"DISTRICT ATTORNEY
      RESPONDS."
      July 03, 2002

      by quig






      APPEAL FROM A CONVICTION AFTER A COURT TRIAL

      The Honorable JUDGE ARTHUR DANNER III

      RESPONDENT'S REPLY BRIEF
      Filed: July 03, 2002

      I. FACTUAL AND PROCEDURAL SUMMARY

            Appellant was charged with violations of Vehicle Code section 27803(b), riding a motorcycle without a safety helmet, in eight separate charges. The cases are consolidated for motions and trial. A court trial was held before Judge Arthur Danner III, after which two cases were dismissed and Appellant was found guilty in the remaining six cases. Judge Danner filed a written opinion (and later a supplemental written opinion) setting forth the bases for his determinations of Appellant's guilt. Respondent incorporates herein the findings of the lower court in this responsive brief.
      ANNOTATIONS


      As you're reading this brief, keep in mind that it came from Assistant District Attorney Paul Marigonda -- a long time understudy of then District Attorney Arthur Danner III, the most corrupt District Attorney in the history of Santa Cruz County.

      Marigonda starts his brief with lies upon lies. The record will reflect that whatever Danner decided, it was not the result of a trial -- the record reflects that inescapable fact.

      II. ANALYSIS

      A. APPELLANT WAS PROPERLY INFORMED OF THE CHARGES.

            In this case, the citations gave appellant sufficient notice of the charges: Vehicle Code section 27803(b), the helmet requirement. (People v. Jennings (1991) 53 Cal. 3d 334.) Second Penal Code section 954 permits joinder of offenses of a similar class. (People v. Kemp (1961) 55 Cal 2d 458.) Vehicle Code section 27803(b) is a public offense as a violation of that section constitutes an infraction. (See Vehicle Code section 40000.1, and thus a criminal matter. It is not simply an equipment violation as appellant claims' it is a criminal offense subject to a fine.

            Furthermore, appellant has never cited any authority for his claim that a violation of Vehicle Code section 27803 requires the allegation of Vehicle Code section 40610. The citations charging the violation of section 27803 were sufficiently pled here.

      Marigonda wishes any of this were true. Vehicle Code Section 40303.5 was repeatedly cited as the authority that the State had the obligation to either allege some allegation of 40610, or stay home. During one of the first hearings, Marigonda specifically stated that I was not charged with 40610 -- without which the tickets were merely a correctable equipment violation.

      B. THE HELMET LAW IS NOT A CORRECTABLE OFFENSE.

            Appellant claims this violation is a correctable offense pursuant to Vehicle Code section 40303.2. The lower court ruled that the citations were not correctable. As framed, the issue is thus: the failure to wear a helmet is not a "correctable violation"; one either has a helmet on or one doesn't. Judge Danner also found that two disqualifying conditions under hazard, and that th(e) Vehicle Code section 40610(b) existed; viz, that the violation was an immediate safety [e] violator (in this case, Appellant) did not agree or could not properly correct the violation.(See Amended Supplemental Written Opinion, hereafter "Opinion", p.1, 1.22-28; p.2, 1.1-5.)

            The failure to wear a helmet is simply not the same as the failure to have a working taillight and appellant's repeated efforts to equalize these offenses was properly rejected by the lower court. Based on the evidence, the lower court's ruling that Vehicle Code section 27803(b) is not correctable was supported by the facts and the law.      		 Notice, first he says that 40303.5 does not apply to the citation based on his theory that the failure to wear a helmet is not a correctable violation. Nothing to support the contention, against the plain language of the statute, but remember who he learned how to practice law from Danner himself.

      Marigonda then explains how Danner found the existence of two disqualifying conditions. He neglected to point out that Danner must have found them in tea leaves or something, because there was absolutely no testimony from any of the officers to support his finding.

      C. THE STATUTE IS CONSTITUTIONAL.

            Appellant argues that Vehicle Code section 27803 is unconstitutional, relying on Buhl v. Hannigan (1993) 16 Cal.App.4th, Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, and Easyriders Freedom F.I.G.H.T. v. Hannigan (9th Cir. 1996) 92 F.3d 1486. The lower court, interpreting those very same cases, found the statute constitutional (See Opinion, p.2, 1.6-28; p.3, 1.1-28.) Judge Danner analyzed each case and detailed how these three appellate cases, as applied to the evidence at trial, demonstrate that Vehicle Code section 27803 is constitutional as it applies to Appellant.

            In fact, the aforementioned cases make clear that Appellant's arguments are simply incorrect. The helmet law (section 27803) has been ruled constitutional by higher courts and Appellant disagrees with the lower court's interpretation of the case law. The "reasonable inferences" drawn from the "helmet's appearance" in these cases were that Appellant was wearing a baseball cap, not what common sense would call a helmet. (See People v. Barron (1995) 37 Cal.App.4th Supp. 1 [appellate division found Barron's argument that a ski cap was a helmet was "meritless."].) As held by the lower court, Vehicle Code section 27803 is constitutional here.      		 I handled this in the Final Brief on Appeal. The only thing worth saying about this is that no competent district attorney would go to such prevarications to win a conviction on a handfull of helmet tickets. What a jerk. But he's not done . . .

      D. THERE WAS NO MISCONDUCT BY THE PROSECUTOR.

            Appellant claims the prosecutor somehow engaged in misconduct during the trial. There was no misconduct. "Common sense generally compels lawyers to interview witnesses prior to calling them." (People v. Manson (1976) 61 Cal.App.3d 102, 135.) During the trial, the prosecutor talked to witnesses about potential areas of questioning by Appellant during cross-examination. This was entirely proper and the lower court correctly proceeded with the remainder of the trial.

      III. CONCLUSION

            For the foregoing reasons, the judgments of the lower court should be affirmed in their entirety.

      Dated: June 20, 2002.

      Respectfully submitted,


      (signed)
      Paul M. Marigonda
      Assistant District Attorney

      		 Yeah, right. And elephants can fly.

      The list of stuff Marigonda did during these helmet ticket hearings and trials will, I believe, ultimately lead to his disbarment . . . or at least should.

      The slimey little bastard even went so far when testimony was being taken from the various citing officers, to violate the intent of his own motion to exclude witnesses by coaching the excluded witnesses on what had transpired during their exclusion. Another trick he undoubtedly learned from Danner, since Danner did approve the conduct by allowing it.


         Take your pick about what you don't like about this guy, Marigonda. I indicated my sentiments in the Final Brief on Appeal which you can read (with a pdf reader) by clicking here.

         Now it's just a matter of waiting to see what they're going to do next.

       btw: Today is July 4th, 2002, and I have been riding around Santa Cruz County (California) since Judge Danner's decision last November, with nothing on my head at all. I am not qualified to pick a helmet, and the police have stopped stopping me and challenging me over the disappointment in what I do or do not choose to wear while riding my motorcycle . . . none of them are stepping up and claiming to have "common objective experience." It's almost like living in a Free country. Bummer, eh? --quig


      Last updated: July 2002
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