People v. Monk

Filed 2/20/18

CERTIFIED FOR PUBLICATION APPELLATE DIVISION OF THE SUPERIOR COURT STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

THE PEOPLE, ) BR 053558 ) Plaintiff and Respondent, ) Metropolitan Trial Court ) v. ) No. E003539 ) PAMELA MONK, ) ) Defendant and Appellant. ) OPINION )

Appeal from a Judgment of the Superior Court of Los Angeles County, Metropolitan Trial Court, Shannon Knight, Judge. Reversed. Pamela Monk, in pro. per., for Defendant and Appellant. Michael N. Feuer, City Attorney, Debbie Lew, Assistant City Attorney, and Kent J. Bullard, Deputy City Attorney, for Plaintiff and Respondent. * * *

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INTRODUCTION Defendant Pamela Monk was found guilty of starting to cross a roadway after the “DON’T WALK” sign began flashing (former Veh. Code, § 21456, subd. (b)). She appeals the judgment, and as discussed below, we reverse. After she was convicted, and while her case was on appeal, the statute was amended to allow a person to start to cross an intersection after a “DON’T WALK” sign is flashing when a sign’s accompanying “countdown” signal timer has not expired. In the absence of any contrary indications, we infer the Legislature intended its ameliorative change to the jaywalking law to apply to cases not yet final on appeal. (See In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada); accord, People v. Rossi (1976) 18 Cal.3d 295, 301 (Rossi).) BACKGROUND Defendant was cited for violating former Vehicle Code section 21456, subdivision (b), on April 13, 2017. She pled not guilty and the case proceeded to trial. On July 6, 2017, Los Angeles Police Department Officer Kelly testified at trial that on April 13, 2017, he checked that all the pedestrian control signals at the intersection of First and Hill Streets were synchronized and working properly. Kelly saw defendant enter the intersection when the control signal “DON’T WALK” sign was flashing and the signal timer was at number 7 of 15. Kelly admitted that, because he observed defendant approaching the location where he was stationed, he only saw the control signal he was facing and not the one faced by defendant. Defendant testified she, along with several other pedestrians, began crossing the street before the “DON’T WALK” sign started flashing. Defendant further testified that, when she asked Kelly at the scene why he cited only her, Kelly responded “he couldn’t ticket everybody.” The court determined defendant was not credible and found her guilty. Defendant was ordered to pay a fine of $25 plus penalty assessments.

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DISCUSSION Defendant in her opening brief contended the judgment should be reversed because Kelly’s testimony was insufficient to prove the sign she faced was flashing “DON’T WALK” at the time she started to cross the street, and the court was biased against her. The circumstantial evidence supported the judgment, because the trial court could find the “DON’T WALK” signals facing defendant and Kelly’s directions were synchronized, and if the signal facing Kelly was flashing “DON’T WALK” when defendant entered the intersection, the same was true for the signal facing defendant. (See People v. Jones (2013) 57 Cal.4th 899, 961 [circumstantial evidence can be sufficient to prove guilt beyond a reasonable doubt].) It was the exclusive province of the trier of fact to determine the credibility of witnesses (see People v. Maury (2003) 30 Cal.4th 342, 403), and the record does not indicate the court was biased against defendant (see People v. Seneca Insurance Co. (2004) 116 Cal.App.4th 75, 80). Pursuant to Government Code section 68081, we notified the parties they could file supplemental briefs with regard to whether reversal was required based on the amendment to Vehicle Code section 21456. The People filed a supplemental brief, agreeing reversal was required on this basis, and we proceed to so hold. As a threshold matter, we find defendant’s failure to raise retroactivity in the trial court was not fatal to her appeal, because the forfeiture rule does not apply to Estrada claims. (See People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 4 (plur. opn. of Werdegar, J.) (Nasalga).) We decide de novo the legal issue of whether defendant should benefit from the change in the law. (See People v. Lofchie (2014) 229 Cal.App.4th 240, 250.) Former Vehicle Code section 21456 provided, “Whenever a pedestrian control signal showing the words ‘WALK’ or ‘WAIT’ or ‘DON’T WALK’ or other approved symbol is in place, the signal shall indicate as follows: [¶] (a) ‘WALK’ or approved ‘Walking Person’ symbol. A pedestrian facing the signal may proceed across the roadway in the direction of the signal, but shall yield the right-of-way to vehicles lawfully within the intersection at the time that signal is first shown. [¶] (b) Flashing or steady ‘DON’T WALK’ or ‘WAIT’ or approved ‘Upraised Hand’ symbol. No pedestrian shall start to cross the roadway in the direction of the signal, but any pedestrian who has partially completed crossing shall proceed to the sidewalk or