Pleading Paper

The entire process of installation and calibration of the camera equipment, putting film into the cameras, unloading the cameras, developing the film, maintaining the camera equipment, and reviewing the photographs to make the initial determination as to whether or not there was a violation and whether the alleged violator can be identified, is done by Lockheed Martin. Further, once Lockheed determines that a citation will not issue, that decision is not reviewed by the City.

If Lockheed decides a citation should issue, it reviews the Department of Motor Vehicles’ information regarding the registered owner and, with that information, prints the citation, including printing the signature of the sergeant in charge of the program on the citation. The first time the City becomes involved is when the police department receives the citation which has already been printed. The police review copies of photographs and the digital information to determine whether the citation should be issued. If a citation is issued, Lockheed mails it to the registered owner of the photographed vehicle.

II.

IS THE CITY'S RED LIGHT CAMERA SYSTEM OPERATED BY A GOVERNMENTAL AGENCY IN COOPERATION WITH A LAW ENFORCEMENT AGENCY?

A. The City's Involvement

The prosecution argues: (1) the City operates the red light camera system in accordance with the wishes of the Legislature and that Lockheed merely maintains the camera equipment; (2) the Legislature knew the cost of installation would be too great for a city and therefore understood that a city would be entering into contracts such as the City has entered into with Lockheed Martin; (3) the City sets the parameters of the system, including, but not limited to, the placement of the loops that trigger the system, signal-light timing, the delay period for the operation of the system, the minimum vehicle speed that activates the system; (4) a police officer reviews each citation before it is sent out (The prosecution contends that a police officer signs the citation, but the evidence is that it is Lockheed Martin that electronically prints the name of the supervising sergeant on the citation.); (5) police officers testify as experts in every red light ticket trial; (6) the fines are paid to the City; and (7) even though no City personnel are stationed at Lockheed to review Lockheed’s activities or to see how film is being placed in, or removed from, the cameras, the City had the authority to, and did, shut down the entire system after discovering that Lockheed had moved some of the loops without informing the City.

B. Are Contracts With a Private Entity Allowed by 21455.5 and 21455.6?

Yes. Section 21455.6 enables a city to enter into a contract with a private entity for the "use of the system," but not for the operation of the system. The automatic enforcement system must be operated by a governmental agency. (Veh. Code § 21455.5.)

C. Is The City Bound by 21455.5's Limitation on Contracting With Private Entity?

Yes. The prosecution sets forth the proposition that "San Diego is not bound by the state law and is free to contract with Lockheed Martin the way the way (sic) the City feels is best."

The prosecution's position is contrary to the law as set forth in Vehicle Code section 21,

which provides:

Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.

In City of Poway v. City of San Diego (1991) 229 Cal.App.3d 847, 857-58, the court pointed out unless “. . . expressly provided by the legislature, a city has no authority over vehicular traffic control.”

D. Is The City Operating Its Red Light Camera System?

No. A definition of "operate" is provided in People v. Ramirez (2000) 79 Cal.

App.4th 408, in which the defendant was charged with operating a vehicle "chop shop."

The definition of "operate" was at issue.

The parties concede that the definitions of the terms "own" or "operate" as they apply to this statute have not yet been interpreted by the courts. However, we may look to the interpretation of those terms as they have been applied in other contexts. In People v. Sanchez (1998) 62 Cal. App. 4th 460, 471, our colleagues in Division Two of this appellate district defined the word "operate" as follows:

. . . .

"The word 'operates' here [(section 327, endless chain scheme)] has its ordinary meaning. Webster's Third New International Dictionary (1993) page 1581 defines 'operate' as 'to cause to function usually] by direct personal effort: work (car) (operating a drill press) . . . to manage and put or keep in operation whether with personal effort or not (operated a grocery store).' Unlike the words 'contrives,' 'prepares,' 'sets up' or 'proposes,' which envision preparatory activity, the word 'operates' denotes ongoing conduct which advances the progress of an existing entity. This term stands apart from the others, which describe various stages of formulation of the scheme; one who 'operates' a scheme may carry it along after its inception. We reject appellants' claim that 'operate' applies only to the creators and designers of the scheme." (Citation omitted.) Defendant's citation to Wells Fargo Bank v. Goldzband (1997) 53 Cal. App. 4th 596, 605 is essentially in agreement, 'The definitions of owner and operator [(Pub. Resources Code, section 3009, oil and gas wells)] . . . clearly envision someone who exercises some form of control over or active involvement in the drilling, maintaining or operation of the well.'" 79 Cal.App.4th at 415.

In this case, the actions of the City do not satisfy the plain meaning of the word "operate." The City has no involvement with, nor supervision over, the ongoing operation of the system. The Legislature did not contemplate such a lack of participation by the City when it said "only a governmental agency, in cooperation with a law enforcement agency, may operate an automated enforcement system." (Veh. Code § 214155.5. Emphasis added.) The conclusion that the City does not operate the system is supported by the fact that Lockheed moved the loops at three intersections and the City was unaware of these moves. Whether moving those loops had any effect on red light violations is irrelevant. The failure to inform the City shows that the City is not even aware of what Lockheed Martin is doing with the system. Therefore, the Court finds that City of San Diego and the San Diego Police Department do not operate the red light camera system as contemplated by the Legislature.

Before analyzing the effect of noncompliance with the statute, the Court will address the other operational issues which were raised.

III.

ADDITIONAL ISSUES RELATING TO STATUTORY COMPLIANCE

AND HOW THE SYSTEM IS OPERATED

A. Adequacy of the Signs

The defendants contend that the signs that are required to be posted warning drivers of the enforcement system do not comply with Vehicle Code section 21455.5(a) which provides that the system must be identified by signs “clearly indicating the system’s presence, visible to traffic approaching from all directions.” Further, Municipal Code section 82.02 requires signs to be “sufficiently legible to be seen by an ordinary observant person, giving notice of such provisions of the traffic laws.” The defendants argue that CalTrans has set forth its standards in Exhibit W, which shows that the smallest sign is to be 30" x 42," but there is no evidence that the standards in Exhibit W are required by CalTrans or required by the statute.

There is no evidence that drivers are not able to see the 24" x 30" signs used in San Diego that contain a drawing which shows a red, yellow, and green colored symbol resembling a traffic signal with the words “photo enforced.” The testimony of some of the police officers is that they were able to observe the sign.

In the absence of any evidence that the signs are not visible to drivers and are not sufficiently legible to be seen by an ordinary, observant person, the Court finds that the signs used by the City of San Diego comply with the requirements of Vehicle Code section 21455.5(a).

B. Vehicle Code Section 40520

1. Nonregistered Owner Drivers

Vehicle Code section 40520(a) provides that red light camera citations shall contain or be accompanied by an affidavit of nonliability, information as to what constitutes nonliability, information as to the effect of executing the affidavit, and instructions for returning the affidavit to the issuing agency. Section D of the citations issued in San Diego conforms to this requirement. The legislation is aimed specifically at car rental companies but also applies to all registered owners who are not drivers. (Veh. Code § 40520(c).) Defendants attack this section generally as being unconstitutional because it requires innocent people to testify against others.

Even though the police know that a nonindividual owner, e.g. a corporation, cannot be guilty, Vehicle Code section 40520 is a reasonable attempt to deal with this problem. Section D provides a method for the registered owner who is not driving to avoid liability. This can be done by going to the police station, contesting liability or filling out the form. The legislature did not want drivers of vehicles owned by corporations and other entities to receive a blanket exemption from liability for running lights and therefore created a procedure for the corporation to identify the driver who would be the appropriate person to receive the citation.

This satisfies the constitutional requirements of due process and is a legitimate exercise of the police power in an attempt to issue citations to the actual driver who violated the red light.

2. Gender Mismatches

The most disturbing testimony at this hearing came from Officer Smalley who testified that even when he had a 95 percent belief that the individual in the photograph was not the registered owner because of a fairly obvious gender difference, he would issue the citation on the theory that he was not 100 percent certain. This procedure has been halted over the objection of Officer Smalley. The police now do not issue citations where there is an obvious gender discrepancy between the driver and registered owner. Further, the prosecution has moved to dismiss the gender mismatch cases pending in this court. Therefore, there is no need to analyze whether such a prior procedure constituted outrageous governmental conduct.

C. Penal Code Section 959.1

The defendants point out that the citations do not conform to the requirements of Penal Code section 959.1 relating to electronically-filed accusatory pleadings because while such a pleading is exempt from any requirement that it be subscribed by a natural person, it is to be sworn before an officer entitled to administer oaths. The citation indicates that it was signed under penalty of perjury. However, no officer swears to the facts because the signature is affixed electronically before it is sent to the police and the officer who reviews the citation is not the sergeant whose signature appears on the citation. The officer who reviews the citation merely stamps his i.d. number below the signature. Thus, anyone reviewing the citation would have no way of knowing which officer reviewed the citation prior to it being issued (except Lockheed which knows the i.d. number of the officers).

Penal Code section 960 provides that “no accusatory pleading is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of a defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.” This section saves the defects relating to Penal Code section 959.1. The information presented at trial remains the same whether the accusatory pleading is sworn or not. The defendant has the opportunity at trial to respond to the evidence, and the police officer who testifies may not be the same police officer who reviewed the citation. In effect, the police officer who testifies at trial is testifying as an expert witness and interprets the factual data which is evidenced by the photographs and the digital information imposed on the photograph. Therefore, there is no prejudice to a substantial right of the defendants on the merits and any defect and failure to comply with Penal Code section 959.1 does not justify dismissal.

IV.

DOES NONCOMPLIANCE WITH VEHICLE CODE SECTION 21455.5

BY ITSELF EXCLUDE THE EVIDENCE?

No. The defendants argue that since the City does not operate the system, all of the tickets must be dismissed, but the Court can find no authority to dismiss on that basis. Further, mere noncompliance with a statute does not, by itself, exclude the evidence.

The mandate of Proposition 8, the truth in evidence portion of the California Constitution Article I, section 28(d), is to admit all relevant evidence unless such evidence violates the United States Constitution. Therefore, it is necessary to analyze whether the operation of the system by Lockheed Martin constitutes, as urged by the defendants, an unconstitutional delegation of authority by the City.

IS THE DELEGATION UNCONSTITUTIONAL?

No. In People v. Luera (2001) 86 Cal.App.4th 513, a prosecution for possession of child pornography, the defendant contended Penal Code section 311.11 was void because subdivision (d), the provision exempting any film rated by the Motion Picture Association of America ("MPAA"), constituted an unconstitutional delegation of legislative power.

The court stated:

An unconstitutional delegation of legislative authority occurs if the legislature either leaves the resolution of fundamental policy issues to others or fails to provide adequate direction for the implementation of that policy. . . . Here, section 311.11 contains a detailed description of the prohibited conduct, so the fact that some third party was delegated the task of determining which motion pictures violated the statute would not seem to be an impermissible delegation of authority. Id. at 519‑520. (Emphasis added.)

Further, the court pointed out the ultimate decision of whether or not to prosecute remained with the prosecutor.

In any event, and contrary to Luera’s claim, it is clear that the MPAA has not been given the power to determine what is or is not contraband. Section 311.11, subdivision (d) does not give the MPAA power to determine that anything is illegal; it only gives the MPAA power to determine that something--a film carrying an MPAA rating--is not illegal. Id. at 520.

Luera is analogous to the operation of the red light camera system in San Diego. The fundamental policy decision, red light running is illegal, has been made by the legislature. While Lockheed Martin has been delegated the task of gathering the evidence and making preliminary decisions as to who will not be prosecuted, it is the police who have the ultimate authority to determine who will be prosecuted. Thus, the Court finds the red light camera system in San Diego is not an unconstitutional delegation.

VI.

THE FEE PAID TO LOCKHEED MARTIN

A. Is the Fee a Contingency?

Yes. Lockheed Martin is paid $70.00 or fifty percent (50%) of what the City collects in fines from each red light camera citation, whichever is less. Thus, Lockheed’s payment is contingent upon a defendant being convicted and paying the fine.

The prosecution argues that the fee paid to Lockheed is not a contingency and not against public policy because it is similar to Health & Safety Code section 11372.5, which provides that the defendant must pay a $50 fee per conviction for certain offenses to the county treasurer which is used to pay administrative and laboratory costs.

The procedure in Health & Safety Code section 11372.5 and the similar provision in Penal Code section 1463.17 is not a contingent fee paid directly to a laboratory. There is nothing in the section that indicates the laboratories are paid only in the event of a conviction or that the laboratories are paid any percentage of the $50 collected by the county. This section merely provides a method the county can use to fund its costs for laboratory work. Thus, the fee paid to Lockheed is a contingency not specifically authorized by statute.

B. What is the legal effect of a contingent fee paid to Lockheed?

Lockheed is supposed to be a neutral evaluator of the evidence. Lockheed is supposed to objectively evaluate the photos, install and calibrate the cameras in a way to take accurate pictures, and present accurate information to the court. Lockheed is not supposed to be an advocate as are the attorneys, but rather is merely an entity which provides information to the prosecutor. As such, Lockheed should not have a financial interest in the outcome.

In Von Kesler v. Baker (1933) 131 Cal.App. 654, at 657, the court stated:

[A] contract is void whereby one agrees to obtain or procure testimony of certain facts which will successfully support or defeat a lawsuit, or which provides that payment to the party procuring such testimony is to be contingent upon the result of the action for which he is engaged to procure it.

If a contract which provides for a contingency fee for evidence is void, does that, as defendants urge, constitute a violation of the Constitution? This question needs to be analyzed in the context of the contract with Lockheed Martin.

The statute contemplated that it would be a governmental agency that operated the system, not private enterprise. The purpose of this was to guarantee that those to whom the public entrusts the operation of law enforcement would continue to be in charge and that the information obtained from the red light cameras would be trustworthy. The potential conflict created by a contingent method of compensation further undermines the trustworthiness of the evidence which is used to prosecute red light violations.

VII.

DOES THE DELEGATION OF THE OPERATION OF THE RED LIGHT CAMERAS, WITHOUT STATUTORY AUTHORITY, TO A PRIVATE ENTITY WHICH OPERATES ON A CONTINGENT BASIS CONSTITUTE A DEPRIVATION OF DUE PROCESS THAT REQUIRES DISMISSAL OF THE PENDING ACTIONS?

No. The United States Constitution, Amendment XIV, Section 1 provides “No state shall . . . deprive any person of life, liberty, or property without due process of law.” In Morrissey v. Brewer (1972) 408 U.S. 471, the United States Supreme Court said:

It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action. 408 U.S. at 481, citing Cafeteria & Restaurant Workers Union v. McElroy (1961) 367 U.S. 886, 895.

The rights of criminal defendants protected by the due process clause are many. For an illustrative list see Witkin Summary of California Law 9th ed. vol. 7 section 447 at p. 632-34.

In California, in a case involving probation revocation, the court pointed out that due process was an “elusive concept” and while its content may vary with circumstances and necessities of the situation, the essence of due process is the protection of the individual against arbitrary action. People v. Youngs (1972) 23 Cal.App.3d 180 (disapproved on other grounds by People v. Vickers (1972) 8 Cal.3d 451.)

There is a distinction between a due process challenge to a procedural right such as in People v. Youngs, supra, and a due process challenge to executive action. A due process challenge to executive action raises the threshold question of whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. Morrissey, supra at 847, n.8.

The Court finds the actions of the City, as set forth in the papers, the testimony, and the exhibits, are not so egregious or so outrageous that they may fairly be said to shock the contemporary conscience. The portion of the motion based on outrageous governmental conduct is denied.

VIII.

IS THE EVIDENCE FROM THE RED LIGHT CAMERA SYSTEM ADMISSIBLE?

“Constitutionality” does not mean “admissibility.” Where evidence is obtained from sources subject to legislative standards, there should be substantial compliance with those standards before the evidence is admitted. The defects in the operation of the City’s system are similar to the defects in the operation of Preliminary Alcohol Screening (PAS) tests discussed in People v. Williams (2001) 89 Cal.App.4th 85. Just as there should be substantial compliance with Title 17 before a PAS test can be admitted to insure reliability and trustworthiness, there should be substantial compliance with Vehicle Code section 21455.5 to insure reliability and trustworthiness before red light camera evidence can be admitted. The reason the legislature set forth the requirement of governmental operation in Vehicle Code section 21455.5 was so the evidence would be trustworthy and reliable. (See Evidence Code section 664; official duties are presumed to be performed regularly.)

The combination of the total lack of oversight over the system operated by Lockheed Martin and the method of compensation raises serious questions regarding the regularity of the evidence produced by this system. The recent discovery that loops at three intersections had been moved without notice to the City is an example of what can go wrong with the system as presently operated.

This potential for unreliability and failure to follow statutory mandate is similar to the numerous Title 17 defects which caused the court to say in People v. Williams (2001) 89 Cal.App.4th 85 at 97:

However, where the defects are not merely singular or technical, but are instead systemic, numerous and demonstrate a failure to comply at least substantially with Title 17, our concern focuses less on creating evidentiary contests and more on a government agency’s intentional failure to comply with mandatory duty.

. . . .

The Williams court reasoned, to allow admission of PAS tests without requiring substantial compliance with Title 17, would render the law a nullity and excuse a law enforcement agency from complying with the law. Williams, supra at 100. Thus, exclusion of the PAS results would deter intentional reliance upon a flawed system which continues to deliver untrustworthy test results. Id. at 100.

Although dictum, the reasoning in Williams is persuasive in the present case. There is no authority in the Vehicle Code for unsupervised private operation of a red light camera system. Therefore, there is not substantial compliance with the safeguards required by the statute. Such a lack of authority, combined with collection based compensation, results in evidence lacking foundation. Without foundation, the evidence is not relevant and is not admissible. (Evid. Code § 403(a)(1). See People v. Lucas (1995) 12 Cal. 4th 415, 466.) There is no requirement under the truth in evidence portion of the California Constitution that such evidence be admitted. Cal. Const. Art. 1, section 28(d).

The evidentiary sanction seems appropriate where, as here, the totality of the operation of the system is so far outside the operation contemplated by the Legislature that the evidence obtained from the system lacks the precautions necessary to instill the confidence required for admissibility. In Aguilar v. Municipal Court (1992) 30 Cal.App.3d 34, a local ordinance banned “cruising.” There was no authority in the Vehicle Code for such a ban. The court declared the ordinance void and restrained the criminal proceedings. In the present case, the vehicle code authorizes the red light camera system, but the system is not operated pursuant to the authority granted by the statute. Since the defects in the system can be cured, the evidentiary sanction is more appropriate, even though the ultimate result may be dismissal of the pending cases. Excluding the evidence will deter reliance on the system as presently operated and require compliance with the legislative mandate in any future prosecutions.

Therefore, the Court is not granting the motion to dismiss. However, the Court is exercising its inherent power to control its process to conform to law and justice and treating the motion to dismiss as a motion in limine to exclude evidence. Code of Civil Procedure section 128(8); Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 847-48. Since the parties did not brief this motion as a motion in limine, the Court will give the prosecution the opportunity to present any reasons it feels the evidentiary sanction is not appropriate. To accomplish this, the Court will issue an order to show cause set forth below. SUMMARY

The Court finds:

1. The City does not operate the red light camera system in accordance with Vehicle Code section 21455.5;