Filed 4/23/14 P. v. Hanania CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139713
v.
HANNA IBRAHIM HANANIA,                                               (Sonoma County
                                                                     Super. Ct. No. SCR617755)
         Defendant and Appellant.


                                              I. INTRODUCTION
         After a court trial at which appellant appeared in pro per, he was found guilty of
an infraction, i.e., violating a section of the Petaluma Municipal Code, and was fined
$950. The Appellate Division of the Sonoma County Superior Court affirmed that
conviction, but then certified two issues to this court for review pursuant to California
Rules of Court, rule 8.1005. We will detail and address those questions below, but our
answers to them result in an affirmance of the trial court’s judgment.
                     II. FACTUAL AND PROCEDURAL BACKGROUND
         On April 12, 2012, appellant was driving his car on Baywood Road near the
Baywood Apartments in Petaluma. As he was doing so, he approached a marked police
car blocking traffic on that street because of a fire in the apartments. Appellant drove
around the marked car, crossed double yellow lines, thus now driving on the wrong side
of the road, and in so doing came upon Petaluma Police Officer Lance Novello. Novello
was directing vehicles away from the fire and tried to do so with appellant and his car,
but appellant continued driving toward Novello before stopping. Novello asked appellant


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to turn around, but the latter declined to do so. Rather, he made demands of the officer
(e.g., “Call your supervisor!”) and, per an audio recording received into evidence, clearly
did so in a very aggressive manner. He also refused to follow several orders from Officer
Novello to show his driver’s license.
        Appellant was then arrested for obstruction of justice.
        On May 2, 2012, the Sonoma County District Attorney filed a misdemeanor
complaint charging appellant with one count of obstructing a peace officer in
performance of his duties. (Pen. Code, § 148, subd. (a)(1).) The following month, the
District Attorney amended the complaint to add a misdemeanor charge of violating
Petaluma Municipal Code section 11.12.030, alleging a failure to comply with the lawful
order of a police officer.
        After a four-day jury trial, the jury hung and the trial court declared a mistrial on
both counts. The case was continued to June 19, 2012, for resetting. However, on that
date, the District Attorney moved, and the trial court granted, leave to amend the
complaint to change count 2, the count charging a violation of the Petaluma Municipal
Code, to an infraction, and dismissed the first count, the one brought under the Penal
Code.
        On September 7, 2012, after a court trial in which appellant appeared in pro per—
and opted not to testify—he was found guilty of an infraction, i.e., violating the specified
provision of the Petaluma Municipal Code. The court imposed a fine of $950 on
appellant.
        On October 4, 2012, appellant appealed to the Appellate Division of the Sonoma
County Superior Court. He was then and thereafter represented by counsel. On August
7, 2013, that court affirmed the conviction. On August 22, 2013, appellant filed an
Application for Certification to the Court of Appeal pursuant to California Rules of
Court, rule 8.1005(b)(1), identifying two issues he contends should be transferred to the
Court of Appeal “to settle important questions of law, and to secure uniformity of
decision.”



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       On September 6, 2013, that Division granted that request and certified two issues
for transfer to this court. On October 2, 2013, this court ordered transfer of the case to us,
pursuant to California Rules of Court, rule 8.1008(a)(1)(A), and requested further
briefing.
                                     III. DISCUSSION
       The two issues certified by the superior court on September 6, 2013, were: “1.
Whether the trial court abused [its] discretion and prejudiced Appellant’s substantial
rights when it authorized a reduction in charges from a misdemeanor to an infraction
without the Appellant’s knowing and intentional waiver, without arraigning the Appellant
on the amended charge, and without giving the Appellant an opportunity to resubmit a
plea on the new charge; and (2) Whether [the] Appellate Division erred in presuming
Appellant’s waiver of his fundamental rights from a silent record.”
       Appellant’s core position is that the result in this case infringes on “California’s
inviolate right to trial by jury” because of a “procedurally defective infraction
arraignment and subsequent infraction trial based on the same underlying charge” that led
to a hung jury in appellant’s misdemeanor trial. More specifically, he contends that the
trial court both failed to advise Mr. Hanania of his right to a jury trial “and otherwise
failed to properly arraign him.” In his reply brief, appellant sums up his principal point
thusly: “Mr. Hanania asserts that the prosecution cannot deny him the constitutional
protections of a misdemeanor jury trial by re-charging him with an infraction following a
hung jury, without giving him the opportunity to object.”
       Appellant also notes that there were procedural imperfections in the record, i.e.,
that after the jury was dismissed, there is nothing in the record indicating that the
prosecutor moved to amend its complaint or that the trial court permitted such an
amendment.
       We will start our analysis by quoting a clearly relevant statute: “A person charged
with an infraction shall not be entitled to a trial by jury.” (Pen. Code, § 19.6; see also




                                              3
People v. Kus (2013) 219 Cal.App.4th Supp. 17, 21 (Kus).)1 Appellant’s basic position is
that this rule applies only when the original charge was an infraction, but not when the
original charge was a misdemeanor which was, per the trial court’s order, later reduced to
an infraction, and when such was done—as appellant charges was the case here—without
his express consent. We disagree.
       In Kus, three individuals were charged with being nude on a public beach in San
Diego County, in violation of California Code of Regulations, title 14, section 4322, a
violation punishable as a misdemeanor pursuant to Public Resources Code section 5008,
subdivision (d). Prior to their trial, the prosecution moved to reduce the misdemeanor
charges to infractions, a motion the three defendants opposed, but which the trial court
granted. (Kus, supra, 219 Cal.App.4th Supp. at p. 20.) After separate bench trials, all
three defendants were found guilty and ordered to pay fines. On appeal, they contended
“that the reduction of their charge from misdemeanor to infraction deprived them of their
right to a jury trial under article I, section 16 of the California Constitution.” (Id. at p.
21.) The Appellate Division of the San Diego Superior Court disagreed, stating: “There
was no error in the trial court’s reduction of appellant’s misdemeanor charges to
infractions, and upon this reduction, the right to a jury trial no longer existed.” (Ibid.)
       The Kus court continued: “Criminal defendants maintain a right to jury trial in all
misdemeanor and felony cases, but do not have that right in cases involving infractions.
An infraction is a relatively minor violation of law, which cannot result in imprisonment
or loss of liberty, and as distinguished from a felony or a misdemeanor, does not result in
the right of a jury trial. [Citations.]
       “Penal Code section 19.6 provides: ‘An infraction is not punishable by
imprisonment. A person charged with an infraction shall not be entitled to a trial by jury.
A person charged with an infraction shall not be entitled to have the public defender or
other counsel appointed at public expense to represent him or her unless he or she is

       1
         On January 15, 2014, Chief Justice Cantil-Sakauye entered an order denying a
request for depublication of the opinion in Kus. (See Kus, supra, 219 Cal.App.4th Supp.
17.)


                                               4
arrested and not released on his or her written promise to appear, his or her own
recognizance, or a deposit of bail.’ (Italics added.) Penal Code section 17 defines
felonies, misdemeanors and infractions and also outlines the procedural mechanism for
reducing certain misdemeanors listed in Penal Code section 19.8 to infractions. These
delineated misdemeanors may be reduced when:
       “ ‘(1) The prosecutor files a complaint charging the offense as an infraction unless
the defendant, at the time he or she is arraigned, after being informed of his or her rights,
elects to have the case proceed as a misdemeanor, or . . .
       “ ‘(2) The court, with the consent of the defendant, determines that the offense is
an infraction in which event the case shall proceed as if the defendant had been arraigned
on an infraction complaint.’ (Pen. Code, §17, subd. (d)(1), (2).) However, the crime at
issue in these appeals is punishable under Public Resources Code section 5008,
subdivision (d) and California Code of Regulations, title 14, section 4322, not Penal Code
section 17, subdivision (d). Reviewing Penal Code section 19.8, the subject offense is
not specifically listed nor is it ‘any other offense that the Legislature makes subject to
subdivision (d) of Section 17.’ ”
       “The nudity offense at issue is therefore not covered by the statutory procedures
outlined in subdivision (d) of section 17 of the Penal Code entitling a defendant to elect
going forward on a misdemeanor (rather than an infraction) and requiring the consent of
the defendant to reduce the charge to an infraction.” (Kus, supra, 219 Cal.App.4th Supp.
at pp. 21-22, fn. omitted.)
       Exactly the same principle applies here; after the amendment to the complaint
eliminating the Penal Code charge, the only remaining charge was a violation of the
Petaluma Municipal Code, a charge then specifically labeled by the prosecution as an
infraction. Such was, therefore, the only charge on which appellant was convicted. That
conviction occurred after a one-day trial, at which appellant represented himself, made an
opening statement to the trial court, cross-examined Officer Novello (the prosecution’s
only witness), told the trial court that he “does not wish to testify and wishes to proceed



                                              5
with his closing argument” and did so, after which the trial court found him guilty of
violating the charged provision of the Petaluma Municipal Code.
       Exactly as with the Public Resources Code violation charged in Kus, the Petaluma
Municipal Code violation charged here—the only violation on which appellant was
tried—does not fall within the scope of either Penal Code sections 17, subdivision (d), or
19.8. Similarly to the charge in Kus, therefore, the only violation on which appellant was
tried is “not covered by the statutory procedures outlined in subdivision (d) of section 17
of the Penal Code entitling a defendant to elect going forward on a misdemeanor (rather
than an infraction) and requiring the consent of the defendant to reduce the charge to an
infraction.” (Kus, supra, 219 Cal.App.4th Supp. at p. 22.)
       Indeed, the Appellate Division of the Superior Court decided the case before it
substantially the same way, and did so without the benefit of Kus, a decision published
two weeks after the Appellate Division’s decision. It stated: “Appellant was convicted
of a Petaluma Municipal Code Section 11.12.030 violation, as an infraction. Petaluma
Municipal Code Section 1.12.020 gives the prosecuting agency discretion whether to
charge any Municipal Code violation as either a misdemeanor or infraction. That code
section does not confer upon a defendant the right to elevate a charged infraction to a
misdemeanor. Although P.C.Sec. 17 (d) confers upon a defendant the right to elect to
proceed as a misdemeanor when the People have charged an infraction, that statute only
applies to the offenses specified in P.C.Sec. 19.8. The Municipal Code violation
defendant was charged with is not one of the offenses specified in P.C.Sec. 19.8. As
noted in People v. Smith (2012) 205 Cal.App.4th Supp.1, at page 4, the right to elect a
misdemeanor prosecution is merely a statutory right conferred upon defendant by way of
P.C.Sec. 17 (d). Appellant fails to demonstrate that appellant had a right to elect
misdemeanor treatment under P.C.Sec. 17 (d) or any other statutory or constitutional
basis. Since defendant lacked any statutory right to elect misdemeanor treatment, the
trial court had no obligation to advise defendant of the constitutional differences between
a misdemeanor and infraction proceeding. Thus, appellant’s claim that the trial court
committed reversible error by failing to advise him of the constitutional differences


                                             6
between misdemeanor and infraction proceedings is without merit. [¶] As there is no
record of defendant lodging any objection to the case proceeding as an infraction,
defendant fails to demonstrate that the trial court abused its discretion in allowing the
charge be amended to an infraction.”
       Citing three appellate cases from the 1970’s, appellant contends that he was
entitled to elect to have a jury trial. Appellant contends that these decisions “hold that in
certain circumstances a defendant must be given the opportunity to elect to proceed with
a more serious crime in order to preserve the right to a jury trial. Those circumstances
existed here, where Mr. Hanania initially had the protection of a complete misdemeanor
jury trial, which was abruptly removed without any procedural safeguards.”
       One problem with this argument, as the People note in their brief to us, is that all
three of the cases relied upon by appellant were decided before the enactment of
subdivision (d) of Penal Code section 17 in 1980, a subdivision which specifically limited
the crimes that required a defendant to consent to a reduction from a misdemeanor to an
infraction. As already noted, a provision such as the only one ultimately charged here
and on which appellant was convicted, i.e., the Petaluma Municipal Code, was not
included in the listed offenses.
       The other problem with this argument is that it has been rejected by our Supreme
Court. In Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1251 (Mitchell), that court
stated: “We also reject petitioners’ assertion that when the People have the alternative of
prosecuting a single act under two statutes, one of which provides for a trial by jury (but a
potentially greater penalty), and the other of which provides for no jury trial (but a lesser
penalty), they must prosecute under the offense affording the right to jury trial. Although
there may be suggestive dictum to this effect in Safer v. Superior Court, supra, 15 Cal.3d
230, 241, we have never so held. Neither petitioners, nor lower courts that appear to have
embraced similar reasoning (e.g., People v. Shults (1978) 87 Cal.App.3d 101; People v.
Bowden (1978) 86 Cal.App.3d Supp. 1, 6), offer a constitutional basis for that rule, and
we decline to adopt it today.” (Fn. omitted.)”



                                              7
       Appellant argues that this holding in Mitchell cannot be relied upon for two
reasons, first because that decision is distinguishable and, secondly, because the Mitchell
decision’s quoted reasoning “was not joined by a majority.”
       Regarding his first contention, appellant argues that the Mitchell appellants were
making a somewhat different argument than he is making, i.e., “that the prosecution must
proceed with the misdemeanor charge simply because it carries the right to a jury” trial.
His argument is different, he contends, i.e., that he cannot be denied the “constitutional
protections of a misdemeanor jury trial” by being recharged with an infraction after a jury
was unable to decide the misdemeanor charge without being given “the opportunity to
object.” As we will note further below, there is nothing in the record establishing that
appellant was not given “the opportunity to object” to the recharge of an infraction.
Additionally, appellant cites two of the cases distinguished by, and the reasoning of
which was specifically rejected in, Mitchell in support of this alleged difference between
the holding in Mitchell and the facts before us.
       Clearly more significantly, appellant also argues that the Mitchell decision was not
“joined by a majority,” because only three of the six justices sitting on that case
concurred in the relevant portion of its opinion, i.e., the portion quoted above.2 We
likewise reject that analysis. First of all, all three of the justices who concurred (two of
whom concurred and dissented) all referred to the opinion authored by Justice Eagleson,
and concurred in by Justices Broussard and Kaufman, as the majority opinion. (See
Mitchell, supra, 49 Cal.3d at pp. 1257-1258.) Second, the disagreements voiced by two
of the other three justices, i.e., Chief Justice Lucas and Justice Panelli, clearly did not
involve the statement quoted above from the majority opinion but, rather, whether or not
the defendants in that case (the operators of a once-famous “adult entertainment” theatre
in San Francisco) could also have received an “ ‘alternative sentence’ ” under Code of




       2
           Justice Kennard did not participate in the case.


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Civil Procedure sections 1209 and 1218 rather than section 11229 of the Penal Code.3
The majority held that that could not be done, while the three concurring justices were
effectively saying that it could. Thus, their views on that subject were not in the slightest
either (1) contrary to the passage from the majority opinion quoted above, or (2) in any
way controlling here.
       Appellant next argues that when appellant was recharged with the one infraction,
“the court failed to properly advise [him] of his rights, including his right to object to the
reduction of charges” so that he could retain his right to a jury trial. In support of this
contention, appellant’s counsel cites only to page 44 of the first volume of the clerk’s
transcript, a page which deals with the proceedings of June 19, 2012, i.e., the date the
prosecutor moved, and the trial court granted, leave to amend the complaint to change
count 2, the count charging a violation of the Petaluma Municipal Code, to an infraction,
and dismissed the first count, the one brought under the Penal Code.
       We cannot agree that that one page of the clerk’s transcript supports appellant’s
argument that he was unknowingly deprived of his rights. First of all, that page recites
that appellant was then and there specifically advised of the new charges and allegations.
Thus, under Kus and the other law discussed above, inasmuch as the only charge
appellant was now facing was the charged infraction for violating a provision of the
Petaluma Municipal Code, he did not in fact have a right to a jury trial and, therefore, no
right to be so advised. Further, and as the Appellate Division specifically noted, since
“there is no record of defendant lodging any objection to the case proceeding as an
infraction, defendant fails to demonstrate that the trial court abused its discretion in
allowing the charge to be amended to an infraction.”
       Penal Code section 1009 authorizes the trial court to “permit an amendment of an
indictment, accusation or information, or the filing of an amended complaint . . . at any
stage of the proceedings . . . .” The law is clear that a trial court’s action permitting an

       3
         These are all statutes dealing with contempts of court, the first two civil
contempt and the latter contempt that might be punished criminally, i.e., by fines and/or
brief confinement in county jail.


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amendment to a criminal complaint under that section “are matters within the sound
discretion of the trial court and its ruling will not be disturbed on appeal in the absence of
showing a clear abuse of discretion. [Citations.]” (People v. George (1980) 109
Cal.App.3d 814, 818-819; see also People v. Arevalo-Iraheta (2011) 193 Cal.App.4th
1574, 1581; People v. Bolden (1996) 44 Cal.App.4th 707, 716. Thus, our standard of
review of the trial court’s actions regarding the change in the charge, etc., is not, as
appellant argues, de novo.
       We agree with respondent that there was no showing of any abuse of discretion by
the trial court here. Inasmuch as appellant had no right to a jury trial, the trial court did
not need to advise him of such a right and seek either an objection to the lack of one, or a
waiver.
       Finally on this point, no authority cited to us by appellant, nor any that we have
found, suggests that appellant had to knowingly consent to the reduction of the charge to
an infraction with the consequent loss of the right to a jury trial. Indeed, as noted above,
Mitchell supports our conclusion to the contrary. (Mitchell, supra, 49 Cal.3d at p. 1251.)
       These are also the answers to appellant’s final contention, i.e., that the failure of
the trial court to properly “re-arraign” him and thereby advise him of “his lost substantial
rights” resulted in his having “no opportunity to object to the reduced charges.” He was
thus “forced to proceed in a retrial of the infraction charge without the protection of the
jury or counsel.” Appellant argues that “Kus should . . . not control here.” We do not
find the holding in Kus to be controlling, but we do find it both applicable and persuasive.




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                                 IV. DISPOSITION
      The judgment of conviction of an infraction, and the penalty imposed, are both
affirmed.




                                               _________________________
                                               Haerle, Acting P.J.


We concur:


_________________________
Richman, J.


_________________________
Brick, J.*




      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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