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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Anthony CARLUCCI and Walter George Lawrence, Defendants and Appellants.

Cr. 31660.

Decided: February 07, 1978

John K. Van de Kamp, Dist. Atty. by Harry B. Sondheim, Head App. Div., Barry R. Levy, Deputy Dist. Attys., for plaintiff and respondent. Phillip Carlucci and Walter Lawrence in pro per. Wilbur F. Littlefield, Public Defender, Harold E. Shabo, John L. Ryan, Deputy Public Defenders, amicus curiae.

Phillip Carlucci was convicted in the Municipal Court of the Alhambra Judicial District of violating the prima facie speed law. Walter Lawrence suffered a similar fate in the Municipal Court of the Downey Judicial District. The charge of which both were convicted is classified as an infraction. (Veh.Code, s 40000.1.)1

Both appealed to the appellate department of the Superior Court of Los Angeles County. That court consolidated the appeals because each involved the same legal issue. The appellate department in a published opinion reversed the judgment in both cases. The matter was transferred to this court pursuant to Rule 62(a) of the California Rules of Court.

Each defendant pleaded not guilty to the charge against him and was convicted in a trial in which a police officer testified for the prosecution and the defendant testified in his own behalf. No prosecuting attorney was present. The judge in each case called the officer to the stand and questioned him. The defendant cross-examined the officer and then testified himself. The judge then questioned the defendant. Defendants were each pro per throughout the proceedings in the trial court and on appeal to the superior court.

The issue presented is whether the manner in which the trials were conducted deprived defendants of fair trials. The defendants' claim, and the People concede, that in the specific cases before us the judge improperly assumed the role of prosecutor and as a result the trials were not fair.

The Public Defender of Los Angeles County filed an amicus curiae brief contending that, in all cases, the practice of judges conducting trials of infraction violations without the presence of a prosecuting attorney is constitutionally impermissible because it denies due process of law to all persons charged.

The District Attorney of Los Angeles County, representing the People, argue that defendants generally have no cause to complain when the People are not represented by an attorney. The district attorney suggests that a “case-by-case scrutiny” of the conduct of the trial judge will serve to rectify any occasional unfairness that might result from the judge's conduct of the trial. Thus, while conceding error in these two cases, the district attorney seeks to vindicate the procedure generally.

The appellate department adopted the district attorney's approach. Its opinion referred to the long recognized power of a trial judge, in fulfilling his responsibilities to ascertain the truth, to question witnesses called by either party to the litigation and in some cases to call witnesses over the objections of the parties, (People v. Golsh, 63 Cal.App. 609; People v. Rigney, 55 Cal.2d 236, 10 Cal.Rptr. 625, 359 P.2d 23; Witkin, Cal. Evidence (2d ed.) Introduction of Evidence at Trial, pp. 1021-1024) and concluded that “. . . traffic infraction trials may be conducted without a prosecuting attorney (though a prosecutor's presence is eminently to be desired) if the court's participation is limited to the traditional role in questioning . . . .”

In reaching that conclusion the appellate department relied heavily on language in In re Dennis B., 18 Cal.3d 687, at 695, 135 Cal.Rptr. 82, at 88, 557 P.2d 514, at 520, where the Supreme Court observed that the state has a “substantial interest in maintaining the summary nature of minor motor vehicle violation proceedings . . . .”

The Supreme Court in that case further stated at page 695, 135 Cal.Rptr. at page 88, 557 P.2d at page 520; “The chief reason for classifying some prohibited acts as infractions is to facilitate their swift disposition. (Citation.) Unconstrained by the more stringent procedural requirements of a major criminal trial, municipal courts and prosecutors are free to develop innovative procedures to expedite traffic cases.”

With all due deference it must be pointed out, however, that the foregoing language was essentially dicta. The issue in that case was whether the prosecutor should be charged with knowledge that a person who is cited for a traffic infraction is prosecutable for a more serious offense in connection therewith so as to invoke the rule of Kellett v. Superior Court, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206. The court's discourse on the informality of infraction proceedings and the absence of a prosecuting attorney was in support of its conclusion that the absent prosecutor could not be held to have knowledge of the connected offense. The court in Dennis B. was not confronted with, nor did it address the propriety of the infraction conviction itself.

The case-by-case approach suggested by the district attorney and adopted by the appellate department does not, in our opinion, give sufficient consideration to certain factors.

First of all, while a traffic infraction conviction carries only the penalty of a fine, it can in some cases have devastating consequences for the defendant in terms of his ability to retain his driving privileges and to obtain or maintain insurance. Hence while it is tempting to regard these matters as minor and to opt for the most expeditious and convenient procedure for disposing of them, we cannot lose sight of their importance to the individual involved.

An infraction is a criminal matter subject generally to the provisions applicable to misdemeanors, save the right to a jury trial and the possibility of confinement as a punishment. (Pen.Code, ss 16, 19.) A defendant charged with an infraction has a fundamental right to a fair trial regardless of the nature of the charge. (Gordon v. Justice Court, 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72.)

The People concede in their brief that “. . . in a traffic infraction matter where there is no prosecutor present, it would be a relatively simple matter for the trial court as the sole representative of the state to act or appear to act by its questioning of witnesses, as advocate for the prosecution.” This is a recognition that the “system” of shifting the burden of handling the trials to the court has an inherent weakness. This in turn shifts to defendants the burden of exposing that weakness by the perfection of repeated appeals often without the benefit of a reporter's transcript.

The two cases before us are graphic examples of the unsatisfactory nature of the “case-by-case scrutiny” approach and the unwarranted burden it places on the appellate courts.

In each of these cases the district attorney, while defending the procedure generally, has conceded that defendants were not given fair trials. Yet our reading of the record satisfies us that the judges in each case, in both the tone of the questioning and the type of questions asked, comported themselves in a manner consistent of what might be expected of any reasonable, conscientious judge in the same situation.

The district attorney's confession of error in these cases tends to support the contention of amicus curiae that “(T)he court's questioning almost invariably will represent that which an experienced prosecutor will undertake.”

It was stated in Wong Yang Sung v. McGrath, 339 U.S. 33, at p. 44, 70 S.Ct. 445, at p. 451, 94 L.Ed. 616; “ ‘A genuinely impartial hearing, conducted with critical detachment, is psychologically improbable if not impossible, when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible.’ ”

In People v. Municipal Court (Pellegrino), 27 Cal.App.3d 193, 103 Cal.Rptr. 645, we held that a municipal court judge cannot authorize the institution of a misdemeanor criminal prosecution without approval of the district attorney nor can the judge appoint a special prosecutor to direct the prosecution of a case over the objection of the district attorney. There we directed the dismissal of a complaint that had been filed without the approval of the district attorney and observed at page 203, 103 Cal.Rptr. at page 652; “. . . the court, without authority to appoint a special prosecutor, now has before it an action filed, a charged defendant and a prosecuting witness . . . . No member of this triumverate, with the possible exception of the judge, who would have to assume the role of both judge and prosecutor, is capable of moving the prosecution forward. This spectacle should be repugnant to anyone dedicated to our system of jurisprudence.” (Emphasis added.)

Alluding to the status of the court appointed “special prosecutor, we described it at page 207, 103 Cal.Rptr. at page 656 as follows: ”The so-called ‘special prosecutor’ became the deputy of the judge in attempting to press forward with the prosecution in clear violation of the doctrine of the separation of powers. (Cal.Const. art. III, s 1.)“ We do not perceive that the situation is any different where the judge himself undertakes the duty of prosecution.

In recognition of the fact that in many situations it would be to the defendant's benefit to proceed expeditiously to dispose of a contested matter involving a charge of an infraction violation, the Legislature enacted Vehicle Code section 40901. That section authorizes a trial of such matters in which the evidence against the defendant may be introduced in the form of the notice to appear.

This procedure, however, requires a written notice to defendant of the nature of the proceedings and his various rights followed by a voluntary waiver of those rights. Finally that section provides that, except for the proceedings thereby authorized “nothing contained herein shall be interpreted to permit the submission of evidence other than in accordance with the law, . . .” (Emphasis added.) (Veh.Code, s 40901, subd. (e).)

In anticipation of the contention that requiring the appearance of prosecuting attorneys at traffic infraction trials will create a manpower problem for prosecuting agencies, it should be stated that it is a matter of common knowledge the vast majority of these cases is disposed of by bail forfeitures, pleas of guilty or informal trials under Vehicle Code section 40901.

It would not seem that the relatively small percentage of formal trials that are required would pose an insurmountable problem. In any event, if the public has a significant interest in enforcing these laws that interest should be sufficient to warrant the investment of the resources required. Given the importance of effective enforcement of traffic laws the various prosecuting agencies should not abdicate their responsibility by shifting the burden to the courts.

The Legislature, in classifying certain matters as infractions punishable by a fine only and removing the right to a jury trial, was endeavoring to alleviate the burden on the courts which resulted from providing jury trials in these cases.

One of the so-called “trade offs” in the enactment was elimination of the expense of providing appointed counsel. (Pen. Code, s 19c.) Unquestionably the Legislature believed that the judge would be able to prevent any unfair treatment of an indigent who was unrepresented by counsel. In our opinion that safeguard is substantially impaired when the judge assumes the duty of the prosecutor.

We hold that a procedure in which the judge, or any person other than a qualified representative of the proper prosecuting agency, assumes the task of calling witnesses for the prosecution questioning them and cross-examining the defendants, denies to defendants due process of law.

Of course the right to due process in this context may be waived by defendant or his counsel. (See Gordon v. Justice Court, supra, 12 Cal.3d 323, at pp. 333, 334, 115 Cal.Rptr. 632, 525 P.2d 72.)

The judgment in each case is reversed.

I dissent.

I do not question the reasonableness of the majority argument. I do not question that the procedure advocated by my colleagues may be preferable. However, I do not consider the preference of such procedure to be of such importance or magnitude that it makes such a procedure one of the “rights” of an accused. The recognition of any such “right” is not required within the meaning of “due process.”

The necessity of and the decision to establish any such rule requiring the presence of a prosecutor at the hearing or trial of a traffic ticket (“infraction”) is a matter within the province of the Legislature. The idea behind the present infraction procedure is to keep the process simple. The presumption is that the Legislature considered the risk of an over-enthusiastic magistrate becoming “prosecutorial,” and weighed such risk against the need for handling traffic tickets promptly and efficiently. The legislature must have concluded that the risk was not unreasonable and was far outweighed by the benefits to be gained by an uncomplicated and uncumbersome process.

Admittedly, the judge should not “call” or “produce” the prosecution witnesses. However, the court should be free to decide the case based upon consideration of the traffic citation and the testimony of defendant and any other witness which defendant wishes to produce.


1.  Penal Code section 19c provides: “An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him unless he is arrested and not released on his written promise to appear, his own recognizance, or a deposit of bail.”

COMPTON, Associate Justice.

ROTH, P. J., concurs.

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Docket No: Cr. 31660.

Decided: February 07, 1978

Court: Court of Appeal, Second District, Division 2, California.

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