Foster

The instant appeal involves the common scenario of a failure to appear by a person cited for a traffic violation. As a result of the failure to appear, a warrant is issued pursuant to Vehicle Code section 40515 [1] , and a new charge of failure to appear, in violation of Vehicle Code section 40508, subdivision (a) [2] , is appended to the underlying traffic charge. (See People v. Superior Court (1968) 262 Cal.App.2d 283, 285 , 68 Cal.Rptr. 629 .) In this case we hold that because Vehicle Code section 40508, subdivision (a), is a misdemeanor and not an infraction, the traffic defendant is entitled to a jury trial on the failure to appear charge, and the failure to advise the defendant of the right to a jury trial and obtain a waiver thereof constitutes reversible error.

Defendant Stephen E. Foster (hereinafter appellant) was cited for failing to stop at a red light, in violation of Vehicle Code section 21453 [3] . Appellant signed a written promise to appear on December 12, 1999. When appellant did not appear on December 12, 1999, a second allegation was added, charging a failure to appear, in violation of Vehicle Code section 40508, subdivision (a).

Appellant did…