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
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.
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
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)
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
On October 2, 2017, the Governor signed into law Assembly Bill No. 390 (2017-2018 Reg. Sess.) (Assembly Bill 390), amending Vehicle Code section 21456. The amendment decriminalized conduct that fell under the former statute.
The amendment preserved the former statute's violation for starting to cross a roadway when there is a steady or flashing "DON'T WALK" or "WAIT" or "Upraised Hand" symbol, but limited the violation to intersections "without a 'countdown' signal indicating the time remaining for a pedestrian to cross the roadway." ( Veh. Code, § 21456, subd. (c).) For intersections with a countdown signal, as the one in the present case, the violation is limited to pedestrians who fail to complete a crossing prior to the end of a countdown, regardless of whether they entered the intersection when there was a steady or flashing "DON'T WALK" or "WAIT" or "Upraised Hand" symbol. ( Veh. Code, § 21456, subd. (b).)
Assembly Bill 390 was not enacted as urgency legislation. " ' " 'Under the California Constitution, a statute enacted at a regular session of the Legislature generally becomes effective on January 1 of the year following its enactment except where the statute is passed as an urgency measure and becomes effective sooner. [Citation.]' " ' [Citation.]" ( People v. Douglas M. (2013)
Estrada involved a statute which merely reduced punishment, as opposed to making conduct wholly noncriminal. Estrada relied on the common law principle that a statute that mitigated punishment applied to acts committed before its effective date so long as no final judgment had been rendered. ( Estrada , supra ,
The statute, as amended, contains no saving clause stating the change in the law is to have only prospective effect. In addition, there is no intent apparent in the text of the statute indicating the law is to apply only prospectively. (See Nasalga , supra ,
An analysis of Assembly Bill 390 prepared for the Legislature explained the previous law was "instituted before the inception of countdown timers," and the change in the law was enacted because public safety at intersections
Applying the law retroactively to defendant's case is consistent with the law's intent. Although defendant was already cited, convicted and ordered to pay a fine, applying the amendment to her case would serve the Legislature's intent of relieving pedestrians from the financial burden of being fined for an offense which it concluded was unnecessary to maintain safety at intersections controlled by countdown timers.
The People argue the case should be remanded to allow them the opportunity to determine if defendant should be retried. This is an appropriate disposition.
At her first trial, defendant was found guilty of starting to cross when the "DON'T WALK" sign was flashing and the countdown timer was still at 7 of 15, but the record does not indicate whether any evidence was presented as to whether she completed crossing prior to the end of the countdown. As the requirement that the crossing be completed prior to the end of the countdown was not an element of the statute at the time of defendant's trial, such evidence did not need to be presented to convict defendant.
Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the
DISPOSITION
The judgment is reversed. The case is remanded for further proceedings consistent with this opinion.
We concur:
Kumar, Acting P. J.
Richardson, J.