City's Response Brief

KIMBERLY HALL BARLOW, CITY ATTORNEY (SBN 149902)
MARIANNE MILLIGAN (SBN 170740)
CITY OF COSTA MESA
77 Fair Drive
Costa Mesa, CA 92626
Phone:    714-754-5399
Fax:         714-754-4949

 Attorneys for City of Costa Mesa

APPELLATE DIVISION OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA,
COUNTY OF ORANGE, CENTRAL JUSTICE CENTER

PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff and Respondent
vs.
[[  ]] FISCHETTI
Defendant and Appellant

APPELLATE CASE NO.:  AP-14168
SUPERIOR COURT/CITATION NO.: CM46167PE

RESPONDENT'S BRIEF

DATE:  January 27, 2005
TIME:  9:00 a.m.
DEPT:  C1

TO THE ABOVE-MENTIONED DEFENDANT AND HIS ATTORNEY:

The following Memorandum of Points and Authorities is hereby submitted on behalf of the City of Costa Mesa, prosecuting on behalf of the People of the State of California in this matter, in response to Appellant’s Opening Brief.

I.  INTRODUCTION

City hereby submits the following opposition to Appellant, [[   ]] Fischetti’s (“Appellant”) Opening Brief. On or about October 3, 2003, the City of Costa Mesa installed an automatic red light enforcement camera (the “Camera”) at the intersection of Newport Boulevard and 19th Street pursuant to California Vehicle Code section 21455.5. On or about January 12, 2004, Defendant was issued a citation (No. CM46167PE) for violation of California Vehicle Code section 21453(c), entering an intersection on a red light. The Camera at the southbound left turn lane of Newport Boulevard and 19th Street captured said violation. Costa Mesa Police Officer Wadkins testified on behalf of the People at the trial.

II.   STANDARD OF REVIEW

“Appellate review of issues of statutory construction is de novo.” Redevelopment Agency v. County of Los Angeles (1999)75 Cal. App. 4th 68, 74, 89 Cal. Rptr.2d 10. “All presumptions favor the validity of a statute, and statutes ‘must be upheld unless their unconstitutionality clearly, positively and unmistakably appears.” People v. Olive (2001) 92 Cal. App. 4th Supp. 21, 112 Cal. Rptr. 2d 687, citing Smith v. Peterson (1955) 131 Cal. App. 2d 241, 246, 280 P. 2d 522.

However, questions of fact must be reviewed for sufficiency of the evidence. People v. Newland (1940) 15 Cal. 2d 678, 104 P. 2d 778. “The test for sufficiency of the evidence is whether substantial evidence supports the conclusion of the trier of fact. The court must review the whole record in the light most favorable to the judgment below to determine if there is substantial evidence such that a reasonable trier of fact could have found that the prosecution sustained its burden of proving beyond a reasonable doubt that defendant was guilty.” People v. McCloskey (1990) 226 Cal. App. 3d Supp. 5, 7, 277 Cal. Rptr. 509 citing People v. Barnes (1986) 42 Cal. 3d 284, 303, 228 Cal. Rptr. 228. The Appellate Court “must assume in favor of the verdict the existence of every fact which the [trier of fact] could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict” and the verdict cannot be disturbed. See People v. Newland, 15 Cal. 2d at 81.

In the case at hand, the Appellate Court is faced with both questions of law regarding the statutory interpretation of California Vehicle Code section 21455.5 et seq. and questions of fact regarding testimony at the trial court resulting from Defendant’s conviction. This Court should review the questions of law de novo and factual issues based on the sufficiency of the evidence.

III. THE COURT MUST DEFER TO THE LEGISLATIVE INTENT WHEN INTERPRETING A STATUTE

In interpreting a legislative enactment, there are several well established principles of statutory construction. The primary “objective of statutory interpretation is to ascertain and effectuate legislative intent.” Burden v. Snowden (1992) 2 Cal. 4th 556, 562.  In ascertaining legislative intent, a court should first turn to the words of the statute, giving such words their usual and ordinary meanings. People v. Belleci (1979) 24 Cal. 3d 879, 884, 157 Cal. Rptr. 503, 507. (Emphasis added.) When statutory language is clear and unambiguous, there is no need for construction. Id. As such, a court must defer to the expressed intent of the Legislature. “Every word, phrase, and sentence in a statute should, if possible, be given significance. [Citation.]” Larson v. State Personnel Bd. (1994) 28 Cal. App. 4th 265, 276-277. “The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.]” Dyna-Med, Inc. v. Fair Employment and Housing Com. (1987) 43 Cal. 3d 1379, 1387, “Statements in legislative committee reports concerning the statutory purposes which are in accordance with a reasonable interpretation of the statute will be followed by the courts.” 0’Brien v. Dudenhoeffer (1993) 16 Cal. App. 4th 327, 334. “If possible, the words should be interpreted to make them workable and reasonable [citations], practical [citation], in accord with common sense and justice, and to avoid an absurd result [citations].” Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal. App. 4th 1233, 1239-1240.

III. [[sic - duplication of numbering]] CITY DID PROVIDE THE REQUISITE 30-DAY NOTICE AS REQUIRED BY CALIFORNIA VEHICLE CODE SECTION 21455.5(b).

Appellant contends that the City did not provide the 30-day notice required by California Vehicle Code section 21455.5[1]  Section 2 1455.5(b) provides:

“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. The local jurisdiction shall also make a public announcement of the automated traffic enforcement system at least 30 days prior to the commencement of the enforcement program.” (Emphasis added.)

The legislature specifically used the language “program” in this provision. It did not state that the 30-day notice must be commenced before the enforcement of each Automated Enforcement System (“Red Light Camera or ‘RLC”) at each intersection or approach, but at the beginning of the “program.” One of the plain meanings of the word “program” is “a plan or system under which action may be taken toward a goal.” Merriam Webster’s Collegiate Dictionary 929 (10th ed. 1993). There is nothing in the statutory language that could imply that the Legislature intended a governmental agency to provide 30-day notices for each installation of a RLC. The use of the word “program” implies that the 30-day notice be provided when a City has a “plan” for the overall use of RLC’s throughout the City. Therefore the Court should find that the plain meaning of this provision is that the 30-day notice is intended to apply to the City’s first installation and use of RLC’s in the City and not for individual installations of a RLC.

Furthermore, the language in the original Senate Bill No. 780 that added section 21455.5 to the California Vehicle Code stated that a governmental agency must: “issue warning notices instead of citations for any violations recorded during the first 30 days after the first recording unit is installed,” (Emphasis added.) This clearly shows the Legislature’s intent that the 30 day notice only be provided upon the installation of the first RLC in the City and not each time a camera at a new intersection has been installed. See Senate Bill No. 780 (2003), page 96, lines 10-12[2] Based on either the plain meaning of the statute or on the legislative history, this Court should find that Section 21455.5(b)

[[Footnotes]]

[1]All further references are to the California Vehicle Code unless otherwise noted.

[2]A true and correct copy of SB 780 is attached as Exhibit "A” to Respondent’s Request for Judicial Notice submitted herewith.

[[Footnotes end]]

only requires the City to provide a 30-day notice prior to the installation of the first RLC within its jurisdiction.

In regard to the question of fact, Officer Wadkins testified that “on May 21, 2003 a 30-day warning period went into effect for the first intersection where red light enforcement was in place, which was the intersection of Harbor and Adams in Costa Mesa [and that] press releases and news releases were issued.” See Settled Statement on Appeal (“SS”), page 1, lines 26-28.

Therefore, based on the plain language of the provision set forth above, the City has complied with the statute by providing the 30-day notice for implementing a RLC program in the City of Costa Mesa.

Furthermore, the trial court found that the “foundational elements [of sections 21455.5, 21455.6 and 21455.7 had been met. See SS, page 1, lines 23-24 and page 4, lines 3-5. Therefore, since the trial court found the City to be in compliance with the 30-day notice requirement and no contrary evidence was submitted, this Court must uphold the trial court’s ruling on this issue.

IV. THE POSTED SPEED LIMIT IS THE APPROPRIATE DEFINITION OF “APPROACH SPEED.”

Section 2 1455.7(a) provides:

"At an intersection at which there is an automated enforcement system in operation, the minimum yellow light change interval shall be established in accordance with the Traffic Manual of the Department of Transportation."

The Department of Transportation Traffic Manual (now Table 4D-102 of California Supplement) provides in relevant part as follows: “The length of the yellow change interval is dependent upon the speed of approaching traffic. See Table 4D-102 for suggested minimum yellow interval timing.” A true and correct copy of the relevant provisions of the MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES 2003 CALIFORNIA SUPPLEMENT (“MUTCD”) is attached as Exhibit “B” to City’s Request for Judicial Notice submitted herewith. The MUTCD is silent on how the “approach speed,” is determined. Although no direct evidence was submitted on this issue, one can infer from Officer Wadkins’ testimony that the City has determined that the “approach speed” for establishing the length of the yellow light interval is the posted speed limit. Therefore, the City concurs with Defendant’s allegations in his Opening Brief that the City establishes the “approach speed” based on the posted speed limit.

Defendant did not offer any evidence at trial to substantiate his position that “approach speed,” means the 85th percentile or as Defendant uses the term “critical speed.” Therefore, unless this Court determines that the evidence presented by Officer Wadkins is not sufficient to support the trial court’s determination that the posted speed limit is the appropriate meaning of “approach speed,” this Court must uphold the trial court’s ruling on this issue.

V. THE REDUCED YELLOW PHASING FOR A LEFT TURN LANE IS SUPPORTED BY SUBSTANTIAL EVIDENCE.

Defendant also alleges that the City is in violation of Section 21455.7 because Cal Trans[3] set the yellow phasing at 3.3 seconds for the left hand turn. As shown in Table 4D-102 of Exhibit “B”, the minimum yellow phasing for the posted speed limit of 35 mph is 3.6 seconds. However, the MUTCD is silent as to whether these minimum yellow times are for left hand turns. Common sense tells us that even if through traffic is posted at a higher speed limit, one cannot safely make an almost 90° left turn without slowing considerably. A driver must reduce his approach speed in order to safely make a left turn. This is supported by Cal Trans’ standard practice to set yellow phases for left hand turns at 3.2 seconds which corresponds to a 30 mph approach speed. See certified copy of a letter to the City received from Cal Trans dated December 6, 2004, attached to the City’s Request for Judicial Notice as Exhibit “C.”

[[Footnotes]]

[3]California Department of Transportation (“Cal Trans”) is the governmental agency that has jurisdiction over the traffic signals on Newport Blvd. However, the City of Costa Mesa has responsibilities for police services on Newport, including but not limited to traffic enforcement. See SS page 2, lines 4-8.

[[Footnotes end]]

As Officer Wadkins testified, the yellow phase at the left turn lane from Newport Boulevard west onto l9th Street was set at 3.3 seconds, which was “corroborated by the operations log.” See SS page 2, lines 22-23. He further testified that he had been informed by Cal Trans that Cal Trans’ standard practice, as substantiated by Exhibit “C” to Respondent’s Request for Judicial Notice, was to set the yellow phasing for left turns at a 25 mph[4] approach speed or 3.2 seconds because traffic approaching a left turn signal approaches at a slower speed than through traffic. See SS page 2, lines 23-28. Officer Wadkins further testified that although 25 mph has a corresponding yellow phase of 3.2 seconds, the yellow phase of the traffic signal in question was actually set at 3.3 seconds, which actually provided Defendant with an “extra tenth of a second” of yellow light. See SS pages 2-3, lines 28-1. There is absolutely nothing in the Vehicle Code or in the evidence presented at trial that proves that the yellow phasing for a RLC cannot be longer than that set forth in the MTJTCD table. Although it appears that Officer Wadkins did not recall exactly what minimum speed corresponded to a 3.2 yellow time, he did testify as to the rationale behind the slower yellow times for the left hand turns. See SS page 2, lines 23-28.  Again, the letter from Cal Trans attached as Exhibit “C” to Respondent’s Request for Judicial Notice substantiates this testimony.

Because the MUTCD is silent as to whether the yellow phase times apply to left hand turns, and it stands to reason that a left hand turn must be approached at a slower speed than through traffic, which is supported by Cal Trans’ practice of setting the yellow phasing at left hand turns for a corresponding approach speed of 30 mph (corresponding to a 3.2 second yellow), the 3.3 second yellow at the intersection in question does not contradict the applicable Vehicle Code. Furthermore, Defendant provided no evidence to

[[Footnotes]]

[4]Although Officer Wadkins did testify that 3.2 seconds was the applicable yellow phasing for 25 mph, Officer Wadkins did not have the Cal Trans table memorized but knew that the 3.2 second timing was for a slower speed than for the posted through traffic speed. In fact if the Court notes, in the City’s Proposed Amendment to the Settled Statement which the trial court failed to consider, the Officer’s more precise testimony was that the yellow phasing for left turns was set for “25-30 mph.”

[[Footnotes end]]

refute this testimony. Therefore, unless this Court finds that the trial court’s ruling is not substantiated by the evidence presented, this Court must uphold the trial court’s ruling.

VI.    THE POSTED SPEED LIMIT OF 35 MPH ON NEWPORT BOULEVARD AT 19TH STREET IS THE CORRECT SPEED LIMIT FOR THROUGH TRAFFIC.

Defendant also alleges that the speed limit of 35 mph established by Cal Trans for Southbound Newport Boulevard approaching 19th Street is incorrect. However, despite the fact that Defendant may not believe the 35 mph speed limit to be appropriate, the fact is, as testified to by Officer Wadkins, that 35 mph is the speed limit for this portion of the road. Defendant’s opinion without corroborating evidence to support that position is irrelevant.

Although Defendant submitted a Certified City of Costa Mesa speed survey that shows a posted speed limit on Newport at Victoria Street at 40 mph, Defendant fails to acknowledge that that speed survey was conducted on the Old Newport Frontage Road and is therefore irrelevant as the violation did not occur at this location. Officer Wadkins testified that “while the Costa Mesa Engineering and Traffic Survey shows a speed limit of 40 mph from 19th Street to Victoria Street, the speed limit east of there as one exits the 55 freeway onto Newport Boulevard is 35 mph based upon a Cal Trans survey and that there is a posted 35 mph sign prior to the 19th Street intersection in question.” See SS page 3, lines 6-9. Therefore, the correct speed survey to consult is Cal Trans’ speed survey, which is attached as Exhibit “D” to Respondent’s Request for Judicial Notice. This survey shows that for the location 200 feet south of 19th Street on Newport Boulevard, the 85th percentile is 36 mph and the posted speed is 35 mph in support of Officer Wadkins’ testimony.  See page 6 of Exhibit “D” to Respondent’s Request for Judicial Notice. Therefore, the Cal Trans survey supports the posted speed limit for the location where Defendant received his citation, which is in fact 35 mph as testified to by Officer Wadkins. See SS page 3, lines 6-9.

Defendant also alleges that Officer Wadkins testified that “all left turn signals (in the city of Costa Mesa) are set for an approach speed of 25 mph, corresponding to a suggested minimum yellow change interval of 3.2 seconds. Appellant’s Opening Brief, page 9, last full paragraph. However, the trial court specifically found that “There was no specific testimony adduced as to this contention.” See SS page 4, line 8. Therefore, this Court cannot consider any evidence on this issue on appeal.

Based on Officer Wadkins’ testimony, Cal Trans’ 1995 speed survey for Newport Boulevard south of 19th Street is the correct survey to use for the location where Defendant received his citation. The City’s speed survey for what is called “Old Newport” or the frontage road at Victoria is inapplicable to this case, as it does not even apply to the location where Defendant received his red light violation. Because the Cal Trans survey fully supports the posted speed limit at 35 mph for the 200 feet south of 19th Street, this Court must uphold the trial court’s ruling, unless this Court finds that the trial court did not have sufficient evidence to support its ruling.

VII. EVEN IF THE YELLOW PHASE FOR THE LEFT TURN LANE AT NEWPORT AND 19TH STREET HAD BEEN SET THE SAME AS IT IS FOR THROUGH TRAFFIC, THE VIOLATION WOULD STILL HAVE OCCURRED.

Assuming arguendo, that the yellow phase for the left turn signal at Newport and 19th Streets, where Defendant was cited for running a red light, was set for the corresponding speed for through traffic (the yellow phase corresponding to 35 mph), the yellow phase would have been set for 3.6 seconds. Exhibit "B” MUTCD Table 4D-
102.   Officer Wadkins testified, and People’s Exhibit I showed, that Defendant crossed the limit line .6 seconds the light turned red. See SS page 2, lines 20-21. Based on the actual setting of the yellow phase at 3.3 seconds, plus the .6 seconds shown on the citation that Defendant was over the limit line and into a red light, Defendant was actually 3.9 seconds into the intersection on a red light. Therefore, even if the yellow phasing had been set for the posted speed of 35 mph (or 3.6 seconds of yellow) Defendant would still have run the red light by .3 seconds. The fact remains that Defendant was shown to have committed a violation of running a red light whether by .3 seconds or .6 seconds.

Therefore, since the violation occurred regardless of what the yellow phasing was set on, Defendant’s conviction should not be overturned.

VIII. ALLEGED NON-COMPLIANCE WITH A DISCOVERY REQUEST IS NOT GROUNDS FOR REVERSAL

Defendant alleges that because the City did not provide him with copies of the public announcement and calibration records pursuant to a discovery request, that his case should be ­reversed.

In regards these discovery requests, the Settled Statement on Appeal only states: “It was ordered that he be provided all written materials, computer printouts and data, including timing records, of the red light in question. . .“ See SS page 1, lines 17-18.

If Defendant did not receive the documents requested, Defendant’s recourse pursuant to Penal Code Section 1054 et. seq. was to bring a formal discovery motion. Since he did not so it must be assumed that the City provided him with the documents so ordered by the trial court. Furthermore, Nestor Traffic Systems Inc., (“Nestor”) which is the vendor used by the City for its RLC program, uses a live video feed, and therefore, there are no calibration logs available and that is why Defendant alleges in his Opening Brief that he did not receive these documents. (See Appellant’s Opening Brief, page 10.) Calibration is only required for a system that uses loop-detection. The loops must be calibrated in order to ensure the accuracy of the timing and recording. Since Nestor’s system “CrossingGuard” does not use loops real-time video is recorded, the calibration requirement is not applicable. The City cannot provide documents that do not exist, especially when they are not required for a particular system.

Defendant also alleges that the yellow phase for the left turn arrow was set at 3.3 "when it should have been 32.” (See SS page 3, lines 18-19.) Defendant further alleges because of’ this alleged discrepancy, it shows that the RLC in question was not calibrated correctly and “raises suspicion as to the accuracy of AES.” Appellant’s Opening Brief page 10. However, no evidence was presented in the trial court regarding this setting as to the accuracy of the RLC and therefore this argument cannot be considered on appeal. See Grimes v. Nicholson (1945), 71 Cal. App. 2d 538, 542-43, 162 P. 2d 934, 936 (a theory which is presented for the first time on appeal need not be considered by the reviewing court).  Furthermore, as indicated above, there is nothing in the State statutes that prohibit the City from setting the yellow phases for a longer length than required by law.

Therefore, the case should not be reversed on these grounds.

IX. THE CITY DOES OPERATE THE RED LIGHT CAMERAS AS REQU1RED BY VEHICLE CODE SECTION 21455.5.

Section 21455.5(c) and (d) provides in relevant part:

"Only a governmental agency, in cooperation with a law enforcement agency, may operate an automated enforcement system. As used in this subdivision, “operate” includes all of the following [relevant] activities:

(2)           Performing administrative functions and day-to-day functions, including, but not limited to, all of the following:

(E)           Overseeing the establishment or change of signal phases and the timing thereof."

Section 2 1455.5(c) and (d) provides:

"(d)         The activities listed in subdivision (c) that relate to the operation of the system may be contracted out by the governmental agency, if it maintains overall control and supervision of the system. However, the activities listed in paragraph (1) of, and subparagraphs (A). (D), (E), and (F) of paragraph (2) of, subdivision (c) may not be contracted out to the manufacturer or supplier of the automated enforcement system."

As indicated in section 21455.5(d), only a government agency can establish or change signal phase timing and this function “may not be contracted out to the manufacturer or supplier of the automated enforcement system.” This section does not prohibit the City from contracting or working in conjunction with another governmental agency, which the City does in this case, with Cal Trans. The purpose of this provision is to prevent the vendor of the system from jeopardizing the integrity of the traffic signals or the yellow phase times. Officer Wadkins testified “as to the foundational requirements under Vehicle code section 21455.5, 21455.6 and 21455,7.” See SS page 1, lines 23-24.

This includes the fact that the signal timing was verified to be compliant with section 21455.7 prior to operation of the automated enforcement system for each monitored approach. Furthermore, Officer Wadkins testified that Cal Trans ‘had been ‘on board’ from the very beginning of the process and had been instrumental in the implementation and the establishment of the system at this particular intersection.” See SS page 2, lines 4-8.

Because the vendor does not have the ability to change or influence signal phase timing and the City may work with another government agency in operating a RLC system, the City is in full compliance with the applicable California Vehicle Code sections. Therefore, the Court should uphold the trial court’s decision in this matter.

X. CONCLUSION.

Based on the foregoing, City respectfully requests that this Court uphold the trial court’s decision as there has been no showing that there was insufficient evidence to support the trial court’s decision.

DATED: December 10 , 2004             

CITY OF COSTA MESA

By [[signature]]
MARIANNE MILLIGAN
Sr. Deputy City Attorney

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