Superior Court of California, Appellate Division, San Diego
Appeal from the judgments entered by the Superior Court, County Nos. P680277, P637595, P680009 of San Diego, Timothy M. Casserly, Judge.
Attorney for Appellant: R. Allen Baylis.
Attorney(s) for Respondent: Bonnie Dumanis, District Attorney, and Shari Lawson, Deputy District Attorney.
YVONNE E. CAMPOS, Judge, Appellate Division.
Defendants and appellants, Lisa Kus, Nilo Lins and John Squicciarinia, each appeal from the judgment entered following their separate convictions, after bench trials, for illegal nudity on the beach. Given the similarity in their legal claims and arguments, as well as their representation by the same counsel, these cases were consolidated for appeal. Appellants contend on appeal that the trial court erred in reducing their initial misdemeanor charge to an infraction because it allegedly violated their right to jury trial under Article I, section 16 of the California Constitution.
Appellants were cited for illegal nudity on the San Onofre State Beach by an officer of the Department of Parks and Recreation as follows: on April 16, 2011, Appellant Nilo Lins was cited for lying on the beach without clothing, and on May 30, 2011, Appellants Lisa Kus and John Squicciarini were cited for removing their clothing while playing volleyball. Appellant Lins admitted to being nude and asked why the rangers were issuing citations if they were just going to be dismissed like his last citation had been dismissed. Both Appellants Kus and Squicciarini reportedly apologized for their nudity and asked for warnings rather than citations from the Department of Parks and Recreation officers.
California Code of Regulations, title 14, section 4322 prohibits nudity in California state parks, and provides in pertinent part: “No person shall appear nude while in any unit [of the State Parks System] except in authorized areas set aside for that purpose by the [d]epartment.” The violation is punishable as a misdemeanor by Public Resources Code section 5008, subdivision (d). All appellants were cited and released, and have been consistently represented by retained counsel in the trial court and throughout the appellate process. Prior to trial, the prosecution moved to reduce each misdemeanor charge to an infraction, which Appellants opposed. The trial court granted each motion to reduce and on September 13, 2012, all three appellants were found guilty after separate bench trials and were each ordered to pay a reduced fine of $284.
LEGAL ISSUE PRESENTED
Appellants object to the reduction of their misdemeanor charges to infractions even though the applicable statute, Public Resources Code section 5008, subdivision (d), provides that the misdemeanor charge may be reduced to an infraction by a judge on the recommendation of the prosecuting attorney without any input from a defendant. Appellants contend that the reduction of their charge from misdemeanor to infraction deprived them of their right to jury trial under Article I, section 16 of the California Constitution.
There was no error in the trial court’s reduction of Appellants’ misdemeanor charges to infractions, and upon this reduction, the right to trial no longer existed.
A criminal defendant’s right to a jury trial is derived from the common law and secured generally by the federal and state constitutions (5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 509, ...