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City of San Diego Documents - Set # 3

The Dismissals in 2001 - People vs. John Allen

People vs. John Allen (San Diego Superior Court 57927SD) included numerous briefs by both sides, and numerous rulings by the judge.  Here are some of those documents. has put some passages in bold type, and has added comments in double square brackets [[ ]].

The documents below contain many citations to the 2001 District Court of Appeal decision in P. v. Williams, which later was reviewed and partially rejected by the California Supreme Court.  Thus, those Williams citations no longer are valid.  For more details, see the discussion on the Truth in Evidence page.

Here is Judge Styn's May 29, 2001 ruling on the Speed Trap defense.   It is not the final ruling in the case.  (The judge's name is pronounced "sten.")


      The defendants seek to exclude the speed evidence obtained in these cases on the ground that the information regarding the speed of the vehicle which is used to calculate the distance the vehicle is from the loops, and thus is used to determine whether or not the vehicle was behind the line when the light turned red, has been obtained from a speed trap.

      A speed trap is defined in section 40802 of the California Vehicle Code as a section of a highway “measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance.” 

      The red light camera system, which measures the distance between loops and the speed between the two loops in order to calculate the speed of the vehicle and thus the distance behind the line the vehicle was at the time the light turned red, would appear to fall within the definition of a speed trap. 

      Defendants then contend that such evidence is excluded under section 40801 of the Vehicle Code that says that no person shall use a speed trap in “arresting, or participating or assisting in the arrest of, any person for any alleged violation of this code nor shall any speed trap be used in securing evidence as to the speed of any vehicle for the purpose of an arrest or prosecution under this code.” 

      First, this case does not involve the use of a speed trap in arresting or participating or assisting in the arrest of any person. Vehicle Code section 40518(a) specifically provides that the preparation and delivery of a notice to appear pursuant to an automated enforcement system is not an arrest. Therefore, the speed trap has not been used in securing evidence as to the speed of the vehicle for the purpose of an arrest. The only possible violation of this section would be the use of the speed trap for purpose of a prosecution under the code.
Vehicle Code section 40801. [[In the original decision as printed by the court,  which was double-spaced, this phrase was on its own line; thus it is not  clear whether  this phrase was meant to be part of the preceding paragraph, or a title for the next.]]

      The section above does not set forth any sanction. The sanctions are set forth in Vehicle Code sections 40803, 40804, and 40805 which respectively provide that no evidence as to the speed of the vehicle shall be admitted, no officer shall be competent as a witness and no court shall have jurisdiction to render a judgment of conviction for a charge or violation “involving the speed of a vehicle” if the evidence is secured from a speed trap. Defendants argue that since speed is used to calculate the distance the vehicle is behind the line, that therefore the violation of the red light is a prosecution involving speed because it involves the use of speed in making the calculation. This court is not persuaded by this reasoning. The plain language “for a violation or charge involving the speed of a vehicle” clearly is intended to apply to violations of the vehicle code where speed is the violation. The violation of Vehicle Code section 21453 (going through a red light) is not a violation involving the speed of the vehicle and therefore the plain language of Vehicle Code sections 40803, 40804, and 40805 does not apply. Therefore, none of these sections apply, and the evidence can be admitted, the officer is a competent witness and the court has jurisdiction. Since these are the only three sanctions for the use of speed trap evidence and since none of these sanctions apply, the speed evidence is admissible and will not be excluded.

      In light of the above, it is unnecessary to consider the other arguments, as the court has concluded that the statute on its face does not require exclusion of the evidence.

      Therefore, the defendants’ motion is denied.


DATED: May 29, 2001  RONALD L. STYN, Judge of the Superior Court

Here is Judge Styn's Aug. 15, 2001 Order to Show Cause.  It is not the final ruling in the case.



Defendants have filed a Motion to Dismiss for Failure to Comply with Vehicle Code section 21455.5, the defendants claim: (1) the City of San Diego's red light camera system is not operated by a governmental agency in cooperation with a law enforcement agency; (2) there has been outrageous governmental conduct; (3) the signs identifying the intersections with cameras are inadequate; (4) Vehicle Code section 40520 is unconstitutional; and (5) the citations violate Penal Code section 959.1.

In reaching its decision, the Court has taken into consideration all of the testimony during the seven days of hearings and has reviewed the 96 exhibits admitted into evidence, as well as the briefs filed before, during, and after the hearing. As set forth below, the Court agrees with the statement in the defendants' papers that "a red light photo enforcement can be a legal and constitutional exercise of a local government's police power that rationally serves the public interest. [However,] [t]he Lockheed Martin/[City] partnership does not meet legal standards." A summary of the Court's conclusions is on page 14. 


Vehicle Code section 21455.5, effective 1996, authorizes cities to operate automated enforcement systems (hereinafter "the system" or the "red light camera system," which refers collectively to the camera equipment, the Lockheed-City contractual relationship, the locating, installing, and maintaining of the camera equipment, setting protocols, reviewing the information obtained from the camera equipment and issuing citations.) The legislation provides, "only a governmental agency, in cooperation with a law enforcement agency, may operate an automated enforcement system." As used hereinafter: "City" refers to the City of San Diego, including its various official and departments, including the police department. "Camera equipment" refers to the camera, sensing loops, and the connecting software and hardware.

In 1998, the City entered into a "public-private partnership" with U.S. Public Technologies LLC (the predecessor of Lockheed Martin, hereinafter "Lockheed" or "Lockheed Martin"). This contract is entitled "Red Light Camera License and Service Agreement." (Exhibit U.) Pursuant to this contract, Lockheed Martin performs various services. The City participated with Lockheed Martin in the selection of the intersections to have red light cameras and City Engineering prepared plans and issued permits. The City developed criteria for determining whether a violation occurred. Once the construction process was begun, there was very little City involvement and the City did not inspect the construction when it was completed. The City operates the traffic signals, including making such decisions as yellow light duration.

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.


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.


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.


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.


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.


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.


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.


"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. [[See special "Williams" note at top of this Web page.]]  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 [[see special "Williams" note at top of this Web page]] :

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 [[see special "Williams" note at top of this Web page]], 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 [[see special "Williams" note at top of this Web page]] 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.


The Court finds:

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

2. The failure to comply with the statute, by itself, does not violate the United States Constitution;

3. Lockheed Martin operates the system on a contingency;

4. Noncompliance with the statute, when combined with the contingent fee and all of the other activities of the City and Lockheed, does not constitute outrageous governmental conduct in violation of the U.S. Constitution; and,

5. The evidence obtained from the red light camera system as presently operated appears so untrustworthy and unreliable that it lacks foundation and should not be admitted.


The prosecution is hereby ordered to show cause in Department 56 of the San Diego Superior Court on August 31, 2001, at 9:00 a.m., why all evidence obtained from the red light camera system should not be excluded from admission into evidence in the cases now pending in this department. Any written pleadings from the prosecution must be filed by 4:00 p.m. on August 24, 2001. Any replies from the defendants must be filed by 4:00 p.m. on August 28, 2001. The purpose of the hearing will be to address the appropriateness of the evidentiary sanction.


DATED: August 15, 2001  RONALD L. STYN, Judge of the Superior Court

Here is the City's Aug. 24, 2001 Response to Judge Styn's Order to Show Cause



      Vehicle Code section 21455.5 provides that only a governmental agency can operate an automated enforcement [AE] system, although Vehicle Code section 21455.6 recognizes that the governmental agency may contract with a private vendor for the use of such a system. This Court has preliminarily indicated that, in the City of San Diego, “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.”

      The Court’s preliminary ruling sets forth the following syllogism: (1) the Vehicle Code provides that only a governmental agency may operate an AE system; (2) here, Lockheed Martin [LM], a private corporation, operates the system; (3) therefore the evidence produced by LM is unreliable. This syllogism is not based on logic, nor is it justified by the evidence adduced at the hearing on the motion to dismiss. 

      More importantly, statutory noncompliance by itself cannot result in suppression of evidence. Both the California Constitution and case law require relevant evidence to be admitted, even though that evidence may have been obtained in violation of a statutory provision. Put simply, whether the City “operates” the system within the meaning of Section 21455.5, or LM does, admissibility of the evidence depends solely on whether there is a sufficient evidentiary foundation. Here there is a sufficient foundation, so the evidence is admissible.


      The Court’s preliminary indication is that the evidence obtained from the AE system is inadmissible, and the Court has ordered the City to show cause why the evidence should not be excluded. For the following reasons the People submit the evidence should not be excluded. 

      First, under the Evidence Code, the California Constitution, and case law, all relevant evidence is admissible. Second, Vehicle Code section 21455.5 does not set forth any mandatory duties or specific evidentiary requirements. Third, statutory noncompliance does not preclude the admission of relevant evidence. Fourth, the People can provide a sufficient foundation to establish the reliability and relevance of the evidence. And fifth, the past and present flaws in the system do not affect the sufficiency of the foundation for the evidence.



      Evidence Code section 351 provides that “[e]xcept as otherwise provided by statute, all relevant evidence is admissible.” Under Evidence Code section 210, “relevant evidence” means evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. 

      Generally, evidence obtained in violation of a statute is nonetheless admissible. For example, many cases hold that evidence obtained in violation of various provisions of the Implied Consent Law is admissible. For example, see People v. Ryan, 116 Cal. App. 3d 168 (1981), and People v. Brannon, 32 Cal. App. 3d 971 (1973). 

      In addition, Article I, section 28, subdivision (d), of the California Constitution [Proposition 8], generally eliminated exclusion of evidence as a remedy for noncompliance with statutes. For example, in People v. Donaldson, 36 Cal. App. 4th 532 (1995), the Second District Court of Appeal held that if an officer arrests a defendant for a misdemeanor offense not committed in the officer’s presence in violation of Penal Code section 836(a)(1), the evidence is nonetheless admissible so long as there was probable cause for the arrest. 

      The Donaldson court explained the effect of Proposition 8: 

"[A]lthough section 836 continues to provide rules with respect to the lawfulness of a misdemeanor arrest, a court may admit evidence obtained incident to an arrest made in violation of section 836 unless the exclusion is mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment." 

Id. at 539. 




      The Court posits that 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. The only authority cited by the Court in support of this proposition is Evidence Code section 664, which provides an evidentiary presumption that official duties are regularly performed. 

      To the extent that the Court believes the Legislature set forth the requirement of governmental operation in order to enhance the admissibility of the AE evidence, the statute fails to support that belief because it does not require any duties. By way of contrast, in Imachi v. Department of Motor Vehicles [DM17], 2 Cal. App. 4th 809 (1992), the court of appeal justifiably relied on Evidence Code section 664 because of specific duties that were required by law. In that case, the court concluded that Section 664 supplies sufficient indicia of the trustworthiness of blood alcohol test results to justify reliance upon such results to support a license suspension. 

      Forensic alcohol testing comes under the jurisdiction of the Department of Health Services, which regulates the testing by law enforcement agencies of blood, breath, and urine for the purpose of determining the concentration of ethyl alcohol in the blood. Health and Safety Code section 100700 (formerly Section 436.50) provides that the department shall adopt regulations necessary to ensure the competence of laboratories and employees to analyze and report the results of the testing. Section 100715 (formerly Section 436.52) provides that the testing of breath samples of persons involved in traffic accidents or violations shall be performed in accordance with regulations adopted by the department. The regulations adopted by the department were promulgated in Title 17 of the California Code of Regulations, Section 1215 through 1222.2. Article 7 of the regulations sets forth the requirements for breath alcohol analysis; Section 1221.4 provides the standards for procedures, Section 1221.2 provides instrument performance standards, and Section 1221.3 specifies approved instruments. Other articles regulate forensic laboratories and include requirements for licensing of forensic laboratories and analysts, collection and handling of samples, and methods of analysis. Methods of analysis must comply with procedural standards to insure that instruments are in good working order and are checked for accuracy and precision. Thus, there are numerous duties imposed upon the employees, and the presumption of a duty regularly performed applies. 

      Similarly, a peace officer’s sworn report introduced at a DMV hearing is presumed trustworthy based upon the officer’s duty under Sections 13353 and 23158.2 to report the facts of an arrest for drunk driving and an accompanying blood-alcohol test. Davenport v. DMV, 6 Cal. App. 4th 133, 143 (1992); Fisk v. DMV, 127 Cal. App. 3d 72, 77 (1981). 

      In contrast, Vehicle Code section 21455.5 sets forth no duties. A governmental agency has no duty to operate an AE system. The statute merely provides that only a governmental agency may operate an AE system.


      The Court also opined that the purpose of the limiting language “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.” On the one hand, the People agree that to at least some extent the Legislature intended for a governmental agency to be “in charge” of an AE system. For example, the Legislature would not have approved of a wholesale delegation whereby a private entity would install a camera system, develop pictures and print notices to appear, and file citations with a court without guidelines from, supervision by, or cooperation with a law enforcement agency. On the other hand, it is equally clear that the Legislature intended to allow the involvement of private entities, considering the high cost of the camera systems and the immense task of issuing a great volume of citations. 

      The Court recognizes that Vehicle Code section 21455.6 authorizes a city or county to contract with a private entity for the use of an AE system. The first such AE systems in California were apparently used by the Los Angeles County Metropolitan Transit Agency [MTA] to reduce accidents caused by motorists driving around rail crossing gates. In a 1994 bill allowing the use of AE systems the legislative analyst reported cameras had been installed at crossings by the MTA, and that “the film is processed by the system vendor which then checks with the DMV to obtain information on the vehicle’s registered owner.” Legislative Staff Analysis, SB 1802 (July 7, 1994). It was also noted that Los Angeles County Sheriffs deputies have been integrally involved in the AE program, including loading/unloading film and interviewing individuals receiving citations. Legislative Staff Analysis, SB 1802 (August 10, 1994). 

      In addition, there was some concern about the privacy of motorists whose photographs are used by the vendor, not the governmental or law enforcement agency, to identify the registered owner using DMV records. Legislative Staff Analysis, SB 1802 (June 26, 1994). This concern was alleviated by the addition of Section 2 1455.5(b) providing that the photographic records were confidential. 

      To the extent that the bill was approved based upon the legislative analysis, processing and developing the film, accessing DMV records, and processing citations was contemplated to be performed by private vendors. Logically, these tasks may be delegated to a private entity by the agency “operating” the system. 

      If nothing else, the statute and the legislative history contemplate a private vendor processing and preparing citations. Relative to that, the Court points out that here the decision not to issue a citation is not reviewed by the law enforcement agency. A rational part of the process of preparing citations would include not preparing citations if the motorist is not identifiable because of glare, a sun visor, or the vehicle had no front license plate. The law enforcement agency would not need, or desire to review citations that were not able to be issued.




      The Court has expressed the view that the San Diego Police Department’s AE system does not comply with the directive of Vehicle Code section 21455.5 that only a governmental agency may operate an AE system. However, the mere fact of statutory noncompliance does not lead to exclusion of evidence. 

      For example, in People v. Sangani, 22 Cal. App. 4th 1120 (1994), the defendant was charged with several violations of the Hazardous Waste Act. The defendant contended that evidence of a chemical analysis of the waste should not have been admitted because the laboratory which performed the analysis was not certified by the Department of Toxic Substance Control, as required by the statute. Relying on People v. Adams, 59 Cal. App. 3d 559 (1976), the court of appeal found that despite the statutory noncompliance the evidence showed that the three foundational requirements for scientific evidence (the apparatus was in proper working order, the test was properly administered, and the operator was competent and qualified) were met, so the lack of certification merely went to the weight, not the admissibility of the evidence. Id. at 1137. 

      In Sangani the relevant statute (Health and Safety Code section 25198) provided that the analysis of any material required by the chapter “shall be performed by a laboratory certified by the department” and prohibited a person or public entity from contracting with an uncertified laboratory for environmental analysis for which the department required certification. The Sangani court held that despite the fact the statute was not complied with, because there was a proper foundation the evidence was admissible. Just as in Sangani, here the Court believes a statute was not complied with. Just as in Sangani, if there is a proper foundation the evidence is admissible. 

      The Court seems to acknowledge that evidence with a proper foundation is admissible despite statutory noncompliance. However, the Court’s opinion does not discuss the foundation required, and in what respect the foundation is lacking, but instead focuses on the alleged statutory noncompliance. The Court compares the noncompliance to the noncompliance in People v. Williams, 89 Cal. App. 4th 89 (2001).  [[See special "Williams" note at top of this Web page.]]  The comparison is inapt.


      In People v. Williams [[see special "Williams" note at top of this Web page]] the court discussed whether the results of a preliminary alcohol sensor [PAS] test were admissible. Evidentiary breath tests, including the PAS, come within the ambit of the regulations promulgated in Title 17. Chemical tests performed by forensic laboratories in compliance with Title 17 provide the foundation for admission into evidence o test results. Imachi, 2 Cal. App. 4th at 816. Thus, because the regulations establish a standard for the competency of the test results, “[c]ompliance with the regulations establishes both a foundation for admission of tests results into evidence in any proceeding and a basis for finding such results to be legally sufficient evidence to support the requisite finding in such proceeding.” Davenport, 6 Cal. App. 4th at 142. If compliance with Title 17 is demonstrated, the prosecution may not need to otherwise prove the qualifications of the testing personnel, the accuracy of the equipment, and the reliability of the method followed. See Adams, 59 Cal. App. at 567. 

      But if compliance with Title 17 does not provide a basis for admissibility, the prosecution must prove up the qualifications of the personnel, the accuracy of the equipment, and the reliability of the method. For example, in Coniglio v. DMV, 39 Cal. App. 4th 666 (1995), the court held that Title 17 does not apply to a PAS test used to detect the presence of alcohol. Because Title 17 does not apply, the prosecution must “show that the PAS test meets general foundational requirements” when used to detect the presence of alcohol. Id. at 683—84


      In Adams, 59 Cal. App. 3d at 559, the court recognized that the Title 17 regulations “are an expressed standard for competency of the test results,” and, in effect, “are a simplified method of admitting the results into evidence.” Id. at 567. But what if there is noncompliance with Title 17? After examining the legislative history of Title 17 and reviewing the case law, the Adams court held that: 

"Noncompliance with [Title 17] regulations goes only to the weight of the blood alcohol. . . evidence. In accordance with prior case law, the validity of the test itself is to be determined in accordance with general scientific standards as to the foundational elements of properly functioning equipment, properly administered test, and qualified operator." 


      The rule that noncompliance with Title 17 goes to the weight but not the admissibility of evidence is well established. See People v. French, 77 Cal. App. 3d 511, 522 (1978); People v. Rawlings, 42 Cal. App. 3d 952, 956 (1974); People v. Perkins, 126 Cal. App. 3d Supp. 12, 18(1981). 

      Accordingly, provided the test results are relevant, they may not be excluded. In a prosecution for driving with a blood alcohol level of .08 percent or above, the defendant’s blood alcohol level is relevant, and if the test result is credible it is admissible under Proposition 8 and Evidence Code section 351. Cases such as Adams and Davenport make it clear that the test results are credible if either Title 17 is complied with or the three alternative foundational requirements are satisfied. For example, in Nick the evidence established the results of the intoxilyzer test were obtained in compliance with Title 17, and such compliance was sufficient to establish admissibility, even over the appellant’s testimony that the intoxilyzer was malfunctioning and the test was performed improperly. Nick v. DMV, 12 Cal. App. 4th 1407, 1418 (1993). Conversely, the court found that there was no foundation to admit the PAS result because it was not in compliance with Title 17— it was not licensed, and the arresting officer did not testify so no alternative foundation was established. See Nick, 12 Cal. App. 4th at 1418 n.6. Accordingly, where the results are shown to be credible because the Adams foundation is satisfied, the evidence must be admitted. 

      Adams and its progeny clarify that noncompliance with Title 17 goes to the weight of scientific evidence but not its admissibility; if it is established that (1) the apparatus utilized was in proper working order, (2) the test was properly administered, and (3) the operator was competent and qualified, then the evidence is admissible. As shown above, Title 17 sets forth numerous regulations that provide an indicia of trustworthiness of the results, and provide a basis for admissibility. That same indicia of trustworthiness can be provided by meeting the three Adams foundational elements. 

      The requirements of Title 17 are related to, but not identical to, the foundation required under Adams. Some of the requirements of Title 17 are probably so vital to the trustworthiness of the test results that if they are not met, the results would not satisfy the Adams foundation and would not be admissible. For example, if a breath testing device had been used for one year and its accuracy had never been checked during that time, there would be a violation of Title 17 and a failure to satisfy the Adams foundation. Conversely, other Title 17 requirements, such as the fifteen-minute waiting period, would not necessarily undermine the trustworthiness of the results. If two identical breath test results were obtained by using a fully compliant, licensed breath testing device, and the samples were obtained after waiting fourteen and one-half and fifteen minutes, there would be a violation of Title 17 but not a failure to satisfy Adams. 

      Under Adams if Title 17 is not complied with the question is not whether there was substantial or insubstantial compliance. Rather, the relevant questions are, was the apparatus in working order? was it properly administered? and was the operator competent and qualified? If each of those questions is answered in the affirmative, the tests results were trustworthy, and the trial court should admit the results. 

      Similarly, if the Court here finds Section 21455.5 was not complied with, the question is not whether there was substantial compliance, but whether an alternative evidentiary foundation can be laid. If a foundation can be laid, the evidence must be admitted.


      In Williams [[see special "Williams" note at top of this Web page]] the court reviewed the procedures used in administering the PAS device and compared them to the requirements of Title 17 and the Adams requirements. The court found that there was not “substantial” compliance with Title 17 and ruled that the PAS result was therefore inadmissible. Williams, 89 Cal. App. 4th at 97—100. 

      The Williams [[see special "Williams" note at top of this Web page]] court paid lip service to the rule of Adams and its progeny that evidence with a proper foundation is admissible despite statutory noncompliance. However, even though the court discussed the three evidentiary foundations, the court focused on its belief in the need for “substantial compliance” with Title 17, and its perception of “a government agency’s intentional failure to comply with mandatory duty.” Id. at 97. The court cautioned that peace officers and their agencies “would be mistaken to assume they may seek haven in the good faith exception to the exclusionary rule, for example, and find a license to be casual or, worse, careless.” Id. at 100. The court then pointed out that the exclusionary rule is a judicially created remedy designed to deter such conduct, and then created a new rule of law:  Breath test evidence is only admissible if there is substantial compliance with Title 17.  

     The Williams [[see special "Williams" note at top of this Web page]] court thus judicially legislated an exclusionary provision for Title 17 when the Legislature declined to do that very thing. See Adams, 59 Cal. App. 3d at 565; Brannon, 32 Cal. App. 3d at 977. Judicial activism such as this led to the people of California amending the state constitution by initiative in 1982 through Proposition 8. The California Supreme Court discussed Proposition 8’s effect on judicially created exclusionary rules in In re Lance W., 37 Cal. 3d 873, (1985): 

      "Implicit in. . . the courts’ power to exclude relevant evidence to the enumerated statutory exceptions is a limitation on the power of the court to create nonstatutory exclusionary rules, whether denominated rules of procedure, rules of evidence, or substantive rules, for the exclusion of unlawfully seized evidence if those rules afford greater protection to a criminal defendant than does the Fourth Amendment."

      "...The express intent of section 28(d) is to ensure that all relevant evidence is admitted. That purpose cannot be effectuated if the judiciary is free to adopt exclusionary rules that are not authorized by statute or mandated by the Constitution." 

Id. at 888—89. 

      In the face of this indictment of judicially-created exclusionary rules, the Williams [[see special "Williams" note at top of this Web page]] court improperly created its own exclusionary rule. Similarly, this Court would create a new exclusionary rule: if an AE system is not operated by a governmental agency, evidence obtained by use of that system is inadmissible. Such a rule would be unconstitutional.



      As stated above, if a proper evidentiary foundation is laid, evidence must be admitted despite statutory noncompliance. Here, a proper foundation will be laid. In addition, concerns expressed by the Court do not obviate the foundation.


      The People are prepared to lay the following foundation for the admission of the photographic evidence establishing the guilt of the defendants: 

     1.    Duncan Hughes, Associate Traffic Engineer employed by the City, can testify that:  he attended monthly coordination meetings held by the police department; he attended site meetings with representatives of LM and the electrical subcontractor to the placement of the loops and other equipment; he reviewed and approved plans submitted by LM for the installation of camera systems; and he reviewed and approved construction plans submitted by LM. (See Exhibit 1, Declaration of Duncan Hughes.)

      2.    Tony May, a Construction Field Coordinator [CFC] employed by LM, can testify that: he oversaw subcontractors who installed the AE systems; he coordinated the placement of the loops in the pavement; and he measured the distances between the loops and inputted that information into the camera unit. (Declaration of Tony May to be filed.) 

      3.    Erik Storer, a Field Service Technician [FST] employed by LM, can testify that:  he conducted regular, periodic inspections and maintenance of the camera systems; he removed and replaced the film and the memory card; he checked the system phase indicators (red, yellow and green) to insure they were functioning properly; he checked that the loop sensors were detecting all vehicles passing over them; he verified that the flash system was operating properly; each inspection he verified the operation of the system by a minimum of two test shots; he inspected the loops and camera system for damage and performed preventative maintenance on the camera system; he performed a system self-check to confirm that the sensor loops, computer and camera functioned properly; verified that the required signs were posted; and contemporaneously completed an FST log. (See Exhibit 2, Declaration of Erik Storer.) 

      4.    Denver Tatoy, a Traffic Service Agent [TSA] employed by LM can testify that: he received memory cards from FSTs with data from the AE system; he downloaded memory card data into a software database; he saved film negatives to computerized images; he entered into the Citeware software program data including the license plate of the vehicle; he accessed DMV databases to determine registered owners; he printed citations for review by the law enforcement agency; and he mailed citations to drivers identified by the AE system. (See Exhibit 3, Declaration of Denver Tatoy.) 

      5.    San Diego Police Officer A.V. La Prath can testify that: after the camera system was installed at each intersection, he went to the intersection in order to take measurements for preparation of a diagram of the intersection to be used in trials; after taking the relevant measurements he prepared the diagrams; in May 2001 he remeasured the intersections and discovered that at three intersections the loops had been moved; later in May he went to all sixteen intersections involved in the instant case to verify the measurements and pitch setting; he found that no other loops had been moved, the pitch settings in the camera units were identical to the pitch settings on the pitch setting sheet, with two minor variations, and apart from minor variations caused by wear and tear the loop measurements had not changed. (See Exhibit 4, Declaration of A.V. La Prath.)

      6.    April Lobell, or her representative, can testify to the overall operation of the AE system, and specifically regarding: the physical layout of and connection of the loops and camera system; that the software records yellow light duration, and after the signal turns red records violations; that the system requires a minimum vehicle speed set by SDPD; that the system takes two photographs, one when the front of the vehicle passes the leading edge of the second loop, and one when the vehicle is within the intersection; that the software determines the vehicle speed and the duration of the red light when the signal is activated, which allows a computation to determine where the vehicle was in relation to the limit line when the signal turned red; that if the photograph reveals a violation, DMV records are accessed to determine the identity of the driver through the vehicle registration; that if the violator is identified, a citation is prepared for police review and approval; and that if the citation is approved, a notice to appear is mailed to the violator, pursuant to statutory requirements. 

      The evidence would thus show that the AE system was properly installed and working accurately; that within days of each violation the AE system was checked for proper operation and found to be functioning correctly; and that loops were intact and working properly. The evidence would further show that the film showing violators was promptly processed, and that violators were identified by accessing DMV records. Finally, the evidence would establish the citations were prepared for review and approval by SDPD and filed with court, and violators were mailed notices of the violations.


      In Williams [[see special "Williams" note at top of this Web page]] the court explained why the noncompliance with Title 17 regulations impaired the evidentiary foundation for the breath test, examining each of the three prongs of the Adams test. In contrast, here the Court has supplied no explication of why the alleged statutory noncompliance undermines the evidentiary foundation, other than to express concerns that: (1) a private entity, rather than the government, maintains the system; (2) LM is remunerated from fine proceeds; and (3) an employee of LM allowed reconfiguration of loop placement without ensuring that the camera unit was properly reprogrammed. Whether considered singly or together, these concerns are not fatal to the foundation for the AE evidence.


      The Court reiterates the opinion that 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, relying on Evidence Code section 664, which provides an evidentiary presumption that official duties are regularly performed. However, as discussed above, there are no official duties specifically relating to the day-to-day operation of AE systems. 

      In addition, the premise that government employees are more trustworthy than private employees is a doubtful one. One need only recall testimony regarding DNA evidence in the criminal trial of O.J. Simpson: the criminalists of the Los Angeles Police Department were reviled, while the work of the private Cellmark Diagnostics, Inc., was respected. 

      Interestingly, the Court found that “the most disturbing testimony” at the hearing on the motion to dismiss came from Officer Smalley regarding the issuance of citations to persons who appeared not to be the offending motorist. The procedures adopted under Vehicle Code section 40520(c), the “section D” procedures, were formulated by the law enforcement agency, not the private entity. 

      Finally, CALJIC 2.20 sets forth factors to be considered in judging the believability of witnesses. “Government employee” is not a factor that enhances believability, and “private employee” is not a factor that detracts from believability. Accordingly, whether film is loaded into a camera by a government employee or a private employee, for example, should not affect the admissibility of evidence.


      The contract between the City and LM provides that LM is to be remunerated from fine proceeds. This arrangement is beneficial to the City and taxpayers because it requires very little from the City in start-up costs, and requires the City to pay the fee only if the City receives income from the use of the cameras. Under this taxpayer-friendly arrangement, if the City receives fine proceeds it shares them with LM, but if the City receives no proceeds it pays nothing. 

      The fee agreement for LM is similar to the contingency provided for in Health and Safety Code section 11372.5 for criminalistics laboratories. Subsection (a) provides that persons convicted of certain controlled substances offenses must pay a $50 criminal laboratory analysis fee. Subsection (b) provides that the court must transfer the money to a county’s criminalistics laboratories fund, and the money must be used exclusively to fund costs incurred by criminalistics laboratories providing chemical analysis of controlled substances, for the purchase and maintenance of equipment for use in performing chemical analysis, and for training of scientists employed by the laboratories. The fee is not a contingency fee in the strictest sense, in that the fee is paid for controlled substance convictions even if the laboratory did not perform an analysis, and there is a middleman. Nonetheless, if a laboratory analyst fails to find a controlled substance, performs a shoddy analysis, or testifies poorly, and a suspect is not charged or is found not guilty, the laboratory does not get the fee; but if the laboratory analyst does a good job in a case and a conviction results, the laboratory does get the fee. The contingency is less direct than the contractual arrangement with LM, but the laboratory benefits from conviction in an arrangement approved by the Legislature. 

      A more direct fee arrangement was approved in Brown v. Edwards, 721 F.2d 1442 (5th Cir. 1984). In that case an arrestee brought a civil rights action against the constable who arrested him, on the ground that the Mississippi fee system, which compensated constables ten dollars for each arrest they made that resulted in conviction, violated his rights. The Court found that there was no violation, stating that the allegation against the constable “relates solely to what is generally authorized and contemplated by Mississippi law and is not related to personal or class characteristics of the arrestee or his conduct apart from that giving rise to probable cause for the arrest and charging.”


      Because LM is remunerated out of fine proceeds received by the City, the Court intimates that the contract is void, citing Von Kesler v. Baker, 131 Cal. App. 654 (1931). In Von Kesler the plaintiff apparently procured the testimony of certain facts that would successfully support a civil lawsuit. In condemning the arrangement, the court relied primarily on Hare v. McGue, 178 Cal. 740 (1918). In that case the court stated: 

"It is the contingency on one hand and the agreement to furnish a given set of facts essential to a successful litigation on the other, and both of which in their nature are calculated to induce false charges and the production of perjured testimony, to subvert the truth and pervert justice through fraud, trickery, and chicanery at the hands of private detectives on [or] other conscienceless persons, which has impelled the law, with wisdom, to declare such contracts illegal." 


      In Brown v. Edwards, discussed above, the Court also noted the dangers of undue influence. The Court cited Tumey v. Ohio, 273 U.S. 510 (1972), where the Supreme Court invalidated an Ohio law whereby the mayor of a village acted as the trier of fact and received fees and costs upon convictions, but not after acquittals. The Court also cited Connally v. Georgia, 429 U.S. 245 (1977), where the Court invalidated a fee system where a magistrate received five dollars for each warrant issued, but nothing if issuance of the warrant was denied. 

      The cases illustrate that it is dangerous for a witness or judge to have a direct, personal, and substantial pecuniary interest in the outcome. Here, the employees of LM do not have a direct, personal, and substantial pecuniary interest in the outcome of the cases. Although it is true that LM, as a corporate entity, receives more income if there are more violations, there is no evidence that any employee of LM receives more income if more citations are issued. It cannot be reasonably argued that LM employees would attempt to alter photographs, falsify data that is used for speed calculations, or prepare perjured affidavits. 

      Moreover, the evidence produced by LM is not subject to the same dangers. Here, there is no criminal informant who may commit perjury for monetary reward or to avoid imprisonment. Here, there is not even a breath test that is manipulated by a person each time it is used, that must be constantly checked for accuracy and calibrated, and must be administered in a very specific way in order to obtain reliable results. Instead, the situation here is much more comparable to the use of radar for speed enforcement. 

      Radar, which is accepted almost without question, uses an instrument that measures vehicular speed by use of radar. The instrument is normally tested each day with a self-check, to ensure that the basic electronics are functioning. The user then simply points and clicks at a vehicle to determine its speed. Although an officer could intentionally lie about the readout, or measure the speed of a different vehicle and falsely blame a different motorist for the speed, the instrument itself is essentially error-proof The instrument does not require adjustment, it cannot be “fooled” by such things as mouth alcohol or Wonder Bread, and its accuracy does not depend on the actions of the test subject. Similarly, the AE evidence is obtained with an unbiased, essentially error-free camera system that also does not require adjustment, cannot be fooled, and the accuracy of which does not depend on the actions of violators. 

      In addition, the fee paid to LM is not for testimony to establish specific facts, and essentially not even for testifying. The fee remunerates LM for posting signs, for the use of incredibly expensive cameras, for developing film and accessing DMV records, and for processing citations—none of which involves courtroom testimony, let alone specific facts. 


      The Court also expressed concern over the relocation of the loops at three intersections. An employee of LM apparently decided the functioning of the loops could be improved if they were moved and had them moved, but whoever was in charge of the loop relocation did not ensure that the cameras were reprogrammed to reflect the move and that the police department was aware of the move. Although the People believe that no one received a citation at these intersections unless there was a violation, the People chose to dismiss all citations from the intersections rather than use photographs with incorrect information in the data boxes on the evidence prepared for trial. For several reasons, the relocation of the loops should not undermine the foundation for the evidence of violations at other intersections. 

      First, none of the defendants before the Court received tickets from the three intersections, and there is no evidence that loops were relocated at any other intersection. Accordingly, the relocation of the loops should have no bearing on the foundation for evidence from the other intersections. 

      Second, the loop relocation error was not intentional, but was the result of negligence. There is no evidence whatsoever of a motive to deceive, to fabricate evidence, or to prosecute innocent motorists. 

      Finally, the City itself has suffered similar failures of communication in other endeavors it has conducted. Whether public or private, employees sometimes make mistakes.



      The Court has heard evidence concerning every bug, glitch, miscue, and error that occurred with the City’s AE system. Some of the problems cropped up and were corrected. Some of the problems continued over a period of time because of insufficient communication.  Even now, there are elements of the system that could be improved upon. To that end, the City has commissioned an independent audit. The entity performing the audit is asked to assess numerous aspects of the system, including verifying the validity of the functioning of the camera system, providing recommendations for improving the system, and surveying system protocols and management. (See Exhibit 5, Photo Red Light Enforcement Evaluation bid request.)

      However, today the Court is not deciding whether AE is the best tool to enforce the prohibition against running red lights. The Court is not ruling on whether the City may use AE in the future. The Court is not weighing the net benefit of the system in punishing red light runners and inhibiting others from running red lights against the net cost to the City, the courts, and the citizens. The Court is not deciding whether, if the Court were in charge of traffic enforcement, the Court would use an AE system. The Court is ruling on one question only: can the People establish an adequate evidentiary foundation for the admission of the photographic evidence.

      If the Court believes the People cannot establish the reliability of the system, based not on past mistakes or the rhetoric of defense attorneys, but rather based on the objective evidence, the Court may properly exclude the evidence. But if the Court finds the People can establish a foundation for the reliability of the evidence, the Court must find the evidence admissible. The People submit that the evidence is reliable, and the Court should therefore admit the evidence, and not punish the People for past sins. 

      Finally, to this point the Court has suggested the evidence lacks foundation “because the system is for far outside the operation contemplated by the legislature.” If this Court excludes the evidence, in light of the importance of the issues the Court should specify exactly how the foundation is wanting. Does the Court believe that the motorists accused of the infractions are not the registered owners or persons otherwise identified as drivers? Does the Court believe that the camera was not operating properly? Does the Court believe the loops were not located as depicted? Does the Court believe LM employees manipulated photographic evidence? If the Court believes that someone or something is attempting to subvert the truth and pervert justice through fraud, trickery, or chicanery, then the Court should explain its belief. If it cannot justify such a belief, the Court should not exclude the evidence.


      For the reasons set forth above, the People respectfully request the Court not exclude evidence obtained from the AE system. 

Dated:      August 24, 2001 

CASEY GWINN, City Attorney
By [[sig]]
Steven K. Hansen
Deputy City Attorney
Attorneys for Plaintiff

[[This Response to Order to Show Cause was OCR'd in December 2006 by, from the original court document, and may contain minor errors.  You may freely re-publish all of it, or any portion, on your website or in your publication.  However, would appreciate attribution. has not yet OCR'd the declarations of Hughes, Storer, Tatoy, May, and Officer La Prath, or the June 2001 RFP for an evaluation of the system. If there is sufficient public interest, these documents can be added.]]

Here is Judge Styn's Sept. 4, 2001 ruling excluding the photo evidence - which ended the case.


      The prosecution's arguments have not persuaded the Court to change its ruling. The prosecution relies on People v. Adams (1976)59 Cal.App.3d 559 and the cases following it for the proposition that failure to follow the statute only goes to the weight of the evidence and not to its inadmissibility. As pointed out in People v. Williams (2001) 89 Cal.App.4th 85 at 100 [[see special "Williams" note at top of this Web page]],  

      "Adams and its progeny were crafted to address anomalies or occasional errors and innocent lapses in law enforcement. They were not meant to provide a means for peace officers and their agencies to ignore clear, easy-to-apply statutory law and administrative rules, for any reason, including budget or personnel constraints."  

      In this case, the failure of the city to operate the system as required by the legislature, combined with the contingent fee paid to Lockheed Martin goes far beyond Adams or any of the cases which follow Adams. The Court sees no difference between a contingent fee to a private corporation and a contingent fee paid to an individual.  

      Therefore, the Court's ruling will stand. The evidence from the red light cameras will not be admitted.  


DATED: September 4, 2001  Ronald L. Styn, Judge of the Superior Court

A celebratory account of the Sept. 2001 mass dismissals in San Diego (at the conclusion of the People vs. John Allen case) is here: