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Added 2-16-05, updated 5-12-05
Costa
Mesa Documents - Set # 11
Appeals Decision - Fischetti
This case is
an example of a foundational defense (see Defect # 6 and Defect # 10 on the Home page).
On May 11, 2005 the California Supreme Court denied the
City's petition for review and applicaton for stay. So, the
decision in favor of appellant Fischetti is final.
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The issue, in a nutshell (excerpted from Defect # 6 on the Home page) -
Vehicle Code Section 21455.5 says, in part: "Prior
to issuing citations under this section, a local jurisdiction
utilizing an automated traffic enforcement system shall commence a
program to issue only warning notices for 30 days."
But it doesn't make it clear whether a city having a pre-existing system
is required to issue warning notices when it adds a new camera.
In
January 2005 an appellate court ruled, in favor of Defendant/Appellant
Fischetti, that Costa Mesa erred when it failed to provide 30 days of
warning notices when it added the camera that ticketed the Defendant.
In that decision, the appellate judge wrote, "Nor would
it make sense, from the perspective of the motorists for whom the
statutory requirements were intended to provide protection, for the
geographic scope of the 30-day grace period to depend arbitrarily upon
the size of each municipal jurisdiction."
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History - In a request dated March 1, 2005, the City of Costa Mesa asked a higher appeals
court (Fourth District) to "stay" the decision, pending review at that higher court. However, per the March 16 Orange County Register newspaper, the Fourth
District Court of Appeals denied the appeal and the stay, and the City decided to
take the case to the California Supreme Court. The City also
had requested a re-hearing in county Superior Court, but a March 22 Register article said that the court denied the request.
The City filed its Petition for Review with the Supreme Court on March
14. The Court can take as much as ninety days to decide whether
it will review. On May 11 the Court declined to review and the appeal
decision immediately became final.
However, the decision was not published, so cannot be cited as precedent in other cases, except possibly in Orange County. The general issue of which decisions get published, and which don't, is under study. See nonpublication.com for more information.
Click on these links for the other documents in the Fischetti appeal (these are in chronological order):
Appellant's Opening Brief
City's Response Brief
Appellant's Closing Brief
The Appeals Decision (on this page, below)
City's Petition for Rehearing
Feb. 28 Minute Order Denying City's Petition
City's Request for Stay
March 15 Minute Order Denying City's Request for Reconsideration
City's March 14 Petition for Review by the CA Supreme Court
Other Cities' Letters (to Supreme Court) in Support of Petition for Review
This appeal decision (below) was re-typed from the original document. Edits or explanatory notes by the editor are in double square brackets
[[ ]].
This decision may be freely copied and distributed, so long
as credit is given
to highwayrobbery.net .
Other cases and /or transcripts are available at: WeHo
Trial Transcript , Culver
City Documents, and Sacramento Left-Yellow Appeal.
For more details about the City of Costa Mesa, see the City's entry on the Camera Towns page.
Appeal Decision
APPELLATE DIVISION
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE
FILED: JAN. 31, 2005
CASE NO. AP-14168
THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff and Respondent,
vs.
[[ ]] FISCHETTI
Defendant and Appellant.
JUDGMENT ON APPEAL
from the
SUPERIOR COURT
of
ORANGE COUNTY
HARBOR JUSTICE CENTER
[[Originally heard by]] HON. MARK J. SHEEDY, COMMISSIONER
______________________________________
Vehicle Code Section 21455 (c) [[21455.5
(c)]] requires that "a" single governmental agency, such as respondent
City, undertake "all" the listed activities comprising operation of an
automated enforcement system. However, the evidence in this case
is undisputed that the signal phasing "and the timing thereof" at the
intersection in question was controlled not by respondent City as
required by Section 21455.5(c) (2) (E), but rather by Caltrans.
(Settled statement at 2:4-6.) Respondent's reliance on Section
21455.5(d) is misplaced, since that provision only applies where
operation of the system has been "contracted out" and "the governmental
agency" maintains overall control and supervision - the record does not
indicate any contractual agreement between respondent City and
Caltrans with regard to the system, and respondent's own evidence shows
that overall control of the intersection resided with CalTrans.
In addition, reversal is warranted based upon
respondent's failure to implement a 30-day grace period. (Settled
statement at 2:3.) Respondent's construction of Section
21455.5(b) appears to be inconsistent with the structure and purpose of
Section 21455.5 as a whole. Because Section 21455.5(a) provides
that "the intersection" may be equipped with an automated enforcement
system, "automated enforcement system" in Section 21455.5(b) cannot
refer to a municipality's overall automated enforcement plan, but must
instead refer to each individual automated system operated at an
intersection within the municipal jurisdiction. Nor would it make
sense, from the perspective of the motorists for whom the statutory
requirements were intended to provide protection, for the geographic
scope of the 30-day grace period to depend arbitrarily upon the size of
each municipal jurisdiction. Tellingly, respondent itself offers
legislative history of a proposed 2003 amendment to Section 21455.5 (SB
780) which would have expressly provided for the grace period "during
the first 30 days after the first recording unit is installed" - the
omission of this language from the amendments enacted in 2003 [[by AB 1022 - see Action page]] must be
viewed not as an intention to adopt the omitted language, as respondent
asserts, but rather as legislative rejection of a link between the
grace period and the installation of the municipality's first automated
enforcement system.
Respondent's request for judicial notice is
granted as to Exhibits A, B and D. The judgment is reversed, with
direction that the charge be dismissed.
CHARLES MARGINES, Judge [Appellate Division]
-End-
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