DECISION ON APPEAL

The above entitled matter came on regularly for hearing on June 22, 1995, in the Appellate Department of the Superior Court of the Sate of California, County of Calaveras before the Honorable Richard E. Tuttle, Presiding Judge, the Honorable Susan C. Harlan, and the Honorable William G. Polley, on appeal from appellant's conviction of operating a motorcycle with an unapproved helmet in violation of Section 27803 of the Vehicle Code. He appeals his conviction contending that: (1). Officer Spence was not a proper witness; (2). The Court did not show sufficient evidence that Appellant had prior knowledge that his helmet did not meet federal standard 218; (3). Appellant's helmet had a DOT sticker applied by the manufacturer indicating its compliance with FMVSS 218 standard; and (4). The helmet law violates the due process protections of the State and Federal Constitutions. We hereby affirm the judgment.

I

Vehicle Code Section 27803 provides:

"(a)A driver and any passenger shall wear a safety helmet meeting requirements established pursuant to Section 27802 when riding on a motorcycle, motor-driven cycle, or motorized bicycle.

(b) It is unlawful to operate a motorcycle, motor-driven cycle, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a).

(c) For purposes of this section, 'wear a safety helmet' or 'wearing a safety helmet' means having a safety helmet meeting the requirements of Section 27802 on the person's head securely without excessive lateral or vertical movement."

Vehicle Code Section 27802 provides:

"The department may adopt reasonable regulations establishing specifications and standards for safety helmets offered for sale, or sold, for use by drivers and passengers of motorcycles and motorized bicycles as it determines necessary for the safety of those drivers and passengers. The regulations shall include, but are not limited to, the requirements imposed by Federal Motor Vehicle Safety Standard No. 218 (40 CFR Sec. 571.218) and may include Compliance with that federal standard by incorporation of its requirements by reference. Each helmet sold or offered for sale for use by drivers and passengers of motorcycles and motorized bicycles shall be conspicuously labeled in accordance with the federal standard which shall constitute the manufacturer's certification that the helmet conforms to the applicable federal motor vehicle safety standard."

Penal Code Section requires that at the conclusion of a court trial, the judge must make findings on the issues of fact in substantially the form prescribed for the jury's general verdict and must enter those in the minutes. In infraction cases, the judge's findings must be made in open court. (People v. Kriss (1979) 96 Cal.App.3d 913, 917).

The function of an appellate court is to review errors of law and not to pass on questions of fact. On appeal from a criminal conviction, a reviewing court must view the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence; if the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Reilly (1970) 3 Cal.3d 421, 425). The critical inquiry is to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The reviewing court does not determine whether it believes that the evidence at trial established guilt beyond a reasonable doubt, but whether after viewing the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 61 L.Ed.2d 560, 573; People v. Lewis (1990) 50 Cal3d 262, 277).

II

At the trial, appellant presented the Court with literature concerning the Federal Motor Vehicle Standard 218, which contained drawings of different styles of approved helmets. The following discourse took place:

THE COURT: I would like to see what you've brought in the way of Federal Motor Vehicle Standard 218.

MR. SWANK: I brought the whole thing.

OFFICER SPENCE: May I keep that?

MR. SWANK: Yes, you may keep that. You betcha. That's what I showed you when you pulled me over. You remember?

OFFICER SPENCE: I know. Yeah.

THE COURT: Do me a favor and put this on. I want to know where it cames on your face.

MR. SWANK: (Complies)

THE COURT: Oh, God. It's not even coming close.

MR. SWANK: To what?

THE COURT: To the drawings that are in the section.

MR. SWANK: Those are -- I've got to get the word right -- approximations.

THE COURT: Oh, of course they are. But yours doesn't even come close to approximate. I mean, they're talking about how it's supposed to come to the center of the ear.

MR. SWANK: A half shell doesn't come to the center of the ear.

THE COURT: No, actually, I'm surprised that half shell was any good, although it could, I could see it's considerably deeper. You see, yours is so shallow. Yours is like the top third of this half shell.

OFFICER SPENCE: Your Honor, I believe -- didn't you tell me at the scene that this used to be a half shell and that you cut it down?

MR. SWANK: I remanufactured it.

THE COURT: Oh, yeah. You cut it down. Oh, it's not even going to come close, not according to these drawings. There's a lot of graphs . . . [several lines down] yours just covers so little of your head, similar to a yarmulke or something. I mean, that's what is looks like.

MR. SWANK: I'm Jewish.

THE COURT: Are you Jewish? That's what it looked like. You can wear it to Temple next time you go. But it really won't even come close." RT.pp 6-8).

III

The trial judge made the following findings:

(1). That the helmet only fits the very cap of defendant's head (R.T. p.8:14-17);

(2). That the helmet does not even come close to the approved helmets illustrated in the literature from the California Highway Patrol (R.T. p.7:25-8:6);

(3). That defendant's helmet is so shallow (R.T. p.7:7-8);

(4). That the helmet doesn't even come close to the standards contained in the information bulletin of approved motorcycle helmet styles. (R.T. p.9:5-7);

(5). That the helmet doesn't even come close to the drawings that are in the section [Federal Motor Vehicle Standard 218] (R.T. p.6:5-21).

(6). That the helmet is tiny (R.T. p. 8:6);

(7). The defendant is guilty of the helmet violation (R.T. p.9:11-12).

Although the trial court did not summarize its findings in the nice, all-encompassing concluding paragraph, listing those findings one by one, implicit in the trial court's findings that the helmet is "so tiny," "shallow," "fits the very cap of your head," is a finding that the helmet did not fit appellant's head securely, without excessive lateral or vertical movement. Looking at the record of the trial and the evidence presented at the trial, the trial judge's finding that defendant is guilty of violating Section 27803 is simply supported.

The trial judge used the provided literature as an informative tool, a descriptive portrayal of the approved helmets based upon the standards adopted by the Department of Transportation. Section 27802 empowers the department to adopt reasonable regulations establishing specifications and standards for safety helmets offered for sale, or sold, for use by drivers and passenger of motorcycles and motorized bicycles as it determines necessary for the safety of those drivers and passengers, which shall include, but are not limited to, the requirements imposed by Federal Motor Vehicle Safety Standard No. 218 (49 CFR Sec. 571.218) and may include compliance with that federal standard by incorporation of its requirements by reference. The trial court's finding was that the helmet in question in this case clearly fell short of those standards.

The trial judge used those drawings as an aid to reach the required determination that the re-manufactured, cut-down helmet, does not comply with the standards, does not fit any of the approved helmets as described when personally examining the helmet defendant wore. The trial judge found that defendant violated Section 27803 of the Vehicle Code, and our duty as a reviewing court is to determine whether, when viewing the evidence in the light most favorable to the conviction and presume in support of the judgment, substantial evidence supports the conclusion of the trier of fact. In this case, we must only determine if substantial evidence from the record support the finding that defendant operated a motorcycle while wearing a helmet which did not comply with the standards adopted by the Department of Transportation. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Reilly (1970) 3 Cal.3d 421, 425).

In the case at bar, the circumstances reasonably justify the trial judge's finding that defendant violated Vehicle Code Section 27803.

IV

As far as Appellate's contentions outlined above:

First, Officer Spencer was the officer who issued defendant the citation, testified from personal knowledge, and therefore, was clearly a proper witness.

Second, prior knowledge that the helmet did not meet federal standards before a court could find one guilty of violation Section 27803(b) was shown in the case at bar. The facts established were that the appellant had purchased the helmet which bore the DOT sticker. However, the appellant admitted re-manufacturing it to the size where the lower court described as covering only the very cap of his head.

Third, once the helmet's overall appearance had been changed by appellant, appellant could no longer rely on the existence of the DOT sticker. The DOT sticker is a recognized method of the manufacturer, based on an honor system, of self-certification: that the helmet complies with federal standards. The DOT sticker represents the self-certification and compliance with the prescribed standards while in its original condition. In the case at bar, appellant has significantly altered the original condition of the helmet, and therefore, appellant cannot rely on the DOT sticker to establish compliance with those standards.

Last, appellant's contention that the helmet law violates due process protection of the State and Federal Constitutions is that the statute is void for vagueness is without merit. In Buhl v. Hannigan (1993) 16 Cal.App.4th 1612, the Court of Appeal considered and decided the issue of vagueness, and held that the helmet law is not impermissibly vague.

For all reasons set forth above, the judgment of the lower court is hereby affirmed.

IT IS SO ORDERED.

SUSAN C. HARLAN, Superior Court Judge, Amador County
DATED: 10-24-95

WE CONCUR:

WILLIAM G. POLLEY, Superior Court Judge, Tuolumne County (11/7/95)

RICHARD E. TUTTLE, Superior Court Judge, Calaveras County (11-3-95)

Well, that's it. That's what bigots do when they are about to lose to the lower (in their opinions) forms of life. Do they deserve to be drawn and quartered? Probably, but there would just be some other lawyer to take their place. (To view the actual decision [i.e.: proof], click here. The file is 120k, which means it will take some time to load.)

So, what do we recommend doing with this information?

Just keep it in mind, remember the feeling, and don't bow to such people, don't bother to try to negotiate when them, no matter what!
quig