THEA COP

AT2

3roJ

BY 4,

5

6

78

9

10

1112

1314

15

16

1718

1920

21

22

23

24

25

26

2728

INSIFILINENT ISF,Et7.7 COPY OF rlIE

THIS OFFICIE'1ST: °AVID H. YAMASAKi

MAR 14 1011I1EF EXECITINt OFilt.IF.PItCLE11 , .

I COAT (k, C A I ; t : ,' I . MY OF VNIA CLARA

DEPUTY

e Mach

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

VS

ANTHONY M. SHAFFER

LIC:$

0A‘,1:11"DAR i fR COURT OF CALIFORNIA,,,,4,,

1 A R A -2, Colrn -Cf!Itig E t,i w A S A K Ior .,Icectitivo Ottkr/c erkOUNTY OF SANTA CL

APPELLATE DIVISION

Defendant and Appellant.

1

ORDER

ORDER

Case No. 1-10-AP-0009*Y1

DEP

The appeal by appellant Anthony M. Shaffer ("Appellant") from the traffic conviction of

the Superior Court came on regularly for hearing and was heard and submitted on March 11,2011. We hereby hold as follows:

Appellant appeals his traffic conviction for violating Vehicle Code section 26708,

subdivision (a)(1). Appellant argues that the conviction should be reversed because the statutoryscheme for a failure to appear was ignored, trials in absentia are generally prohibited, the trialcourt violated the Confrontation Clause and exceeded judicial discretion, Vehicle Code section

40903 and Criminal Rule 12 are too vague to be operative, and better alternatives to trials inabsentia exist.

Because Appellant failed to address his citation and appear on the date indicated on the

citation, the Superior Court sent Appellant a Notice of Failure to Appear and Civil Assessment

on July 12, 2010. (See Record, p. 2.) The Notice of Failure to Appeal and Civil Assessmentindicated that a failure to comply with one of the options listed above would be deemed consent

to Trial by Written Declaration and a waiver of certain rights. (Ibid.) On September 8, 2010, a

1

2

3

4

5

6

78

9

10

11

1213

14

1516

17

18

1920

21

22

2324

2526

27

28

Decision and Notice of Decision was filed, indicating that Appellant's failure to appear was

deemed an election to proceed by trial by written declaration, and Appellant was found guilty of

violating Vehicle Code section 26708, subdivision (a)(1). (See Record, p. 3.) It further indicate

that i f Appellant wished to request a new trial (trial de novo), Appellant must submit a requestfor a new trial and pay the fine amount within 20 days. (Ibid.) Appellant filed a Notice of

Appeal on September 24, 2010. (See Record, p. 5.)"Any person who fails to appear as provided by law may be deemed to have elected to

have a trial by written declaration upon any alleged infraction, as charged by the citing officer,

involving a violation of this code or any local ordinance adopted pursuant to this code (Veh.

Code, § 40903, subd. (a).) " I f the defendant is dissatisfied with a decision of the court" in a trial

by written declaration, "the defendant shall be granted a trial de novo." (Veh. Code, § 40902,subd. (d).) California Rules of Court, rule 4.210(b)(7) provides that i f a defendant's request fornew trial "is not timely received, no new trial may be held and the case must be closed."

"[I]he requirement for a trial de novo under section 40902 is similar to the statutory

requirement of a trial de novo applicable in cases arising from decisions by local agencies

pursuant to an ordinance." (People v. Kennedy (2008) 168 Cal.App.4th 1233, 1240, citing Gov.Code, § 53069.4, subd. (b)(1).) "One who contests an adverse decision from an administrative orother municipal agency relating to an ordinance must 'seek review by filing an appeal to be

heard by the superior court, where the same shall be heard de novo, except that the contents of

the local agency's file in the case shall be received in evidence.' (Ibid.) "Considering the factthat section 40902 governs trials by written declaration 'upon any alleged infraction invo lvinga violation of this code or any local ordinance adopted pursuant to this code' (italics added), the

intent of the legislation was to require a defendant who has suffered an adverse decision on aninfraction following a trial by written declaration to first file a request for a trial de novo as a

prerequisite to a direct appeal." (Ibid.) Thus, "a direct appeal to the appellate division of the

superior court is authorized only i f a defendant who has been convicted after a trial by writtendeclaration has timely sought a trial de novo." (Id. at p. 1241.)

2

ORDER

1

2

3

4

5

6

78

910

11

12

13

1415

16

17

1819

2021

22

23

24

25

26

27

28

Here, the trial court properly treated Appellant's non-appearance as an election for a trial

by written declaration under Vehicle Code section 40903. Appellant was found guilty of

violating Vehicle Code section 26708, subdivision (a)(1). Appellant could have requested a newtrial as indicated in the Notice of Decision. (See Record, p. 3.) However, the record fails to

indicate that Appellant timely requested a new trial. Instead, Appellant directly appealed theconviction to this court, which is not authorized. (See People v. Kennedy, supra, 168

Cal.App.4th at p. 1241.) Accordingly, the conviction is AFFIRMED.

Dated:

Dated:

Dated: - 2 -

3

ORDER

HiSfloMble',Jacqiieline DuongPcst ,s ia ing; fUdgelof the Appellate Division

,/

Honorable Edward Lee - - - - -Judge, Appellate Division

;Honorable Z e p e d aJudge, Appellate Division