Section taken from my Motion to Dismiss

From: Ed B.
Sent on: Friday, October 12, 2012 11:20 AM

Hey everyone,


I know many of you are very much interested in the traffic court scam and right to travel issues.  So I'm providing some very important information from my motion to dismiss.  This is the same information that resulted in one of our very own We Are Change members getting his ticket thrown out and the case dismissed.  I hope you find it helpful and feel free to contact me with any questions.

 

CALIFORNIA SUPREME COURT, THE CALIFORNIA APPELLAGE COURT, THE JUDICIAL COUNCIL, THE LEGISLATIVE COMMITTEE ON THE REVISION OF THE PENAL CODE ALL SAY INFRACTIONS ARE NOT CRIMES

The court lost whatever jurisdiction it did have when the Judge denied defendant’s right to a jury trial in this criminal case in violation of Article 1 §16 of the California Constitution. Defendant asked the Judge on several occasions as to whether he was being charged with a crime. Judge Applegate repeatedly responded in the affirmative. Since the Judge admits to this being a criminal action, all rights associated to a criminal proceeding are reaffirmed and secured.


Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute. In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court. In civil causes other than causes within the appellate jurisdiction of the court of appeal the Legislature may provide that the jury shall consist of eight persons or a lesser number agreed on by the parties in open court. In criminal actions in which a felony is charged, the jury shall consist of 12 persons. In criminal actions in which a misdemeanor is charged, the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court. (emphasis mine) California Constitution Article 1 §16

The defendant maintains that there was no waiving of the right to Jury Trial in this case and has therefore created a serious constitutional conflict with Penal Code §19.6.

“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 or her unless he or she is arrested and not released on his or her written promise to appear, his or her own recognizance, or a deposit of bail”. Pen Code §19.6

Penal Code §683 tells us what a criminal action is.

“The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action”. Penal Code §683

If you read section 689, it says that NO ONE can be convicted of a public offense (crime) unless upon verdict of a JURY (unless waived by the defendant), or a plea of guilty.

“No person can be convicted of a public offense unless by verdict of a jury, accepted and recorded by the court, by a finding of the court in a case where a jury has been waived, or by a plea of guilty”. Penal Code §689

The California Constitution requires that the right to a jury trial is an inviolate right and shall be secured to all, not some, but all. Pen Code §19.6 denies this right, but must give way in favor of the constitution as it is the supreme law of the state.

“A statute does not trump the Constitution." People v. Ortiz, (1995) 32 Cal.App.4th 286

Fortunately the California Supreme Court and the appeals court have already addressed the denial of right to a jury trial in infraction cases. Their reasoning was that infractions ARE NOT CRIMES.

In the case of People v Sava the court was dealing with successive prosecutions which included both misdemeanors and infractions and there was a question as to whether or not the defendant was entitled to a jury trial for the infraction and the court reasoned:

“The limitation on an accused’s right to a jury trial of infractions has withstood constitutional attack upon the rationale the Legislature did not intend to classify infractions as crimes.” (emphasis mine) People v Sava, 190 Cal App. 3rd 935

The case of People v Sava also referenced the California Supreme court case People v Battle 50 Cal. App. 3rd Supp. 1, which also reiterated that infractions are not crimes. It’s also mentioned in the Judicial Councils Annual Report in the “milestones” section.

“1967 the judicial council sponsored legislation reclassifying minor traffic offenses and non-criminal.” Judicial Council Annual Report

This is also referenced in the very report that was used to sell the idea of de-criminalizing certain traffic offenses and create the infraction classification.

“An infraction is an offense which is punishable by fine, but not [by death or] by imprisonment. An infraction does not constitute a crime and conviction therefor shall not give rise to any legal disability or disadvantage based on conviction of a crime. (emphasis mine) Joint Legislative Committee for the Revision of the Penal Code 1968
Division 3 Disposition of Offenses
Chapter 1. Classification of Offenses
Section 202 Infraction

On Page 9 of the same document, it makes a recommendation to reference a report by the Judicial Council titled, “ Judicial Council for Classifying Minor Traffic Violations as Noncriminal Traffic Infractions, Tentative Draft, May 1966”. (emphasis mine)

The creation of the infraction offense and reading the logic behind such justification for creating the classification is utterly non-sensical at best and downright fraudulent at worst. Basically the judiciary was faced with the problem of certain traffic offenses being a crime and classified as misdemeanors. Defendants, when charged with such offenses, took advantage of their right to a jury trial and court appointed counsel costing the State of California massive amounts of money in litigation costs to only secure, upon conviction a measly fine and maybe some jail time which would only cost the State more money to house the inmate in the jail system.

They even made a statement in their report that reflected the understanding that eventually everyone who used a motor vehicle would be put through the system and more than likely be convicted resulting in a very large portion of the population with a criminal record. The judicial council desperate to come up with a solution that not only would eliminate or at least minimize the cost of such litigation but also would take advantage of the large population that is now looked at as a potential market for vast revenue. They captured this market by taking advantage of the massive misunderstanding of the vehicle laws that existed then and exist even to this day, then, re-classify certain offenses as non-criminal infractions only to be prosecuted in a criminal proceeding for a type of action that has all the characteristics of being civil in nature, while dispensing with the right to a jury trial and court appointed counsel upon the logical fallacy that because it’s only a fine and not jail time, the right to a jury trial can be denied, even though there is no mention of an exemption for denial of rights for a classification that has no basis in our justice system or constitutions to begin with. Just because the exercise of rights becomes inconvenient to a judiciary when trying to adjudicate a particular offense, does not create the right to re-classify the offense in such a way to deny rights that would otherwise be secured.

If it can be said that the legislature has this power, then what is to keep them from reclassifying any crime with justifications full of logical fallacies and thereby dispensing with the costly rights of a jury trial and court appointed counsel for any case. What a great way to subvert the constitution, just as it happened with the de-criminalization of marijuana possession of less than one once, which at one point was considered a misdemeanor but today there is no longer these basic rights when prosecuting this offense because it’s now considered an infraction.
To classify an infraction as a crime and then dispense with rights secured by the constitution would create a question of constitutionality for such classification. It is simply not a power delegated to the legislature by the “people” of this state. The only classifications mentioned in the California Constitution and Federal Constitutions are Felonies, High Crimes, and Misdemeanors. There is in fact and in supreme law no such thing as an infraction.

The solution to this incredible misunderstanding is found in the California Code of Civil Procedure. California Code of Civil Procedure §24 tells us that actions are of two kind, criminal and civil. There is no mention of an action classified as an infraction or as traffic.

Code of Civil Procedure §24
“Action are of two kind:
1. Civil; and,
2. Criminal

Code of Civil Procedure §25
“A civil action arises out of:
1. An obligation;
2. An injury

Code of Civil Procedure §26
“An obligation is a legal duty, by which one person is bound to do or not to do a certain thing, and arises from:
One--Contract; or,
Two--Operation of law”.

From what the defendant can tell, the alleged plaintiff in this case is claiming that the defendant has an “obligation” from some operation of law such as Veh. Code §4000(a)(1) to do or not do a certain thing and therefore would make this a civil action in accordance with the law. Anyone such as a judge or prosecutor making the claim that an infraction is a crime and therefore is prosecuted in accordance with a criminal proceeding without the rights that are normally afforded in such a proceeding is unconstitutional and no one is bound to obey an unconstitutional act. Instead this action has all the characteristics of a civil action and should commence as such. Until this occurs, this court cannot establish subject matter jurisdiction to proceed.

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