[Note: This .txt document will be easier to read if you save it onto your computer, then start your word processor program ("Word") and open this document from there.] SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO APPELLATE DIVISION 720 Ninth Street Sacramento, CA 95814 APPELLATE DIVISION OF THE SUPERIOR COURT, STATE OF CALIFORNIA APPELLATE DIVISION CASE NUMBER ____ DAVID GRAHAM, Appellant, SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SACRAMENTO, Respondent, And PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. SUPERIOR COURT OF THE COUNTY OF SACRAMENTO, TRAFFIC DIVISION, HONORABLE CHRISTOPHER LONGAKER Superior Court, Traffic Division Case Number ___ APPELLANT’S OPENING BRIEF DAVID GRAHAM Sacramento, CA 95826 Appellant, In Pro Per TABLE OF CONTENTS STATEMENT OF THE CASE 4 ARGUMENT 4 1. The photographs (Peoples’ Exhibits 1-3) which purport to show a violation were admitted without adequate foundation and are inadmissible. 4 2. The inspection logs are hearsay and without foundation, and therefore inadmissible. 6 3. Even if they were admissible, the maintenance logs failed to prove reliability of the RLCS. 8 4. The calibration reports are hearsay and without foundation, and thus inadmissible. 9 5. The Court made statements from the bench inconsistent with due process and testified about matters where he had no personal knowledge. 10 CONCLUSION 14 TABLE OF AUTHORITIES Cases California Appellate Cases: People v. Bowley (1963) 59 Cal.2d 855, 860 People v. MacLaird (1968) 264 Cal.App.2d 972 Appellate Division, Superior Court of California, County of Sacramento, Cases: People v. Bohr, Appellate Division No. 02TR119273 People v. Moore, Case No. 05TR159226 Statutes Evidence Code § 1200 Evidence Code § 1280 Vehicle Code § 21453(c) Other Authorities 2 Witkin California Evidence (3d Ed. 1980) Section 840, p. 806 MEMORANDUM OF POINTS AND AUTHORITIES STATEMENT OF THE CASE This appeal is from a final judgment issued by the Honorable Christopher Longaker, Commissioner of the Traffic Court for the Superior Court of California, County of Sacramento, on June 6, 2008, in which Appellant was found guilty of violating Vehicle Code § 21453(c) (failure to stop for a red arrow). By this appeal, Appellant challenges the judgment as being unsupported by admissible evidence, all of which was timely objected to, which objections were overruled by the Court. In particular, Appellant contends herein that: 1. The photographs (Peoples’ Exhibits 1-3) which purport to show a violation were admitted without adequate foundation and are inadmissible; 2. The inspection logs are hearsay and without foundation, and thus inadmissible; 3. Even if they were admissible, the maintenance logs failed to prove reliability; 4. The calibration reports are hearsay and without foundation, and thus inadmissible; and 5. The Court made statements from the bench inconsistent with due process and testified about matters where he had no personal knowledge. ARGUMENT 1. The photographs (Peoples’ Exhibits 1-3) which purport to show a violation were admitted without adequate foundation and are inadmissible. The only prosecution witness, Officer Holt, testified that he had viewed the photographs, but never the negatives or the film. In Officer Holt’s initial testimony, which he read into the record from a prepared statement, he explained that the Red Light Camera System (RLCS) included a “camera” and “film canister” (CT, p.5:20–21). He said the film is routinely collected from the RLCS sites and then “sent to a processing center where it is developed and digitized” (CT, p.6:9–11). These digitized photographs, he explained, are then sent through a “secure computer line to the computer terminals located at the Sacramento County Sheriff’s Department office which I work out of. Once the photographs are received in our office, either myself [sic] or my partner officer will review the images that have been captured” (CT, p.6:12–17). As soon as Officer Holt finished reading his statement, Appellant objected to the photographs as being without foundation. As Appellant cited to the Court during trial (CT, p.23:16–28, and p. 24:1–7), the applicable rule for authentication of photographs as evidence at trial is stated at 2 Witkin, California Evidence (3d Ed., 1980) § 840, p. 806: “To authenticate a photograph, a foundation must be laid by showing that the picture is a faithful representation of the objects or person depicted. The showing must be made by a competent witness who can testify to personal knowledge of the correctness of the representation. But it is not essential that the photographer himself be produced; any witness with such personal knowledge may lay the foundation.” Since the only “photographer” in the RLCS is a computer-operated camera, no photographer exists who would be competent to testify. But as Witkin points out above, there are ways to lay a legal foundation without the photographer. For example, in People v. Bowley (1963) 59 Cal.2d 855, 860, the California Supreme Court held that an adequate foundation was laid by a photographic expert who testified that the photo was not a composite and had not been faked, but was a representation of a “true” negative. In the case at bar, no attempt was made to lay a proper foundation. The only prosecution witness, Officer Holt, never even looked at the film or a negative. He merely saw digitized (third-generation) copies of the originals, copies that his office received electronically from the company who operates the RLCS. We have no idea what might have been done to the photos before or after they were digitized and sent along, and no one who handled the photos at this initial stage was in court to testify. And, as the Appellant pointed out at trial—and as the Court and Officer Holt readily agreed—Officer Holt was not a “photographic expert” in the sense required by People v. Bowley. Nor did Officer Holt have any “personal knowledge” of the original photos or negatives that would enable him to lay a foundation as required by Witkin. The photographs were crucial evidence. Without them, no identification of the Appellant’s vehicle was possible. Nor could it have been shown that Appellant was anywhere near the intersection in question. Nor could it have been shown that this vehicle made it into the middle of the intersection. Since neither the Court nor Officer Holt were present when the photograph was taken, and Appellant did not testify, there is no admissible evidence that, as they say, “puts Appellant at the scene of the crime.” Accordingly, the judgment should be reversed on this issue alone. 2. The inspection logs are hearsay and without foundation, and therefore inadmissible. Appellant objected several times to the admission of inspection logs, marked as People’s Exhibits 4 and 5, as being hearsay (CT, p. 13:14–15, 18–19). The Court ruled that they were hearsay (CT, p. 13:27), adding that “the question is whether or not they come in -- come in with any exception to the hearsay [rule]” (CT, p. 14:1–2). At that point, Appellant brought up California Evidence Code § 1280, which lays out the official records exception to the hearsay rule as follows: Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness. Appellant pointed out—and the Court agreed (CT, p. 14:5–9)—that the key issue was whether (c) was met. Were the sources, method, and time of preparation of these logs “such as to indicate [their] trustworthiness”? The maintenance logs are done by employees of a private company, ACS. There is absolutely no evidence to suggest that this company or any of its employees are cloaked, or should be cloaked, with any indicia of trustworthiness. And since Officer Holt was not present when the inspection logs were prepared, the only way to settle the matter would be to ask the person who prepared them or at least someone who was present at the time and who could competently testify as to their preparation. Where was that witness? Without his testimony, the prosecution cannot begin to satisfy the requirements of Evidence Code § 1280. Therefore, the inspection logs failed to meet requirement § 1280(c), and the inspection logs should have been ruled inadmissible. Without the inspection logs, there is no evidence that any part of the RLCS was working properly and therefore no valid evidence that a traffic violation took place. There is no valid reason for the person who prepares these documents not to be present as a witness at these trials. But one thing is certain: His absence from these trials deprives defendants and did deprive this Appellant of their constitutional right to confront him and cross-examine him. 3. Even if they were admissible, the maintenance logs failed to prove reliability of the RLCS. The Appellate Division of the Superior Court of California, Sacramento County, has repeatedly found that the RLCS used in Sacramento County “appears to involve technology that has not been established as reliable in any published cases (Cf. People v. MacLaird (1968 264 Cal.App.2d 972 (establishing radar as accurate)). As the photographs generated by the system do not show the signal light, the system must be proven reliable in order for the People to meet their burden of proof” (People v. Bohr, Appellate Division No. 02TR119273). Even if the maintenance logs were admitted, they would only show that an employee of ACS “checked” the system for a few minutes on a certain date. As this Appellate Division wrote in its decision for Bohr, “It is unreasonable, as a matter of law, to assume that logs showing four minutes of weekly maintenance would be all that is necessary to ensure that the system reliably worked.” All of these reasons hold in the case at bar. As Officer Holt put it, “the technician reports determined the system was working properly and there were no malfunctions” (CT, p. 9: 22-24). But we have no way of knowing what the technician did to reach these conclusions, because that technician is not in court, and Officer Holt admits to having no direct, personal knowledge of what the technician did. In its Bohr decision, this Appellate Division also held that “because there was no explanation from an expert who was qualified to render opinions on this technology's maintenance and reliability, appellant had no ability to cross-examine an expert on the system's maintenance and reliability.” Clearly this principle holds true in the case at bar, too. 4. The calibration reports are hearsay and inadmissible. Appellant objected to the calibration reports[[footnote]]1 on the grounds that they were hearsay and failed to meet the official records exception (CT, p. 18:21–28). When cross-examined by the Appellant, Officer Holt admitted that he had no personal involvement in writing the calibration reports (CT, p. 22: 1–4). Officer Holt testified that the calibration reports were made in January—he did not know the day—and the next check was due in July (CT, p. 17: 8–28). So, being charitable to the Appellant, we have to acknowledge that these reports could have been created up to two months before the alleged violation on March 2. At the very least they were created more than a month before the event. Evidence Code § 1280(b) says that to be an exception to the hearsay rule, a document must have been created “at or near the time of the act, condition, or event.” It would be ludicrous to claim that a gap of well over a month meets this requirement. Furthermore, like the maintenance logs discussed above, these calibration reports also fail to meet § 1280(c), the trustworthiness requirement, for precisely the same reasons. On all of these grounds, then, the calibration reports should have been kept out of evidence. Without them, the People cannot show beyond a reasonable doubt that the RLCS was working correctly. For all anyone knows, the system could have been off by two, or three, or seven seconds. As the Appellant pointed out at trial—and as the Court and Officer Holt agreed—the RLCS in this case did not actually photograph the red arrow at the time of the alleged violation. Instead, the software superimposed a “data box” onto a photograph of the vehicle. This data box was the only indication that the arrow was red. Therefore, as this very Appellate Division ruled in Bohr and other cases (see the excerpts in Section 3 of this brief, above), the software in the RLCS must be without reproach if we are to believe that the arrow really was red when the RLCS photographed the vehicle in the intersection. Without meaningful calibration reports and testimony showing that the system was working properly, the People can’t begin meet this obligation. 5. The Court made statements from the bench inconsistent with due process and testified about matters of which he had no personal knowledge. Judge Longaker, on behalf of the Court, continually aided Officer Holt in his testimony and in presenting the foundation of the People’s case against the Appellant. Judge Longaker’s statements were biased against the Appellant and wrongly shifted the burden of proof to the Appellant. Specifically, Appellant objected to the admission of the photographs because they did not actually show the arrow being red at the time the car was in the intersection. Rather, a computerized “data box” was superimposed on the photograph of the vehicle, and this data box said the arrow was red. In the course of this discussion, the following exchange took place: THE COURT: ...As I understand it, the electrical current for the data box for the computer comes from the red light current. Camera gets turned on when the red light goes red and at the same – and then there has been the – the vehicle metal mass has gone over the sensors. OFFICER HOLT: Correct. THE COURT: So those two elements come into play, then the computer gets turned on, and if the red light current’s not on, it’s not going to turn on. So even though I can’t see the red light, I know that it’s on because the electricity that turns it on has turned on the -- the -- the computer, which is the data box. THE DEFENDANT: Well, that’s how -- THE COURT: And so what -- what I’m thinking is, is that what we see here instead of a R-O -- instead of having a -- a little red light on the -- the data box saying it’s red -- so red, it has numbers. It’s taken the same electrical current and making numbers out of it as opposed to being plugged into a lamp that flashes red. If you were going into an intersection and it said “R,” as opposed to a red light, it’s the same -- to me, it’s the same thing. (See CT, p. 39: 10-28, and p. 40: 1-8) Here the Court was improperly helping the People’s witness to make his case against the Appellant. First, Judge Longaker, not being an electrical engineer or an employee of ACS, lacked the expertise to testify about the inner workings of the RLCS and its data box. Indeed, earlier in the trial His Honor confessed to being unaware that the data box even existed until Officer Holt explained it to him. Then, minutes later, His Honor made the statements excerpted above, suggesting that the data box was basically infallible because, as he said, it receives the same “electrical current” as the red arrow itself. Second, even if Judge Longaker had been qualified to help the People’s witness make his case against the defendant, it was not His Honor’s proper role to do so. (As a side note, although such cases are not controlling, it’s worth noting that in an appellant ruling on October 20, 2006, for a previous RLCS case, People v. Moore (Case No. 05TR159226), the Appellate Division of the Superior Court of California, County of Sacramento, ruled that another judge, Deborah Schulte, made statements “inconsistent with due process” for exactly the same reason. Like Judge Longaker, Judge Schulte improperly asserted that the same electrical current that triggered the red arrow triggered the “R” in the data box superimposed on the photograph, and concluded that the RLCS was therefore reliable.) Another example of the Court making statements inconsistent with due process and shifting the burden of proof to Appellant occurred right after the above example. After the Court speculated on the nature of the data box, the following exchange took place: THE DEFENDANT: Well, that’s how it’s supposed to work, but anybody who’s used Windows knows that, you know, software can get buggy. I work for a software-- THE COURT: Well, I -- THE DEFENDANT: -- company. It’s not -- THE COURT: Listen, if there’s any evidence that it was buggy, I’m -- THE DEFENDANT: Well, the -- the -- THE COURT: -- cut you loose. THE DEFENDANT: -- you -- the burden of proof isn’t -- is -- THE COURT: I’m satisfied -- THE DEFENDANT: -- not on me. (CT, p. 40: 9-21) Here His Honor improperly shifted the burden of proof. The Appellant had no legal burden to present evidence that the RLCS software was “buggy” or otherwise out of whack. That burden lay with the People. Finally, as the exchange went on, the Court made assertions about the reliability of the RLCS by comparing it to the photo-finish systems used in horse racing: THE COURT: -- so far that it’s a -- it’s a 35 millimeter camera. The technology’s been around for over 100 -- THE DEFENDANT: Well, it’s not -- THE COURT: -- years almost. THE DEFENDANT: -- just the camera, is it, though your Honor? (See CT, p. 40:22–28) Moments later the Court elaborated: “I mean, it -- it’s the same system that’s been used for -- I hate to use this example, but it’s true. It has -- it has determined [sic] billions and billions of dollars in determining whether the horse’s tongue was across the photo wire at the time of the conclusion of the race” (CT, p., 42:5–10). No one in the courtroom was qualified to analyze the differences or similarities between the camera systems used in horse racing for the past 100 years and those used for a particular RLCS in Sacramento County in 2008. Again, His Honor was speaking to matters he was unqualified to address while unfairly helping the People to make their case against the Appellant. Therefore, the Court’s conduct in this case was improper, and the case should be dismissed on these grounds alone. CONCLUSION Appellant has not tried here to attack the red-light camera system. Appellant agrees that it is not the role of the Courts to second-guess the county’s wisdom or lack of it in creating this system and paying the private contractor on a flat-fee basis. That would be a political decision which is outside the province of the courts. Appellant leaves it to others to try to have the RLCS invalidated on legal grounds. What Appellant does attack and feels strongly about is the insult these prosecutions deliver to individual citizens and the legal system itself. In the name of revenue generation and streamlining of legal processes, the Trial Court is routinely allowing time-tested and valuable legal rights to fall forfeit to saving a few minutes of time. The hearsay rule, foundation, authentication, due process, and other protections involved in this case are more important than saving a few minutes of time. Citizens who sincerely wish to contest their traffic citations are routinely deprived of a fair trial because the Traffic Court does not want to spend the time. Appellant’s goal is to restore the sense of fair trials to traffic court. People seeking their day in court there, innocent and guilty alike, are entitled to a sense that their views were heard. Anything less is unworthy of us as a people and of the legal system of which we want to be proud. Regardless of the political questions concerning the propriety of the red light system itself, the Courts should never waver from their primary duty, which is to provide a forum for a trial which is governed by the appropriate rules and standards. Only a forum which is true to that standard will truly generate from those who see it in action the great respect it deserves. Short cuts with pre-determined results in order to save time and generate revenues insult us all and move society toward a lack of respect for the police, the laws, and the courts. Many of the shortcomings Appellant points to herein would be resolved by simply having the appropriate ACS representative in court to testify. Until the legislature determines that traffic courts are entitled to ignore the regularly accepted rules that govern trials in California, judicial streamlining is just plain wrong. As a result of the errors cited above, Appellant has been deprived of a fair trial. There is no substantial admissible evidence to support the Court’s guilty verdict and it must therefore be reversed. Respectfully Submitted, Date: November 15, 2008 ________________________________ David Graham Appellant, in Pro Per [[Footnote]]1 There seems to be some question as to whether Officer Holt even admitted the calibration reports into evidence. He had not thought to bring them to court, but during a pre-trial discussion with Officer Holt in the hall, I (the Appellant) asked about them. Officer Holt later went to his car and found the calibration reports. However, his prewritten script only mentioned the photos and maintenance logs. Although Officer Holt brought out the calibration reports during trial and gave them to me to look at, I see no place in the transcript where Officer Holt assigned exhibit letters to them or formally asked the Court to admit them into evidence. If they were not admitted, then I would of course argue that the People’s case fails for that reason alone, since without them we have reasonable doubt as to whether the RLCS was off by a few seconds when it took the photos. Nonetheless, to play it safe, I’m assuming the calibration reports were admitted and, accordingly, have included this section in my brief.