How I fought

Procedure

Discovery

I started by filing a discovery notice. According to Penal Code 1054.1 the prosecution is required to disclose to the defendant all relevant evidence. This isn't limited to just evidence that is within the possession of the prosecutor but include both direct evidence and impeachment evidence which is favorable to the defendant. The duty of disclosure is not limited to evidence in the actual possession of the prosecutor. Rather, it extends to evidence in the possession of the entire prosecution team, which includes investigative and other government agencies.

The Idea here was if they did not respond (because the persecutor is too busy with serious cases to bother with a traffic infraction) I could file a motion to suppress or exclude their evidence because they violated the discovery process. The judge may then have asked that the prosecution turn it over at trial at which time I would have objected because the purpose of discovery is to allow a defendant time to review evidence and prepare a defense. If the judge would try to continue the matter I would have objected because he would be asking me to choose between my right to a speedy trial and my right to discovery. If the judge granted the motion to suppress evidence the case would have to be dismissed.

In response to my discovery notice the prosecution provided me with actual color photographs taken of my alleged violation and maintenance log sheets of the photo system before and after the date of the violation. The did not give me any technical information about the camera system (trade secrets) which I requested or training manuals used to train the police officers who testify in court. I also requested the contract between Lockheed Martin and the City of Beverly Hills which was not provided. Basically they only supplied evidence that proved their case. Without going into all the legal citations I believe they were not fully complying with the discovery process. And planned on making this objection at my trial.

The basis of the speed trap argument was the device that calculated the speed is a speed trap in itself. California Vehicle Code 40802(a) defines a speed trap as:

The device in my case uses electromagnetic hoops embedded in the pavement that detect a vehicle traveling over them. The hoops are set a certain distance apart and the time it takes to travel from one hoop to another is secured by a computer that receives signal from the hoops. A computer than uses this time distance calculation to determine speed. In essence it is a devise in a section of highway, it is measured as to distance with boundaries that are determined. The speed is then calculated using the time it takes a vehicle to travel the known distance.

In my case the prosecution argued that I was charged with not stopping at a red light and the charge did not involve speed and that speed trap laws apply only to charges "involving speed", and the evidence of speed was merely incidental to the offense. I rebutted that argument two ways. First the system is set with a minimum speed. Basically this means although the camera is only activated on a red light and will not take a picture unless the light is red, you have to be detected to be traveling at a minimum rate of speed before the camera will record a violation. In my case the minimum speed was set at 17 mph. The officer testified that if a vehicle traveled at 16 mph through the intersection during a red light the camera would not take a photograph. I argued that the system was enforcing a speed limit of 16 mph through a red light and not a stop. This makes the speed evidence the only reason that a violation was recorded in the first place. The second way I rebutted their argument was an academic interpretation of the law. The prosecution argued that the because language of speed trap laws say "charges involving speed" that the laws do not apply to charges other than speed. I argued that it says "charges involving" and not "charges limited" to speed and the prosecution's own witness testified that the evidence and subsequently the charges against me wouldn't have been recorded and filed if my speed wasn't first determined, and the device used to determine my speed is a speed trap by the definition of the law.

My next motion was to exclude the photos and log sheets as inadmissible hearsay. If the photos and/or log sheets are successfully suppressed or excluded there is no evidence left to prove an alleged violation. Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. Hearsay evidence is inadmissible in court unless the evidence meets an exception provided by law. The exception the prosecution was trying to use to get the documents into evidence is the business records exception (provided by evidence code 1270) For the documents to qualify as admissible business records they are required to meet four foundational requirements.

The thinking is that if a record was created in the ordinary course of business, not for the purposes of litigation, but just in the day-to-day operations of the business then it is probably trustworthy enough not to require a custodian of records to actually appear in court to authenticate the records and show that they are genuine and trustworthy. Some may argue that these records are NOT trustworthy because they ARE prepared SPECIFICALLY for litigation -- in fact, the whole purpose these records were created was to prosecute me.

The officer in court testified that these records were made in the normal course of business and that they are Beverly Hills Police business records. He gave testimony on how the photo enforcement system works and records violations and how the maintenance log sheets are prepared. His testimony serves to authenticate the documents and show that the method of recording photos by the photo enforcement system are trustworthy. The prosecutor, the police officer and most likely the judge will believe it to be more trustworthy than your own experience or memory and that of any witnesses you may have.

When this evidence is submitted by the prosecutor, authenticated by the officer's testimony, and is accepted into evidence by the court you are basically screwed unless you are not the driver of the vehicle or you can prove that outside circumstances not apparent in the photograph give you an excusable reason to be in the intersection. (I.e. you are pregnant, giving birth and on your way to the hospital, or had to enter the intersection to avoid an accident, or a police officer directed you to enter the intersection.)

In my own research I found that the business records were created and maintained by Lockheed Martin and provided to the Police Department upon request of the City of Beverly Hills. All of this was found in the contract entered into between Lockheed Martin and the City of Beverly Hills which I obtained from the Beverly Hills City Clerks Office. In short the "Scope of Services" provision of the contract required Lockheed Martin to install and service the equipment at their own expense, retrieve the film from the cameras, develop and review the film and then refer the evidence to the police. (This makes them an informer in my opinion) Lockheed Martin prints the citations and sends them out at their own expense. The only thing the police or city does is sign the citation and testify in court. It was my argument that the records belonged to Lockheed Martin and not the Beverly Hills Police Department therefore the police officer's testimony was not sufficient to authenticate the records.

Finally in the contract between Lockheed Martin and Beverly Hills I found that Lockheed was being paid $25 for every citation paid. This amounts to a witness contingency fee. Being paid a fee contingent on a conviction of a defendant they are providing evidence against creates a bias, motive and incentive to testify falsely, offer false documents or tamper with evidence and serves to impeach the last foundational requirement to admit the records into evidence. In essence the evidence is inherently untrustworthy when the supplier of the evidence has a financial interest in the outcome of the trial.

Motion to dismiss for Violation of California Vehicle Code 21455.5 (a) and (b)1

My last written motion argued that the city didn't operate the photo enforcement system legally. There are statutory requirements the city must meet and comply with to operate the system. They are California Vehicle Codes 21455.5 (a) through 21455.7.

One of the requirements is that "Only a government agency, in cooperation with a law enforcement agency, may operate an automated enforcement system." ( 21455.5 9(a) )As mentioned above Lockheed martin owned and operates the system at their expense. I argued that "operation" certainly doesn't mean just signing citations and testifying in court.

Other requirements of the city include:

The officer in my case testified that all these were done. However when I questioned him he said he didn't attend any public hearings, didn't mail any of the public notices personally, have a copy of the Traffic Manual of the Department of Transportation or have any examples of the public notices that were sent out or any certified mail receipts that proved they were mailed out when he said they were. I objected to his testimony being hearsay. It almost worked but the prosecutor got the officer to testify that he was involved with the automatic enforcement system from the inception of the program for the Beverly Hills Police Department. Because he was involved from the beginning the judge decided that he had sufficient personal knowledge to justify his testimony.

Strategy The Prosecution has to prove two things. First that you are the driver and Second that you entered the intersection when the light was red. If I was going to have to pay $271 for a violation that nobody witnessed, where someone is getting paid if I am convicted, and where no judge would believe or care about my testimony in light of photographic evidence, I was going to make them earn it. My main strategy was to make the prosecution prove its case and follow all the legal procedures they are required to do. If they dropped the ball there may have been room for getting the case dismissed on a technicalities. The second part of my strategy was to attack the legality of their evidence and the methods used to secure evidence to charge me with a red light violation. If the evidence against me is not obtained legally or can not be legally used as evidence the case would likely be dismissed. I assumed that it didn't matter what I remembered or any witness I may call on my behalf may remember because the judge would most likely find the methods used to secure photographs and the photos themselves are more reliable and trustworthy than the only eye witnesses to the alleged violation. If I was going to get the case dismissed it wouldn't be made by whether or not I actually ran the red light (factual arguments), but rather that the methods of securing the evidence are unreliable and untrustworthy and/or illegal (legal arguments). .
Procedure Discovery I started by filing a discovery notice. According to Penal Code 1054.1 the prosecution is required to disclose to the defendant all relevant evidence. This isn't limited to just evidence that is within the possession of the prosecutor but include both direct evidence and impeachment evidence which is favorable to the defendant. The duty of disclosure is not limited to evidence in the actual possession of the prosecutor. Rather, it extends to evidence in the possession of the entire prosecution team, which includes investigative and other government agencies. The Idea here was if they did not respond (because the persecutor is too busy with serious cases to bother with a traffic infraction) I could file a motion to suppress or exclude their evidence because they violated the discovery process. The judge may then have asked that the prosecution turn it over at trial at which time I would have objected because the purpose of discovery is to allow a defendant time to review evidence and prepare a defense. If the judge would try to continue the matter I would have objected because he would be asking me to choose between my right to a speedy trial and my right to discovery. If the judge granted the motion to suppress evidence the case would have to be dismissed. In response to my discovery notice the prosecution provided me with actual color photographs taken of my alleged violation and maintenance log sheets of the photo system before and after the date of the violation. The did not give me any technical information about the camera system (trade secrets) which I requested or training manuals used to train the police officers who testify in court. I also requested the contract between Lockheed Martin and the City of Beverly Hills which was not provided. Basically they only supplied evidence that proved their case. Without going into all the legal citations I believe they were not fully complying with the discovery process. And planned on making this objection at my trial. Next I filed three pretrial motions. 1) motion to exclude speed evidence based on the operation of an illegal speed trap. 2) motion to exclude the photo's and log sheets as inadmissible hearsay. 3) motion to dismiss for violation of vehicle codes that authorize photo enforcement systems 21455.5(a) and (b)1. Speed Trap Motion The basis of the speed trap argument was the device that calculated the speed is a speed trap in itself. California Vehicle Code 40802(a) defines a speed trap as: " a particular 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 device in my case uses electromagnetic hoops embedded in the pavement that detect a vehicle traveling over them. The hoops are set a certain distance apart and the time it takes to travel from one hoop to another is secured by a computer that receives signal from the hoops. A computer than uses this time distance calculation to determine speed. In essence it is a devise in a section of highway, it is measured as to distance with boundaries that are determined. The speed is then calculated using the time it takes a vehicle to travel the known distance. In my case the prosecution argued that I was charged with not stopping at a red light and the charge did not involve speed and that speed trap laws apply only to charges "involving speed", and the evidence of speed was merely incidental to the offense. I rebutted that argument two ways. First the system is set with a minimum speed. Basically this means although the camera is only activated on a red light and will not take a picture unless the light is red, you have to be detected to be traveling at a minimum rate of speed before the camera will record a violation. In my case the minimum speed was set at 17 mph. The officer testified that if a vehicle traveled at 16 mph through the intersection during a red light the camera would not take a photograph. I argued that the system was enforcing a speed limit of 16 mph through a red light and not a stop. This makes the speed evidence the only reason that a violation was recorded in the first place. The second way I rebutted their argument was an academic interpretation of the law. The prosecution argued that the because language of speed trap laws say "charges involving speed" that the laws do not apply to charges other than speed. I argued that it says "charges involving" and not "charges limited" to speed and the prosecution's own witness testified that the evidence and subsequently the charges against me wouldn't have been recorded and filed if my speed wasn't first determined, and the device used to determine my speed is a speed trap by the definition of the law. Motion to Exclude Business Records as Inadmissible Hearsay My next motion was to exclude the photos and log sheets as inadmissible hearsay. If the photos and/or log sheets are successfully suppressed or excluded there is no evidence left to prove an alleged violation. Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. Hearsay evidence is inadmissible in court unless the evidence meets an exception provided by law. The exception the prosecution was trying to use to get the documents into evidence is the business records exception (provided by evidence code 1270) For the documents to qualify as admissible business records they are required to meet four foundational requirements. (a) The writing was made in the regular course of business (b) The writing was made at or near the time of the act, condition, or event (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness The thinking is that if a record was created in the ordinary course of business, not for the purposes of litigation, but just in the day-to-day operations of the business then it is probably trustworthy enough not to require a custodian of records to actually appear in court to authenticate the records and show that they are genuine and trustworthy. Some may argue that these records are NOT trustworthy because they ARE prepared SPECIFICALLY for litigation -- in fact, the whole purpose these records were created was to prosecute me. The officer in court testified that these records were made in the normal course of business and that they are Beverly Hills Police business records. He gave testimony on how the photo enforcement system works and records violations and how the maintenance log sheets are prepared. His testimony serves to authenticate the documents and show that the method of recording photos by the photo enforcement system are trustworthy. The prosecutor, the police officer and most likely the judge will believe it to be more trustworthy than your own experience or memory and that of any witnesses you may have. When this evidence is submitted by the prosecutor, authenticated by the officer's testimony, and is accepted into evidence by the court you are basically screwed unless you are not the driver of the vehicle or you can prove that outside circumstances not apparent in the photograph give you an excusable reason to be in the intersection. (I.e. you are pregnant, giving birth and on your way to the hospital, or had to enter the intersection to avoid an accident, or a police officer directed you to enter the intersection.) In my own research I found that the business records were created and maintained by Lockheed Martin and provided to the Police Department upon request of the City of Beverly Hills. All of this was found in the contract entered into between Lockheed Martin and the City of Beverly Hills which I obtained from the Beverly Hills City Clerks Office. In short the "Scope of Services" provision of the contract required Lockheed Martin to install and service the equipment at their own expense, retrieve the film from the cameras, develop and review the film and then refer the evidence to the police. (This makes them an informer in my opinion) Lockheed Martin prints the citations and sends them out at their own expense. The only thing the police or city does is sign the citation and testify in court. It was my argument that the records belonged to Lockheed Martin and not the Beverly Hills Police Department therefore the police officer's testimony was not sufficient to authenticate the records. Finally in the contract between Lockheed Martin and Beverly Hills I found that Lockheed was being paid $25 for every citation paid. This amounts to a witness contingency fee. Being paid a fee contingent on a conviction of a defendant they are providing evidence against creates a bias, motive and incentive to testify falsely, offer false documents or tamper with evidence and serves to impeach the last foundational requirement to admit the records into evidence. In essence the evidence is inherently untrustworthy when the supplier of the evidence has a financial interest in the outcome of the trial. Motion to dismiss for Violation of California Vehicle Code 21455.5 (a) and (b)1 My last written motion argued that the city didn't operate the photo enforcement system legally. There are statutory requirements the city must meet and comply with to operate the system. They are California Vehicle Codes 21455.5 (a) through 21455.7. One of the requirements is that "Only a government agency, in cooperation with a law enforcement agency, may operate an automated enforcement system." ( 21455.5 9(a) )As mentioned above Lockheed martin owned and operates the system at their expense. I argued that "operation" certainly doesn't mean just signing citations and testifying in court. Other requirements of the city include: 1)issuing only warning notices for 30 days 2)making a public announcement of the automatic traffic enforcement system at least 30 days prior to issuing citations 3)conduct a public hearing on the proposed use of an automatic enforcement system before entering into a contract for the use of system. 4)The yellow light time at the enforced intersection must be set in accordance with the Traffic Manual of the Department of Transportation The officer in my case testified that all these were done. However when I questioned him he said he didn't attend any public hearings, didn't mail any of the public notices personally, have a copy of the Traffic Manual of the Department of Transportation or have any examples of the public notices that were sent out or any certified mail receipts that proved they were mailed out when he said they were. I objected to his testimony being hearsay. It almost worked but the prosecutor got the officer to testify that he was involved with the automatic enforcement system from the inception of the program for the Beverly Hills Police Department. Because he was involved from the beginning the judge decided that he had sufficient personal knowledge to justify his testimony.
Oral motions and arguments at trial I had a couple of other oral arguments and motions that I intended on making at my trial, but my case was dismissed before I got to them. One of them was that the evidence (maintenance log sheets) did not meet the "best evidence rule". Evidence Code 1500 states "no evidence other than the original of a writing is admissible to prove the content of a writing." The officer used photo copies of the log sheets to submit into evidence. Another argument I planned on making was a denial of my Sixth Amendment right to a speedy trial. I was issued the citation on November 1, 2001. I was not given a trial until February 26, 2002, nearly four months later. I was originally scheduled for trial on Feb. 6, but an error in the court clerks office moved it back to the 26th. Every one is constitutionally guaranteed a right to a speedy trial. The time for a speedy trial for a misdemeanor is 45 days. The time of speedy trial for misdemeanor offenses attaches to the earliest arrest or when charges are first filed against a defendant (Serna v. Superior Court). All the rules for misdemeanor cases apply to infractions unless excepted by law (i.e. the right to a trial by jury). In my case the time for a speedy trial started on November 1, 2001. Before court was in session I was talking to some of the other defendants on trial for the same charge as me. I told them about my motions and arguments. One of them was called before me and made the speedy trial argument and got his case dismissed. He then thanked me on his way out.
Hind Sight I prepared for my trial by finding everything I could possibly object to or contest in court. The more legal issues I raised at trial the more grounds I might have for an appeal if I lost at trial. I anticipated that in most probability I would lose at trial, and if I did get the case dismissed it would probably be on appeal. You can only make arguments on appeal on issues that were raised at trial. For example if I didn't argue that the devices were speed traps at trial I couldn't make the argument in an appeal. There are legal procedures and rules that the prosecution and judge must follow that are sometimes skipped over to expedite boring traffic cases. Most of the time defendants represent themselves and don't know about rules and trial procedures and therefore don't know when or why they should object. If you educate yourself as to what these rules and procedures are you are more likely to win your case on a legal issue or technicality because the judge, officer, court clerk or prosecutor will make a mistake. Rules of court and procedures are in place to ensure that defendants get a fair trial. It is in the interest of justice that these rules and procedures are followed so that everyone is equally protected and has a chance at justice. It is the government's duty to follow judicial procedure treating all defendants equally ensuring a fair trial. However with infraction cases (traffic tickets) you are not guaranteed legal council and have no right to a trial by jury. The reason you are denied these is because in most cases traffic tickets about making money for the city and not making the streets safer. This is evident in the illegal or improper way tickets are issued and prosecuted. I was lucky for several reasons. I had an even handed judge, an honest officer and the time to put the effort into my defense that most people either do not have or aren't willing to make.