People v. Nelson

I concur in the court’s opinion. I write separately, however, to say that the scholarly analysis of legislative history and the lengthy discussion of cases are, for me, not necessary to resolution of this appeal, which I would decide this way.

Vehicle Code section 23123 states that a person shall not drive on public roadways using a wireless telephone unless the phone is configured for hands-free listening and talking and “is used in that manner while driving.” (§ 23123, subd. (a).) Found guilty under that section, defendant Carl Nelson argues he was not “driving” because he was using the phone while his car was stopped at a red light, an argument premised primarily on Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 [ 280 Cal.Rptr. 745 , 809 P.2d 404 ] {Mercer). I find Mercer easily distinguishable, and hold that properly interpreted—giving its words a “ ' “plain and commonsense meaning” ’ ” (Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1546-1547 [ 108 Cal.Rptr.3d 429 ])—section 23123, subdivision (a) applies to persons driving on public roadways who stop briefly while doing so. Or, to put it bluntly, that “driving” includes “stopping.”

The Supreme Court in Mercer…

*1087 Opinion

Defendant Carl Nelson appeals from a traffic court judgment of guilt for violating Vehicle Code section 23123, 1 which states that persons shall not drive on public roadways using a wireless telephone unless the phone is configured for hands free listening and talking, and used in that manner while driving. (§ 23123, subds. (a), (e).) Defendant was observed using his phone in his car as he paused at a red traffic light while driving in Richmond, California. He argues he was not “driving” because his car was stopped during his phone use, relying on our Supreme Court’s determination in Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 [ 280 Cal.Rptr. 745 , 809 P.2d 404 ] (Mercer) that the term “drive” as used in section 23152 (prohibiting driving under the influence of alcohol or drugs) requires proof of “volitional movement.”

However, defendant’s circumstances are materially different from those considered by the Mercer court, which defined “drive” as it applied to a person found asleep in a vehicle legally parked against the curb of a residential street, albeit with its engine running and lights on; in other words, the vehicle was not at the time being…