Brief Bank # B-972 (Re: F 12.85 n8 [Due Process Challenge To VC 2800.2 As Unconstitutional Mandatory Presumption].)
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Date Of Brief: October, 2003
NOTE: The text of the footnotes appears at the end of the document.
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
_____________________________________,
APPELLANT’S PETITION FOR REVIEW
ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA
HONORABLE EDWARD F. LEE, JUDGE PRESIDING
SIXTH DISTRICT APPELLATE PROGRAM
DALLAS SACHER
Assistant Director
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241 -6171
Attorneys for Appellant,
JOHN DOE
I.
VEHICLE CODE SECTION 2800.2 IS VIOLATIVE OF DUE PROCESS SINCE IT CONTAINS AN IMPROPER MANDATORY PRESUMPTION.
Prior to 1996, Vehicle Code section 2800.2 required the prosecution to prove that the entirety of the defendant’s driving evinced a wanton disregard for the safety of others. (People v. Sewell, supra, 80 Cal.App.4th 690, 696.) In 1996, subd. (b) was added to the statute. The new provision provides:
“For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.”
Without spilling needless ink, it is manifest that subd. (b) creates a mandatory presumption. This is so since the mere commission of three traffic violations compels the conclusion that the defendant has driven with wanton disregard for the safety of others. Such a presumption is violative of the due process clause of the federal Constitution. (Francis v. Franklin (1985) 471 U.S. 307, 314.)
In its opinion, the Court of Appeal held that subd. (b) does not create a mandatory presumption since it actually sets forth a separate substantive offense. (Exhibit A, pp. 8-9.) Succinctly stated, this conclusion is refuted by the legislative history underlying the 1996 amendment to section 2800.2. (Sewell, supra, 80 Cal.App.4th at p. 694; the amendment “did not change the elements of the section 2800.2 offense, . . . .”) [Footnote 1]
In short, a significant legal question is presented here. To date, no court has acknowledged the constitutional problem created by the 1996 amendment. It is this court’s duty to address the problem.
It is unquestionable that the error in this case is prejudicial. By way of a question, the deliberating jury made known its disinclination to convict appellant other than on the grounds that he had committed three traffic violations. (CT 243.) Reversal is required. (Yates v. Evatt (1991) 500 U.S. 391, 404-405; use of a mandatory presumption compels reversal unless the evidence independent of the presumption is overwhelming.)
Finally, it is worth noting that the Court of Appeal was simply wrong in its conclusion that the evidence of guilt was “overwhelming.” (Exhibit A, pp. 7, 11, 16.) Three objective factors yield this conclusion.
First, there was a prior hung jury. (Exhibit A, p. 1.) Obviously, this fact demonstrates that the government’s case was less than overwhelming. (People v. Brooks (1979) 88 Cal.App.3d 180, 188.)
Second, the jury deliberated for over two days. (CT 237-238, 253.) As is well settled, this degree of deliberation establishes that the case was close. (People v. Cardenas (1982) 31 Cal.3d 897, 907; six hours of deliberations is evidence of a close case.)
Third, the deliberating jury propounded two questions which demonstrated its reluctance to return a conviction. (CT 241, 243.) Once again, this is a powerful indication that the case was close. (People v. Pearch (1991) 229 Cal.App.3d 1282, 1295.)
II.
VEHICLE CODE SECTION 2800.2 IS VIOLATIVE OF DUE PROCESS SINCE IT PROVIDES THAT THE ACT OF DRIVING ON A SUSPENDED LICENSE IS PROOF THAT THE DEFENDANT DROVE RECKLESSLY.
Pursuant to Vehicle Code section 2800.2, the act of driving on a suspended license can constitute one of the three requisite traffic violations. The jury was so instructed in this case. (RT 539-540.) Without doubt, this state of affairs constitutes a patent violation of due process.
As a matter of logic, the act of driving without a license has no tendency in reason to prove that the actual driving is performed recklessly. Indeed, this has always been the law. “In California, as in most jurisdictions, it has long been the rule in both civil and criminal cases that evidence that a driver is unlicensed is not admissible on the issue of negligence as the cause of an accident. [Citations.]” (People v. Taylor, supra, 179 Cal.App.3d Supp. 1, 6.) [Footnote 2]
Under the federal Constitution, the presumption used here is patently unconstitutional. This is so since “there is no rational way” that the act of driving on a suspended license proves the instant crime of reckless driving. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157.)
In an attempt to save the constitutionality of section 2800.2, the Court of Appeal reasoned that appellant drove recklessly since his license was suspended due to either drunk driving or the refusal to submit to an alcohol test. (Exhibit A, pp. 9-10.) This analysis is senseless.
Thousands of Americans have been convicted of drunk driving and later had their privilege to drive restored. Clearly, the prior act of drunk driving has no tendency in reason to show that their present driving is reckless. This court should grant review in order to uphold the vitality of existing law.
The Court of Appeal declared that any error was harmless since appellant otherwise admitted three traffic violations: (1) driving on the shoulder; (2) crossing the median; and (3) driving on the wrong side of the road. (Exhibit A, p. 10.) This holding ignores the fact that appellant drove on the shoulder only because he was ordered to do so by Officer Foster. Thus, this act can scarcely be deemed criminal. (People v. Barraza (1979) 23 Cal.3d 675, 689-690; entrapment exists if a citizen is induced to commit a crime by police conduct.) Since the jury was disinclined to convict appellant (CT 243), reversal is required. (Yates v. Evatt, supra, 500 U.S. 391, 404-405.)
FOOTNOTES:
The Court of Appeal opinion makes no mention of Sewell. This omission was noted in appellant’s petition for rehearing. (Petition for Rehearing, pp. 1-2.)
The Court of Appeal failed to cite Taylor. This omission was noted in appellant’s petition for rehearing. (Petition for Rehearing, p. 3.)
