1967 REPOR

28 JUDICIAL COUNCIL OF CALIFORNIA

25951 Direction of Bef
221H Hand Signals 24404 Spotlamps 25953 Compliance wit!
22H2 School Bus Signal 24405 Maximum Number of Lamps Hegulations
22349 Maximum Speed Limit 24406 Multiple Beams 26100 Mandatory Test
22350 Basic Speed Law 24.07 Upper and Lower Beam Approval
22356 Increase of Freeway Limit 24408 Beam Indicator 26101 Approval of MOt
22400 Minimum Speed Law 24409 Use of Multiple Beams 26301 Motor Vehicles (
22405 Violations on Bridges and 24410 Single Beams Tons
Structures 24600 'l.'aillamps 26302 Trailers
22406 '.rruck Speed 24601 License Plate Lamp 26303 Trailer Coaches
22407 Decreasing Truck Speed Limit 24602 Taillamps on Trucks 26304 Breakway Brakf
22408 Passenger Vehicle or Bus as 24603 Stop Lamps 26309 Disapproved Brl
Towing' Vehicle 24604 Lamp or Flag on Projections driven Cycle
22409 Solid Tire 24605 Tow Ca,·s and Towed Vcbicles 263H Service Brakes (
22410 ~Metal Tires 24606 Backup Lamps 26450 Reqnired Bral\.e
22412 Scbool Buses 24607 Reflectors on Rear 26451 Parking Brake t
22414 Farm Labor Bus or Truck 24608 Reflectors on Front and Sides 26452 Brakes After En
22450 Stop Requirements 24609 Reflectors on Trucks 26453 Condition of Br:i
22451 Train Signal 24800 Lighted Parking Lamps 26454 Control and Stol
22452 Railroad Crossings 24950 Turn Signal System Required ments
22454 School Bus 24951 rI'urn Signal System 26457 Exemptions
22500 Prohibition of Stopping, 24%2 Yisibilit;y Requirements of 26458 Power Brake: S:
Standing, or Parking Signals 26502 Adjustment and
22502 Curb Parking 249,,3 Turn Signal Lamps Devices
22504 Unincorporated Area Parking 25100 Clearance and Side-marker 26503 Safety Valve
22505 State Highway Parking Lamps 26504 Air Governor
22510 Parking in Snow Areas 25101 Clearance Lamps on Trailer 26505 Pressure Gauge
22514 Fire H~ydrants Coaches 26500 ';Yarning Device
22515 Unattended Vehicles 25102 Lamps on Sides of Vehicles 26507 Check Valve
22516 Locked Vehicle 25103 Lamp or Flag on Projecting 26508 Emergency StoPI
22517 Opening and Closing Doors Loacl 26520 Vacuum Gauge
22520 Stopping on Freeway 2GI04 Red Flag on ~7ide Vehicles 26521 Warning Device
22650 Prohibition of Removal 25105 Courtesy Lamps 26522 Cbeek Valve
22700 Abandonment Prohibited 25106 Side, Cowl, or Fender Lamps 26700 Windshields
23114 Spilling Loads on Highways 25107 Cornering Lamps on Feu~ers 26701 Safety Glass
23115 Ruhbisb Vehicles 25108 Pilot Indicator Lamps 26703 Safety Glass Rep
23120 Temple Widtb of Glasses 2GI0n Running Lamps Z 26706 Windsbield Wipe
252;:;0 Flashing Lights
23121 Drinking in 'l\ilotor Vehicle
23122 Possession of Opened Con- 25252 Warning Lamps ou Authorized ( 26707 Condition and U~
shield Wipers
tainer Emergency Vehicles 26708 Restricted View:
23123 Storage of Opened Container 25253 ';Varning Lamps on Tow Cars [ or l\1aterial
23123.5 Possession by Minor 25257 School Bus Warning Signal 26709 Mirrors
System
23341 Commercial Vehicles
23343 Violation of Rules and 25268 Use of Flashing Amber Warn- [ 26710 Defective Windsb
Rear Windows
Regulations ing Ligbt 26711 Eyeshades on Bn:
24002 Vehicle Not Equipped or 2,,269 Use of Red Warning Light Coacb
Unsafe 25300 Warning Devices on Disabled 26712 Defroster Requirl
24003 Vebicle Witb Unlawful Lamps or Parked Vebicles 27000 Horns or Warnin
24004 Unlawful Operation After 25301 Utility and Public Utility 27001 Use of Horns
Notice by Officer Vehicles 27002 Sirens
24005 Sale, Transfer or Installation of 25305 Use of Fusees 27150 Mufflers
Unlawful Equipment 25350 Identification Lamps and Signs 27151 Modification of E:
24006 Name or Trademark 25351 Identification I...amps and Signs Systems
24007 Dealer's Responsibility 25400 Lighting Requirements 27152 Exha ust Pipes
24008 Modification of Vebicles 25401 Diffused Lights Resembling 27153 Exhaust Productf:
24250 Lighting During Darkness Signs 27154 Gases and Fumes
2-J252 Maintenance of Lamps and 25452 Glare of Lights 27155 Fuel Tank Caps
Devices 25502 Limitations on Reflectorizing 27156 Air Pollution Con
24400 Headlamps on Motor Vebicles Material 27300 Safety Belts
24401 Dimmed Lights on Parked 25650 Headlamps on Motorcycles 27302 Use of Approved 1
Vehicles 25651 Headlamps on Motor-driven 27303 Safety Belt Ancb,
24402 Auxiliary Driving and Passing Cycles
27304 Driver Training \
Lamps 25803 Lamps on Otber Vehicles
24403 Fog Lamps 25950 Color of Lights and Reflectors ( 27305 Firefighting Vehic

}
 '.

1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 29

259:>1 Direction of Beam 27309 New Passenger Vehicles
25953 Compliance with Mounting 27450 Thickness of Solid Tire
mber of Lamps Regulations 27452 Condition of Solid Tire
JS 26100 Manda tory '.resting and 27453 Dual Solid Tires
wer Beam Approval 27454 Protuberances on '.rires
or 26101 Approval of :M.odifying Devices 27459 Snow-tread Tires
Ie Beams 26301 Motor Vehicles Over Seven 27460 Four-wheel Drive Vehicles
, TOllS 27600 Fenders and Mudguards
( 20302 Trailers 27601 Radiator Ornaments
Lamp
Trucks I 20303
26304
Trailer Coaches
Breakway Brakes
27602 Television
27603 Former School Bus Coloring
20309 Disapproved Brake on l\1otor- 27700 Required Equipment
, on Projections
1Towed Vehicles
I 26311
driven Cycle
Service Brakes on All Wheels
27800 Equipment for Passenger
27801 Required Position of Equipment
JS 26450 Required Brake Systems 27900 Identification Required
Rear 26451 Parking Brake System 27001 Name and Trademark
Front and Sides 26452 Brakes After Engine li'ailure 27903 DesigIHI tion of Cargo
rl'rucks i
{
26453 Condition of Brakes 27005 Fire Departments
ing Lamps
\
20454 Control ano Stopping Require- 27906 School Buses
System Required ments 27907 Tow Cars
System 20457 Exemptions 28000 Refrigerator Vans
quirements of I 26458 Power Brake: Single Control 35100 ,Vidth

l
26502 Adjustment and Use of Special 35101 Pneumatic Tires
Lamps Devices 35102 Loo1'e Loads
ld Side-marker 26503 Safety Valve 35103 Plywood Loads
( 26504 Air Governor 35104 Vehicles Limited to 120-inch
lIDPS on Trailer 26505 Pressure Gauge Width
\ 20506 ';Yarning Device 35109 Projecting Lights or Devices
des of Vehicles 26507 Check Valve 35110 Projecting Equipment
19 on Projecting 26508 Emergency Stopping System 35111 Loads on Passenger Vehicles
26520 Vacuum Gauge 35115 Projecting Devices for Agricul-
Wide Vehicles 26521 Warning Device tural Products
mps 26522 Check Valve 35250 Height
or Fender Lamps 26700 Windshields 35400 General Limitation
,amps on FelH~ers 26701 Safety Glass 35401 Combinations of Vehicles
tor Lumps 26703
mps ,,, 26706
Safety Glass Replacement
Windshield Wipers
35403 Passenger Buses in Urban or
Suburban Service
ghts 20707 Condition aod Use of Wiud- 35404 Passenger Buses Equipped
tmps on Authorized
Vehicles
\ shield Wipers 'Vith Tbree or More Axles
26708 Restricted View: Signs, Stickers 35405 Length of Trolley Coach
nnps 00 Tow Cars ( Or 1\1aterial 35406 Loads
Warning Signal ,
)
26709 Mirrors 35408 Front Bumper
26710 Defective Windshields and 35409 Moving Picture Equipment
.bing Amber -VVarn· Rear Windows
\ 26711 Eyeshades on Bus or Trolley
35410 Projections to the Rear
35411 Combination of Vehicles
Warning Li~ht Coach 35413 Tires on Front of Vehicle
evices on Disabled
Vehicles I 27000
26712 Defroster Required
Horns or Warning Devices
35417 Logging Dolly Combination
Limit
Public Utility 27001 Use of Horns
I 27002 Sirens
35550 Axles
35551 Ratio of Weight to Length-
ees 27150 Mufllers COllier-Porter Act
on Lamps ano. Signs
on Lamps and Signs \ 27151 Modification of Exhaust 35600 Solid Tires
Systems 35601 Metal Tires
.equi rements 27152 Exhaust Pipes 35655 Violation of Decreased
ights Resembling 27153 Exhaust Products Restriction
27154 Gases and Fumes 35753 Violation of Decreased
ights 27155 Fuel Tank Caps Restrictions
s on Reflectorizing 27156 Air Pollution Control Device 35783 Possession of Permit
27300 Safety Belts 35784 Violation of Permit
on Motorcycles
.5 27302 Use of Approved Belts 35785 Hauling of Saw Logs
son l\1otor-driven 27303 Safety Belt AncDors 35789 Building Mover's Notice to
\ 27304 Driver Training Vehicles Railroad
Other Vehicles 27305 Fil'efigh ting Vehicles 35790 Overwidtb Trailer CoaChes
rights and Reflectors (
l
,1
30 JUDICIAL COUNCIL OF CALIFORNIA

Permits for Vehicle Carriers 36600 Width Exemptions and Limita-

35793
Identification Plate Required tions
36125 36605 Limit of 120 Inches for Certain
36400 Lift-carrier Limit Vehicles i
36510 Stopping Distance Require- 36620 Cotton Trailer Comhination-
ments 70 Feet Length Limit I,ntroduction
The classificatic
\ is receiving incre
i but in other juri~
, problem in the CI
are proposing th
offenses be defin
lesser violations (
the creation of a
tence authorized
such as the SUSpl
violators. 2 Jail "
visions of law on
mean or cases woo
duct trials with:
without all the
eliminate inappr
plea might be co
required of defe]
constitutional an
adopted in Calif
Background on Inl
In New York
enacted in 1934
with a misdeme
minor traffic vio:
law-abiding and
in number, were
" A.ccordingly
in what is now ~
, ... punishmen·
a penal or crirr
• This assignment v
at the direction
study.
1Wechsler, The Am
(1956) 42 A.B.
10, 1965, Vol. .
Penal Code, Pl
Offenses as Civ
Offense (1952)
Colum. L.Rev.
Enforcement O'
Law oj New Y
to aNew Pena:
t See Assembly Bir
Penal Code, Pr
plied on contur
on proof of the
latter would pt
appear (Veh. (
& Association of
Bergan, J. (cOnell
and 266 N.Y.S.
ions and Limita·
1
lches for Certain

Corobination-
B. STUDY *
. Limit Introduction
, The classification of minor traffic violations as noncriminal infractions
I is receiving increasing attention in recent years, not only in California
I but in other jurisdictions, as a basis for more realistic treatment of the
i problem in the courts. Leading authorities in the field of criniinal law
I are proposing that the historic distinction between petty and serious
offenses be defined more systematically to facilitate enforcement of
lesser violations of police regulations l The system under study involves
the creation of a category of non-criminal offenses for which the sen-
tence authorized upon conviction would be a fine or other civil penalty,
such as the suspension of a license or attendance at a school for traffic
violators. 2 Jail would not be authorized as a sanction. Existing pro-
visions of law on arrest, evidence, presumptions and defenses in misde-
meanor cases would apply to traffic infractions and judges would con-
duct trials within the present framework of criminal procedure but
without all the paraphernalia of jury trial. Other modifications to
eliminate inappropriate criminal procedures on arraignment, bail and
plea might be considered in order to reduce the number of appearances
required of defendants who wish to appear on their traffic citations. No
constitutional amendment would be required and the proposal could be
adopted in California by appropriate amendments to the codes.
Background on Infraction System
In New York" [T]he traffic infraction was first created by a law
; enacted in 1934 (L.1934, Ch. 485) after it bad become apparent that,
~ with a misdemeanor criminal status attached to convictions even for
I minor traffic violations, the automobile drivers of the State, a generally
. law-abiding and responsible group of citizens then rapidly increasing

l
in number, were incurring misdemeanor convictions in vast number." 3
"Accordingly, the Vehicle and Traffic Law was amended to provide
in what is now Section 155 '[ a] .traffic infraction is not a crime and the
' . . . punishment imposed therefor shall not be deemed for any purpose
: a penal or criminal . . . punishment, and shall not affect or impair
( • This assignment was underta]<en by the Administrative Office of the California Courts
at the direction of the Judicial Council. Mr. Eugene J. Didak. attorney, prepared the
study.
Wechsler, The American Law Institute: Some Observations On Its Model Penal Code
1
(1956) 42 A.B.A.J. 321 ; Justice of the Peace and Local Government Review, July
10, 1965. Vol. 129. pp. 442-443, and September 11, 1965, Vol. 129, p. 594; Model
Penal Code. Proposed Official Draft, 19G2; Gausewitz, Reclassification of Certain
Offenses as Civil Instead of Criminal (1937) 12 Wis. L.Rev. 365; Perkins, The Civil
Offense (1952) 100 U. of Pa. L.Rev. 832; Sayre, Public WeZfare Offenses (1933) 33
Colum. L.Rev. 55; Perkins on Criminal Law (1957) pp. 692-710; Lord Devlin, The
Enforcement of Morals (1965) pp. 26-42, Oxford Univer~ity Press; Proposed PenaZ
Law of New York (1964) 64 Colum.L.Rev. 1469; Gausewitz, Considerations Basic
toaNew Penal Code (1936) 11 Wis. L.Rev. 346, 480.
~ See Assembly Bill No. 845 of the 1965 session of the California Legislature; Model
Penal Code, Proposed Official Draft, 1962. Provision could be made for jail to be ap-
plied on contumacious failure to pay a fine. as provided in the Model Penal Code or
on proof of the violation of a written promise to pay a fine, or appear in court. The
latter would parallel the California procedure upon violating a written promise to
appear (Veh. Code § 40508) and has been suggested by a special committee of the
Association of Municipal Court Clerks.
\ 'Bergan, J. (concurring) People v. Letterio and People v. Kohler (1965) 16 N.Y.2d 307
(. and 266 N.Y.S.2d 368.
( 31 )

l
__1 ----
32 JUDICIAL COUNCIL OF CALIFORNIA

the credibility as a witness, or otherwise, of any person convicted Icourtroom t

thereof.' By the same statute of 1934, the definitions of 'crime' in sec- and listen ~
tion 2 of the Penal Law were amended to state 'Except that the acts .parking tid
defined as traffic infractions by the vehicle and tra[-fic law. hereto- tiously by
fore or hereafter committed, are not crimes.' " 4 other litigm
The same condition that prevailed in New York in 1934 exists to a on such rela
heightened degree in California today. Section 15 of our Penal Code with import
defines as a crime or public .pffense an "act committed or omitted in . and cost of (
violation of a law forbidding or commanding it, and to which is an- , violations 11:
j the 3,000,00
nexed, upon conviction, either of the following punishments: (1)
Death; (2) Imprisonment; (3) Fine; (4) Removal from office; or, (5) tions that 11
Disqualification to hold and enjoy any office of honor, trust, or profit a minute or
in this state." During the 1965-66 fiscal ycar 9,041,374 cases involv- judges for t
ing traffic violations were filcd in the municipal and justice courts of England
California. 5 Fines and jail being authorized upon conviction in these
In Ellgla
cases, the net effect is that practically every person who drives a car in
the Lord C
this state either is or can expect to be classified a misdemeanant. 6 Vilbile
criminal designation may be appropriate for wilful and serious traffic port that r
nal jurisdi,
violations such as reckless or drunken driving, or driving without a
license or with a suspended or revoked 'license, it may be less appropri- vation is to
ate for that vask bulk of vehicle law violations such as parking and of those wI
minor" moving" violations now subject to a maximum penalty of $50 consequenci
fine or five days in jail upon a first conviction. 7 tach to the
criminal on
In addition, California, unlike New York, thc federal government lish tra[-fic (
and many of the states, allows a jury trial, however trivial the offense. s
The cost to the state and counties of conducting a jury trial has been United State
estimated at several hundred dollars per day.9 In the 1965-66 fiscal In the l
year there were almost 7,500 jury trials of tra[-fic violations in Cali- acknowledg
fornia municipal and justice courts. 10 The number of tra[-fic jury trials forcement i
in the municipal courts increased 288 percent within the past 10 years, the condu(
as compared to about a 67 percent increase in total tra[-fic filings dur- to satisfy
ing the same period l l Reliable estimates are that about half the traffic which the
jury trials are for minor violations subject to a maximum penalty of or fine and
$50 fine or five days in jail. There is further cause for concern in the cancellati OJ
fact that traffic jury cases take so long to try, from one-half day to one serve the l(
week or longer for each case.12 Not only are the judge, clerk, bailiff and of crime (
, Ibid. 13 12 Stan.L.I
5 Based on statistical reports filed with the Judicial Council by the municipal and justice
Angeles
courts. superior
6 Pen. Code § 19; Veh. Code § 4200l.
months
7Veh. Code § 42001. Of the more than nIne million traffic filings last year, close to 5 mil- noted th
lion were parking violations and probably well over 95 % of the balance were minor during t
moving violations. Note 5, supTa, Wechsler, 'l'he American Law Institute: Some less thar
Observations On Its Mfldel Penal Code (1956) 42 A.B.A.J. 321, 324; Perkins on port of
Criminal Law (1957) p. 701. figures (
8 Pen. Code § 689. The 1964 Annual Traffic Court Inventory by the American Bar As-
U The Ameri
sociation showed that 265 cities of at least 10,000 population do not provide a jury facilities
trial in minor traffic cases. ('.C.raffic Court Justice, VoL 7, No.1, January 1966, pub: necessar
lished by the A.B.A.) The 1$lt3 Inventory showed that courts in 22 states do nOl Vehicle'
afford a jury trial for traffic offenses in their courts. 15 See note 1
9 A recent five-day jury trial in San Francisco on seven parldng tickets was estimateCl
"Trial b
to cost the taxpayers between $3,000 and $3,750, or an average of $600 to $750 per of cour.:
day. (People Y. Muller, reported by the San Francisco press in January, 1966; Which it
Letter from lVfr. James Cannon, Clerk of the San Francisco Municipal Court to inhere i
Mr. Ralph N. Kleps, January 19,1966). tages. M
II} Based on statistical reports filed with the Judicial Council by the municipal and justice

11
12
courts.
Ibid.
See California Traffic Law Admini.stration (960) 12 Stan.L.Rev. 388, 413; The re-
cent parking violation cases of People v. Muller, note 9, supra, which took five daYS
to try before a jury. is not an isolated example. See Warren, Traffic Courts (1942)
l 16 Justice of
442-443.
11 Newkirk, 11
18 See note 1!

2-8218
p.74. f
 '.
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 33

courtroom tied up but 12 jurors, at considerable personal loss, must sit

l'son convicted
and listen as long as a week on the issue, for example, of guilt on a
'crime' in sec-
parking ticket, whereas the same issue can be heard much more expedi-
t that the acts
,w ' , , hereto- tiously by the court without a jury. It seems unfair to the jurors,
other litigants and the public to spend so much time, effort and money
on such relatively minor cases, particularly when our courts are jammed
934 exists to a
I with important cases waiting months for trial.l 3 The considerable time
ur Penal Code
or omitted in ( and cost of conducting these several thousand traffic jury trials on minor
;0 which is an-
violations may be used to better advantage in giving more court time to
lishments: (1)
1 office; or, (5)
I the 3,000,000 other citations issued annually for" moving" traffic viola-
tions that now can receive but scant attention at a bail window or for
trust, or profit a minute or two in congested courts,14 or in providing more courts and
'4 cases involv- I, judges for the trial of substan tial and serious civil and criminal cases.'5
1stice courts of England
liction in these In England the Council of the Law Society last year recommended to
drives a car in , the Lord Chancellor, the Home Secretary and the Minister of Trans-
leanant. 6 While port that noncriminal traffic offenses should be removed from crimi-
:I serious traffic nal jurisdiction and transferred to traffic courtS.'6 The main moti-
ving without a vation is to end the" stigmatising as criminals of more than 62 percent
e less appropri- of those who . . . come before the courts" which "has the inevitable
as parking and eonsequence of diminishing the obloquy which ought properly to at-
penalty of $50 tach to those who commit what the public normally regard as truly
criminal offences." 17 Magistrates would preside in the proposed Eng-
ral government lish traffic courts, and would not have the power to give jail sentences,'s
'ial the offense. 8
y trial has been United States
l 1965~66 fiscal In the United States, the drafters of the Model Penal Code have
,lations in Cali- acknowledged the need for a public sanction calculated to secure en-
raffic jury trials I for cement in situations where it would be impolitic or unjust to condemn
e past 10 years, \ the conduct involved as criminal. In their view, "the proper way
affic filings dur- t. to satisfy that need is to use a category of noncriminal offense, for
t half the traffic which the sentence authorized upon conviction does not exceed a fine
num penalty of or fine and forfeiture or other civil penalty, such, for example, as the
: concern in the canceJJation or suspension of a license. This plan, it is believed, will
-half day to one serve the legitimate needs of enforcement, without diluting the concept
;lerk, bailiff and of crime or authorizing the abusive use of sanctions of imprison-
1812 Stan.L.Rev., supra note 12 at 413. It was reported that civil cases in the Los
.unicipal and justice Angeles Municipal Court were required to wait 18 months for trial. In the
superior courts on June 30, 1965, there 'Was an average delay of from 4 to 13
months for civil jury trials in courts with nine or more judges. It should be
year, close to 5 mil- noted that there were 7,984 jury trials in all the superior courts of the state
balance were minor during the 1964-65 fiscal year, of which 3,000 were criminal cases, Which was
aw Institute: Some less than the number of jury trials on lesser traffic offenses. (See Annual Re-
H. 324; Perkins on port of the Administrative Office of the California Courts (1966) 27-32, for
figures on superior court backlog, delay and number of jury trials.)
~ American Bar ,As- a The American Bar Association Traffic Court Program has consistently urged that
o not provide a Jury facilities be provided to bring more violators into courts staffed by judges as a
January 1966, pub: necessary part of an effective program to promote traffic safety. (See Fisher,
in 22 states do nOt Vehicle Traffic Law (1961) p. 52.)
15S ee note 13, sU1Jra. As pointed out by Warren (Traffic Courts (1942) pp. 74-75):
c1<ets was esti materl "Trial by jury has come to be applied to all types of cases at law as a matter
• of $600 to $750 per of course, with the result that it Is occasionally used under conditions for
; in January, 1966; which it is not well fitted, Le., under circumstances where the advantages which
Municipal Court to inhere in the jury system are outweighed by a number of practical disadvan-
tages. Most traffic cases fall into this category."
nunicipal and justice leJustice of the Peace and Local Government Review, July 10, 1965, Vol. 129, pp.
442-443.
\ 11 Newkirk, Motoring ()ffen8es~ 115 Law Journal 655, Oct. 1, 1905.
v, 388. 413: The re- See note 174, inJ'l"u.
which took five dayS
'raffle Courts (1942)
( 18

2-82189

l
_ _ _ _.J,,. _
--sc
34 JUDICIAL COUNCIL OF CALIFORNIA

ment. "19 Accordingly, the Model Penal Code provides in paragraph As noted in
(5) of Section 1.04: "( 5) An offense defined by this Code or by any providing in:
other statute of this State constitutes a violation if it is so designated With respec
in this Code or in the law defining the offense or if no other sentence proposes to
than a fine, or fine and forfeiture or other civil penalty is authorized Penal Law,
upon conviction or if it is defined by a statute other than this Code breach of an
which now provides that the offense shall not constitute a crime. A vio- tD imprisonn
lation does not constitute a crime and conviction of a violation shall
California
not give rise to any disability or legal disadvantage based on convic-
tion of a criminal offense. " 20 Since 196:
V pon conviction of a violation the Model Penal Code authorizes the tion of mino
court to suspend imposition of sentence 21 or impose a fine not exceeding to trial witl
$500 22 and suspend or cancel a license.z s When a fine is imposed, the duced in th,
court may order jail commitment for contumacious failnre to pay the Council, by
fine at a rate not exceeuing one day per each five dollars or a total of a traffic
of thirty days.24 Bill No, 84f
Comparing these provisions with those authorizing jail as an imme- measure wa
diate sanction the drafters said: "A petty offense category, less than the highest
a misdcmeanor, is, of course, widely employed, though generally such special coml
offenses are denominated criminal. See, e.g., V.S. Code, Title 18, Sec. 1. ship of Ju'
Motivated mainly by a wish to facilitate enforcement, there has been Court, and
some development of a petty offense category, which, though sentence mendations
of fine or imprisonment is authorized, is declared not to constitute Judge Fr
a 'crime.' See, e.g., N.Y. Vehicle and'Tra:ffic Law Sec. 2 (29), Con- ipal Court
servation Law Sec. 678 (' traffic infractions '); . . . . It is submitted from the i
that this plan is undesirable. If a sentence of imprisonment is author- 1,000 jury'
ized (as an immediate sanction upon conviction rather than merely civil cases t
to coerce the payment of a penalty) it is an inadmissible semantic County Gr~
manipulation to declare that the offense is not a crime. Imprisonment, of legislatic
it is submitted, ought not be available as a punitive sanction, unless the \ the Los AI
conduct that gives rise to it warrants the type of social condemnation l of such lee
that is and ought to be implicit in the concept crime." 25
New York
l 27
28
I bid.
Ibid.
"1962 Study
lion of 1
The approach taken in the Proposed Penal Law of New York is [ Office of
Committ(
similar to that of the Model Code in that every offense that is not a the law t
demeanOl
crime is a "violation." 26 Proposed section 15.15 provides that" An Speech t
offense is a violation if . . . a person convicted thereof may be sen- Lawyers
Daily Jo·
tenced to a term of imprisonment which cannot exceed 15 days.... " 15, 1963.
Safety C
'9 Model Penal Code, Tentative Draft No.2, 1954, Comment, pp. 8-9. For proposals of certai
of this kind the comment refers to G~\.usewitz, Reclassification of Certain Governor
Offenses as Civil Instead of Criminal (1937) 12 Wis. L.Rev. 365; Perkins, The classified
Civil Offense (1952) 100 U. of Pa. L.Rev. 832. (See Tn
20 ModeJ Penal Code, Proposed Official Draft, 1962. The Model Penal Code is not tion of t
intended to establish uniformity, but rather to supply an integrated body or recomme
material which can be useful in any cf(ort to revise substantive penal laWS. reported
It has been in formulation for more than 10 years and has served as a guide Judges, :
for tho.5'e stales which have revised or are revising their criminal laws. Packer, Commer<
The Case for Revision of the Penal Code (1961) 13 Stan.L.Rev. 252; Turner, Anaheim
Why No Revised Criminal Code' (1961) 49 Ky.L.J. 477; Remington and Rosen~ sponsore
blum, Cun'ent Problems in Criminal Law: The Cr'iminal Law and the Legi3la· Francisc
tive Process (1960) U. Ill. L.F. 481. ~ Introduced
"§ 6.02(4). n Letter fror.
"§6.03(4). Judge :R
"§ 6.02(5). Novembf
Q Los Angele
" § 302.2.
25 See note 19, supra. 1965.
26 P"ol)Osed Penal Law of New York (1964) 64 Colum. L.Rev. 1469. aa Los Angele
 -,
l 1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 35
in paragraph As noted in the comment above, however, the New York practice of
Jode or by any providing imprisonment as an immediate sanction has been criticised. 27
s so designated With respect to traffic infractions it does not appear that New York
other sentence proposes to change the position it adopted in 1934, for the Proposed
y is authorized Penal Law defines an offense, of which crime is a subcategory, as a
than this Code breach of any law other than a traffic regulation, for which a sentence
a crime. A vio- to imprisonment or to a fine is authorized upon conviction?S
violation sball
ised on convic- California
Since 1962 interest has been growing in California in the classifica-
, authorizes the tion of minor vehicle law offenses as noncriminal" infractions" subject
e not exceeding to trial without jury,29 and in 1965 Assembly Bill No. 845 was intro-
is imposed, the duced in the Legislature to create such a classification. 3o The Judicial
lure to pay the Council, by action taken at its May 1965 meeting, endorsed the concept
Hal's or a total of a traffic infraction system for California and supported Assembly
Bill No. 845, provided certain amendments could be made. After the
ail as an imme- measure was assigned for interim legislative study, the Council gave
19ory, less than the highest priority to this subject and, acting in cooperation with a
generally sucb special committee of the State Bar of California under the chairman-
Title 18, Sec. 1. ship of Judge Raymond R. Roberts, of the Los Angeles Superior
there has been Court, and other interested groups, proposes to submit its recom-
:hough sentence mendations to the 1967 Legislature and to the Governor. 31
It to constitute Judge Francis Cochran, Presiding Judge of the Los Angeles Munic-
~. 2 (29), Con- ipal Court in 1965, said both the public and the courts would benefit
It is submitted from the infractions system and estimated that it would eliminate
ment is author- 1,000 jury trials per year in the Los Angeles court, freeing judges for
er than merely clvil cases then waiting nearly 18 months for triaP2 The Los Angeles
issible semantic County Grand Jury report of December 1965 recommended enactment
. Imprisonment, , of legislation to provide for nonjury trials of traffic infractions 33 and
ction, unless the ~ the Los Angcles County Board of Supervisors favors the adoption
tl condemnation l of such legislation as a convenience to the citizens with savings to
27 Ibid.
:til/bid.

I
29 1962 Study of the New York Law on Infractions and Offenses made at the direc-
tion of the Judicial Council by Mr. Eugene Didak, attorney, Administrative
,f New York is Office of the Courts. H.R. 61, 1963 Reg. Sess., requesting the Assembly Interim
Committee on Transportation and Commerce to study the subject of revision of
se that is not a \ the law to the end that many of the motor vehicle offenses now classed as mis-
demeanors instead be treated as administrative rather than criminal offenses.
vides that "An
)Of may be sen- [ Speech by Judge Raymond R. Roberts, Los Angeles Superior Court, to the
Lawyers Club of Los Angeles, August 14, 1963, reported in the Los Angeles
Daily Journal for that date and in the Los Angeles Metropolitan News, August
I 15 days.... " 15, 1963. The judges and prosecutors division of the 1963 Governor's Traffic
8-9. For proposals I Safety Conference recommended that study be given to possible reclassification
of certain traffic offenses as infractions. An earlier recommendatlon by the 1958
lication of Certain
365; Perkins, The I Governor's Traffic Safety Conference was that certain traffic misdemeanors be
classified as "petty offenses," limited in penalty and triable without a jury.
Penal Code is not
I (See Traffic Law Admt,nistTation~ 12 Stan. L.Rev. 388, fn. 189 at 415.) Resolu-
tion of the Municipal Court Judges vVorkshop, April 18, 1964, in San Francisco,
integrated body or recommending the classification of minor traffic violations as infractions, and
tantive penal laws. reported by the Municipal Courts Section to the Conference of California
: served as a guide JUdges, September 26, 1964. Assembly Interim Committee on Transportation and
minal la \VS. Packer, Commerce, F'inal Report (1965) 21. Reports by Judge Claude M, Owens,
~.Rev. 252; Turner, Anaheim-Fullerton Municipal Court to the Municipal Court Judges Workshops
nington and Rosen- sponsored by the Conference of california Judges at Palm Springs and San
.w and the Legisla- Francisco in April, 1965.
IKl Introduced by Assemblymen Carren and Kennick.
11 Letter from Mr. Ralph N. Kleps, Director, Administrative Office of the Courts, to
Judge Raymond R. Roberts, September 28, 1965. Los Angeles Daily Journal,
November 26, 1965.
ul.A:>s Angeles Herald-Examiner, May 17, 1965; Los Angeles Daily Journal, May 18,
1965.
( II Los Angeles Times, December 12, 1965.

____1 _
36 JUDICIAL COUNCIL OF CALIFORNIA

the ~axpayers.34 Of the more than 100 municipal court judges attending or petty offenses tl
semmars held by the Conference of California Judges in Palm Springs a jury; and, lU.J
and San Francisco in April 1965, all but three favored adoption of went is satisfied 1
an infraction system for traffic cases. 35 Declaring that" the ordinary accorded to the a(
traffic offense is not a crime and should not be treated as such," As- an illustration of
semblyman Song, Chairman of the Assembly Subcommittee on Admin- while the founde
istration of Justice, announced that a series of public hearings on the with them to the
subject will be held throughout the sta~e by his committee. 36 As pointed that mode of tri3
out by Assemblyman Song the gravity of the problem involving 10 sacred to be surre
million licensed drivers and more than 200,000 accidents per year is offenses against f
undeniable and a new approach is needed in the interests of justice supposed to be in
and to reduce our court congestion B7 So in State v. Gl
, notwithstanding'
Constitutionality of Infractions Proposal , 46 , and in that. c
General shall be taken, llY
The proposal to eliminate jury trials for traffic infractions requires peers, or by the
consideration of the constitutional guaranties of jury trial in criminal leO'islation
b
in tha
.
cases. diction upon JUS!
The third clause of Section 2, Article III, of the United States Con- for minor and s'
stitution provides that" the trial of all crimes, except in cases of im- that the party i:
peachment, shall be by jury," and the Sixth Amendment provides that must be underst<
"in all criminal prosecutions the accused shall enjoy the right to a by the regular c<
speedy and public trial by an impartial jury." as theretofore P
With respect to the federal and similar state 'constitutions it is firmly have been inten
established that certain minor or petty offenses can be excepted by Con- either criminal
gress and the legislatures from the provisions requiring a jury trial the Constitution
in criminal cases B8 In a dictum in Callan v. Wilson (1887) 127 U.S. inviolate,' the (
540, Mr. Justice Harlan for the court said: "According to many ad- constantly exer<
judged cases, arising under Constitutions which declare, generally, that breaches of the
the right of trial by jury shall remain inviolate, there are certain minor posed to confli
84 Los Angeles Daily Journal, May 18, 1965. citizen a trial b;
35 Informal poll of the judges conducted by Judge Claude M. Owens, Anaheim- Upon a prose·
Fullerton Municipal Court, following his report on infractions to the seminars.
Judge Luther N. Hussey, 1965 Chairman of the Municipal Courts Section of the a penalty of $5
Conference of California Judg-es, reported the favorable vote to the Conference. United States (
Los Angeles Metropolitan News, September 21, 1965.
86 Los Angeles Daily Journal, November 9, 1965. Los Angeles Metropolitan News, for violating a
November 11, 1965.
81 Ibid. one necessarily
38 Frankfurter and Corcoran, Petty Federal Offenses and the Constitutional Guaranty have been the
Of Trial by J1try (1926) 39 Harv. L. Rev. 917; 50 C.J.S., Juries, § 77; 31 Am.
Jur., Jury, §§ 7~37 at 13-43; 29 Cal. Jur.2d, Jury, § 11 at 499; Fisher, Vehicle with approval
Traffic Law (1961) pp. 451-455; Perkins on Criminal Law (1957) pp. 13-14,
692-710; 75 L.Ed. Anno. 177-220; Rose's notes, pp. 209-211 and 1932 Supple- sions of state
ment, Vol. 6, notes on Schick v. U.S. (1904) 195 U.S. 65. See 75 L.Ed. annota- within any co
tion, for U.S. and state citations illustrating or adhering to the following rule
of construction: the U.S. constitutional guaranties of jury trial in all criminal .
cnmes. "
prosecutions, as well as provisions in the state constitutions which, in various
forms, guarantee the right of trial by jury, are to be construed in the light In a reckles
of the common law as it existed when the constitutions were adopted, and the
constitutional right of trial by jury limited to that class of cases which, at the
bia v. Colts (
common law, or at the time of the adoption of the constitution, were triable by cases, said tha
jury. The California cases cited are: Cassidy v. Sullivan (1883) 64 Cal. 266;
People v. Powell (1891) 87 Cal. 348; Ex parte Wong You Ting (1895) 106 Cal. " ... is to be
296; Re Mana (1918) 178 Cal. 213; People v. Martin (1922) 188 Cal. 281. See which petty c
also Taylor v. Reynolds (1881) 92 Cal. 573; In re Fife (1895) 110 Cal. 8;
People v. Kelly (1928) 203 Cal. 128, 133; People v. One 1941 Chevrolet (1951) magistrate sit:
37 Cal. 2d 283, 287, 300. "Constitutional guaranties of a jury trial of all crimes,
and of the right to a speedy and public trial by an impartial jury in all criminal called 'petty'
prosecutions, do not refer to minor or petty offenses, which according to the the meaning (
common law, may be proceeded against summarily." Anno., 75 L.Ed. 183. For
Colonial and state legislation concerning summary disposition of petty offenses, pense with a
see: Appendices A-D, Petty Federal Offenses and the Constitutional Gttaranty of
Trial by Jury, supra at 983-1019. 89 At 72-73. See J
 "

udges attending
I , 1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE

or petty offenses that may be proceeded against summarily, and without

37

n Palm Springs a jury; and, in respect to other offenses, the constitutional require-
:ed adoption of ment is satisfied if the right to a trial by jury in an appellate court is
; "the ordinary accorded to the accused. Byers v. Commonwealth, 42 Pa. 89, 94, affords
i as such," As. an illustration of the first of the above classes. It was there held that
ittee on Admin. while the founders of the Commonwealth of Pennsylvania brought
hearings on the with them to their new abode the right of trial by jury, and while
.ee. 36 As pointed that mode of trial was considered the right of every Englishman, too
m involving 10 sacred to be surrendered or taken away, 'summary convictions for petty
:nts per year is offenses against statutes were always sustained, and they were never
lrests of justice supposed to be in conflict with the common-law right to a trial by jury.'
So, in State v. Glenn, 54 Md. 573, 600, 605, it was said that 'in England,
notwithstanding the provision in the Magna Charta of King John, art.
46, and in that of 9 Hen. 3, chap. 29, which declares that no freeman
shall be taken, imprisoned, or condemned but by lawful judgment of his
actions requires peers, or by the law of the land, it has been the constant course of
;rial in criminal legislation in that kingdom, for centuries past, to confer summary juris-
diction upon justices of the peace for the trial and conviction of parties
ited States Con· for minor and statutory police offenses .... And when it is declared
in cases of im· that the party is entitled to a speedy trial by an impartial jury, that
nt provides that I must be understood as referring to such crimes and accusations as have,
the right to a
! by the regular course of the law and the established modes of procedure,
as theretofore practiced, been the subject of jury trial. It could never
tions it is firmly have been intended to embrace every species of accusation involving
xcepted by Con. either criminal or penal consequences.' So, also, in New Jersey, where
.ng a jury trial the Constitution guaranteed that' the right of trial by jury shall remain
(1887) 127 U.S. inviolate,' the court said: 'Extensive and summary police powers are
ng to many ad· constantly exercised in all the States of the Union for the repression of
" generally, that breaches of tbe peace and petty offenses, and these statutes are not sup-
re certain minor posed to conflict with the constitutional provisions securing to the
citizen a trial by jury.' "
Owens, Anaheim- Upon a prosecution for violation of an oleomargarine statute imposing
IS to the seminars.
,urts Section of the
\ a penalty of $50, Mr. Justice Brewer, writing the opinion in Schick v.
to the Conference.
United States (1903) 195 U.S. 65, 67 and 70, said: "So small a penalty
Metropolitan News,

titutional Guaranty
l for violating a revenue statute indicates only a petty offense. It is not
one necessarily involving any moral delinquency. Tbe violation may
:ries, § 77; 31 Am.
99; Fisher, Vehicle
(1957) pp. 13-14,
and 1932 Supple-
I have been the result of ignorance or thoughtlessness . . .," and cited
with approval the reference made in the Callan case to the" many deci-
sions of state courts, holding that the trial of petty offenses was not
e 75 L.Ed. annota-
the following rule within any constitutional provision requiring a jury in the trial of
rial in a1l criminal crimes. "
; which, in various
strued in the light In a reckless driving case, the Supreme Court in District of Colum-
'6adopted, and the
cases which, at the ( bia v. Colts (1930) 282 U.S. 63, citing both the Callan and Schick
on, were triable by I cases, said that the constitutional guaranty of jury trial of all crimes
l883) 64 Cal. 266;
ng (1895) 106 Cal. I " . . . is to be interpreted in the light of the common law, according to
) 188 Cal. 281. See which petty offenses might be proceeded aga.inst summarily before a
'1895) 110 Cal. 8;
1 Chevrolet (1951)
tria] of all crimes,
( magistrate sitting without a jury .... That there may be many offenses
called' petty offenses' which do not rise to the degree of crimes within
jury in all criminal
h according to the
75 L.Ed. 183. For
n of petty offenses,
I the meaning of Article III, and in respect of which Congress may dis-
pense with a jury trial, is settled." 39 Continuing, the court said:
4-tional Guaranty 0/
llllAt 72-73. See A.nno.: 75 L.Ed. 177-221.

--_.~--------- .n_T
 :38 ,)1]]))C[,IL COUOiC1L OJ' CAL!FOR~IA

"IVhether a given offcuse is to be classed as a c:rime, so as to require ment for pE

a jury tri<11, or as a pdty offense, triable summarily without a jury, de- passed prio
pends primarily UpOll the llili lHP of the offense, The oircllse here or sh"rt]v ,
dWl'ge(] is not lllerely malum prohibitum, but in its wry nature is punishment
ma]'11l1 in se," ,HI [j "ii",] with aJ'prllva] lhe di,tindiolllllaclf.' by the New 1110re, And
,Terse,i' CalIri of ErrOl'S auri Appea]s ill Siale r, Rod!!CI's (K,T. 1917) 102 six months,
AU, 4:33, "beliwcll traffic (,ffcu,es (If a petti' character, subject to sum- "Tilthc.
mHry jJl'lJ':eeclinc:, wilh>ltlt il1l]idmellt aud tria] b~- jl1r~', and those of a da\' pena1t:
~rril)US (·li;:ILWt.Pl'. al1l()Ullj-jl1.~' to, IHluJie ll11i:.:ances j]]dictable at COlnnlon do~s not c(
]il\\,;, ," 4] Till' .'-:UpJ'f'I'IC ('ollrt pointccl Ollt tbat the defendant was ilr:Jopte
in the Colts c"';e iI'a, "Ilot t'harg'('clmcre]y with the compal'ftiii'eJ.v slight ing the COl
oll'eu'p of px~ee(]ing the 23 mile ~Jlecd limit, , , " 01' merely ,,,ith driv- affeeterl u,
iug rp(']dp"l~-, ,; lmi w'ith the grilYP offellse of lUJ\'illg chinn at the , 11 t " 43
ng >

f'lrbir1deli rate of speed anri l'pc-klr,ss]y, 'so as to ellclan,Q'er property and 'l'hus, a~
indi\'j(]uals! " and aecordingl,i- JI('I(ll1lat sueh an offell.'ie is sllbject to by jn n' al
lht' ('oJhtitntiolla] ~'l!(1t·(111t~· nf l),jc-ll by ,i nr :'i·.-:l2 in tIle ,all'
Tn Disll'let of ('o7/1lllln'a 1', ('lale(/1/s (J0T7) :;00 U,S, G17, respondent even ",he>1'
i"as ('('Ili-ided uf the st,ltlliol',\- offense of eJl~aging in a second~hand busi- mary COil"
n,'s>, ,,'itho!]t a lieemc anri sentenced to ]1il~- a fine of ;j;:300 and to be portance c
eOJlfinrd ill j<!il for (iO c]a~-s, rnder a District of CO]llJnbia statute no
,illr,i' tTial "'II> pl'm'iclrd fol' such pro;;Ulltious ex(:ept iu e'tses where the California
fine c0111d be more tkln :);:l(JO or the term of imprisllnlllent more than Section
90 (lays, TIIP statute llll(]"I' whiell the resj)(l]}(lellt ,,-as c(ll1i'icted pro- (, rrhe rig]
\'ided for a maximum PllllislllllPnt of ;j;:](J0 tille and 00 c1ays in jail. The , late," Tn
)'esj)nnr"[(>nt ll(ld (lenHlJlc1e(l and \\'ns 1'(:'['11.,,('(1 A .int',Y 1 rial. nlllillg' on the I person ('a
iSSl18 the c-oud helc] that nIl' dcmand fflJ' jmT trial '''~s rig-llil" denied, h\' a
In the opinion for the Cflud, :\Il', .lllslice StOlle citee] its prior opin- 0;
bya [1]
ions whieh lwd sptilcc] that the right <If jnr,v trial seemed by the Be('(11.1S
Unitee] States C'oll"titntion d<lcs not c~t(,lld tl) eYPl'~' criminal proceeding, tntionaJ '
H,' ('a liN] aHclltion to the fnd that 8t the time of the acln]ltion of the Supreme
COllstitution 11lll1lCrOnS petty offenses "('I'C trice] sllll1l1lari]~- v:ithnut a for snlllll
jury b,i- ,iustices of thp pe'lCC in Englallel alJC] hy poli"p lIla~'i"trates or so triab],
t"'l'rpspoll(]ing' ,inclical omt'rt's in the Co]ollies an(] pllnishpc] by cOJllmit~ clared b)
mell! tn jail, workhouse. 01' hOllse of c'onrction, i]nd saiel tllat were it within tl
not for the seveI'd," of the pnnishmcnt, nIP ofJ'emler <'onld not, under braced i'
thc Court's decisions, c1c:im a trial by jllr,V ai'; of J'ig'ht, 1'nrnillg to the \Ya~ l?ntil
qupstion whether tile DO (1H~-s jail wnalty is ;31lfljc-jent to bring it i"ithin to nHllll<
the class of ma,ior (lffellse" for i\'hich a j t1l'Y trial llJay bc demanded, ize' the ~
padiclllarJ,'- i"here lilt' ,st;Itlltc nUoi\'s no ap1)(',tl as of rig'ht, he said: of. tlw)'
"If i\e look to the staJl(]a1'(] il'1lieh ]l1'('nlilcd at the timp -of the adop- the offen
tioll of the COllstitlltioJl, "'e find that cOllfinenwJlt for il periu,] of ninet)' the legi<
(la,'-s or more ,,'as llot an llllllsual pUliishmcnt fur pdt,- ofrenses, tried sneh a c
,,'illtOlit a ;illJ'y, La~-ing asicle iltosr fur ,,'hielt the punishment was of a J nstice :
t,i'pC no luugcr eommonl)' ('lnp]"yed, Stll,ll 11S ,dlippin~, cunfinement in I think
~iocks <l11(] th" ]i!;,', all'] uth"I'S, pl111isltetl ],,'- (,01l1l1litJlll'1I1 for an indefi- tiOliS fOJ
nite ppriod, we !;llOi\' titat th"l''' iI-en' petty ulf'''IISCS, triahle summarily hut sole
under EllgJish statutcs, ,,-hich caniefl possiule sentences of imprison- ViSlOll~ I

101d_ at 73. III a '

n fl,irl. State v. Ho(1gcrs llf'Jd t113t the OfrCllSC (if Ilriying nn :lutomnbl\E- ,'idlile under boa n1 0
the iJlfluell(,(, 'If intDxir'atillg liquor clops llut rc'ql1il'(,' a jury tri<-ll ull'ler the con-
~tituUfm. nnd in the Jatpr c'ast- of L8til1ler '1/. \\'il.'-'on (.\i.J. 1026) 134 Atl. 750, !3 At f;2:;~
this \\":1$ held to bi..' :;:.n even tll('I1;.:.11 the so:>ntclll'e nllthorizcd upn!1 summary con~ «l~.S. \".
victivn \\as nelt l,~ss than 3() d<l~'s 11('1" nl'!1'(, 1.11;111 !-;ix nl011tlls in jail. :-,~\ F
H District of Columhia v. Colts (1':J32) 282 U.S. B3, 72. l~ Sl-(' t.:a·
~'J Tayl;,r

i
L
 "

) as to require
l
)
)
1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE

ment for periods from three to twelve months. At least sixteen statutes,
39

out a jury, de. passed prior to the time of the American Revolution by the Colonies,
e offense here or shortly after by the newly created States, authorized the summary
very nature is punishment of petty offenses by imprisonment for three months or
,de by the New more. And at least eight others were punishable by imprisonment for
N.J. 1917) 102 six months.
mbject to sum- "In the face of this history, we :find it impossible to say that a ninety
and those of a day penalty for a petty offense, meted out upon a trial without a jury,
ble at common does not conform to standards which prevailed when the Constitution
the defendant was adopted or was not then contemplated as appropriate notwithstand-
lratively slight iog the constitutional guaranty of a jury trial. This conclusion is un-
rely with driv- affected by the fact that respondent is not entitled to an appeal as of
~ driven at the righ t. " 43
~ property and Thus, as stated in these opinions, certain petty offenses not triable
;e is subject to by jury at the time of the adoption of the Constitution may be tried
in the same way under the authority of Congress and the legislatures,
17, respondent even where three months' or more imprisonment is provided upon sum-
ond-hand busi- mary conviction. Recent federal court opinions have emphasized the im-
;300 and to be portance of the exercise of legislative authority in applying the rule. 44
,bia statute no
ases where the California
ent more than Section 7 of Article 1 of the California Constitntion declares that
convicted pro- "The right of trial by jury shall be secured to all, and remain invio-
.ys in jail. The late." In addition, the Penal Code provides in Section 689 that "No
Ruling on the person can be convicted of a public offense unless by verdict of a jury,
rightly denied. ... by a finding of the court in a case where a jury has been waived,
its prior opin- or by a plea of guilty."
ecured by the Because of Section 689 there are no holdings squarely on the consti-
1al proceeding. , tutional question in California, but there are dicta by the California
doption of the 1 Supreme Court recognizing the authority of the legislature to provide
for summary proceedings without a jury of petty offenses of the type
.rily 'without a
magistrates or l so triable at common law.' 5 In the case of an ordinance violation de-
.ed by commit- I clared by statute to be a misdemeanor and found by the court to fall
, within the common-law notion of crime or misdemeanor and to be em-
d that were it
aId not, under
rurning to the
bring it wi thin
l braced in the state criminal code, the court held that the defendant
, was entitled to a jury trial. 46 It was noted by the court with reference
to municipal ordinance violations that" 'The legislature may author-
be demanded,
~ight, he said:
( ize' the summary trial without a jury, of the above class of cases spoken
of, they not being embraced in the criminal legislation of the state; but
e of the adop- the offense charged here is declared by statute to be a misdemeanor, and
lriod of ninety
offenses, tried
ment was of a
~onfinement in
I
!,
the legislature of this state has not attempted to authorize the trial of
such a case witbout a jury, unless a jury be expressly waived." Chief
Justice Beatty concurred in that opinion, in his words, " ... not because
I think the constitution secures the right of trial by jury in prosecu-
; for an indefi- I tions for petty misdemeanors created by statute or municipal ordinance,
.ble summarily but solely upon the ground that the right seems to be conferred by pro-
s of imprison- I visions of the Penal Code."
In a prosecution for practicing medicine without a certificate from a
obIle while under board of examiners, a statutory offense punishable by a $500 fine and one
11 under the con-
26) 134 AU. 750,
r
)n summary con· (1950 )
In jail.
\
(

---J.z--------- ZIliiZ_ _IiifliiiiiR. .

40 JUDICIAL COUNCIL OF CALIFOR IA

year imprisonment, the court held that the defendant 'I"as entitled to a time nor per
jury trial thr offense being ulle so triable at <-ommon law, but in its dic- offensrs. 5~
tnm said "thr gnaranties in the various state constitutions of the rio-ht 'fhat thes
of jury trial do not prohibit the Irg'islature from providing for st~m­ recognized c.
marc- pr\lf'erdings without a jury, in cascs or such petty offenses as are label [or Ih(
ennl1lpratcd in said English statutes, or in rascs where the offenses so offenses, 07 I
lll'alt with arp illtrinsi('alIv of the Silll1/" nilture and deo-ree
0 as those
. men- public reg 1
violations,G4
o •

tir)11r(] ill said statnjrs." 47

Oil a petition for writ of habeas corpus, denied for the reason that ticulal' refe
the r01'nsnl of a .iury trinl in a rase not amounting to a felony was merely fenses,6' di,
PITOr and not jlll·jsdie-tional, the. coud SI1Paking on the kinds of offenses While no
the legislature is empowere(] to except from the right to trial by jury and grant
said: "Yagrancc- is, 'I"C think, one of those offcllses, and the legislature proof of w
might proyicle bc' a general law for the summary trial without a jury of theless, thE
persons charged with saicl offense; bnt we agree with thc snperior court conc1 uet J1(
of IJos Angeles county sitting in bank, whose learned opinion on the sub- destrueti ye
jed was presentee] to liS at the argunwnt here, that there is no valid stat- That the
utory proyision for such a trial without a jury. " 48 is unjust i,
On the basis of the historical provision for summary trial of petty give a jail
offensps, the distinction made by the United States Supreme Court alternative
between offenses mala in se and mala prohibita, and the recognition " "Vithout
giwn by the California Supreme Conrt to the power of the legislature without pI
in such cases, it is clear that manc' "moving" violations of the Vehicle evidenced
Code could lw ell1ssifled by statllte as infraetions triable without a adopted a
j ury 4a the cleposi
most mino
Noncriminal Classification of Minor Offenses
62 Wechsler,
The union of act and wron~ful intent" is an im-ariable element of :>3 Ibid.; ChiE
Kot Re
every crime unless exclnded e~pressly or by necessary implication_" 50 Local (
As noted by Chicf Justice Traynor in People v. l' ogel, some offenses Olfellce
(1952)
are exelnded from this rule: "Under many statntcs enacted for the 100-10~
Crimi'"
protection of the public health and safety, e.!!., traffic and food and the MI
drug regulations, criminal sanctions are relied upon even if there is several
La10yc J
no wrongfnl intent. These offenses usually involve light penalties and (1.963)
&t Perkins 0
no moral obloq lly or damage to reputation. Although criminal sanctions f>5 18 U.S.C,~
6G Public To
are relied upon, the primary pm'pose of the stautes is regulation rather 67 S'ayre, p~
than pllnishment 01' correction. 'l'he offenses are not crimcs in the ortho- lVcl.fw
68 1 Bl. Can
dox scnse, and wrongful intent is not required in the interest of en- M.l Regina v.
forcement." 51 Professor 'Wechsler has pointed out that there is neither 60
l:lt
Morissett
Hamlnon
fl2 KirchheiJ
H b:x parte '''Tong You Ting, supra note 38 at 300-301; 31 Am. Jur., JW"Y, § 12 at 603 Fitzgeral
19-20.
48 10 re Fife, S1t1n-a note 38 at 9-10. _ .. Devlin
49S ee ('ali/oMlia Traffic flaw Ad.ministnttion (1960) 12 Stan. L.Rev. 3S8. 41<>; DIVI-
Stroud
III Model 1'4
sion 11 of the Vehicle Corle, Rules of the Road, except Chapter ]2. conlaio!ng 6.'; Fisher, V
seriollS offenses such as drunk driving, recl\less drivillg', sp(>en contests, throwmg
at 42-
substances at vehicles ami the prohibited u:'>e of a vehicle by })('t"sons addicted Illino;
to or under the inOuence of drugs,
fill Gausewi
rLJChie( Justice Roger J. Traynor, (hen Associate Justict', in Pc-ople Y. Vo~el (1956)
46 CaI.2d 198, fn. 2 at 801, citing Pen. C0de § 20 and noting the code com- ( 193"
missioner's quotation of Bishop (1 Bishop's Crim. Law, § 227) that "It is, thcre- sup'"a
ror~, a principle of our leg'a} sYS1Pm, :1S probahly pvery othc-r, that the essence " § 1.202. F
f!8 State v.:
of the offense is the wrongful intent, withollt "'hiclt it cannot f'xist." &9 § 155. K.
iii People v. Vogel, 81tJ)1'(L note 50 at SOl, fn. 2, citing Say,-e, Public 11·rlf(l,re. Offenses,
70 Lord De
33 Colum. L.Rev. 55, 72-75: Hall, Prologomc11U to (I, Scir1tce (If Cnmmal Law.
n Sayre. 81
89 U. Pa. L.Rev. 549, 568-569; \Vechsler, 7'he Amen',can La.w Institute: So?ne 72 WechsJe
ObSC1"Vatiolls 01/ Its MorIel Penal Code, 42 A,B.A,J, 321, 32·\. See also, Pel"kms
on Criminal Law, p, 693. nJl(1 D
7ll Perkins
74 Cal. Rul
 1967 REPORT TO THE GOVERNOR AND THE LEGISLATURE 41

was entitled to a time nor personnel to litigate the issue of wrongful intent in these minor
offenses.52
.w, but in its dic-
tions of the right That these regulatory offenses are not true crimes 53 has long been
widing for sum_ recognized and is evidenced by the persistent search for an appropriate
ty offenses as are label for them,54 such as petty offenses, 55 public torts, 56 public welfare
'e the offenses so offenses, 57 prohibitory laws, 58 prohibited acts, 59 regulatory offenses,60
ree as those men- public regulations,61 administrative misdemeanors,62 quasi-crimes,"3
violations,64 ordinance violationS,65 and civil offenses."6 With more par-
r the reason that ticular reference to trafTIc law violations they are called su=ary of-
clony was merely fenses,67 disorderly offenses 68 and trafTIc infractions. 69
kinds of offenses While no moral obloquy attaches or should attach to such offenses,7o
; to trial by jury and granting the practical need for retaining liability without
1d the legislature proof of wrongful intent in cases occurring in such volume,71 never-
without a jury of I theless, the imposition of criminal classification and sanctions upon
he superior court
Jinion on the sub- l conduct not proved to be criminal has been said to be unjust and
destructive of respect for the law. 72
That the imposition of jail for a first minor trafTIc offense ordinarily
'e is no valid stat-
is unjust is evidenced by the fact that judges in California almost never
ry trial of petty give a jail sentence in such cases. The usual sentence is stated in the
Supreme Court alternative, "'l'en dollars or two days." As pointed out by Perkins,
I the recognition "Without doubt judges usually have avoided imposing imprisonment
of the legislature without proof of the normal mens rea requirement." 73 It is further
ns of the vehicle evidenced by the fact that the Uniform Bail Schedule for California,
riable without a adopted after a survey of the schedules in each county, provides for
the deposit of bail to be ten or fifteen dollars for a first offense on
most minor trafTIc violations,74 the practice being that bail in such cases
5:l Wechsler. supra note 51.
riable element of 53 Ibid " Chief Justice Traynor, supra note 50; 1 Witkin, California Crimes, Offenses
Not Requiring Criminal Intent, § 62-63 at 66-68; Justice of the Peace and
I' implication." 50 \ Local Government Review, Sep't. 11, 1965, Vol. 129, p. 594; Newkirk, Motoring
/el, some offenses ) Offences (October I, 1965) 115 Law Journal 655; Perkins, The Civil Offense
(1952) 100 U. Pa. L.Rev. 832; Fisher, Vehicle Traffic Law, supra note 38 at
: enacted for the
fic and food and
l. 100-102; Gausewitz, Reclassification of Certain Offenses As Civil Instead of
CriminCLl (1937) 12 Wis. L.Rev. 365; Perkins on Criminal Law, p. 701, citing
the Model Criminal Code, Blackstone, Gausewitz, Pound, and decisions in
even if there is [ several states; Associate Justice, Whittaker, (ret.) U.S. Supreme Court,
Lawyers, Laymen and Traffic Courts: Concerted Effort Needed for Improvement
iht penalties and (1963J 49 A.B.A.J. 333. .
:riminal sanctions [, U Perkins on Criminal Law, supra note 53.
M18 U.S.C.A. § 1; District of Columbia v. Clawans (1937) 300 U.S. 617.
~Public Torts (1922) 35 Harv. L.Rev. 462.
regulation rather , fi7 Sayre, Public Welfare Offenses (1933) 33 Colum. L.Rev. 55; California's Public
imes in the ortho-
i
Welfare Offenses (1962) 35 So. Cal. L.Rev. 423; Wechsler, supra note 51.
liS 1 Bl. Comm. Sec. 58.
1e interest of en- W Regina v. Prince (1875) L.R. 2 Cr. Cas. Res. 154, 163.

~t there is neither 60 Morissette v. U,S. (1952) 34,2 U.S. 246.

~ Hammond v, King (Iowa 1908) 114 N.W. 10G2, 10G3.
I. Jur" Jury, § 12 at I 6ZKirchheimer, Criminal Omissions (1942) 55 Harv. L.Rev. 615, 636.
es Fitzgerald, Real Crimes and Quasi Crimes (1965) 10 Natural Law Forum 21; Lord
DeVlin, The Enforcement of Morals (1965) pp. 26-42, Oxford University Press;
Rev. 388, 415; Divi-
lapter 12, containing
I Stroud, Mens Rea 11 (1914) ; State v. Laird (N. J, 1957) 135 AtI.2d 859, 862.
04 Model Penal Code, § 1.04 (5); Proposed Penal Law of New York, § 15.15.
61; Fisher, Vehicle and Traffic Law, supra note 38 at 452-455; 31 Am. Jur., supra note 38
~d contests, throwing ( at 42-43; 50 C.J.S. supra note 38 at 783-784; A.B.A. Courts Trying Traffic Cases in
by persons addicted
Illinois (1958), Report for the Illinois Traffic Study Commission.
ople v. Vogel (1956) I ee Gausewitz, supra note 53; Gausewitz, Considerations Basic to a New Penal Code
(1936) 11 Wis. L.Rev. 346; Perkins, The Civil Offense, sUp"a note 53; Witkin,
oting the code com-
7) that "It is, there~ supra note 53; Perkins on Criminal Law, pp. 702-710.
her, that the essence ~ § 1202, Pa. Veh. Code. 1958.
os State v. Shoopman (N.J. Hl53) 94 At1.2d 493-494.

I
not exist,"
lie 1Velfare Offenses,
ce oj Cr,j,minal Law,
Law Institute: Some
24. See also, Perkins
Ilfj § 155, N.Y. Veh. and Traffic Law.
70 Lord Devlin, The Enforcement of Morals (1965) pp. 26-42, Oxford University Press.
'11 Sayre, supra note 57.
72 Wechsler, supra note 51; Gausewitz, supra note 53; Johnston, A Plea for the Bearing
and Deciding of Traffio Cases, 33 North Carolina L.Rev. 1, 2.

I 78 Perkins on Criminal Law, supra note 53 at 708.

U Cal. Rules of Court, Rule 850; see Twentieth Biennial Report (1965) 50.
42 JUDICIAL COUNCIL OF CALIFORNIA

is forfeited without further proceedings.75 Thus, while California law could he charged wi
authorizes jail as an immediate sandion for a first offense, the practice but it does not appel
is otherwise and the alternative jail sentence is used merely to assure has shown a wilful 0
payment of the fine. , a heavy fine nor jai.J
In view of the weight of authority that such offenses are not properly, tion, so that the ml
classifiable as crimes and of the fact that criminal sanctions are not unnecessary as a pr8
used, it seems desirable that both the criminal classification and the Also it may be q
immediate sanction of jail be eliminated and an appropriate cla.'5sifica· tions for a fourth
tion and sanctions be provided which conform to the noncriminal nature making a fourth in:
of minor traffic regulations and to the enforcement needs and practices viction for an infra
in such cases. $250 fine or a 90·(
usually imposed. F\
Classification of Repetitive Offenses
could result in rev
Assembly Bill No, 845, introduced in the 1965 Regular Session to Motor Vehicles,78 s
create a system of noncriminal traffic infractions, by an amendment license is revoked t
made on May 6, 1965, added the proviso "that exclusive of violations alty of $500 fine I
relating to the standing or parking of an unattended vehicle and those double that upon a
enumerated in Section 21962, each traffic infraction or combination Further, classify
thereof in excess of three within the immediately preceding twelve would reduce to se
months period shall constitute a misdemeanor to which the provisions of tions system for co
this section shall not apply." The merits of such a provision is question. For these reaSOD
able, and it was deleted from the bill by a subsequent amendment. 76 12 months should t
'l'reating a violation as a more serious otIense by reason of prior vio-
lations is not unique. For example, petty theft with a prior conviction New York Law on Tr'
is treated as a felony instead of a misdemeanor, However, making a New York is the
criminal offense a more serious one by reason of a prior is different than fractions and decl
treating as a crime what would otherwise be a noncriminal matter. " thatNewYork'si
The reasons for classifying these kinds of violations as noncriminal reg- examine its provis
ulatory offenses and for removing them from the criminal law still The violation '
apply, or of any law, or
Another objection that has been raised is that a defendant might
prefer to pay the fine rather than contest an infraction charge even
though he may be innocent. On a fourth violation such a defendant
1
which is not decll
the state to be a
not a crime. 80 Fo
could be charged with a misdemeanor and subject to imprisonment, as misdemeanors,
with the punishment actually based upon all four violations but with- formation need b
out the right to a jury trial on the first three. 77 This possibility bureau or when
troubles those interested in preserving the jury trial for cases leading cused is entitled
to j ail as a sanction. fense with which
Treating a fourth or subsequent infraction as a misdemeanor can be > the same exactne:
criticized on other grounds. It appears that the main reason for treat- • The defendant
J,

ing a repetitive violator as a misdemeanant is the belief that the record the effect of a p:
of priors indicates a wilful or negligent disregard of traffic laws. Fre· whether the violl
quently, however, a driver cited for a traffic violation may be charged code, however, re
with more'than one violation on the same citation, such as failure to
make a full stop at a stop sign, failure to display the vehicle registra·
'I'
'18 Veh. Code §§ 1335!
'" Veh, Code § 14601;
so N.Y. Vehicle and.
tion and failure to have proper lighting equipment. If convicted of all 81 People v. Karnow,
People v. Nagel
three infractions, the driver on his second citation within 12 months 8'.1 § 155 supra note 8
83 Peopie v. SZyman~
75Veh. Code § 40512. Forfeiture of ban is equivalent to a conviction (Veh. Code § 1803). & People v. Bell (19
Seventy·three percent of the nonparking traffic filings and more than 90% of the as People v. Pier (19
parking filings were handled by ball forfeitures in the municipal courts last year, IlO People v. Mortice
(See Annual Report of the Administrative Office of the California Courts (1966) McKinney's Co-
50,106,) 87 People v. Duell ('
711 Amendment of May 28, 1965.
'17 Letter of October 13, 1966, from Mr. Ernest Besig, Executive Director of the AmerIcan
Civil Liberties Union of Northern Cal1fornia, to Mr. Ralph N. Kleps.