Monday, February 13, 2012
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C.A. Publishes Ruling in Red Light Camera Case
By a MetNews Staff Writer
The Court of Appeal for this district Friday ordered publication of its Jan. 23 ruling that the use of photographs and the testimony of a police officer who wasn’t present to prove that a motorist ran a red light violated the Evidence Code.
Justice Fred Woods of Div. Seven agreed with Beverly Hills attorney Annette Borzakian that her conviction for running a red light in that city in June 2009 was unsupported by substantial evidence.
Borzakian was cited based on “photographic evidence” produced by the city’s Redflex automated traffic enforcement system. Representing herself, she asked that the evidence be excluded because the officer who issued the citation on the basis of the photos taken by the red-light camera lacked a foundation for testifying that the camera was properly maintained.
Los Angeles Superior Court Commissioner Carol Hallowitz denied Borzakian’s motion and found her guilty. She was fined $435 and ordered to take a 12-hour traffic school course.
The Los Angeles Superior Court Appellate Division affirmed, but the Court of Appeal agreed to transfer the case, and last month concluded that Borzakian was correct. Yesterday’s publication order makes hers the first published Court of Appeal opinion to throw out a red-light camera conviction.
In a previous case cited by Woods, People v. Khaled (2010) 186 Cal.App.4th Supp. 1, the Orange Superior Court Appellate Division threw out a conviction. The panel that the officer who issued the citation “did not qualify as the appropriate witness and did not have the necessary knowledge of underlying workings, maintenance, or recordkeeping of Redflex Traffic System.”
The Los Angeles Superior Court Appellate Division reached a contrary conclusion in People v. Goldsmith (2011) 193 Cal.App.4th Supp. 1. That case is now before Division Three in People v. Goldsmith, B231678.
The Goldsmith panel heard oral argument last July, but submission was deferred because a large number of parties—Redflex, various cities, and a number of motorists or attorneys involved in similar cases—filed amicus briefs, and several responses were filed to those briefs. The case was submitted on Nov. 22, so the opinion is due by next week.
In Borzakian’s case, Woods explained, photographic evidence with annotations was prepared by a Redflex employee, but was presented through the testimony of the officer. But the officer could not authenticate the evidence under the business records exception to the hearsay rule, Woods said, because he doesn’t work for Redflex.
Borzakian said at the time of the ruling that she was “very, very upset” that the opinion wasn’t certified for publication. She expressed gratitude yesterday that the court had granted her publication request, so that the decision is now citable as precedent.
The city could, however, ask the state Supreme Court to depublish the opinion or hear the case on review. Its lead counsel on appeal, William Litvak of Dapeer, Rosenblit & Litvak, said Friday afternoon his client was reviewing those options.
He added that the outcome of the case might have been different if the appellate court had a complete settled statement. One of the problems with traffic appeals, he explained, is that cutbacks have left courts without court reporters or audio equipment that would allow for the development of a full record of the evidence.
The city, he said, will make a focused effort on “what the police can do to make sure that all of the relevant evidence is in the settled statement.” If those statements are “thorough and complete,” he said “we believe there will be no problems in carrying out a red light camera enforcement program as authorized by the Legislature.”
The case is People v. Borzakian, B227948.
Copyright 2012, Metropolitan News Company