 53 has long beenrecognized and is evidenced by the persistent search for an appropriatelabel for them,54 such as petty offenses, 55 public torts, 56 public welfareoffenses, 57 prohibitory laws, 58 prohibited acts, 59 regulatory offenses,60public regulations,61 administrative misdemeanors,62 quasi-crimes,"3violations,64 ordinance violationS,65 and civil offenses."6 With more par­ticular reference to trafTIc law violations they are called su=ary of­fenses,67 disorderly offenses 68 and trafTIc infractions.69

While no moral obloquy attaches or should attach to such offenses,7oand granting the practical need for retaining liability withoutproof of wrongful intent in cases occurring in such volume,71 never­theless, the imposition of criminal classification and sanctions uponconduct not proved to be criminal has been said to be unjust anddestructive of respect for the law.72

That the imposition of jail for a first minor trafTIc offense ordinarilyis unjust is evidenced by the fact that judges in California almost nevergive a jail sentence in such cases. The usual sentence is stated in thealternative, "'l'en dollars or two days." As pointed out by Perkins,"Without doubt judges usually have avoided imposing imprisonmentwithout proof of the normal mens rea requirement." 73 It is furtherevidenced by the fact that the Uniform Bail Schedule for California,adopted after a survey of the schedules in each county, provides forthe deposit of bail to be ten or fifteen dollars for a first offense onmost minor trafTIc violations,74 the practice being that bail in such cases5:l Wechsler. supra note 51.53 Ibid " Chief Justice Traynor, supra note 50; 1 Witkin, California Crimes, Offenses

Not Requiring Criminal Intent, § 62-63 at 66-68; Justice of the Peace andLocal Government Review, Sep't. 11, 1965, Vol. 129, p. 594; Newkirk, MotoringOffences (October I, 1965) 115 Law Journal 655; Perkins, The Civil Offense(1952) 100 U. Pa. L.Rev. 832; Fisher, Vehicle Traffic Law, supra note 38 at100-102; Gausewitz, Reclassification of Certain Offenses As Civil Instead ofCriminCLl (1937) 12 Wis. L.Rev. 365; Perkins on Criminal Law, p. 701, citingthe Model Criminal Code, Blackstone, Gausewitz, Pound, and decisions inseveral states; Associate Justice, Whittaker, (ret.) U.S. Supreme Court,Lawyers, Laymen and Traffic Courts: Concerted Effort Needed for Improvement(1963J 49 A.B.A.J. 333. .

U Perkins on Criminal Law, supra note 53.M18 U.S.C.A. § 1; District of Columbia v. Clawans (1937) 300 U.S. 617.~Public Torts (1922) 35 Harv. L.Rev. 462.fi7 Sayre, Public Welfare Offenses (1933) 33 Colum. L.Rev. 55; California's Public

Welfare Offenses (1962) 35 So. Cal. L.Rev. 423; Wechsler, supra note 51.liS 1 Bl. Comm. Sec. 58.W Regina v. Prince (1875) L.R. 2 Cr. Cas. Res. 154, 163.60 Morissette v. U,S. (1952) 34,2 U.S. 246.~ Hammond v, King (Iowa 1908) 114 N.W. 10G2, 10G3.6ZKirchheimer, Criminal Omissions (1942) 55 Harv. L.Rev. 615, 636.es Fitzgerald, Real Crimes and Quasi Crimes (1965) 10 Natural Law Forum 21; Lord

DeVlin, The Enforcement of Morals (1965) pp. 26-42, Oxford University Press;Stroud, Mens Rea 11 (1914) ; State v. Laird (N. J, 1957) 135 AtI.2d 859, 862.

04 Model Penal Code, § 1.04 (5); Proposed Penal Law of New York, § 15.15.61; Fisher, Vehicle and Traffic Law, supra note 38 at 452-455; 31 Am. Jur., supra note 38

at 42-43; 50 C.J.S. supra note 38 at 783-784; A.B.A. Courts Trying Traffic Cases inIllinois (1958), Report for the Illinois Traffic Study Commission.

ee Gausewitz, supra note 53; Gausewitz, Considerations Basic to a New Penal Code(1936) 11 Wis. L.Rev. 346; Perkins, The Civil Offense, sUp"a note 53; Witkin,supra note 53; Perkins on Criminal Law, pp. 702-710.

~ § 1202, Pa. Veh. Code. 1958.os State v. Shoopman (N.J. Hl53) 94 At1.2d 493-494.Ilfj § 155, N.Y. Veh. and Traffic Law.70 Lord Devlin, The Enforcement of Morals (1965) pp. 26-42, Oxford University Press.'11 Sayre, supra note 57.72 Wechsler, supra note 51; Gausewitz, supra note 53; Johnston, A Plea for the Bearing

and Deciding of Traffio Cases, 33 North Carolina L.Rev. 1, 2.78 Perkins on Criminal Law, supra note 53 at 708.U Cal. Rules of Court, Rule 850; see Twentieth Biennial Report (1965) 50.

42 JUDICIAL COUNCIL OF CALIFORNIA

could he charged wibut it does not appelhas shown a wilful 0

a heavy fine nor jai.Jtion, so that the mlunnecessary as a pr8

Also it may be qtions for a fourthmaking a fourth in:viction for an infra$250 fine or a 90·(usually imposed. F\could result in revMotor Vehicles,78 slicense is revoked talty of $500 fine I

double that upon aFurther, classify

would reduce to setions system for co

For these reaSOD12 months should t

New York Law on Tr'New York is the

fractions and decl" thatNewYork'si

examine its provisThe violation '

or of any law, orwhich is not decllthe state to be anot a crime.80 Foas misdemeanors,formation need bbureau or whencused is entitledfense with whichthe same exactne:

The defendantthe effect of a p:whether the viollcode, however, re'18 Veh. Code §§ 1335!'" Veh, Code § 14601;so N.Y. Vehicle and.81 People v. Karnow,

People v. Nagel8'.1 § 155 supra note 883 Peopie v. SZyman~& People v. Bell (19as People v. Pier (19IlO People v. Mortice

McKinney's Co­87 People v. Duell ('

1

75Veh. Code § 40512. Forfeiture of ban is equivalent to a conviction (Veh. Code § 1803).Seventy·three percent of the nonparking traffic filings and more than 90% of theparking filings were handled by ball forfeitures in the municipal courts last year,(See Annual Report of the Administrative Office of the California Courts (1966)50,106,)

711 Amendment of May 28, 1965.'17 Letter of October 13, 1966, from Mr. Ernest Besig, Executive Director of the AmerIcan

Civil Liberties Union of Northern Cal1fornia, to Mr. Ralph N. Kleps.

is forfeited without further proceedings.75 Thus, while California lawauthorizes jail as an immediate sandion for a first offense, the practiceis otherwise and the alternative jail sentence is used merely to assurepayment of the fine. ,

In view of the weight of authority that such offenses are not properly,classifiable as crimes and of the fact that criminal sanctions are notused, it seems desirable that both the criminal classification and theimmediate sanction of jail be eliminated and an appropriate cla.'5sifica·tion and sanctions be provided which conform to the noncriminal natureof minor traffic regulations and to the enforcement needs and practicesin such cases.

Classification of Repetitive Offenses

Assembly Bill No, 845, introduced in the 1965 Regular Session tocreate a system of noncriminal traffic infractions, by an amendmentmade on May 6, 1965, added the proviso "that exclusive of violationsrelating to the standing or parking of an unattended vehicle and thoseenumerated in Section 21962, each traffic infraction or combinationthereof in excess of three within the immediately preceding twelvemonths period shall constitute a misdemeanor to which the provisions ofthis section shall not apply." The merits of such a provision is question.able, and it was deleted from the bill by a subsequent amendment.76

'l'reating a violation as a more serious otIense by reason of prior vio­lations is not unique. For example, petty theft with a prior convictionis treated as a felony instead of a misdemeanor, However, making acriminal offense a more serious one by reason of a prior is different thantreating as a crime what would otherwise be a noncriminal matter.The reasons for classifying these kinds of violations as noncriminal reg­ulatory offenses and for removing them from the criminal law stillapply,

Another objection that has been raised is that a defendant mightprefer to pay the fine rather than contest an infraction charge eventhough he may be innocent. On a fourth violation such a defendantcould be charged with a misdemeanor and subject to imprisonment,with the punishment actually based upon all four violations but with­out the right to a jury trial on the first three. 77 This possibilitytroubles those interested in preserving the jury trial for cases leadingto j ail as a sanction.

Treating a fourth or subsequent infraction as a misdemeanor can be >

criticized on other grounds. It appears that the main reason for treat- •J,

ing a repetitive violator as a misdemeanant is the belief that the recordof priors indicates a wilful or negligent disregard of traffic laws. Fre·quently, however, a driver cited for a traffic violation may be chargedwith more'than one violation on the same citation, such as failure to 'I'make a full stop at a stop sign, failure to display the vehicle registra·tion and failure to have proper lighting equipment. If convicted of allthree infractions, the driver on his second citation within 12 months

Llifornia lawth e practice

lly to assure

not properlyions are not.ion and theLte classifica­ninal nature.nd practices

I' Session toamendment

of violations~le and thosecombination,ding twelveprovisions of1 is question­Iment. 76

of prior vio­)1' conviction'1', making aifferent thanLinal matter.,riminal reg­nal law still

ndant mightcharge evena defendantnprisonment,ns but with­s possibility,ases leading

eanor can beon for treat­at the recordIc laws. Fre­y be chargedas failure to.icle registra­lvicted of alln 12 months,. Code § 180,).han 90 % of theourts last year.

Courts (1966)

)f the American

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1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 43

could be charged with a misdemeanor and be entitled to a jury trial,hut it does not appear that a driver with this kind of record necessarilyhas shown a wilful or negligent disregard of the law. Moreover, neithera heavy fine nor jail would normally he imposed upou the second cita­tion, so that the misdemeanor charge and jury guaranty would seemunnecessary as a practical matter in such a case.

Also it may be questioned whether criminal classification and sanc­tions for a fourth infraction would serve a useful purpose. Withoutmaking a fourth infraction a misdemeanor, a third or subseuqent con­viction for an infraction within a year would authorize imposition of a$250 fine or a gO-day license suspension, well above the punishmentusually imposed. Furthermore, a fourth or subsequent moving violationcould result in revocation of a driver's license by the Department ofMotor Vehicles,78 subjecting a person who continues driving after hislicense is revoked to a misdemeanor charge, carrying a maximum pen­alty of $500 fine and six months in jail upon a first conviction anddouble that upon a second conviction within seven years.79

Further, classifying the fourth infraction as a misdemeanor probablywould reduce to some extent the relief otherwise offered by an infrac­tions system for court congestion.

For these reasons it does not appear that a fourth infraction within12 months should be classified as a misdemeanor.

New York Law on Traffle Infractions

New York is the only state which has designated traffic offenses as in­fractions and declared them not to be crimes. While it is not proposedthat New York's infractions law be copied in California, it is useful toexamine its provisions.

The violation of any provision of the Vehicle and Traffic Law,or of any law, ordinance, order, rule, or regulation regulating trafficwhich is not declared by the Vehicle and Traffic Law or other law ofthe state to be a misdemeanor or felony is a traffic infraction and isnot a crime80 For procedural purposes, trafiic infractions are treatedas misdemeanors,81 except that no jury trial is allowed 82 and no in­formation need be filed when a fine is paid through a traffic violationsbureau or when an information is waived 83 Unless waived, an ac­cused is entitled to a written information clearly stating the exact of­fense with which he is charged,B4 although it need not be stated withthe same exactness as an information charging a misdemeanor85

The defendant has a right to be arraigned and to be informed as tothe effect of a plea of guilty.B6 The statutory warning must be given,whether the violation be an infraction, misdemeanor or a felony87 Thecode, however, relieves the court of the duty of informing the defendant"Veh. Code §§ 13359, 12809,12810."Veh. Code § 1460l.BON.Y. Vehicle and TraffIc Law § 155; People v. Malmud (1957) 164 N.Y.S.2d 204.81 People v. Karnow (1953) 123 N.Y.S.2d 53; People v. Wilson (1957) 168 N.Y.S.2d 391:

People v. Nagell (1960) 206 N.Y.S.2d 654.8lI § 155. supra note 80.83 People v. Szymanski (1959) 188 N.Y.S.2d 707."Peoplev. Bell (1914) 148 N.Y.S. 753."People v. Pier (1953) 121 N.Y.S.2d 342; People v. Osborn (1958) 175 N.Y.S.2d 705.8ISPeople v. Mortice (1957) 167 N.Y.S.2d 512; DeLynn v. MacDuff (1953) 305 .Y. 501;

McKinney's Code of Criminal Procedure § 335-a.'" People v. Duell (1955) 145 N.Y.S.2d 690.

$9 Supra, p. 34.100 Supra, p. 31.101 Veh. Code §§ 1280!~ Fortner v. Bruhn

tained in Evid. (103 Conviction as Di.

Another Jurisdil101 Supra, note 98.UlG 11 Cal.Jur.2d. C011

1967 REPOl

The Model Penal Ction" shall not givon conviction of a

Proposals for re,California wouldattendance at a selties or legal disadv.fraction would be ;Department of Moof a negligent operl

The New York Igests the possibilita witness in New 1a traffic infractiontection, however, fin this state is COl

poses, the Model Ito be required inconviction of a trtherefor or fromcriminal offense. ]wise employed asthereby be ineligiltlons of rules ofthan on the basis'is no suggestion tltion violations as i

While the requPenal Code prov:and treatment forin the same wayarise when anoth'on one convictedinfractions in Calprovided that a 'imposed therefornal punishment.'some kind of puloffense or otherw.state to state. "Punsettled conditithan conflict of 18

It would be diincluded in the :other jurisdictio:

JUDICIAL COUNCIL OF CALIFORNIA

>

Disabilities '7~The New York law provides: " .A traffic infraction is not a crime and, '[

the punishment imposed therefor shall not be deemed for any purpose .a penal or criminal punishment, and shall not affect or impair the, .credibility as a witness, or otherwise, of any person convicted thereof "98 '.

88 McKinney's Code of Criminal Procedure § 335-a. . : ; ~.8ll N.Y. Vehicle and Tramc Law, Title VII, §§ 1100-1236. . .jfY"N.Y. Vehicle and Traffic Law § 1192. See Columbia v. Colts (1930) 282 U.S. 63. ' I,',"Squadrlto v. Grlebsch (1956) 154 N.Y.S.2d 37. I ".9!1 N.Y. Vehicle and Traffic Law § 155. This section was amended in 1959 to provide for r

arrest without a warrant upon an infraction as held in the Squadrito case. It would 1appear that a general statutory provision making all provisions of law relating to .. 1misdemeanors applicable to infractions would include authority to arrest, search,seize and the like.

.. People v. PhlJ1ps (1940) 284 N.Y. 235 : Code of Crim. Proc. §§ 894 and 900.

~ Nek~~§~ f80&n:~~uJ~8~' C'";;ie~~. ~~~de~(~1cJ~)a~~5~~~~~~~~\l8~5~~8~~:;r:aiA~~ t (of New York (1954) 136 N.Y.S.2d 111: People v. Bevilacqua (1958) 170 N.Y.S.Zd· ~. [.4.23, reversed on other grounds in 182 N.Y.S.2d 1&. See supra note 38, and text for ~.U.S. Supreme Court and state decisions upholding summary proceedings in petty ~:

offenses. '~.J"People v. Letterlo and People v. Kohler (1965) ·16 N.Y.2d 307 and 266 N.Y.S.2d 368, ','

citing article 18-B of the Code of Criminal Procedure (L. 1965, ch. 878), expressly F­excepting those charged with traffic infractions from the class included under thenew statutory scheme for providing counsel to indigent defendants. and citing Mc­Donald v. Moore (5th Cir., 1955) 353 F.2d 106, to the effect that Federal Courtsrecognize the possibility of a rule limiting the implementation of the right to coun­selin the prosecution ot petty offenses.

.. N.Y. Vehicle and Traffic Law, § 1800.er § 1801.a. supra note 96.os Vehicle and Traffic Law § 155.

44

as to the effect of a plea of guilty where a sufficient statement of the'effect is printed on the ticket or summons.S8

Among the acts or omissions constituting traffic infractions under'the Vehicle and Traffic Law are those pertaining to speeding, disobeying'signs and signals, violating rights of way, improper turning, passing,parking violations, improper operation of bicycles and play vehicles,and pedestrians' rights and duties.89 Operating a motor vehicle whileone's ability to operate such motor vehicle is impaired by the con­sumption of alcohol is an infraction, whereas reckless driving and'operating a motor vehicle while intoxicated are misdemeanors.9o

The purpose of the legislature in denominating a traffic law viola­tion as an infraction was to prevent the offender from being adjudgedand treated as a criminal.91 The Vehicle and Traffic Law, however,permits arrest without a warrant in the case of a traffic infraction,which is deemed a crime for such purpose.92 This is in contrast to thel

lack of such police power in the case of other petty offenses, exceptvagrancy, fortune telling and breach of the peace.93 The majority ofprocedural safeguards afforded a criminal are available to the offender,however, except that he is triable summarily,94 and as recently held bythe New York Court of Appeals, a defendant on a traffic infractionneed not be advised of his right to counsel and has no right to anassignment of counse1.95

The penalties provided for most traffic infractions are a maximum'.of $50 or 15 days in jail for a first offense, $100 or 45 days in jail fora second offense within 18 months, and $250 or 90 days in jail for athird or subsequent offense within 18 months of the first, or in each.instance by both such fine and imprisonment.96 For violations of thebasic speed law the possible penalty is double that above for otherinfractions.97

45l'at of the

us underisobeying

passmg,vehicles,

cle whilethe con­

ving and:S.90

aw viola­adjudgedhowever,Ifraction,1st to the's, excepttjority ofoffender,

y held by.nfraction~ht to an

maXImumn jail forjail for aI' in eachns of thefor other

~rime and Iy purpose>npan the

I,ereof. " 98,,,

.s. 63. rprovide for

.se. It wouldI relating torest, search,

:onservationuage v. Cityl70 N.Y.S.2dand text tor Ings in petty

l.Y.S.2d 368, !:), expressly~d under the

Id citing Mc-deral Courts19ht to coun-

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1967 REPORT TO THE GOVERNOR AND 'l'HEl LEGISLATURE

The Model Penal Code similarly provides that conviction of a "viola­tion" shall not give rise to any disability or legal disadvantage basedon conviction of a criminal offense.99

Proposals for reclassifying minor traffic violations as infractions inCalifornia would provide as penalties a fine, license suspension orattendance at a school for traffic violators. lOo The only other" disabili­ties or legal disadvantages" resulting from a conviction for a traffic in­fraction would be those specifically provided, e.g., the authority of theDepartment of Motor Vehicles to refuse to renew the driver's licenseof a negligent operator. lOl

The New York provision concerning the credibility of a witness sug­gests the possibility that in the absence of such a provision in its lawa witness in ew York could be impeached upon proof of conviction ofa traffic infraction. A witness in California would need no such pro­tection, however, for the only conviction serving to impeach a witnessin this state is conviction of a felony.102 Thus, for domestic law pur­poses, the Model Penal Code and New York provisions do not appearto be required in California, where the only disabilities flowing fromconviction of a traffic infraction would be those specifically providedtherefor or from its character as a traffic violation rather than as acriminal offense. For example, a taxi driver, truck driver or one other­wise employed as a chauffeur might be refused a necessary permit andthereby be ineligible for employment as a result of convictions of viola­tions of rules of the road indicating negligent driving habits, ratherthan on the basis that such violations may be public offenses, and thereis no suggestion that this effect would be modified by reclassifying cer­tion violations as infractions.

While the requirements of domestic law are met without the ModelPenal Code provision, it is possible that a noncriminal classificationand treatment for lesser traffic violations in California might not applyin the same ,vay outside the state. A conflict of laws question couldarise when another jurisdiction, considering imposition of a disabilityon one convicted of a public offense, has before it convictions of trafficinfractions in California. loa For example, only New York has expresslyprovided that a "traffic infraction is not a crime and the punishmentimposed therefor shall not be deemed for any purpose a penal or crimi·nal punishment." 104 Elsewhere, a traffic violation may be classified assome kind of public offense, whether designated a misdemeanor, pettyoffense or otherwise, and the consequences of conviction may vary fromstate to state. "Perhaps no branch of the law is in a more formative orunsettled condition, or presents questions of a more complex nature,than conflict of laws. " 105

It would be difficult, however, to justify a provision similar to thatincluded in the Model Penal Code solely un the basis of its effect inother jurisdictions. If a court in another state looked to the law oftl9 Supra, p. 34.100 Supra, p. 31.101 Veh. Code §§ 12809 and 12810.l~ Fortner v. Bruhn (1963) 217 CaLApp.2d 184, 190; Code Civ. Proc. § 2051, now con­

tained in Evid. Code § 788.lOS Conviction as Disqualification (1948) 175 A.L.R. 784; Witnesses-Conviction in

Another Jurisdiction (1917A) L.R.A.1138.104 Supra, note 98.100 11 Cal.Jur.2d. Conflict of Laws § 3 at 39.

46 JUDICIAL COUNCIL OF CALIFORNIA

a lawyer, cannot be as~

him. This seems to u:state and federal, quitllish machinery to tryecute are everwhere dest in an orderly socie1with crime, few indeeget to prepare and preyers to prosecute andto defend are the strolawyers in criminal coone charged with crinand essential to fair tthe very beginning, oulaid great emphasis onto assure fair trialsfendant stands equal'ized if the poor manwithout a lawyer to aconviction of a felonyeral times of the rigllife or liberty is at stthese cases involved fBlack's opinions coveidemarcation betweenMr. Justice Clark inteenth .Amendment 1"

'liberty' just as for. ially be a difference ~I

supposed difference l~

concurring in the dec1matically impose anbut Mr. Justice Dou!". . . rights protectelof the Fourteenth .Anthe Bill of Rights gu:

On the scope of thethe United States 81indicating a line oj·charges.ll5 :Mr. J us~j(

tices in Btde v. IUt'llprison as a penalty isments. It might not 1where between thatof a parking ordin,;nthe former but not III

110 Gideon v. Wainwright,;ill Johnson v. Zerbst, 8uprel.U Gideon v. Wainwright,;113 ld. at 352.11"' ld. at 347. . .us Supra note 109, Clbng

Illinois (1948) 333 U.

\

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California it would find that a California traffic infraction would notbe a crime and no disability or legal disadvantage would accrue froma conviction except such as is expressly provided by law, i.e., loss ofthe driving privilege. If the state chose to apply its own law regard­ing the classification of the offense and the effect of a conviction forsuch an offense, the addition of the Model Penal Code provision to theCouncil's proposal would have no effect.

Moreover, if such language were added California courts might giveit an unintended meaning. For example, a court might hold that itwas added to prevent the Department of Motor Vehicles from takingadministrative action based on a conviction for a traffic infraction.

For these reasons it does not appear that such a provision should beincluded in any California proposal.

106 Supra, p. 31. ,.107 Gideon v. Wainwright (1963) 372 U.S. 335, 340, citing Johnson v. Zerbst (1937) 304

U.S. 458; for a recent annotation on the subject, see Accused's Right to Assistanceof Counsel at or Prior to Arraignment (1956) 5 A.L.R.3d 1269; see also Annotationreferences to Miranda v. Arizona (1966) 384 U.S. 436. 16 L.Ed.2d 694.

t.:l8Notel07, supra.109 9 L.Ed. 2d Anno. 1260-1261 ; Anno. 93 A.L.R.2d 750-761; Constitutional Guaranty of

Right to Appear by Counsel as Applicable to Mi8demeanor Case, Anno., 4'2 A.L.R.1157.

Infractions Procedure

The traffic infractions system discussed herein contemplates that, ingeneral, misdemeanor procedures would apply but there would be noright to a jury trial. 106 In addition to the elimination of jurytrials, however, there are other procedural modifications that shouldbe considered in an effort to provide a simplified but effective systemfor such cases.

For most persons it is not economically feasible to make severalvisits to court to be heard on a traffic ticket or to hire connsel insnch a case. .Any system for traffic infractions should, wherever pos­sible, incorporate simplified procedures consistent with the needs insuch cases. For example, it may be possible to modify procedures onbail, arraignment, plea and sentencing, as well as to relax rules ofevidence, to improve the opportunity to be heard in infractions cases.

.Among the procedural modifications that have been considered are: ..

1. Right to CounselThe Sixth .Amendment of the United States Constitution provides,

"In all criminal prosecutions, the accused shall enjoy the right ...to have the assistance of counsel for his defense." This provisionhas been construed "to mean that in federal courts counsel must beprovided for defendants unable to employ counsel unless the right iscompetently and intelligently waived." 107 In Gideon v. Wainwrigh-t 108 "this requirement was held to apply to the states also under the dueprocess clause of the Fourteenth .Amendment.

.A basic question not yet clearly resolved by the United States Su­preme Court is whether the Fourteenth .Amendment requires a state ";to appoint counsel to defend an accused charged with a minor offense.The Gideon case involved a felony, but the court spoke of indigents"charged with crime" rather than indigents charged with felonies. 109 .~."Mr. Justice Black in the court opinion in Gideon wrote: " ... reason .fand reflection require us to recognize that in our adversary system of ~1

criminal justice, any person haled into court, who is too poor to hire

..

would not:crue frOI11.e., loss ofLW regard­fiction foriion to the

llight give,ld that itom taking·action.should be

es that, in,uld be no: of jurytat shouldi"e system

ke several)ounsel inrever pos-

needs in:edures on{ rules ofIons cases.lered are:

provides,right ...prOVISIon

I must beIe right isIwright lOS

l' the due

3tates Su­es a stateor offense.indigents

'elonies. 109

... reasonsystem ofor to hire

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1967 REPORT TO THE GOVERNOR A 'D THE LEGISLATURE 47

a lawyer, cannot be assured a fair trial unless counsel is provided forhim. This seems to us to be an obvious truth. Governments, bothstate and federal, quite properly spend vast sums of money to estab­lish machinery to try defendants accused of crime. Lawyers to pros­ecute are everwhere deemed essential to protect the public's inter­est in an orderly society. Similarl.v, there are few defendants chargedwith crime, few indeed, who fail to hire the best lawyers they canget to prepare and present their defenses. That government hires law­yers to prosecnte and defendants who have the mO'ney hire lawyersto defend are the strongest indications of the widespread belief thatlawyers in criminal courts are necessities, not luxuries. 'l'he right ofone charged with crime to counsel may not be deemed fundamentaland essential to fair trials in some countries, but it is in ours. Fromthe very beginning, our state and national constitutions and laws havelaid great emphasis on procedural and substantive safeguards designedto assure fair trials before impartial tribunals in which every de­fendant stands equal before the law. 'rhis noble ideal cannot be real­ized if the poor man cbargcd with crime has to facc his accuserswithout a lawyer to assist him." 110 In an earlier opinion involving aconviction of a felony in a federal court Mr. Justice Black spoke sev­eral times of the right to counsel applying in behalf of one whoselife or liberty is at stake in a criminal prodeedingyl While both ofthese cases involved felony prosecutions, the language in lVIr. JusticeBlack's opinions covers all criminal prosecutions without any line ofdemarcation between serious and minor offenses. As pointed out byMr. Justice Clark in his concurring opinion in Gideon, "Thc Four­teenth Amendment requires due process of law for the deprival of'liberty' just as for deprival of 'life', and there cannot cOllstitntion­ally be a difference in the quality of the process based merely upon asupposed difference in the sanction illvolved." 112 Mr. Justice Harlan,concurring in the decision, expressed his view that G,:deon did not auto­matically impose an entire body of federal laws on the statcs,"3but Mr. Justice Douglas, in a concurring opinion disagreed, saying," ... rig-hts protected against state invasion by the Due Process Clauseof the Fourteenth Amendment are not watered-dmYlI versions of whatthe Bill of Rights guarantees." 11-1

On the scope of the right to counsel in the federal courts opinions ofthe United States Supreme Court before Gideon contained languageindicating a line of demarcation between serious and nonseriouschargesll " Mr. Justice Douglas, speaking for the four dissenting jus­tices in BlIte v. Illinois said, "A man who suffers up to 20 years inprison as a penalty is undergoing one of the most serious of all punish­ments. It might not be nonsense to draw the Betts v. Brady line some­where between that case and the case on one charged with violationof a parking ordinance, and to say the accused is entitled to counsel inthe former but not in the latter. " The test, he thought, was the need for110 Gideon v. Wainwright, supra note 107 at 344.m Johnson v. Zerbst, supTa note 107.112 Gideon v. Wainwright, supra note 107 at 349.mia. at 352.114 ld. at 347.ill Sup"U note 109, citing Uveges v. Pennsylvania (1948) 335 U.S. 437 and Bute v.

Illinois (1948) 333 U.S. 640.

: (1937) 304Q A 8s1stanceI Annotation

Guaranty of \)l., 42 A.L.R.

__..1 ........=-=5=""""'..

48 JUDICIAL COUNCIL OF CALIFORNIA TI

l.22[d. at 108-0'123 City of TaCt

State of ~124 In re Carafu:; Fish v. SlatUll Tucker, Tnt

173-74.127 Ibid.l2B People v. LEl.ZI People v. LE

inal Proe130 Citing Han131 Supra. note182 The MeDon

sustain 01

seem that inlawyers thanstudents, wh(Justice plans

Recent sta'to counsel inright to COUD

\. fenses." 124 ,

Gideon doctlmeanor cases

As noted bof the rigbt 1he asks, "bewhere the p'that the SUImisdemeanor

It shoulda felony, mi:convicted de:

The New'sel did noteven wherethree otherto pay a finin jail, plussentenced todays in thelicense suspe

New Yorkfractions arLegislaturefractions ff<providing cfound no stinfraction 0:

that the rig]consideredMoore 131 f(implementaloffenses.132 ]

are, historicdisposition.of miscond\

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I110 Supra note 115 at 682.m 126 F.2d 633 (1942).llll [d. at 638. See also Rule 44(a) of the Federal Rules of Criminal Procedure as

amended by the Supreme Court effective July I, 1966, which provides as follows:"44 (a) Right to Assigned Counsel. Every defendant who is unable to obtain counselshall be entitled to have counsel assigned to represent him at every stage of the pro­ceedings from his initial appearance before the commissioner or the court throughappeal, unless he waives such appointment." The Advisory Committee Notes aC­companying this revision of the rules commented with reference to Rule 44. "Likethe original rule the amended rule provides a right to counsel which . .. extends topetty offenses to be tried in the district courts . .. .. (Proposed Rules of CriminalProcedure (1966) 39 F.R.D. 168, 202.)

no 340 F.2d 263 (1965).120 [d. at 27l.W McDonald v. Moore (1965) 353 F.2d 106.

counsel" . measured by the nature of the charge and the ability ofthe avemge man to face it alone, unaided by an expert in the law." 1I6

In Evans v. Rives,117 which involved a prosecution on a federal mis­demeanor charge, the Court of Appeals for the District of Columbiaheld that failure to advise the defendant on arraignment that he hadthe right to the assistance of counsel violated his constitutional rightto counsel, and refused to accept the suggestion that the right appliesonly to serious offenses. On that point the court said: "No such differ­entiation is made in the wording of the guaranty itself, and we arecited to no authority, and know of none, making this distinction. Thepurpose of the guaranty is to give assurance against deprivation oflife or liberty except strictly according to law. The petitioner wouldbe as effectively deprived of his liberty by a sentence to a year in jailfor the crime of non-support of a minor child as by a sentence to a yearin jail for any other crime, however serious. And so far as the right tothe assistance of counsel is concerned, the Constitution draws no dis­tinction between loss of liberty for a short period and such loss for along one. " 118

Quoting the above language, the Court of Appeals for the FifthCircuit in Harvey v. State of Mississippi recently applied this rule to astate misdemeanor prosecution119 The defendant had been sentenced bya Justice of the Peace to pay a $500 fine and serve 90 days in jail on thecharge of illegal possession of whiskey. On the question of the applica­tion of the Evans v. Rives rule to state prosecutions the court said:"While the rule as thus stated has never been expressly extendedto misdemeanor charges in state tribunals, it has been argued that sucha principle is implicit in the Supreme Court's decision in Gideon v.Wainwright. Be this as it may, the reasoning in Evans along withother recent right-to-counsel decisions persuades us that we shouldapply that rule in the present case." 120

The same court followed Harvey in a subsequent case involving astate misdemeanor prosecution in which the appellant had entered pleasof guilty without being advised of her right to counsel on charges ofillegal possession and sale of whiskey and was sentenced to pay afine of $250 or serve six months in jail on each charge."21 While holdingthat the defendant had a right to counsel in the case before it, thecourt stated: "It seems unlikely that a person in a municipal courtcharged with being drunk and disorderly, would be entitled to theservices of an attorney at the expense of the state or the municipality.Still less likely is it that a person given a ticket for a traffic violationwould have the right to counsel at the expense of the state. If theConstitution requires that counsel be provided in such cases it would

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 49

seem that in many urban areas there would be a requirement for morelawyers than could be ·made available. Even with the assistance of lawstudents, whose services may be requested under some of the CriminalJustice plans, the demand might come near exceeding the supply." 122

Recent state court decisions have been divided concerning the rightto counsel in cases other than felonies. Some courts have held that theright to counsel applies to misdemeanors 123 and to "quasi-criminal of­fenses." 124 The Florida Supreme Court, however, has limited theGideon doctrine to felonies and denied the right to counsel in misde­meanor cases.125

As noted by one writer, where the line will be drawn for applicationof the right to counsel awaits future determination126 "Must counsel,"he asks, "be assigned to assist an indigent accused of a traffic offense,where the punishment can be fine or imprisonment? ... It may bethat the Supreme Court will refuse to draw a line between felonies,misdemeanors and other offenses. " 127

It should be noted that in all of the above cases, whether involvinga felony, misdemeanor, petty offense or quasi-criminal proceeding theconvicted defendant could be sentenced to imprisonment.

The New York Court of Appeals recently held that the right to coun­sel did not apply in behalf of one charged with a traffic infraction,even where imprisonment was imposed.128 For seven speeding andthree other "moving" violations one defendant had been sentencedto pay a fine of $1,030, or in default of payment to serve 135 daysin jail, plus 42 days' imprisonment, and another defendant had beensentenced to pay a fine of $100, or in default of payment to serve 30days in the workhouse, plus 10 days' imprisonment and six months'license suspension on a speeding violation.

New York is the only state which has designated traffic offenses as in­fractions and declared them not be crimes. In 1965 the New YorkLegislature further expressly excepted persons charged with traffic in­fractions from the class included under the new statutory scheme forproviding counsel to indigent defendants129 The court accordinglyfound no statutory duty to inform a defendant charged with a trafficinfraction of his right to counseL While the majority opinion recognizedthat the right to counsel ordained by the Federal Constitution had beenconsidered to extend to misdemeanor cases,130 it cited McDonald v.Moore 131 for its recognition of the possibility of a rule limiting theimplementation of the right to counsel in the prosecution of pettyoffenses.132 In support of the decision the majority opinion said: "Thereare, historically, certain minor transgressions which admit of sUIDmarydisposition. New York has long deemed traffic infractions as a formof misconduct distinguishable from more serious breaches of the law,12'J ld. at 108-09,1~ City of Tacoma v. Heater (Washington, 1966) 409 P.2d 867,869. See also Manning v.

State of Maryland (965) 206 A.2d 563.12. In re Garafone (1'\.3, 1963) 193 A.2d 398, 405-06.", Fish v. State (1964) 159 So.20 866.128 Tucker, The Supreme Court and the Indigent Defendant (1964) 37 So. Cal. L.Rev. 151,

173-74.127 Ibid.128 People v. Letterio and Kohler (1965) 213 N.E.2d 670, 16 N.Y.2d 307, 266 N.Y.S.2d 368.12llPeople v. Letterio and Kohler, supra note 128, citing Article 18-B of the Code of Crim-

inal Procedure (L. 1965, ch. 878).uo Citing Harvey v. State of Mississippi, supra note 119.131 Supra note 121,1.32 The McDonald opinion, however, pointed out that such a rule would be difficult to

sustain on any legal ground. Supra .. note 121 at 109.

~I,\

I

)I.\!

J____ifn _

lina! Procedure asrovides as follows:,Ie to obtain counselry stage of the pro­r the court through,rnmittee Notes ac­e to Rule 44, "Likehlch . .. extends to~ Rules of Criminal

ase involving ald entered pleas:1 on ch arges ofmced to pay a1 While holdinge before it, thenunicipal courtentitled to the

le municipality.traffic violationle state. If thel cases it would

, for the Fifthed this rule to a·en sentenced byys in jail on thel of the applica­the court said:ressly extendedrgued that suchm in Gideon v.'ans along withthat we should

ld the ability ofin the law." 116

n a federal mis­ict of Columbiaent that he had,titutional righthe right applies'No such differ­elf, and we aredistinction. Thedeprivation of

letitioner would;0 a year in jailntence to a yearr as the right ton draws no dis-such loss for a

·-·-t' -~._'-----~_~~__=~ ....,... _

50 JUDICIAL COUNCIL OF CALIFORNIA

or crimes (Penal Law, § 2; Vehicle and Traffic Law, § 155). Whilenot controlling, we believe that this time-honored distinction support"our conclusion that a traffic court need but assure the defendant afair forum in which to be heard. As a practical matter, the traffic courtJudge often sits as prosecutor, defense counsel, and Judge. Neitherthis triune function, nor the failure of a traffic court Judge to advisethe defendant that he may have counsel, is so unfair as to require theresult urged by the dissenters." 133

After pointing out that the Vehicle and 'l'raffic Law expressly pro­vides that" [a] traffic infraction is not a crime and the ... puniSh­ment imposed therefor shall not be deemed for any purpose a penalor criminal punishment ... " Judge Bergan in his concurring opinionsaid: "A traffic violation in New York carries a penalty, therefore,but it is not a criminal penalty even though the procedural forms oflaw followed in criminal courts are, as a matter of judicial convenience,also employed in traffic cases (Vehicle and Traffic Law, § 155). Thepenalty is something in the nature of a community sanction or civilpenalty but it is not in any respect punishment for a crime. There maybe a fine and, in extreme but very rare cases, a jail sentence, but thesetoo are similar to certain civil compulsions which the law exerts.

",Ve should not, therefore, as a matter of consistence, apply to thenoncriminal class of offense all the weight and the solemn constitutionalprocedural mechanisms that we have learned to apply to criminal cases.The distinctions that have been carefully spelled out by the Legislaturein this class of offense render it unwise as a matter of policy to treattraffic offenders as we treat persons charged with crime. " 134

In a dissenting opinion Chief Judge Desmend called attention to arule adopted by the Supreme Court of Massachusetts in 1964 requiringthat a defendant be told about his right to counsel and assignment ofcounsel, whenever charged with any crime for which a sentence of im­prisonment may be imposed. 135 In his view the possibility of imprison­ment imposed under a criminal procedure was more meaningful thanthe statutory noncriminal designation in determining whether the de­fendant was entitled to the constitutional guaranty of the right tocounsel136 Supporting his view is the position taken by the drafters ofthe Model Penal Code, that if, as in New York" ... a sentence of im­prisonment is authorized (as an immediate sanction upon convictionrather than merely to coerce the payment of a penalty) it is an inad­missible semantic manipulation to declare that the offense is not acrinle. " 137California

The California Constitution provides in Article 1, Section 13: "Incriminal prosecutions in any court whatever, the party accused shallhave the right ... to appear and defend, in person and with counsel,"and Article 1, Section 8, protects the right at the preliminary examina­tion138 Supplementing the Constitution, statutes provide for advisinglas Supra note 128 at 672.13~ Supra note 128 at 672-73.1~5 Citing 347 Mass. 809.1Sll Sup1'a note 128 at 674 and 676.137 See supra, p, 34.ISS See Witkin, California Criminal Procedure (1963) p. 354. For articles on the right to

counsel in California, see Witkin at pp. 130-132, 347-385, and 631-34; 14 CaI.Jur,2d, Criminal Law, §§ 146 et seq,; D'uty to Advise of Right to Counsel, 3 A.L.R.2d1003, 1033; The Right to Couns-eZ in Misderneanor Cases (1960) 48 Cal.L,Rev.501-505.

a defendant in clissignment of co"compensation of afender140

The Californiaconstitutional rig]ceedings is, in C:equally guaranteEpaloI' other inferfendant had beencourt collectivelyassignment of COl

pleas to five counlother Vehicle Coeother cases had ]sentences of 180 ea total of 900 da)The record conta:waived his right·do not specify thfendants of theirfast rule will acement courts the ~

collectively but I:affirmative ShOWi'1defendant beinga valid waiver, ]somewhat less st:misdemeanor casetions, adverted t.ants of their riglthat the typical!;urgent problemsis particularly tJcalled upon to decases, vagranciesimpairment of thhowever minor bof valid ways toconstitutional rigthe court shouldthe vast majorit)the judge's interselves sufficientl)ances in the firs'such defendant aof defending hirrCompliance with189 See Pen.Code § § €

3 A.L.R.3d 1003­140 Pen. Code § 987a, (

Atty. Gen. 33 (l141 In re Johnson (19

, § 155). Whileinciion supportl:;the defendant athe traffic court.Judge. Neither

Judge to adviseis to require the

w expressly pro­the . . . punish­purpose a penallCUHll1g Opll11On

nalty, therefore,~edural forms ofcial convenience,aw, § 155). Thesanction or civilrime. There mayo.tence, but these,wexerts.Ice, apply to thenn constitutionalto criminal cases.y the Legislature,f policy to treat" 134

~d attention to an 1964 requiring1d assignment of1 sentence of im­Jity of imprison­meaningful thanwhether the de­of the right to

y the drafters ofa scntence of im­upon convictiony) it is an inad­offense is not a

Section 13: "Inrty accused shalld with counsel,"minary examina­,ide for advising

rtlcles on the right toI 631-34; 14 Cal.Jur.

Counsel, 3 A.L.R.2d1960) 18 CaI.L.Rev.

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 51

a defe'ndant in criminal prosecutions of his right to counsel and toassignment of counsejl39 In addition, statutory provision is made forcompensation of assigned counsel and representation by the public de­fender. Ho

The California Supreme Court has declared "that the fundamentalconstitutional right to the assistance of counsel at all stages of the pro­ceedings is, in California at least, not limited to felony cases but isequally guaranteed to persons charged with misdemeanors in munici­paloI' other inferior courts." 141 In that case (In re Johnson) the de­fendant had been one of a large number of defendants in the trafficcourt collectively advised by the judge of their right to counsel and toassignment of counsel. Without counsel the defendant entered guiltypleas to five counts of driving with a revoked license, plus a number ofother Vehicle Code violations. After being required to wait until theother cases had been concluded he was sentenced to five consecutivesentences of 180 days on each count of driving with a revoked license,a total of 900 days, plus suspended sentences on the remaining counts.The record contained no declaration that the defendant had expresslywaived his right to counsel. Emphasizing that the statutory provisionsdo not specify the precise manner in which courts are to apprise de­fendants of their right to counsel and pointing out that no hard andfast rule will accommodate the diverse problems facing the arraign­ment courts the court upheld the judge in his advising the defendantscollectively but held that there was no valid waiver of the right, anaffirmative showing of an intelligent and understanding waiver by thedefendant being required. With respect to the showing required fora valid waiver, however, the court in its dictum indicated that "asomewhat less stringent rule might be constitutionally permissible inmisdemeanor cases" than in felony cases, saying: "Practical considera­tions, adverted to earlier in discussing methods of informing defend­ants of their rights, loom still larger at this point. We must recognizethat the typically crowded arraignment calendars of our courts poseurgent problems in the administration of justice in California. Thisis particularly true of those courts in large municipalities which arecalled upon to deal with an unending stream of traffic violations, drunkcases, vagrancies, and similar petty offenses. While there can be noimpairment of the fundamental constitutional rights of any defendant,however minor his crime, in certain situations there may be a choiceof valid ways to implement these rights. Where such is the case-andconstitutional rights are respected-the convenicnce of the parties andthe court should be given considerable weight. For example, probablythe vast majority of citizens haled into court on traffic violations sharethe judge's interest in prompt dispositiun of their cases, feeling them­selves sufficiently inconvenienced by having to makc personal appear­ances in the first place. To require the judge to orally examine eachsuch defendant at length for the purpose of determining his capabilityof defending himself would seem to be an idle and time-wasting ritual.Compliance with the spirit of the constitutional mandate that an in-'so See Pen. Code §§ 686, 858, 858.5, 859, 859'a, 859b, 860, 866.5, 087, 1018. See also Anno.

3 A.L.R.2d 1003-1033.uOPen.Code § 987a, Gov.Code § 27706. See 47 Ops. Cal. Alty. Gen. 50 (1966),43 Ops. Cal.

Atty. Gen. 33 (1964),36 Ops. Cal. Atty. Gen. 85 (1960).lU In re Johnson (1965) 62 Ca1.2d 325, 329.

---_.&_-------

JUDICIAL COUNCIL OF CALIFORNIA52

o-~·~~~~------------------T

\

priate in a criminacases involvlllg n~

there be no deprnexcept upon propelright to counsel antraffic infraction hlaw. HG

2. Bail and FinesThe most comma

for the appearanClticle I, Section 6 Isureties, unless fopresumption grea\Penal Code states:or magistrate tha

b '1 " 148upon a1."The sole purp'

attendance of theance may be lawjof revenue to the!

In traffic casespearance.150 For·purpose, with baforfeiture used t,As provided by tupon his writtenized to receive a \ise, he may dep\court and penal1raignment the ccfurther proceedi]this use of bail :does not necessar

telligent waiver of counsel must affirmatively appear in the record maybe efficiently achieved in such cases in a variety of acceptable ways. "142

The defendant in the Johnson case, however, was not one of thevast majority of citizens haled into court on traffic violations. Thecharges were serious; his case was specially held for sentencing afterthe others were completed and he was sentenced to two and one-halfyears in jail. The Supreme Court accordingly held that" In veiw ofthe multiplicity and potential seriousness of the charges the courtshould have made a reasonable effort, hefore accepting petitioner'spleas of guilty, to determine whether he understood his predicamentand was capable of representing himself effectively at all stages of theproceedings. " 143

Subsequently in a very recent case involving a charge of driving 53miles per hour in a 25 mile zone, a decision of the Court of Appealapparently obliterated any legal distinction insofar as waiver of coun­sel is concerned between serious violations such as were involved inJohnson and the run-of-the-mill traffic cases. The court held: "Yet,even though the offense is a minor one, constitutional rights of a de­fendant may not be diminished or forgotten. The critical question hereis whether respondent's conviction may be upheld where he has prop­erly been told of his right to counsel, hut the record is silent upon thequestion of waiver of that right. In Carnley v. Cochran, 369 U.S. 506,516, the court declared that' Presuming waiver from a silent record isimpermissible. The record must show, or there must be an allegationand evidence which show, that the accused was offered counsel butintelligently and understandingly rejected the offer. Anything lessis not waiver.'

"Although most cases in which the courts have declined to presumea waiver of the right to counsel when the record is silent are felonycases involving serious crimes, the court in Johnson applied the ruleof Cal"nley v. Cochran in a misdemeanor traffic case. It is true thatJohnson may readily he distinguished from the instant case. Obviouslythe cumulative sentences totaling 900 days in jail imposed in Johnsonare much more severe than the one day jail sentence given to respond­ent here. Nevertheless we hold that where, as here, loss of personalliberty may, and actually does, result upon conviction, even though theoffense be classified as a mere misdemeanor, the record must affirma­tively show that the accused was notified of the right to counsel andexpressly wavied that right. " 144

Conclusion

The purpose of the right to counsel is to assure that no defendantin a criminal case shall be deprived of life or liberty without the aid ofcounsel unless the right is competently and intelligently waived. Thispurpose does not require the assignment of counsel under a system inwhich minor traffic violations are classified as noncriminal infractionsthat do not carry the sanction of jail. Many procedures necessary toprotect the right to counsel in a criminal case may be dispensed with,including the requirements of cases such as Miranda v. A,"izona 145

relating to when the right arises. While these procedures are appro-lU [d. at 336.H31d. at 337.lH Blake v. Municipal Court (1966) 242 A.C.A. 857, SGI-62.145 Supra note 107.

I

Ir

\II

\

'I

II\I

1

He Such defendants ~written promisenizance. See Velease Upon PrOT

1n Witkin, Californi.148 Pen Code § 1268.

Pen. Code §§ 1:ferior courts.

1411 Sawyer v. BarbO'129 Cal.App.2d(1961) 55 Cal.Bail in Califon

t50Veh. Code § 4051:luI Cal. Traffic LawlGJ Witkin, supra no

declare the bai,., Veh. Code § 40.0ldi Veh. Code § 4051'''Veh. Code §§ 4201;;(1 Veh. Code § 4051151 Supra notes 147

feiture may bspecified excerposes of the Ibail to traffic(1961) p. 43.

ord maylays. "142

~ of thems. Theng afterone-halfveiw of

1e court.i tioner'sJicament~s of the

'iving 53, Appealof coun­olved inJ. "Yet. ,of a de­tion here,as prop­upon the0.S.506,record is.Uegation.nsel butling less

presume'e felO'IlYthe rulerue that)bviouslyJohnsonrespond­personalough the; affirma­IUsel and

lefendanthe aid ofved. This;ystcm inIfractionsessary tosed with,'rizona 145

re appro-

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 53

priate in a criminal case, they appear inappropriate for traffic ticketcases involving no threat to liberty. In order, however, to assure thatthere be no deprivation of liberty without the assistance of counselexcept upon proper waiver, provision should be made for advice on theright to counsel and for assignment of counsel when a defendant on atraffic infraction has been arrested and 'not released as provided bylaw. 146

2. Bail and FinesThe most common meaning of bail is the security, cash or bond given

for the appearance of a prisoner. 147 The California Constitution in Ar­ticle I, Section 6 provides: "All persons shall be bailable by sufficientsureties, unless for captial 0fi'ense5 when the proof is evident or thepresumption great. Excessive bail shall not be required, ... " ThePenal Code states: "Admission to bail is the order of a competent courtor magistrate that the defendant be discharged from actual custodyupon bail. " 148

"The sole purpose of bail in criminal cases is to ensure the personalattendance of the defendant on the court at all times when his appear­ance may be lawfully required .... There should be no suggestionof revenue to the government nor punishment to the surety." 149

In traffic cases bail is also theoretically intended to insure court ap­pearance. 'OO For minor traffic violations, however, it serves a differentpurpose, with bail fixed in the amount intended as the fine,151 andforfeiture used to dispose of the case without a court appearance. '52As provided by the Vehicle Code, the arrested person may be releasedupon his written promise to appear in court or before a person author­ized to receive a deposit of bai1.'53 Thereafter, when he keeps his prom­ise, he may deposit bail,'54 plus a sum to cover any required nightcourt and penalty assessments.'55 Upon his failure to appear for ar­raignment the court may forfeit the entire amount and order that nofurther proceedings be held in thp. case. '56 It has been pointed out thatthis use of bail is inconsistent with its purpose in criminal cases anddoes not necessarily provide a final disposition.' 57

WI Such defendants would include those who have been arrested and not released on theirwritten promise and who have not posted bail or been released on their own recog­nizance. See Veh. Code §§ 40300-40311, Procedure on Arrests, §§ 40500-40517, Re­lease Upon Promise to Appear; see also Pen. Code §§ 858.858.5,859.

14, Witkin, California Criminal Procedure (1963) § 148.l.s Pen. Code § 12£18. The statutory provisions for bail in criminal cases are contained in

Pen. Code §§ 1268-1317, and § 1458 makes the general provisions applicable to in­ferior courts.

Ull Sawyer v. Barbour (1956) 142 Cal.ApP,2d 827,833; see also People v. Calvert (1954)129 Cal.App.2d 693, 698; People v, Wilcox (1960) 53 Cal.2d 651, 656: In re Newbern(1961) 55 Ca1.2d 500, 504; 7 CaI.Jur.2d, Ba.il and Recognizance, 538; Gustafson,Bail in California (1956) 44 Cal. L.Rev, 815.

uioVeh. Code § 40511.151 Cal. Traffic Law Administration (1960) 12 Stan.L.Rev. 388.1[;2 Witkin. suprct note 147. Veh. Code § 40512 permits the magistrate in his discretion to

declare the bail forfeited and order that no further proceedings be had in the case.11;3 Veh. Code § 40504.1:H Veh. Code § 40510.'"' Veh. Code §§ 42006. 42051.I~ Veh. Code § 40512.15T Supro, notes 147 and 151. Pen. Code §§ 1305~1307 provide that within 180 days a for­

feiture may be set aside and bail reinstated. Veh. Code §§ 1803 and 13103, withspecified exceptions, treat bail forfeitures as convictions for the administrative pur­poses of the Department of Motor Vehicles. For a criticism of this application ofbail to traffic Violations. see Economos, Traffic Court Procedure and Application(1961) p. 43.

,___1 _

In California the municipal and justice court judges in each county,are required to adopt a schedule of bail for all misdemeanor offenses 158.and in an effort to promote uniformity in traffic cases the JudicialCouncil has adopted the Uniform Traffic Bail Schedule indicating the·amount of bail and the offenses requiring a court appearance. '59 Whilethe Uniform Bail Schedule is not mandatory and the counties candiffer in specifying which offenses require a court appearance, whichmay be concluded by bail forfeiture and the amounts required as bail,most counties have adopted schedules in substantial conformity witbthe Judicial Council schedule.

Under the Model Rules Governing Procedure in Traffic Cases amotorist may appear at the traffic violations bureau to sign an "Ap­pearance, Plea of Guilty and Waiver" form whereby he agrees topay the prescribed penalty.'60 '1'he Rules require that he first be in-'formed of his right to stand trial, that his signature to a plea ofguilty will have the same effect as a judgment of court, and that therecord of conviction will be sent to the Department of Motor Vehicles.When the motorist signs the required form the violations clerk is au­thorized to accept payment of the fine. This procedure is provided for'miJior moving violations in which a court appearance is not required.l6l

With appropriate modification the above procedure could be includedas part of a traffic infractions system in cases not requiring a courtappearance. At the time a motorist receives a citation he could be in-'formed in writing that he has the right to appear in court with orwithout an attorney, and that in cases not requiring court appearancel:!e may plead "no contest" and pay the prescribed fine to a personauthorized to receive a deposit of bail. He would also be informed as'to the effect of a "no contest" plea.'62 A "no contest" plea would,provoke less discussion with the traffic violations clerk than the guilty,plea and would not be an admission of guilt which could be used asevidence in a civil action~163 "

In addition, provision could be made that the fine for a traffic infrac­tion upon such plea would be in the amount fixed in a schedule of'fines adopted by the municipal and justice court judges in each county.The schedule would not be binding in cases where the defendant mustor wishes to appear in court. As with bail, a nonmandatory uniformfine schedule could be adopted by the Judicial Council to promote sub­stantial uniformity in a manner consistent with local needs., Such a system for payment of fines and bail, however, should be

integrated with revised arraignment, plea and court appearance pro­cedures for traffic infractions to provide a simplified system. In orderto simplify arraignment procedures, at the time a person receives atraffic ticket he could be informed by written statement of his rights.

'58 Pen. Code § 1269b.158 Cal. Rules of Court, Rule 850.180Rule 1 :3-7. The Model Rules were drafted by the National Conference of Commis·

sianers on Uniform State Laws and approved in 1957. See Economos, Traffic CourtProcedure and Administration, Appendix B.

1&11bid.1«3 New York Code of Criminal Procedure § 335-a provides that printing the effect of a

plea of guilty on a traffic citation in bold red type constitutes compliance with thecode requirements that the defendant be so informed at the time of his arraign­ment. In receiving the plea at a clerk's window a rubber stamp could be used tostamp the plea and waiver with space for a signature directlY on the court copyof the citation.

1&3 See The Effect of a Plea of Guiltv or Forfeiture of Bail in Traffic Offenses (1963) 14Hastlngs L.J. 454.

54 JUDICIAL COUNCIL OF CALIFORNIA 1967 REPOR'

He could be furthereither in person or,ance is required. U,raignment, plea, baitinuance for plea,defendants who wislfor those who do not

3. Burden of ProofIn a criminal cas

I tablish guilt beyonproof by a preponThe reasons for thelaw presumes inno(overcome the legalciently strong to ccthat the defendan

I where a loss mightshould cast it u'porloss, by proof establ

While prosecutiacrime, neither waDprosecution wouldrelating to misderfor prosecuting injthermore, the timelessened, if at all,chief effect would 1

Presumptions arcution can establissumption of inno(In most parkingdifficult to establisumption. Considehis car or knowsciples 170 and serv,enforcement. Sim:person shall driveestablished standIcertain conditiomfenda'llt to show t

1e~ Pen. Code § 1096;Jur.2d, Evidence.

1.ll5 20 Am.Jur., EvidenCode § 115.

leeHolt v. United State1~7 20 Am.Jur., supra n168 Cf. Conway, 'Is Cri'l'

(1959) Wis.L.Remake a precise dia reasonable doultinction In the la'cases there is nothat he can avoic

U'9 Yeh. Code §§ 4110~170 18 Ca1.Jur.2d, Evid111 Veh. Code § 22350.112 Yeh. Code § § 22352

, ..

each county)1' offenses 158the Judicial

ldicating thence. 159 Whilecounties can.rance, whichIlired as bail,Eormity with

lffic Cases aign an "Ap.he agrees to, first be in.co a plea ofand that the,tor Vehicles.: clerk is au­provided forc required.!611 be includedring a courtcould be in­

JUrt with orc appearanceto a personinformed as

. plea wouldm the guiltyi be used as

.raffic infrac-schedule of

each county.endant mustory uniformpromote sub-

1', should beearance pro­lm. In ordern receives a,f his rights.

lee of Commis­s, Traf"fie Court

. the effect of a,liance with theof his arraign­)uld be used tothe court copy

mses (1963) 14

I)

\,

l•I

\

\

r)

\

1,

I

I

'J

,

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 55

He could be further notified that he may enter his plea with the clerkeither in person or, where feasible, by mail except where court appear­ance is required. Under an infractions system such provisions for ar­raignment, plea, bail and fines would eliminate the provision for con­tinuance for plea, reduce the number of visits usually required ofdefendants who wish to appear in court and provide a final dispositionfor those who do not.

3. Burden of ProofIn a criminal case the burden of proof is on the prosecution to es­

tablish guilt beyond a reasonable doubt,164 whereas in a civil caseproof by a preponderance of the evidence is all that is required.165The reasons for the difference are that under our system of justice thelaw presumes innocence in all criminal prosecutions and in order toovercome the legal presumption the evidence must be clear and suffi­ciently strong to convince the trier of fact beyond a reasonable doubtthat the defendant is guilty,166 whereas "between man and man,where a loss might fall upon one or the other, it is right that the lawshould cast it upon him who is shown to have been the cause of theloss, by proof establishing reasonable probability of the fact." 67

While prosecution for an infraction would not be prosecution for acrime, neither would it be litigation "between man and man." Theprosecution would still be brought in the name of the state, the lawrelating to misdemeanors would provide the procedural frameworkfor prosecuting infractions and penalties would still be imposed. Fur­thermore, the time required to conduct a trial would not be materiallylessened, if at all, by such a change in the burden of proof and thechief effect wop.ld be to eliminate the presumption of innocence168

Presumptions are now stated in the Vehicle Code whereby the prose­cution can establish a prima facie case sufficient to overcome the pre­sumption of innocence for parking and some speeding violations.!69In most parking violation cases the driver is not present and it isdifficult to establish his identity without the assistance of the pre­sumption. Considering the probability that the owner usually driveshis car or knows who does, the presumption is based on sound prin­ciples 170 and serves the goals of effective and convenient parking lawenforcement. Similarly, where the Legislature has declared that noperson shall drive faster tban is reasonable and prudent 171 and hasestablished standards of speed which it considers reasonable undercertain conditions,172 it is not unfair to place the burden on a de­fendant to show that his speed in excess of that standard was, never-16.1. Pen. Code § 1096; Evid. Code ~ 501; 48 Cal.Jur.2d, Trial, §§ 481-82, 486; 18 CaL

Jur.2d, EVidence, §§ 112-13; 20 Am. Jur., Evidence, § 1256.16G 20 Am.Jur., EVidence, §§ 1248 et seq.; 18 Cal.Jur.2d, EVidence, §§ 103-07, 110; Evid.

Code § 115.166Holt v. United States (1910) 218 U.S. 245.1~7 20 Am.Jul'.) supra note 165 at 1100.168 Cf. Conway, Is Criminal or CIvil ProcedU?'e Pt'oper for Enforcement of Traffic Laws r

(1959) Wis.L.Rev. 418. Conway points out that triers of fact do not necessarilymake a precise distinction between preponderance of the evidence and proof beyonda reasonable doubt. While this may be true, nevertheless, the statement of this dis­tinction in the law is based on valid principles under our legal system, and in closecases there is no question but that. the trier of fact is supported by the knowledgethat he can avoid a possible injustice upon what he deems to be a reasonable doubt.

la9Veh. Code §§ 41102, 22351(b).170 18 Ca1.Jur.2d, Evidence, § § 65 et seq.171 Veh. Code § 22350.172 Veh. Code §§ 22352 et seq.

56 JUDICIAL COUNCIL OF CALIFORNIA

theless, reasonable and prudent at the time, place and under the condi­tions then existing173

It is interesting to note the position taken by the British Councilof the Law Society in its recomme'ndation for the establishment of acategory of noncriminal offenses to be designated as "improper useof the road," The Council considered 'whether a diminished standardof proof should be required in such cases but determined that in gen­eral tbe criminal standard should apply. The Council, however, didrecommend that" where evidence is adduced in a Traffic Court that aroad incident has occurred involving injury or damage to a road user,or to a person or property on or adjoining a road, under circum­stances where had ordinary care and skill been employed in the use ofthe road it was unlikely to have occurred, tbat should afford primafacie evidence of improper, unreasonable or imprudent use of theroad against any person who appears to have been involved in suchoccurrence, whether as a driver, cyclist or pedestrian, "174

4. P1'eSllmption of NegligenceUnder existing case law a presumption of negligence may arise from

a violation of a statute, ordinance or administrative regulation, includ­ing violations of provisions of the Vehicle Code regulating the opera­tion of motor vehicles175 The statute is held to prescribe what is properconduct of a reasonable person in a particular situation and conductfalling below the standard is said to be negligence per se17G

,A question has been raised as to whether the presumption of negli­gence would apply to traffic violations reclassified as noncriminal in­fractions, These doubts result from language in some cases that seemsto indicate that the presumption applies only when the statute carriesa criminal sanctionI77 It would appear, however, that the cases thatinclude such a statement are the exception rather than the rule,178 andthe language may be interpreted as a reference to the facts of theparticular case before the court rather than the enunciation of a generalrequirement for all cases.

In other cases the presumption has been invoked despite the lack ofa criminal sanction for the violationY9 Moreover, a number of casesnot involving violations of the Penal or Vehicle Code or otber clearlypenal statutes or ordinances do not even discuss wbether the statuteinvolved provided a criminal sanction. ISO If a criminal sanction were a

\

l

necessary elEapplying thEthe statute,

Jeither Pa criminal s:sumption, VIcharacter animposing ci\

The Calif,view that 110

presumptionment to the:and, consistebe requiredcriminal san,continue toas infractiOlRevision COlUil Prosser, Tort182 Rest., Torts:183 Ibid.; Prossl

Cal.2d 581,1S4 8 Cal. Law F1851d,atlI7.

173 Veh. Code § 22351 (b) ; Speed Laws and Burden Of Proof (1963) 14 Hastings L.J. 451.l7t Council of the Law Society, Motoring Offenses (June 1965) 7.17:> Alarid v. Vanier (1958) 50 Ca1.2d 617; 2 Witkin, Summary of Cal. Law (1960),

Torts, §§ 230-232,170 Witkin, SU1Jra note 175 at § 230. However,liability is dependent upon a showing that

there was a duty owed to persons in plaintiff's class; that the harm was the typewhich the statute was designed to prevent and that the violation was the proximatecause of the Injury. \Vitkin, supra at §§ 234-235.

In E.g., Richards v. Stanley (1954) 43 Ca1.2d 60, 62; Tossman v. Newman (1951) 37Ca1.2d 522, 525.

178 Among the cases in which no such statement was made are Alarid v. Vanier, supranote 175; Witt v. Jackson (1961) 57 Ca1.2d 57, 63; Nunnelley v. Edgar Hotel(1950) 36 Cal.2d 493; Roddiscraft, Inc, v, Skelton Logging Co, (1963) 212 Cal.App.2d 784, 804.-5; Cowan v. Bunce (1963) 212 Cal.App.2d 48; Williams v. Lam­bert (1962) 201 Cal.App.2d 115, 118-19, and see cases cited in notes 179 and 180,infra.

170 Forbes v. Los Angeles Ry. (1945) 69 Cal.App.2d 794, 796. See Cary v. Los AngelesRy. (1910) 157 Cal. 599, 603-04. cr. Clinkscales v. Carver (1943) 22 Ca1.2d 72;Hopper v. Bulaich (1945) 27 Ca1.2d 431.

11lO Finnegan v. Royal Realty Co. (1950) 35 Ca1.2d 409, 416; Harris v. Joffe (1946) 28Cal.2d 418; Hanna v. Lederman (1963) 223 Cal.App.2d 786, 792; Mason v. Case I(l96Z) 220 Cal.App.2d 170,

,\

1967 REPORT TO TIlE GOVERNOR AND THE LEGISLATURE 57

:be condi-

I Councillent of a:oper usestandardIt in gen­ever, didIrt that a'oad user,: Clrcum­he use ofrd prima;e of theI in sucb

rise from[1, includ­he opera­is properl conduct

of negli­minal in­ltat seemste carries~ases thatle,178 andts of thea general

Ie lack of. of caseser clearlyIe statutem were a

Igs L.J. 451.

aw (1960),

'lowing that'as the typee proximate

, (1951) 37

lnier, supra:dgar Hotel3) 212 Cal.ms v. Lam­79 and 180,

:"05 AngelesCal.2d 72;

, (1946) 28son v. Case

(,

I

necessary element for application of the rule it would appear tbat whenapplying the presumption the court would discuss the penal nature ofthe statute.

Neither Prosser 181 nor the Restatement 182 makes the imposition ofa criminal sanction a necessary element of the application of the pre­sumption. What they say is that the fact tbat a statute is penal incharacter and carries a criminal sanction does not prevent it from alsoimposing civil liability.ls3

The California Law Revision Commission apparently is also of tbeview that no criminal sanction is or should be necessary to invoke thepresumption of negligence. IS' The Commission is proposing an amend­ment to the Evidence Code that would codify the existing presumptionand, consistent with its view of existing law, no criminal sanction wouldbe required under the proposed legislation. ls5 It seems clear that nocriminal sanction is now required and the presumption would thereforecontinue to apply to those traffic violations that would be reclassifiedas infractions whether or not the legislation proposed by the LawRevision Commission is enacted.181 Prosser, Torts (2d ed. 1955) § 34.182 Rest., Torts 2d, §§ 286-287.183Ibid.~· Prosser, supra~' see also Satterlee v. Orange Glenn School Dist. (1947) 29. Ca1.2d 581, 594-95 (concurring opinion).1&4 8 Cal. Law Revision Commission Rep., Rec. & Studies (1967) 109.ISS/d. at 117.

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