IN RE: KEVIN G.

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Court of Appeal, Fifth District, California.

IN RE: KEVIN G., a Minor. The PEOPLE, Plaintiff and Appellant, v. KEVIN G., Defendant and Respondent.

Civ. F003181.

Decided: August 15, 1984

John K. Van de Kamp, Atty. Gen., James T. McNally and Ruth M. Saavedra, Deputy Attys. Gen., Sacramento, for plaintiff and appellant. Roger Harden Spaulding, under appointment by the Court of Appeal, Fresno, for defendant and respondent.

OPINION

The People appeal from a determination by the trial court that a prior juvenile adjudication for driving under the influence of alcohol was constitutionally infirm.   The issue presented is simply whether a juvenile accused of a misdemeanor who elects to proceed informally before a traffic hearing officer is entitled to appointed counsel.   We agree with the trial court that a juvenile has that right and did not waive it here.

On September 13, 1983, Kevin G. moved to have a juvenile driving under the influence adjudication declared unconstitutional.   The court granted the motion, finding “the minor was not fully informed of his constitutional and statutory rights prior to entry of his plea ․”

The original conviction was entered on May 6, 1981.   At that time the minor had signed a juvenile traffic waiver of rights form.   The form was also signed by one of his parents, as well as the traffic hearing officer.   Pertinent to the question on appeal, the form stated:

“I freely and voluntarily waive my rights to a hearing by the Juvenile Court, ․ and I waive my rights to be represented by an attorney.

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“DO NOT SIGN THIS STATEMENT UNLESS YOU FULLY UNDERSTAND YOUR RIGHTS WHICH ARE STATED ON THE REVERSE SIDE.

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“Right to Attorney:  You have a right to be represented by counsel at all stages of your hearing, including this informal hearing.

“If this matter is heard by the Juvenile Court, you have the right to have an attorney appointed to represent you if you do not have the money to hire one.   You may be required to pay part or all of this fee if you have any present ability to pay.”

The People contend the minor was not entitled to appointed counsel in his hearing before the traffic hearing officer.   Their argument proceeds as follows:  In making the election to proceed before a traffic hearing officer, a minor elects to have his misdemeanor procedurally “treated as an infraction.”   His rights become those of one accused of an infraction.   In infraction proceedings there is no right to court-appointed counsel.  (Pen.Code, § 19c;  Mills v. Municipal Court (1973) 10 Cal.3d 288, 302, fn. 13, 110 Cal.Rptr. 329, 515 P.2d 273.)

In his brief and at the hearing, respondent complained that because he was charged with a misdemeanor he had the right to appointed counsel for the informal hearing before the traffic hearing officer and, not being so advised, did not waive that right.   We need not address other arguments seeking the same relief.

An initial resort to the statutes is of no avail in resolving this issue.   Nothing in the statutory scheme creating the traffic hearing officer and outlining his powers and duties suggests that the minor forfeits rights in having his case heard by a traffic hearing officer rather than the juvenile court.  (Welf. & Inst.Code, §§ 255–263.)

 Violation of Vehicle Code section 23102, subdivision (a) (Now Veh.Code, § 23152), is a misdemeanor.  (Veh.Code, § 40000.15.)   The People do not contend that having the matter heard before a traffic hearing officer transformed it into an infraction, and properly so.   The fact that the charge could not be punished by incarceration will not transform the charge into an infraction.  (Tracy v. Municipal Court (1978) 22 Cal.3d 760, 766, 150 Cal.Rptr. 785, 587 P.2d 227;  see also In re Ronald E. (1977) 19 Cal.3d 315, 321, 137 Cal.Rptr. 781, 562 P.2d 684.)   A court may not replace misdemeanor charges with infraction charges merely to avoid according the accused his constitutional rights.  (People v. Bowden (1978) 86 Cal.App.3d Supp. 1, 6, 150 Cal.Rptr. 633;  see also People v. Shults (1978) 87 Cal.App.3d 101, 107, 150 Cal.Rptr. 747.)

 The charge was, and remained, a misdemeanor.   Misdemeanant defendants are entitled to the assistance of court-appointed counsel.   (Tracy v. Municipal Court, supra, 22 Cal.3d at p. 766, 150 Cal.Rptr. 785, 587 P.2d 227;  In re Kathy P. (1979) 25 Cal.3d 91, 103, 157 Cal.Rptr. 874, 599 P.2d 65).   In infraction proceedings, the right to appointed counsel is denied.  (Kathy P., supra, at p. 103, 157 Cal.Rptr. 874, 599 P.2d 65.)   The People's contention appears to deprive the minor of the right to appointed counsel, not upon the basis of the seriousness of the charge, but on the basis of the forum selected by the minor.   The right of an accused misdemeanant to counsel attaches even in “inferior courts.”  (In re Lopez (1970) 2 Cal.3d 141, 146, 84 Cal.Rptr. 361, 465 P.2d 257;  In re Render (1969) 271 Cal.App.2d 423, 425, 76 Cal.Rptr. 522;  In re Johnson (1965) 62 Cal.2d 325, 329, 42 Cal.Rptr. 228, 398 P.2d 420.)   Inferior courts include justice and police courts.  (Johnson, supra, at p. 329, 42 Cal.Rptr. 228, 398 P.2d 420;  In re McCoy (1948) 32 Cal.2d 73, 75–76, 194 P.2d 531;  In re Jingles (1946) 27 Cal.2d 496, 498, 165 P.2d 12.)   Assuming the traffic hearing officer is hearing a misdemeanor rather than an infraction, the right to appointed counsel applies unless waived.

 For an effective waiver of a fundamental constitutional right, “an express, knowing and intelligent waiver” must appear in the record.  (Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 525, 102 Cal.Rptr. 45.)   Here the minor was informed that the right to an appointed attorney was attendant upon the case being heard by the juvenile court.   He was not informed that as a misdemeanant accused he had the right to appointed counsel, regardless of the forum.   Therefore he could not intelligently waive his misdemeanant right to appointed counsel as he did not know he had such a right.   Nor can we imply such a waiver.  (Ibid.)

 Further, it does not appear that public policy, engendered by the necessity to expedite adjudication of the massive numbers of juvenile traffic citation cases, requires that we find movant had no right to appointed counsel before the traffic hearing officer.  (See In re Kathy P., supra, 25 Cal.3d at p. 99, including fn. 8, 157 Cal.Rptr. 874, 599 P.2d 65.)  “Advising as to rights need not materially encumber or delay a traffic proceeding.”  (Id., at p. 102, fn. 12, 157 Cal.Rptr. 874, 599 P.2d 65.)   The goal in establishing the informal traffic hearing officer proceedings was the fair and efficient handling of the cases.  (Id., at p. 98, 157 Cal.Rptr. 874, 599 P.2d 65.)   Impairment of constitutional rights, however, will not be suffered in return for efficiency.  (Mills v. Municipal Court, supra, 10 Cal.3d at p. 307, 110 Cal.Rptr. 329, 515 P.2d 273.)

In this case the waiver form is deficient.   Instead of merely advising of the right to appointed counsel “if heard by the juvenile court,” additional language would have made the waiver clear:  “or the Traffic Hearing Officer if charged with a misdemeanor traffic offense.”   If, as the People contend, the matter is to be “treated as an infraction,” the form waiver does not do so in lay language, if it does so at all.   On its face the form states the admission is to “23102A CVC,” a misdemeanor.

The delay in seeking to set aside the prior was not of the significance discussed in In re Ronald E., supra, 19 Cal.3d 315, 321, 137 Cal.Rptr. 781, 562 P.2d 684.   If there were factual questions arising from delay, they were for the trial court.   On this appeal we have been presented no basis for upsetting the court's judgment.

The judgment is affirmed.

WOOLPERT, Associate Justice.

GEO. A. BROWN, P.J., and MARTIN, J., concur.

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