Petition — Blanco v. California

78-480

IN THE MICHARL RODAK, JR., C

SUPREME COURT

OF THE UNITED STATES

October Term, 1978

JOHN ERIC BLANCO,

Petitioner,

vs.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR

WRIT OF CERTIORARI

TO THE MUNICIPAL COURT

OF VENTURA COUNTY,

OXNARD DEPARTMENT,

STATE OF CALIFORNIA

IRVING A. KANAREK

14617 Victory Boulevard

Suite 1

Van Nuys, California 91401

(213) 782-2790; 873-4255

Attorney for Petitioner

IN ‘THE

SUPREME COURT

OF THE UNITED STATES Page

October Term, 1978

TOPICAL INDEX

Table of Authorities iii

JOHN ERIC BLANCO, QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS,

Petitioner,

STATUTES AND RULES INVOLVED

vs.

THE STATE OF CALIFORNIA, STATEMENT OF THE CASE

REASONS FOR GRANTING THE

Respondent.

WRIT

1, BOYKIN INFIRMITY INFECTS

PETITION FOR CALIFORNIA BAIL FORFEITURE

WRIT OF CERTIORARI . PROCEDURE INVOLVING TRAFFIC

TICKETS AND THIS PROCEDURE

DIRECTLY INVOLVES UNTOLD

TO THE MUNICIPAL COURT NUMBERS OF PERSONS ANNUALLY,

OF VENTURA COUNTY, THEREFORE, PETITIONER'S

OXNARD DEPARTMENT, ALLEGED SPEEDING ''PRIORS"

STATE OF CALIFORNIA ARE UNCONSTITUTIONAL, HIS

JAIL SENTENCE UNDER THE

CALIFORNIA RECIDIVIST STATUTE

IS IMPROPER, AND THE ERROR

IRVING A. KANAREK IS OF SUFFICIENT IMPORTANCE

14617 Victory Boulevard TO JUSTIFY CERTIORARI.

Suite 1

Van Nuys, California 91401

(213) 782-2790; 873-4255

Attorney for Petitioner

2. THE ISSUE OF WHETHER TRIAL

JUDGE COVERED UP SECRET

COMMUNICATION FROM DELIBERAT-

ING JURY IN ALLEGED APPARENT

EFFORT TO SECURE CONVICTION

OF PETITIONER AT ALL COSTS,

EVEN BY OBVIOUSLY UNCONSTITU-

TIONAL MEANS, INVOLVES JUDGE'S

REFUSAL TO TESTIFY IN MATTER

OP ALLEGED JUDICIAL MISCONDUCT

TENDING TO DESTROY PUBLIC

CONFIDENCE IN ENTIRE CRIMINAL

JUSTICE SYSTEM AND IS, THERE-

FORE, SUFFICIENTLY IMPORTANT

TO REQUIRE REVIEW BY THIS

HONORABLE COURT.

CONCLUSION

APPENDIX A

Order of the Appellate Department

of the Superior Court of the State of

California for the County of Ventura

Affirming Judgment of Conviction

APPENDIX B

Order of the Appellate Department

of the Superior Court of the State of

California for the County of Ventura

Denying Petitioner's Petition for

Rehearing and Certification to the

California Court of Appeal

ii.

26

30

TABLE OF AUTHORITIES

Cases

Argersberger v. Hamlin,

(1972) 407 U.S. 25

Boykin v. Alabama,

(1969) 395 U.S. 238

In re Johnson,

(1964) 62 Cal.2d 325

In re Tahl,

(1969) 1 Cal. 3d 122

Mempa v. Rhay,

(1972) 399 U.S. 128

Mills v. Municipal Court,

(1973) 10 Cal. 3d 288

People v. Butler,

(1975) 47 Cal. App. 3d 273

People ex rel. Board of State Harbor

Comm, v. Southern Pac. Co.,

177 Cal, 55

People v. Miner,

(1977) 68 Cal. App. 3d Supp. 1

People v. Weatherford,

(1945) 27 Cal. 2d 401

iii.

2, 24, 25

27

27

27

28

28

2, 24, 25

27

Rogers v. United States,

(1975) 422 U.S. 325

Constitutions

California Constitution,

Article 1, Section 15 oe

United States Constitution:

Sixth Amendment .

Fourteenth Amendment 3, aos

Statutes

California Evidence Code:

Section 450 4,

Section 451 5.

Section 452 1»

Section 453 +s

Section 703 8,

California Penal Code:

Section 16 8,

Section 17(a) 8,

Section 19c 9,

iv.

28

27

27

27

28

28

28

28

29

23

23

23

Callfornia Penal Code:

Section 987. 2(d) 9,

Section 1042.5 is

Section 1138 13. 2F,

California Vehicle Code:

Section 13,103 12,

Section 22, 348(a) 12, 20,

Section 40,000.1 12,

Section 40,000.28 33, 20, 21,

Section 40, 507 13,

Section 40, 510 is,

Section 40, 511 14,

Section 40, 512 14,

Section 40,513 | 15,

Section 40,519 16,

Section 42, 521 18,

Section 42, 001(a) 19,

Section 42,004 | 19,

28 U.S.C. 1257 (3)

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1978

No.

JOHN ERIC BLANCO,

Petitioner,

vs.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR

WRIT OF CERTIORARI

To: The Honorable Chief Justice, and Associate

Justices of the Supreme Court of the United States.

Petitioner respectfully asks the issuance

of a Writ of Certiorari to review the judgment of

the Appellate Department of the Superior Court

of the State of California for the County of Ventura

on May 23, 1978, followed by denial of Petitioner's

petition for rehearing or for certification to the

Court of Appeal on June 8, 1978, which judgment

affirmed the judgment of the Municipal Court of

the Ventura Judiciai District, Oxnard Department,

County of Ventura, State of California. There

was no written opinion either in the trial Court

or in the reviewing court. See: Appendix A and

Appendix B.

1.

This Court has jurisdiction to review

the judgment above described under 28 U.S.C.

1257 (3).

QUESTIONS PRESENTED

1. Does Boykin-Tahl- Miner infirmity in

procedure permitting posting and forfeiture of

bail on speeding charge without appearing in

court result in violationd due process and void-

ing speeding ''priors'’ based on such procedure

so as to make inapplicable recidivist statute

authorizing jail sentence on conviction of sub-

sequent speeding charge, where in absence of

priors” no jail sentence can be imposed?

2. Is alleged trial judge cover-up of

secret communication from deliberating jury

in alleged apparent effort to secure conviction

of petitioner at all costs, even by obviously

unconstitutional means, involving judge's refusal

to testity in matter of alleged judicial misconduct

tending to destroy public confidence in entire

criminal justice system of sufficient importance

to require review by this honorable court?

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED

UNITED STATES CONSTITUTION;

In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with

2.

the witnesses against him; to have compulsory "Persons may not twice be put

process for obtaining witnesses in his favor, : in jeopardy for the same offense,

and to have the Assistance of Counsel for his be compelled in a criminal cause to

defense. be a witness against themselves,

or be deprived of life, liberty, or

Sixth Amendment property without due process of law.

(Added Nov. 5, 1974. )"

- » « nor shall any State deprive any

person of life, liberty, or property, CALIFORNIA EVIDENCE CODE:

without due process of law; nor deny

to any person within its jurisdiction Section 450. Judicial notice may not be

the equal protection of the laws. taken of any matter unless authorized or required

by law.

Fourteenth Amendment, Section 1

"451. Judicial notice shall be

CALIFORNIA CONSTITUTION: - taken of:

Art. 1, §15 '(a) The decisional, constitu-

‘ tional, and public statutory law of

'15. Criminal cases; speedy public this state and of the United States

trial; compel attendance of witnesses; and the provisions of any charter

appearance and defense; counsel; described in Section 73 or 8 of

depositions; double jeopardy; self- Article XI of the California Constitution.

incrimination; due process "(b)

b) Any matter made a

"Sec. 15. The defendant ina subject of judicial notice by Section

criminal cause has the right toa 11383, 11384, or 18576 of the Govern-

speedy public trial, to compel attendance ment Code or by Section 307 of Title

of witnesses in the defendant's behalf, 44 of the United States Code.

to have the assistance of counsel for

the defendant's defense, to be personally "(c) Rules of professional

present with counsel, and to be confronted conduct for members of the bar

with the witnesses against the defendant. adopted pursuant to Section 6076 of

The Legislature may provide for the the Business and Professions Code

deposition of a witness in the presence and rules of practice and procedure

of the defendant and the defendant's for the courts of this state adopted by

counsel. ’

3. 4,

the Judicial Council.

"(d) Rules of pleading, practice,

and procedure prescribed by the United

States Supreme Court, such as the

Rules of the United States Supreme Court,

the Federal Rules of Civil Procedure, the

Federal Rules of Criminal Procedure,

the Admiralty Rules, the Rules of the

Court of Claims, the Rules of the

Customs Court, and the General Orders

and Forms in Bankruptcy.

"(e) The true signification of

all English words and phrases and of

all legal expressions.

'(f) Facts and propositions of

generalized knowledge that are so

universally known that they cannot

reasonably be the subject of dispute.

Section 451

"452, Judicial notice may be

taken of the following matters to the

extent that they are not embraced

within Section 451:

(a) The decisional, constitu-

tional, and statutory law of any state

of the United States and the resolutions

and private acts of the Congress of the

United States and of the Legislature of

this state.

'(b) Regulations and legislative

enactments issued by or under the

authority of the United States or any

public entity in the United States.

'(c) Official acts of the legisla-

tive, executive, and judicial departments

of the United States and of any state of

the United States.

'(d) Records of (1) any court of

this state or (2) any court of record of

the United States or of any state of the

United States.

'"(e) Rules of court of (1) any

court of this state or (2) any court of

record of the United States or of any

state of the United States.

"(f) The law of an organization

of nations and of foreign nations and

public entities in foreign nations.

"(g) Facts and propositions

that are of such common knowledge

within the territorial jurisdiction of

the court that they cannot reasonably

be the subject of dispute.

'(h) Facts and propositions that

are not reasonably subject to dispute

and are capable of immediate and

accurate determination by resort to

sources of reasononably indisputable

accuracy.

6.

Section 452

''453, The trial court shall take

judicial notice of any matter specified

in Section 452 if a party requests it

and:

(a) Gives each adverse party

sufficient notice of the request,

through the pleadings or otherwise,

to enable such adverse party to prepare

to meet the request; and

'(b) Furnishes the court with

sufficient information to enable it to

take judicial notice of the matter.

Section 453

"§703. Judge as witness. (a) Before

the judge presiding at the trial of an

action may be called to testify in that

trial as a witness, he shall, in pro-

ceedings held out of the presence and

nearing of the jury, inform the parties

of the information he has concerning

any fact or matter about which he will

be called to testify.

'(b) Against the objection of

a party, the judge presiding at the

trial of an action may not testify in that

trialas a witness. Upon such objection,

the judge shall declare a mistrial and

order the action assigned for trial

before another judge.

7,

'(c) The calling of the judge

presiding at a trial to testify in that

trial as a witness shall be deemed a

consent to the granting of a motion for

mistrial, and an objection to such

calling of a judge shall be deemed a

motion for mistrial.

"(d) In the absence of objection

by a party, the judge presiding at the

trial of an action may testify in that

trial as awitness. (Stats. 1965, c.

299, §703.)

Section 703

CALIFORNIA PENAL CODE:

Section 16. Crimes and public offenses

include:

Be Felonies;

oe Misdemeanors; and

3. Infractions

Section 17. Felony; misdemeanor;

classification of offenses

(a) A felony is a crime which

is punishable with death or by imprison-

ment in the state prison. Every other

crime or pbulic offense is a mis-

demeanor except those offenses that

are classified as infractions.

Section 19c. Infractions; punishment;

jury trial; right to public defender

An infraction is not punishable by

imprisonment. 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.

Section 987. 2(d)

''§987.2 Assigned counsel; compensa-

tion; public defenders; fees chargeable

to department of corrections

"(a) In any case in which a

minor, desires but is unable to employ

counsel and in which counsel is assigned

in the superior court, municipal court,

or justice court to represent such a

person in a criminal trial, proceeding

or appeal, such counsel, in a county

or city and county in which there is

no public defender, or in a case in which

the court finds that because of conflict

of interest or other reasons the public

defender has properly refused to

represent the person accused, shall

receive a reasonable sum for compensa-

tion and for necessary expenses, the

amount of which shall be determined

by the court, to be paid out of the

9,

ral fund of the county.

——(b) The sum provided for in

subdivision (a) may be determined

by contract between the court and one

or more responsible attorneys after

consultation with the board of supervisors

as to the total amount of compensation

and expenses to be paid, which shall

be within the amount of funds allocated

by the board of supervisors for the

cost of assigned counsel in such cases.

"(c) The board of supervisors

may by contract provide that any public

defender duly appointed or elected

may charge reasonable fees to the

Department of Corrections for represent-

ing inmates of prisons under its control,

and the Department of Corrections may

upon approval by the court pay such fees

into the county treasury to be placed in

the general fund of the county.

"(d) Counsel shall be appointed

to represent, in the municipal or justice

court, a person who desires but is

unable to employ counsel, when it

appears that such appointment is

necessary to provide an adequate and

effective defense for defendant.

(Formerly §987a, added by Stats. 1965,

c. 1707, p. 3841, §1; Stats. 1967, c.

941, p. 2439, §1. Renumbered 987, 2

and amended by Stats. 1970, c. 723,

p. 1350, §1; Stats. 1971, c. 1003,

10.

p. 1920, §1.)

Section 1042.5 Trial of infraction

Trial of an infraction shall be

by the court, but when a defendant has

been charged with an infraction and

with a public offense for which there

is a right to jury trial and a jury trial

is not waived, the court may order that

the offenses be tried together by jury

or that they be tried separately with the

infraction being tried by the court either

in the same proceeding or a separate

proceeding as may be appropriate.

Section 1138

''§1138, Information for jury after

retirement; return to court; notice

to counsel

"After the jury have retired for

deliberation, if there be any disagree-

ment between them as to the testimony,

or if they desire to be informed on any

point of law arising in the case, they

must require the officer to conduct them

into court. Upon being brought into

court, the information required must

be given in the presence of, or after

notice to, the prosecuting attorney, and

the defendant or his counsel, or after

they have been called.

11,

(Enacted 1872. Amended by Code Am.

1873-74, c. 614, p. 445, §65; Stats.

1951, c. 1674, p. 3848, §103. )"

CALIFORNIA VEHICLE CODE:

Equivalents of Conviction

13103. For purpose of this

division, a plea of nolo contendere ora

plea of guilty or judgment of guilty,

whether probation is granted or not, a

forfeiture of bail, or a finding reported

under Section 1816, constitutes a

conviction of any offense prescribed

by this code, other than offenses relating

to the unlawful parking of vehicles.

Temporary Maximum Speed Limit

22348. (a) Notwithstanding

Section 22349, 22356, or any other

provision of this chapter to the contrary,

no person shall drive a vehicle upon a

highway at a speed greater than 55 miles

per hour.

Infractions

40000.1. Except as otherwise

provided in this article, it is unlawful

and constitutes an infraction for any

person to violate, or fail to comply with

any provision of this code, or any local

ordinance adopted pursuant to this code.

12,

Misdemeanor: Three or More Violations

40000.28. Any offense which would

otherwise be an infraction is a mis-

demeanor if a defendant has been convicted

of three or more violations of this code

or any local ordinance adopted pursuant

to this code within the 12-month period

immediately preceding the commission

of the offense and such prior convictions

are admitted by the defendant or alleged

in the accusatory pleading. For this

purpose, a bail forfeiture shall be deemed

to be a conviction of the offense charged.

This section shall have no application

to violations by pedestrians.

Appearance by Counsel

40507. A written promise to

appear in court may be complied with

by an appearance by counsel,

Deposit of Bail

40510. The defendant may, prior

to the date upon which he promised to

appear, deposit bail with the magistrate

or the person authorized to receive a

deposit of bail.

For any offense which is not

declared to be a felony, such deposit of

bail may be by the personal check of the

person who has signed a written promise

to appear, if he furnishes to the person

authorized to receive a deposit of bail

13,

satisfactory evidence of residence in

this state and if such personal check is

drawn on a banking institution located

in this state.

Fixing Bail

40511. If bail has not been previously

fixed and approved by the judges of the

court in accordance with Section 1275 of

the Penal Code, will be reasonable and

sufficient for the appearance of the defen-

dant and shall endorse upon the notice a

statement signed by him in the form set

forth in Section 815a of the Penal Code.

Forfeiture of Bail

40512. If at the time when the case

is called for arraignment before the

magistrate the defendant does not appear,

either in person or by counsel, the magistrate

may declare the bail forfeited and may in

his discretion order that no further proceed-

ings be had in the case, unless the defendant

has been charged with violation of Section

23111 or 23112, or subdivision (a) of

Section 23113, and he has been previously

convicted of the same, except in cases

where the magistrate finds that undue

hardship will be imposed upon the defen-

dant by requiring him to appear, the

magistrate may declare the bail forfeited and

order that no further proceedings shall be

had in such case,

14,

~

Upon the making of tne order that

no further proceedings be had, all sums

deposited as bail shall forthwith be paid

into the city or county treasury as the

case may be.

Filing of Complaint

40513. (a) Whenever written notice

to appear has been prepared, delivered,

and filed with the court, or whenever

notice has been given pursuant to the

provisions of Section 41102, an exact and

legible duplicate copy of the notice when

filed with the magistrate, in lieu ofa

verified complaint, shall constitute a

complaint to which the defendant may

plead "guilty" or ''nolo contendere."

If, however, the defendant violates

his promise to appear in court or does

not deposit lawful bail, or pleads other

than ''guilty'' or ''nolo contendere” to

the offense charged, a complaint shall be

filed which shall conform to the provisions

of Chapter 2 (comencing with Section

948) of Title 5, Part 2, of the Penal Code,

and which shall be deemed to be an

original complaint, and thereafter pro-

ceedings shall be had as provided by law,

except that a defendant may, by an agree-

ment in writing, subscribed by him and filed

with the court, waive the filing of a verified

complaint and elect that the prosecution

may proceed upon a written notice to appear.

15.

Trial Scheduling; Written Not Guilty Plea

"40519. (a) Any person who

has received a written notice to appear

for an infraction, may, prior to the

time at which he is required to appear,

make a deposit and declare his intention

to plead not guilty to the clerk of the

court named in the notice to appear.

The deposit shall be in the amount of

bail established pursuant to the provi-

sions of Section 1269b of the Penal Code,

together with any assessment required

by Section 42006 or 42050 of this code,

for the offense charged, and shall

be used for the purpose of guaranteeing

the appearance of the defendant at the

time and place scheduled by the clerk

for arraignment and for trial, and to

apply toward the payment of any fine

or assessment prescribed by the court

in the event of conviction. The case shall

thereupon be set for arraignment and

trial on the same date, unless the

defendant requests separate arraignment,

'(b) Any person who has received

a written notice to appear for an infrac-

tion may, prior to the time at which he

is required to appear, plead not- guilty

in writing in lieu of appearing in person.

The written plea shall be directed to the

court named in the notice to appear and,

if mailed, shall be sent by certified or

registered mail postmarked not later

than five days prior tothe day upon which

16,

appearance is required. Such written

plea and request to the court shali

be accompanied by a deposit of twenty-

five dollars ($25) which amount shall

be used for the purpose of guaranteeing

the appearance of the defendant at the

time and place set by the court for

trial and to apply toward the payment

of fine, if any, prescribed by the

court upon conviction. Thereafter,

the case shall be conducted in the same

manner as if the defendant had appeared

in person, had made his plea in open

mourt, and had deposited such sum

of twenty-five dollars ($25) as bail.

The court or the clerk of the court

shall notify the accused of the time

and place of trial by first-class mail

postmarked at least 10 days prior to the

time and place of trial. Any person

using this procedure shall be deemed

to have waived his right to be tried

within the statutory period.

"(c) Any person using the

procedure set forth in subdivision (a)

or (b) shall be deemed to have given

his written promise to appear at the

time designated by the court for trial,

and failure to appear at the trial shall

constitute a misdemeanor.

'(d) This section shall remain

in effect only until July1, 1976, and as

of such date is repealed, unless a

later enacted statute, which is chaptered

17.

before July 1, 1976, deletes or extends

such date."

Forfeited Bail and Penalty Assessment:

Deposit by Mail

"40521. (a) Except when personal

appearance is required by the bail

schedule established under Section

1269b of the Penal Code, a person

to whom a notice to appear has been

issued under Section 40500 who intends

to forfeit bail and to pay any penalty

assessment may forward by United States

mail the amount fixed as bail, together

with the appropriate amount of any

penalty assessment, to the person

authorized to receive a deposit of bail.

Notwithstanding the provisions of

Section 40510, such amounts may be

paid in the form of personal check of

the person who has signed a written

promise to appear and drawn ona

banking institution located in this state,

a »ank cashier's check, or a money

order. Bail and any penalty assess-

ment shall be paid not later than the

day of appearance set forth in the notice

to appear.

"(b) Bail forwarded by mail

shall be effective only when the funds

are actually received.

'(c) The provisions of Section

40512 are applicable to bail pursuant

18,

to this section. Upon the making of

the order pursuant to Section 40512

that no further proceedings be had, the

amount paid as bail shall be paid into

the city or county treasury, as the case

may be, and the penalty assessment

shall be transmitted to the State Treasury

in the manner provided in Section 42052."

Infractions and Special Misdemeanors

42001. (a) Except as provided

in Section 42001.5, every person

convicted of an infraction for a violation

of this code or of any local ordinance

adopted pursuant to this code shall be

punished upon a first conviction by a

fine not exceeding fifty dollars ($50)

and for a second conviction within a

period of one year by a fine of not

exceeding one hundred dollars ($100)

and for a third or any subsequent conviction

within a period of one year bya fine of

not exceeding two hundred firty dollars

($250).

Determination of Penalty

42004. For the purpose of

determining the penalty to be imposed

pursuant to this code, the court may

consider a written report from the

Department of Motor Vehicles contain-

ing information from its records

showing prior convictions; and the

communication is prima facie evidence

19,

of such convictions, if the defendant

admits them, regardless of whether

or not the complaint commencing the

proceedings has alleged prior convictions.

For the purpose of this chapter a

prior bail forfeiture shall be deemed

to be a conviction of the offense charged.

STATEMENT OF THE CASE

Petitioner was charged by a misdemeanor

complaint, filed in the Municipal Court of the

Ventura Judicial District, Oxnard Branch, Ventura

County, State of California, charging violation of

California Vehicle Code Section 22, 348(a) by

speeding on April 22, 1977, and with three (3)

convictions for speeding within one year prior

to that date, thereby permitting jury trial and

sentence upon conviction as a misdeanant under

the California recidivist statute, Vehicle Code

Section 40,000.28. After jury trial in said

Court, he was found guilty and sentenced, inter

alia to thirty (30) days in the Ventura County Jail

on August 5, 1977.

The thirty (30) day sentence was possible

because of the three (3) "priors.'' Ordinarily,

i.e., in the absence of the priors, conviction

on a speeding ticket in California is treated

as an infraction permitting neither jury trial nor

jail sentence. See Reasons For Granting the

Writ, infra.

20.

Two (2) of the three (3) priors occurred

by way of petitioner posting and forfeiting bail

without appearing in court at all, a procedure

encouraged by California statute. In this

procedure, no provisionis made for either

giving or recording an official admonition that a

possible consequence is that the bail forfeiture

will be treated as a conviction for the purposes

of the recidivist statute, Vehicle Code Section

490,000.00. 28 and that therefore conviction of a

later offense might carry with it a jail sentence,

not permitting the ordinary bail forfeiture procedure.

A basic factual issue in the case was the

credibility of the testimony of the officer who

gave petitioner the speeding citation, and important

to that credibility were (1) the geographical loca-

tion on the freeway where the officer indicated

on the citation that he stopped plaintiff, and (2)

the geographical location of the alleged offense

for which the petitioner was cited (noted on the

citation), and (3) the nature of the freeway, i.e.,

whether it was so winding that in view of admitted

traffic plaintiff could not have been speeding.

During the jury deliberations, the jury

sent through the bailiff a written request to the

judge for a map of the pertinent streets and

freeways and the written traffic citation. The

judge turned down the written request by writing

on its back and the writing was returned to the

jury and never showed upincourt. The judge

did not inform petitioner's defense counsel either

of the jury request or the fact of the denial.

a

Upon motion for new trial the petitioner's

defense counsel raised the question of the written

request and the judge denied its existence until

the jury foreman testified in such manner as to

make it overwhelmingly obvious that the written

request had been made and denied in secret as

far as petitioner's defense counsel was concerned.

At this point defense counsel promptly invoked the

procedure for having the trial judge testify under

oath as to his intention in not revealing the incident

in connection with the proposition that the judge

intended to make sure that petitioner was convicted

at all costs, even at the expense of obviously un-

constitutional conduct. The trial judge offered a

refused stipulation that the incident occurred but

refused to testify under oath. The motion for

new trial was denied.

After petitioner was sentenced, he appealed

to the Appellate Department of the Superior Court

of the State of California, for the County of

Ventura, and the judgment was affirmed on May 23,

1978, without written opinion (see Appendix A).

Petitioner exhausted his state remedies by petition-

ing said Court for a rehearing and/or certification

to the California Court of Appeal. The said

petition was denied on June 8, 1977 (see Appendix

B).

Petitioner has been at large on Twenty-five

Hundred Dollars ($2,500.00) Bail since the time of

sentencing, August 5, 1977.

22.

REASONS FOR GRANTING THE

WRIT

1. BOYKIN INFIRMITY INFECTS

CALIFORNIA BAIL FORFEITURE

PROCEDURE INVOLVING TRAFFIC

TICKETS AND THIS PROCEDURE

DIRECTLY INVOLVES UNTOLD

NUMBERS OF PERSONS ANNUALLY.

THEREFORE, PETITIONER'S

ALLEGED SPEEDING "'PRIORS"

ARE UNCONSTITUTIONAL, HIS

JAIL SENTENCE UNDER THE

CALIFORNIA RECIDIVIST STATUTE

IS IMPROPER, AND THE ERROR

IS OF SUFFICIENT IMPORTANCE

TO JUSTIFY CERTIORARI.

A California motorist who does not wish to

fight a traffic ticket for speeding ordinarily has

two options: he may appear in court and plead

guilty; alternatively, he may post and forfeit

bail without appearance. In either event, he is

regarded as having been convicted for the purposes

of the recidivist statute which permits punish-

ment by imprisonment if he has three prior

traffic convictions within the year (if the recidivist

statute doesn't apply, no imprisonment can be

given). See: California Penal Code Sections:

16; 17(a); 19c; 1042.5; California Vehicle Code

Sections: 13,103; 22, 348(a); 40,000.1; 40,000.28;

40,507; 40,510; 40,511; 40,512; 40,513; 40,519;

40,521; 42.001(a); 42,004.

23.

The bail forfeiture procedure provides

no method of recording any official admonish-

ment as to the consequences of following it.

The major consequence is, of course, that the

unsuspecting motorist (who gives up a good defense

to a speeding charge in order to save time in the

belief that this ends the matter) may suddenly find

that for a renewed speeding offense he is subject

to a jail sentence.

Boykin v. Alabama (1969) 395 U.S. 238

establishes, inter alia, the principle that

Fourteenth Amendment due process is violated by

a guilty pea that is accepted without official

admonishment, affirmatively appearing in the

record and proved by the prosecution, that the

plea was intelligent and that a plea is not

intelligent unless the defendant is officially

admonished as to the full consequences of his plea.

Hence, in California if the defendant on a

speeding ticket appears in Court he is admonished

as a matter of course with respect to the conse-

quences) before a guilty plea will be taken by the

Court (People v. Miner (1977) 68 Cal. App. 3d

Supp. 1, 4; compare: In re Tahl (1969) 1 Cal. 3d

122).

Here, the basis for sentencing petitioner to

jail for thirty (30) days on a speeding ticket

ordinarily carrying no possibility of a jail sentence

was the recidivist allegation that he had been

convicted of three (3) ''priors'’ during the year.

Two of the alleged "convictions? were bail

forfeitures on speeding tickets, i.e., situations

where petitioner (though perhaps having a good

24.

defense) forfeited bail without appearing in court

in order to save times and without knowing that

he was laying the groundwork for a jail sentence

if he were later convicted of the same offense

within the year.

Therefore, the Fourteenth Amendment

invalidates the two (2) ''priors'’ on two separate

theories:

(1) By direct application of Boykin, due

process rendered them improper because of

lack of official admonition in the record; and

(2) There is no sane reason why a

distinction should be drawn with respect to official

admonition in the record between the situation

where the motorist appears in Court (Miner, supra)

and the one, where, to save time he takes advantage

of the opportunity not to appear in Court. Hence,

as a matter of equal protection the Boykin- Miner-

Tahl rule should have been followed in the bail

forfeiture situation (e.g., by written form

acknowledged in writing to have been read by the

motorist).

Since the two "'priors'’ were invalid because

of due process and equal protection considerations,

the recidivist statute could not properly apply, and

it was improper to sentence petitioner to jail.

Untold numbers of California motorists are

lured annually into taking the bail forfeiture

option in the mistaken belief that this ends the

matter so that it makes more sense to post and

forfeit bail at the motorist's convenience, than

25.

to speed time in Court to fight what appears to

be a trivial matter (even though there is a good

defense). Such apparent trickery on the part of

the state on such a wholesale basis obviously has

a serious tendency to breed disrespect for all

processes of law and government. Therefore,

the matter is of sufficient importance for this

Honorable Court to end the deceptive practice

once and for all by granting certiorari herein

and laying down guidelines regarding proper

admonition when the motorist takes advantage of

the purportedly practical and time-saving bail

forfeiture procedure with respect to minor traffic

violations.

2, THE ISSUE OF WHETHER TRIAL

JUDGE COVERED UP SECRET

COMMUNICATION FROM DELIBERAT-

ING JURY IN ALLEGED APPARENT

EFFORT TO SECURE CONVICTION

OF PETITIONER AT ALL COSTS,

EVEN BY OBVIOUSLY UNCONSTIT Use

TIONAL MEANS, INVOLVES JUDGE'S

REFUSAL TO TESTIFY IN MATTER

OF ALLEGED JUDICIAL MISCONDUCT

TENDING TO DESTROY PUBLIC

CONFIDENCF IN ENTIRE CRIMINAL

JUSTICE SYSTEM AND IS, THERE-

FORE, SUFFICIENTLY IMPORTANT

TO REQUIRE REVIEW BY THIS

HONORABLE COURT.

Upon motion for new trial, it was conclusively

established that the trial judge had failed to notify

26.

defense counsel of his denial of a written request

by the jury during its deliberations of relevant

evidence (admissible by way of judicial notice).

At said time, the judge first denied the incident

and only admitted the same when confronted with

testimony bY the jury foreman. Petitioner

alleges the issue arose as to whether or not the

judge's purpose was to insure conviction of

petitioner at all costs, even by obviously unconsti-

tutional means; he refused to be examined under

oath as to his conduct and intent with respect

to the written jury request. (See STATEMENT

OF THE CASE, supra, for details. )

It is a long established constitutional principle

that in state prosecution of criminal cases, no

matter what level the offense, defense counsel

(unless knowingly waived) must be present at every

stage of the judicial proceedings. See: United

States Constitution, Amendments Six and Fourteen;

Mempa v. Rhay (1972) 399 U.S. 128; Argersberger

v. Hemlin (1972) 407 U.S. 25; Mills v. Municipal

Court (1973) 10 Cal. 3d 288, 300. The principle

is reiterated in California constitutional provision

and statute (California Constitution, Article 1,

Section 15; California Penal Code Section 987. 2(d),

formerly Section 987a; In re Johnson (1964) 62 Cal.

2d 325, 329).

As an obvious application of this principle,

it is well settled, by California statute and case

law that it is gross misconduct for the trial judge

to communicate with a deliberating jury upon any

non-trivial matter without notification and presence

of defense counsel. See: California Penal Code

Section 1138; People v. Weatherford (1945)

27.

27 Cal.2d 401. Compare: Rogers v. United States

(1975) 422 U.S. 325 (same principle followed in

federal criminal prosecutions for same ultimate

reason).

Furthermore, by California statute and

case law, a trial judge must honor a deliberating

jury's request for evidence on non-trivial issues

considered by the jury to be important in resolving

them (California Penal Code Section 1138; People

v. Butler (1975) 47 Cal. App. 3d 273).

Finally, California statute and case law

authorize admission of the evidence requested by

the deliberating jury herein (and turned down by the

judge, arbitrarily and out of hand) under the doctrine

of judicial notice. See: California Evidence Code

Sections 450, 451, 452, 453; People ex rel. Board

of State Harbor Comm. v. Southern Pac. Co.,

177 Cal, 55.

In view of these principles it is arguable that:

(1) The trial judge violated constitutional

principle in the first instance by unilaterally deny-

ing the jury's request without informing defense

counsel of the request or the action and without

giving defense counsel an opportunity to advocate

that the jury's request be granted.

(2) The trial judge again erred in not

granting the jury's request. The evidence in

question (freeway and street map and the traffic

citation) was very readily available. Furthermore,

the evidence was important in determining the

credibility of the law enforcement officer's testimony.

28.

However, beyond this judicial misconduct,

creating a necessity for intervention by this

Honorable Court, is the issue of whether there

was a ''cover-up" by the trial judge. A matter

which cannot be argued and for which no excuse

can be given is the refusal of the trial judge to

testify as to his state of mind and motivation in

secretly receiving and acting upon the jury's

request. Is the existence of a trial judge's inten-

tion, if it existed, to convict at all costs, even at

the expense of disregarding constitutional and

statutory imperatives, determinable without such

testimony? The issue of whether or not cor-

ruption of a trial judge occurred is obviously a

serious matter, going to the vitals of the judicial

process and public confidence therein. The

taking of evidence was necessary and such evidence

could only be taken by examination of the trial

judge as a witness and under oath. California

statute provides a procedure for judicial testimony

(California Evidence Code Section 703). Refusal

of the trial judge to submit to the examination

as timely requested by petitioner denies due

process and equal protection under the Fourteenth

Amendment to petitioner. There is no reason

why, by appropriate proceeding a judge should

not give relevant testimony especially when he is

the only witness available as to a material matter,

in this instance his intent and motive in connection

with the admitted failure to accede to the jury's

request (written note).

Our system of criminal justice and, indeed,

all government, rests, at rock bottom, on the

idea (taken from our common-law progenitors)

that ours is a system of law and no one is ''above

29.

the law."

Judicial ''Watergates'' must not be tolerated.

(Judicial action was prominent in brining ''Water-

gates'' to light.) The obvious alternative is indeed

to engender destruction of judicial credibility.

Hence, especially in the climate of our

times, the issue of alleged judicial ‘cover-up’

of alleged judicial misconduct cannot be safely

ignored by this, the highest Court in our land.

CONCLUSION

For the reasons outlined above the within

petition for Writ of Certiorari should be granted.

September 19, 1978

Respectfully submitted,

IRVING A. KANAREK

Attorney for Petitioner

30.

APPENDIX A /s/Robert L. Shaw

ROBERI L. SHAW

4 Judge of the Superior Court

SUPERIOR COURT Appellate Department

OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF VENTURA

APPELLATE DEPARTMENT

DATED: May 23 1978

FILED

May 23 1978

Robert L. Hamm, County

Clerk

By /s/ Lois Moynihan

Deputy County Clerk

THE PEOPLE OF THE ) NO. APP 765

STATE OF CALIFORNIA, ) (Municipal Court

) No. A823862 )

Plaintiff/ Respondent, ) JUDGMENT

vs. ) (On appeal from the .

) Municipal Court of

JOHN ERIC BLANCO, ) Ventura County

) Oxnard Department)

Defandant/Appellant. )

)

The above-entitled cause having been fully

argued, submitted and taken under advisement,

IT IS ADJUDGED that the Judgment of the

Muncipal Court be and hereby is affirmed.

/s/ Marvin H. Lewis

MARVIN H. LEWIS

Presiding Judge of the Superior Court

Appellate Department

A-1 A-2

APPENDIX B

SUPERIOR COURT STATE OF CALIFORNIA,

COUNTY OF VENTURA

DATE: June 8, 1978 TIME: 9:00 A.M.

HON. MARVIN H. JUDGE APPELLATE

LEWIS, PRESIDING DEPARTM ENT

HON. RICHARD C, JUDGE APPELLATE

HEATON DEPARTMENT

HON. ROBERT L. JUDGE APPELLATE

SHAW DEPARTMENT

Lois Moynihan Deputy County Clerk

Deputy Sheriff

Court Reporter

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff/ Respondent,

No. APP 765 _ vs. Counsel for

JOHN ERIC BLANCO,

Defendant/ Appellant.

Counsel for

NATURE OF PROCEEDINGS: ORDER

DENYING APPELLANT'S PETITION

Appellant's petition for rehearing or for

certification to the Court of Appeal, having here-

tofore been submitted to the Court for consideration

and decision, and the Court having only considered

the same, now orders that said petition be and

hereby is denied.

B-1

ROBERT L. HAMM, County Clerk

By

/s/ Lois Moynihan

Lois Moynihan

Deputy County Clerk