SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
In re: Red Light Camera Cases The People of the State of California,
Plaintiff, v. John Allen, et al., Defendants.
CASE NO. 57927SD RULING ON DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO
COMPLY WITH VEHICLE CODE SECTION 21455.5 ORDER TO SHOW CAUSE
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.
I. BACKGROUND
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.
II.
IS THE CITY'S RED LIGHT CAMERA SYSTEM OPERATED BY A GOVERNMENTAL AGENCY
IN COOPERATION WITH A LAW ENFORCEMENT AGENCY?
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.
III.
ADDITIONAL ISSUES RELATING TO STATUTORY COMPLIANCE AND HOW THE SYSTEM
IS OPERATED
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.
IV.
DOES NONCOMPLIANCE WITH VEHICLE CODE SECTION 21455.5
BY ITSELF EXCLUDE THE EVIDENCE?
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.
V.
IS THE DELEGATION UNCONSTITUTIONAL?
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.
VI.
THE FEE PAID TO LOCKHEED MARTIN
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.
VII.
DOES THE DELEGATION OF THE OPERATION OF THE RED LIGHT CAMERAS, WITHOUT
STATUTORY AUTHORITY, TO A PRIVATE ENTITY WHICH OPERATES ON A CONTINGENT
BASIS CONSTITUTE A DEPRIVATION OF DUE PROCESS THAT REQUIRES DISMISSAL
OF THE PENDING ACTIONS?
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.
VIII.
IS THE EVIDENCE FROM THE RED LIGHT CAMERA SYSTEM ADMISSIBLE?
“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.
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:
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, 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 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.
SUMMARY
The Court finds:
- The City does not operate the red light camera system in
accordance with Vehicle Code section 21455.5;
- The failure to comply with the statute, by itself, does not
violate the United States Constitution;
- Lockheed Martin operates the system on a contingency;
- 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,
- 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.
ORDER TO SHOW CAUSE
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.
IT IS SO ORDERED.
DATED: August ____ , 2001 RONALD L. STYN
Judge of the Superior Court
