APPEAL from a judgment of the Appellate Division of the Superior Court of Los Angeles County. Patti Jo McKay, Anita H. Dymant and Fumiko H. Wasserman, Judges. Reversed. (Los Angeles County Super. Ct. No. BR048012)
The opinion of the court was delivered by: Woods, Acting P. J.
Ordered Published February 10, 2012
In 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 SUMMARY
Annette 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).*fn1 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.)*fn2
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.
Borzakian was found guilty of violating Vehicle Code section 21453, subdivision (a), and ordered to pay a fine in the amount of $435 and to attend a 12-hour traffic school.
On January 26, Borzakian filed a notice of appeal, indicating she wished to proceed with a record of the oral proceedings in the trial court in the form of a statement on appeal. On February 11, she timely filed her proposed statement on appeal, indicating she had objected to and requested the exclusion of the People's evidence for lack of foundation, hearsay and violation of Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527, and without this evidence there was insufficient evidence supporting the judgment.
In her proposed statement, Borzakian submitted the following summary of Officer Butkus's initial testimony with respect to all trials scheduled that day (as bullet points): Officer Butkus "testified that he was employed by the Beverly Hills Police Department[; h]e had been so employed for 25 years[; h]e had 5 years experience in photo enforcement[; h]e had undertaken 40 hours of training in photo enforcement[; h]e reviewed the photos [and] videos and determined whether a citation should issue[; h]e testified [to] Vehicle Code section requirements, including each element that was necessary for the People to prove their case[; r]egarding the requirement that the equipment be calibrated and maintained regularly, he stated that the Beverly Hills Police Department contracts with a [c]ompany called Redflex Systems[ and t]hat they are in charge of maintaining and servicing the equipment used for photo enforcement[; h]e testified briefly regarding the triggering mechanism which causes the camera to take pictures and video[; and h]e took questions from the audience seated in court." Borzakian also set out her argument of her motion in limine, objecting to the People's exhibit on foundation and hearsay grounds as well as violation of her right of confrontation under Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527, as well as her cross-examination of Officer Butkus in question-and-answer format.
Borzakian said the officer did not testify to qualifications to lay a foundation for the exhibits he wished to enter, citing evidence including the following testimony: A company by the name of Redflex Traffic Systems prepared the job maintenance sheet which contained the description of maintenance and the party responsible for maintaining and calibrating the equipment which caused the photographs and video to be recorded; Officer Butkus was not employed by Redflex nor was he its custodian of records; he did not perform the maintenance or calibration of the machines himself; he was not present when the calibration was performed; he did not inspect the photo enforcement unit in this case; he was not present when the inspection was supposed to have taken place; it was not part of his job duties to inspect or to calibrate the photo enforcement unit; he did not take the photos or video in the case and was not present when they were taken; he had no independent knowledge that the information on the maintenance log was true and accurate; he was only reading what was written; his testimony was based "not on [his] observation but on this sheet of paper."
Borzakian argued Officer Butkus was not qualified to authenticate the People's evidence. "Underlying all this [evidence] are the maintenance logs," but Officer Butkus was not able to lay a foundation as he was not the individual who made or kept the records. "Without the maintenance log there is no evidence that the camera and video were working properly." "The officer himself stated that the logs were a necessary element of the People's case in chief showing that the equipment was regularly inspected, correctly installed and calibrated, and operating properly," but failed to lay the necessary foundation for this evidence with the Redflex custodian of records or the person who calibrated and inspected the machines, and it should have been excluded. "Furthermore, the Court placed the burden on the Defendant," by telling her that "instead of complaining that the custodian of records was not present in court, she should have subpoenaed the witness herself."
On February 22, the trial court filed its "Order Concerning Appellant's Proposed Statement on Appeal." According to the "[s]ummary of [t]estimony" in the trial court's (proposed and ultimately certified) settled statement (CR-144), "Officer Mike Butkus of the Beverly Hills Police Department was sworn and testified.[*fn3 ] His initial testimony was in the form of a presentation to all of the motorists in court that morning for red light camera ticket trials. He testified about his background, training, and experience, what the City had to do before being allowed to operate the red light camera ticket system, how the system works and how it is maintained. Everyone, including [Borzakian], was given a packet containing two or more photographs of their alleged violation, maintenance logs for before and after their citation was issued and other documents relating to their citation. Officer Butkus testified about the data boxes imprinted on the photographs and the letters and numbers contained in them. He explained what the letters and numbers mean, how they are generated and how they relate to the citation. During his testimony he used blown-up photographs for purposes of demonstration and urged everyone, including [Borzakian], to follow his testimony on their own photographs so they could see how this testimony related to their own citation.
"Once Officer Butkus completed his initial testimony, motorists were called up individually for the balance of their trial. When [Borzakian] came forward she indicated that she understood the charge in her citation and that she was ready for the balance of her trial. However, she did want to make an oral Motion in Limine to exclude the People's evidence. The Court allowed [Borzakian] to make the motion [on the grounds of lack of foundation and hearsay, citing Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527 in support of her position] and subsequently denied it.
"With respect to [Borzakian's] citation, Officer Butkus testified that her alleged violation occurred at approximately 7:08 p.m. on Wednesday, June 03, 2009, as [Borzakian] travelled northbound on Beverly Drive in the number two lane at Wilshire Boulevard in the City of Beverly Hills. Officer Butkus further testified that he reviewed the technicians' logs and that the cameras were working properly on the date and at the time of [Borzakian's] alleged violation. Officer Butkus stated that he also reviewed the video and the photographs taken by the cameras installed at the particular intersection and concluded that the light had been yellow for 3.15 seconds before it turned red which is legally sufficient when the speed limit is 25 miles per hour as it is at this intersection. The officer also testified that the light had been red for .28 seconds when [Borzakian traversed the limit line at a speed of 29 miles per hour. He also testified that the photograph of the driver appeared to be a photograph of [Borzakian]. He then played the video of the alleged violation two times: first in real time and then again in slow motion. [Borzakian] confirmed that she did see the video both times. The photographs and documents that supported Officer Butkus'[s] testimony were marked as People's #1 for identification and offered into evidence.
"[Borzakian] objected to the introduction of People's #1 into evidence on the same grounds she had argued with respect to her Motion in Limine. She asked to take Officer Butkus on voir dire and was allowed to do so. [T]here was no official recording of the proceedings, so the Court cannot explain how [Borzakian] purports to be reproducing a verbatim account of what was said. Without an explanation for this from [Borzakian], the Court suspects [she] either surreptitiously recorded the proceedings in violation of California Rule of Court 1.150(d) or that she is simply making things up and using quotation marks to make the statements appear authentic.[*fn4 ] Once again, the Court rejected [Borzakian's] arguments, found there was sufficient foundation laid by the testimony of Officer Butkus to admit the evidence, and that the Melendez-Diaz case was distinguishable and inapplicable to the case at bar. People's [Exhibit] #1 was then admitted into evidence over [Borzakian's] objection." As "Additional Points," the court noted, "The court did explain to [Borzakian] that the testimony of employees of Redflex is not required in order to authenticate and lay the foundation for the admissibility of the People's exhibits. The People have never been required to have Redflex employees such as the custodian of records or the field service technicians present in court in order for the People's exhibits to be admissible. Officer Butkus is perfectly capable of authenticating the documents and laying the necessary foundation for their admissibility and in the Court's opinion had done both in this matter. It was explained to [Borzakian] that she could have filed a discovery motion or issued her own subpoenas, as many motorists do, had she cared to do so."
On March 2, Borzakian filed her objection to the court's order and requested a hearing before a court reporter, asserting "a factual dispute about material aspect[s] of the trial proceeding." Citing People v. Jenkins (1976) 55 Cal.App.3d Supp. 55, she said the court's proposed statement was a prohibited "conclusionary statement" and did not comply with the duty to set forth the evidence "'fairly and truly.'" In particular, she said, "the dialogue of the voir dire [of Officer Butkus] is an essential part of the trial record," but the "Proposed Statement makes no mention of the testimony of Officer Butkus admitting that he did not work for Redflex, that he is not employed by them, that he was not the custodian of records for them, that he did not inspect the photo enforcement unit in this case, that he was not there when the inspection was purportedly done, that it was not a part of his job duty to inspect or calibrate the unit, that he did not prepare the logs that he sought to admit, that he did not make the entries in the maintenance log, that the person who made the entries did not work at the Beverly Hills Police Department, that [Officer Butkus] did not calibrate the machines, that he does not know the qualifications of the person who inspected the machine, that he was not present when the photos were taken, that he did not take the ...