ON APPEAL FROM THE SUPERIOR COURT OF ORANGE COUNTY CENTRAL JUSTICE CENTER, HON. DANIEL M. ORNELAS COMMISSIONER.
CERTIFIED FOR PUBLICATION
This appeal involves an issue far too often presented to this court, namely the admissibility of evidence and the statutory compliance with the procedures employed by several municipalities in this county in what have come to be known as "photo enforcement" citations.
On August 2, 2008, the police department of the City of Santa Ana issued a traffic citation to the appellant, Tarek Khaled, alleging a violation of Vehicle Code section 21453, subdivision (a). A traffic trial was held on the matter. The prosecution sought to establish the majority of the violation with a declaration that was intended to support the introduction of photographs purporting to show the appellant driving through an intersection against a red light. Appellant objected to the introduction of the photographs and declaration as inadmissible hearsay, and violative of appellant's confrontation rights. The objection was overruled and the trial judge admitted the photographs as business records, official records, and because a proper foundation for the admission had been made based on the submitted declaration.
We hold that the trial court erred in admitting the photographs and the accompanying declaration over the appellant's hearsay and confrontation clause objections. Absent the photographs and content in the declaration, there is insufficient evidence to support the violation. Accordingly we reverse the judgment.*fn1
The underlying facts in this case are fairly simple. No police officer witnessed the alleged traffic violation. Instead, a police officer testified about the general area depicted in a photograph taken from a camera installed at an intersection in Santa Ana. A particular private company contracts with the municipality to install, maintain, and store this digital photographic information. The officer testified these photographs are then periodically sent back to the police department for review as possible driving violations.
To be more specific, the photographs contain hearsay evidence concerning the matters depicted in the photographs including the date, time, and other information. The person who entered that relevant information into the camera-computer system did not testify. The person who entered that information was not subject to being cross-examined on the underlying source of that information. The person or persons who maintain the system did not testify. No one with personal knowledge testified about how often the system is maintained. No one with personal knowledge testified about how often the date and time are verified or corrected. The custodian of records for the company that contracts with the city to maintain, monitor, store, and disperse these photographs did not testify. The person with direct knowledge of the workings of the camera-computer system did not testify. Instead, the prosecution chose to submit the testimony of a local police officer, Santa Ana Police Officer Alan Berg. This witness testified that some time in the distant past, he attended a training session where he was instructed on the overall workings of the system at the time of the training. Officer Berg was unable to testify about the specific procedure for the programming and storage of the system information.
A. Admissibility of Videotape and Photographic Evidence
These photo enforcement cases present a unique factual situation to the courts regarding the admissibility of videotapes and photographs. There are two types of situations where a videotape or photographs are typically admitted into evidence where the photographer or videographer does not testify. The first involves a surveillance camera at a commercial establishment (oftentimes a bank or convenience or liquor store). In those situations, a person testifies to being in the building and recounts the events depicted in the photographs. Courts have consistently held that such testimony establishes a sufficient foundation if the videotape is a "'reasonable representation of what it is alleged to portray....'" (People v. Gonzalez (2006) 38 Cal.4th 932, 952; see generally, id. at pp. 952-953; People v. Carpenter (1997) 15 Cal.4th 312, 385-387; People v. Mayfield (1997) 14 Cal.4th 668, 745-747; Imwinkelried, Cal. Evidentiary Foundations (3d ed. 2000) pp. 115, 117; see also United States v. Jernigan (9th Cir. 2007) 492 F.3d 1050 (en banc).)
The second situation involves what is commonly known as a "nanny cam." In that situation, a homeowner hides a surveillance camera in a room and then retrieves the camera at a later time. At the court proceeding, that person establishes the time and placement of the camera. This person also has personal knowledge of when the camera was initially started and when it was eventually stopped and retrieved.
Neither of these situations is analogous to the situation at bar. Here the officer could not establish the time in question, the method of retrieval of the photographs, or that any of the photographs or the videotape were a "'reasonable representation of what it is alleged to portray....'" (People v. Gonzalez, supra, 38 Cal.4th at p. 952.) A very analogous situation to the case at bar, however, is found in Ashford v. Culver City Unified School Dist. (2005) 130 Cal.App.4th 344, 349-350, where the court held that the unauthenticated videotape allegedly showing an employee's actions lacked sufficient foundation ...