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PEOPLE v. BORZAKIAN
203 Cal.App.4th 525 (2012)
136 Cal. Rptr. 3d 772
THE PEOPLE, Plaintiff and Respondent,
v.
ANNETTE BORZAKIAN, Defendant and Appellant.
No. B229748.
Court of Appeals of California, Second District, Division Seven.
January 23, 2012.
As modified January 26, 2012.
February 10, 2012.
February 14, 2012.
Wilson, Elser, Moskowitz, Edelman & Dicker and Robert Cooper for David Martin as Amicus Curiae on behalf of Defendant and Appellant.
Law Offices of Joseph W. Singleton and Joseph W. Singleton for Mishel Rabiean as Amicus Curiae on behalf of Defendant and Appellant.
WOODS, Acting P. J.— INTRODUCTIONIn this appeal, Annette Borzakian challenges her conviction for failure to stop at a red light signal at an intersection equipped with an automated red light enforcement system. (Veh. Code, §§ 21453, subd. (a), 21455.5.) Because the trial court erred in admitting the evidence against Borzakian, we reverse. FACTUAL AND PROCEDURAL SUMMARYAnnette Borzakian was cited for failing to stop at a red light at the intersection of Beverly Drive and Wilshire Boulevard in the City of Beverly Hills on June 3, 2009, in violation of Vehicle Code section 21453, subdivision (a).1 Her citation (entitled "Traffic Notice to Appear[—]Automated Traffic Enforcement System") indicated the violation was not committed in the presence of the declarant identified on the citation (C. Williams), but rather was "based on photographic evidence." (See Veh. Code, § 21455.5.)2 Borzakian's trial on this infraction took place on January 21, 2010, before Commissioner Carol J. Hallowitz. The People's case was presented through the testimony of Officer Mike Butkus of the Beverly Hills Police Department and the automated enforcement evidence, comprised of three digital photographs with data box text, maintenance logs, a certificate of mailing and notice to appear. No prosecutor was present. Borzakian (representing herself)
moved to exclude the People's evidence but was unsuccessful; she cross-examined Officer Butkus but did not testify on her own behalf.
1. Vehicle Code section 21453, subdivision (a), provides: "A driver facing a steady circular red signal alone shall stop at a marked limit line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection, and shall remain stopped until an indication to proceed is shown, except as provided in subdivision (b) [permitting a right turn (or left turn where turning from a one-way to a one-way street) after stop where no sign prohibits such a turn]."
2. As relevant, Vehicle Code section 21455.5 provides:
"(a) The limit line[ or] the intersection . . . where a driver is required to stop, may be equipped with an automated enforcement system if the governmental agency utilizing the system meets all of the following requirements:
"(1) Identifies the system by signs that clearly indicate the system's presence and are visible to traffic approaching from all directions, or posts signs at all major entrances to the city, including, at a minimum, freeways, bridges, and state highway routes.
"(2) If it locates the system at an intersection, and ensures that the system meets the criteria specified in Section 21455.7 [(`At an intersection at which there is an automated enforcement system in operation, the minimum yellow light change interval shall be established in accordance with the Traffic Manual of the Department of Transportation,' and `the minimum yellow light change intervals relating to designated approach speeds provided in the Traffic Manual of the Department of Transportation are mandatory minimum yellow light intervals.')].
"(b) Prior to issuing citations under this section, a local jurisdiction utilizing an automated traffic enforcement system shall commence a program to issue only warning notices for 30 days. The local jurisdiction shall also make a public announcement of the automated traffic enforcement system at least 30 days prior to the commencement of the enforcement program.
"(c) Only a governmental agency, in cooperation with a law enforcement agency, may operate an automated enforcement system. As used in this subdivision, `operate' includes all of the following activities:
"(1) Developing uniform guidelines for screening and issuing violations and for the processing and storage of confidential information, and establishing procedures to ensure compliance with those guidelines.
"(2) Performing administrative functions and day-to-day functions, including, but not limited to, all of the following:
"(A) Establishing guidelines for selection of location.
"(B) Ensuring that the equipment is regularly inspected.
"(C) Certifying that the equipment is properly installed and calibrated, and is operating properly.
"(D) Regularly inspecting and maintaining warning signs placed under paragraph (1) of subdivision (a).
"(E) Overseeing the establishment or change of signal phases and the timing thereof.
"(F) Maintaining controls necessary to assure that only those citations that have been reviewed and approved by law enforcement are delivered to violators.
"(d) The activities listed in subdivision (c) that relate to the operation of the system may be contracted out by the governmental agency, if it maintains overall control and supervision of the system. However, the activities listed in paragraph (1) of, and subparagraphs (A), (D), (E), and (F) of paragraph (2) of, subdivision (c) may not be contracted out to the manufacturer or supplier of the automated enforcement system."
3. There was no court reporter, court recorder or other official recording of the proceedings.
4. "The judge may permit inconspicuous personal recording devices to be used by persons in a courtroom to make sound recordings as personal notes of the proceedings. A person proposing to use a recording device must obtain advance permission from the judge. The recordings must not be used for any purpose other than as personal notes." (Cal. Rules of Court, rule 1.150(d).)
5. The record on appeal does not contain any video evidence. In her opening brief, Borzakian says the online video was not preserved for appeal.
6. We note that a similar appeal of a red light camera violation in which the Appellate Division of the Los Angeles County Superior Court affirmed the motorist's conviction (People v. Goldsmith (2011) 193 Cal.App.4th Supp. 1 [122 Cal.Rptr.3d 110]) is currently pending before Division Three of this district in People v. Goldsmith, B231678.
7. "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
"(a) The writing was made in the regular course of a business;
"(b) The writing was made at or near the time of the act, condition, or event;
"(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
"(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1271.)
8. People v. Goldsmith presented a far more detailed record of extensive testimony from a police officer from the City of Inglewood, including how that public entity operates and how involved that particular officer was with the automated traffic enforcement system in operation there.
9. The two-page document does not bear the same "Redflex" logo or heading but includes references to "RTS specifications" and "RTS cabinets," suggesting they are also documents prepared by Redflex Traffic Systems.
10. In its amicus curiae brief, Redflex says it "is in the business of manufacturing red light camera systems and assisting cities in collecting and processing evidence of violations. Redflex collects photographic video evidence in the ordinary course of business for each and every vehicle that triggers one of its systems. Thus, because collecting such evidence is Redflex's business and Redflex collects the evidence for every vehicle that triggers its system, Redflex plainly collected the evidence of [Borzakian's] violation in the ordinary course of business." (Italics added, original boldface & underscoring; see Khaled, supra, 186 Cal.App.4th at p. Supp. 8 ["the document cannot be prepared in contemplation of litigation"].)
11. In light of our resolution of the issues surrounding the admissibility of the Redflex evidence, we need not reach Borzakian's arguments relating to her constitutional right of confrontation. We note, however, the Redflex evidence necessarily has a "`primary purpose'" of "`establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.'" (Bullcoming v. New Mexico (2011) 564 U.S. ___, ___, ___ & fn. 6 [180 L.Ed.2d 610, 131 S.Ct. 2705, 2714, 2717 & fn. 6] ["A document created solely for an `evidentiary purpose,' . . . made in aid of a police investigation, ranks as testimonial.") "Suppose a police report recorded an objective fact—Bullcoming's counsel posited the address above the front door of a house or the read-out of a radar gun. [Citation.] Could an officer other than the one who saw the number on the house or gun present the information in court—so long as that officer was equipped to testify about any technology the observing officer deployed and the police department's standard operating procedures? As our precedent makes plain, the answer is emphatically `No.'" (Id. at pp. ___-___ [131 S.Ct. at pp. 2714-2715], citation omitted.) "[T]he [Confrontation] Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination. [¶] . . . [¶] . . . [W]hen the State elected to introduce Caylor's certification, Caylor became a witness Bullcoming had the right to confront." (Id. at p. ___ [131 S.Ct. at p. 2716].) Further, it bears mention that the "`Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.'" (Bullcoming, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2719].)
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