APPEAL from a judgment of the Los Angeles Superior Court, John R. Johnson, Commissioner. (Trial Court No. 102693IN)
The opinion of the court was delivered by: Kumar, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
On March 13, 2009, a notice to appear was issued to appellant pursuant to the automated traffic enforcement statutes (Veh. Code, §§ 21455.5-21455.7), alleging she failed to stop at a red signal light located at the intersection of Centinela Avenue and Beach Avenue in the City of Inglewood. Following a court trial wherein photographic evidence obtained from an automated traffic enforcement system (ATES) was admitted, appellant was convicted of failing to stop at a red signal light (Veh. Code, § 21453, subd. (a)).
Appellant presents the following contentions: (1) the photographs depicting the traffic violation were inadmissible because no foundation was established that the photographs were a reasonable representation of what they were alleged to portray, and they constituted hearsay; (2) the yellow light interval of the traffic light did not conform to the requirements of Vehicle Code section 21455.7; (3) the prosecution's use of photographic evidence violated appellant's Sixth Amendment right to confront witnesses; and (4) the prosecution failed to prove appellant was the driver depicted in the photographs.
In affirming the judgment, we acknowledge the appellate division of the Orange County Superior Court has held that claims similar to those addressed in part III.A. warrant reversal of the judgment. (People v. Khaled (2010) 186 Cal.App.4th Supp. 1.) Specifically, Khaled held photographs from an ATES purporting to show the defendant driving through a red light were inadmissible because the testifying officer: (1) was not a percipient witness and, therefore, could not establish that the photograph was a "'"reasonable representation of that which it is alleged to portray . . . ."' [Citations.]"; or (2) could not, like a person who set up a "'nanny cam,'" establish the time the camera was set to record and the method used to retrieve the photographs. (Id. at p. Supp. 5.) In addition, Khaled held the photographs constituted inadmissible hearsay in that they were not admissible business records (Evid. Code, § 1271) or official records (Evid. Code, § 1280). (Khaled, at pp. Supp. 6-9.)
We respectfully disagree with Khaled. As explained below, it is our view that photographs taken by an ATES may be admissible even if the testifying officer was not a percipient witness to the violation and was not personally responsible for setting up the camera. We conclude the accuracy of the photographs is subject to a rebuttable presumption pursuant to Evidence Code sections 1552, subdivision (a), and 1553. Moreover, apart from such a presumption, the photographs may be authenticated by a law enforcement officer who has knowledge about the methods used by the ATES to transmit the photographs to the officer's law enforcement agency. Finally, the data and images on the photographs did not constitute hearsay because they did not amount to a "statement" from a human declarant.*fn2
Only one witness testified at trial -- Investigator Dean Young of the Inglewood Police Department. Investigator Young was assigned to the Traffic Division, Red Light Camera Photo Enforcement. Based on more than six years of experience in this division, as well as the knowledge he acquired from city engineers and the company that maintained the ATES, he explained the issuance of the traffic citation as set forth below.
The ATES located at the intersection of Centinela Avenue and Beach Avenue was implemented in September 2003. It is operated by the police department but maintained by Redflex Traffic Systems (Redflex).
On a monthly basis, Investigator Young visually inspects the traffic signal to ensure the duration of the yellow light interval complies with the minimum guidelines established by the California Department of Transportation. On February 16, 2009, and March 16, 2009, he conducted timing checks of the traffic signal's yellow light interval, which showed averages of 4.11 and 4.03 seconds respectively. These test results were "well above 3.9 as established by the [California] Department of [Transportation] for [a 40 miles-per-hour] highway."
The ATES is programmed to obtain three digital photographs and a 12-second video when its sensors detect a vehicle in the intersection during a red light phase: a "pre-violation photograph" showing the vehicle behind the limit line; a "post-violation photograph" showing the vehicle in the intersection; and a photograph of the vehicle's license plate. A "data bar" containing the date, time, location, and red light interval is printed on each photograph. The ATES operates independently once triggered, and ...