People v. Foster

107 Cal.Rptr.2d 612 (2001) 89 Cal.App.4th Supp. 1 The PEOPLE, Plaintiff and Respondent,

v.

Stephen E. FOSTER, Defendant and Appellant.

No. BR40612. Appellate Division, Superior Court, Los Angeles County.

April 3, 2001. Stephen E. Foster, in pro. per., for Defendant and Appellant.

City Attorney James K. Hahn, for Plaintiff and Respondent.

[613] OPINION AND JUDGMENT

KRIEGLER, J.

The instant appeal involves the common scenario of a failure to appear by a person cited for a traffic violation. As a result of the failure to appear, a warrant is issued pursuant to Vehicle Code section 40515[1], and a new charge of failure to appear, in violation of Vehicle Code section 40508, subdivision (a)[2], is appended to the underlying traffic charge. (See People v. Superior Court (1968) 262 Cal.App.2d 283, 285, 68 Cal.Rptr. 629.) In this case we hold that because Vehicle Code section 40508, subdivision (a), is a misdemeanor and not an infraction, the traffic defendant is entitled to a jury trial on the failure to appear charge, and the failure to advise the defendant of the right to a jury trial and obtain a waiver thereof constitutes reversible error.

Defendant Stephen E. Foster (hereinafter appellant) was cited for failing to stop at a red light, in violation of Vehicle Code section 21453[3]. Appellant signed a written promise to appear on December 12, 1999. When appellant did not appear on December 12, 1999, a second allegation was added, charging a failure to appear, in violation of Vehicle Code section 40508, subdivision (a).

Appellant did appear in court on February 8, 2000, at which time he was arraigned on the failure to appear and failure to stop for a red light charges. The minute order for the arraignment indicates appellant was advised of the rights applicable to an infraction, which do not include the right to a jury trial. On the day of the trial, the citing officer failed to appear, and the failure to stop at the red light charge was dismissed. The trial court, without taking a waiver of the right to a jury trial, found appellant guilty of the failure to appear, and imposed a fine of $100 plus the penalty assessment. This appeal is from the judgment on the charge of violating Vehicle Code section 40508, subdivision (a).