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SILVIA PETERS
(760) 941-5924

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Defendant,

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN DIEGO NORTH COUNTY DIVISION

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THE PEOPLE OF THE STATE OF

CALIFORNIA,
Plaintiff,
vs.

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SILVIA PETERS
Defendant.

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To:

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CASE No.: 037675A

Motion in Limine

DATE: December 4, 2014

TIME: 1:30 p.m.
DEPT.: 33

THE CLERK OF THE COURT AND THE CITY ATTORNEY THE CITY OF
OCEANSIDE POLICE DEPARTMENT:

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NOTICE IS HEREBY GIVEN Defendant moved this court to make the evidence against
her pursuant to the California Rules of Evidence and the Sixth Amendment to the
United States Constitution inadmissible.
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The items to be found inadmissible are listed as follows:

1. One Declaration packet from Redflex Traffic Systems Inc. "RTS" Submitted by the

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custodian or Records. Containing photographs and other pertinent evidence that establish

the prosecution's case.

2. The entire declaration of RTS custodian of records.

3. Photos included in the declaration of RTS custodian of records.

4. Videos included in the declaration by RTS custodian of records.

5. Image Log included in the declaration by RTS custodian of records.

6. Maintenance Records included in the declaration by RTS custodian or records.

STATEMENT OF THE CASE

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On August 1, 2014 Defendant was issued a citation for alleged violation of vehicle Code

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section 21453 (a). This case involves, as issue that has been highly contested in the state of

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California particularly in the well-known San Diego court decision in cases No. B16464A,

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B16681A, B16772A, B17933A, B17968A, B17983A, B18095A, B18404A and PEOPLE v.

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BORZAKIAN No. B229748. 203 Cal.App.4th 525 (2012) 136 Cal. Rptr. 3d 772. All of these above

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mentioned cases involve the admissibility of evidence and the statutory compliance of the

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procedures in use by municipalities in regards to "red light photo enforcement violations. As

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well as the California Senate Transportation and Housing Committee

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Report for support of AB 612, Automated Enforcement Systems. 1 On

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Transportation and Housing Committee Members submitted these recommendations

signed by President Gary Biller. The recommendations were submitted to improved traffic
safety at signalized intersections equipped with red-light cameras.
In the Caltrans study it was proposed to the California Legislation to add
1.0 second to the yellow light change interval required by the California
Manual on Uniform Traffic Control Devices. The basis for the current state
criterion is a kinematic formula derived and approved by transportation engineers
to provide the minimum acceptable yellow interval time for a traffic signal. Key
factors in the formula include the approach speed of traffic and the perception/
reaction time of drivers.
AB-612 will provide a responsible increasing that bare minimum yellow interval
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maintaining strict safety standards, particularly in light of the aging of the
majority of our driving population. Enactment of the plus 1 requirement will
virtually eliminate needless, expensive citations against drivers who are faced
with literal split-second decisions of do I suddenly stop or do I try to safely clear
the intersection and choose the latter for fear of being victimized by a rear-end
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October 1, 2014 upon a request by city of Oceanside Councilmember Felien to

review the red light camera contract the city of Oceanside voted to terminate, and provide

direction to staff to issue 45-day notice for contract termination to Redflex Traffic Systems

Inc.

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STATEMENT OF FACTS
On the time and date stated on the citation of alleged violation of vehicle Code section 21453

(a). The only witness to this alleged violation was a camera not an actual police officer or even a

human being for that matter. The citation was mailed from a privately owned Australian company

by the name of Redflex Traffic Systems Inc. which previously had a contractual agreement with

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the city of Oceanside to operate the Red Light System throughout the city.

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collision. Stakeholders in the red-light camera industry would have you believe
that longer yellow light intervals may help initially, but that the positive effect
dwindles over time. Several studies debunk that claim of drivers being naturally
disposed to pushing the limits of traffic regulations, their own safety be damned:
The data show that the percentage of last-to-cross vehicles clearing the
intersection (T + 0.2) seconds or more past the yellow onset was not appreciably
changed by the extension of the yellow phase.
The Influence of the Time Duration of Yellow Traffic Signals on Driver
Response, Stimpson/
Zador/Tarnoff, ITE (Institute of Transportation Engineers) Journal, November 1980
Research has consistently shown that drivers do not, in fact, adapt to the length
of the yellow.
Determining Vehicle Change Intervals A Proposed Recommended
Practice, Institute
of Transportation Engineers, 1985 Drivers do adapt to the increase in yellow
duration; however, this adaptation does not undo the benefit of an increase in
yellow duration.
Effect of Yellow-Interval Timing on Red-Light-Violation Frequency at
Urban Intersections,
Bonneson/Zimmerman, Texas Transportation Institute, January 2004 Several
communities, from Gwinnett County, Georgia, to Loma Linda, California, and
places in between, have put this to the test by analyzing intersection safety
statistics in the months and years after lengthening their yellow light intervals by
0.5 to 1.0 seconds. Violation rates typically plummet 50 to 90 percent
almost immediately, and have been shown to remain at those low levels
years after the fact. AB 612 was opposed and lobbied by Redflex Corp.

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The city of Oceanside voted to terminate the contractual agreement with RTS on October 1,

2014. Within the former contractual agreement between RTS and the city of Oceanside RTS

mounted the cameras, preserves, and stores all the information, maintains information, maintains

the computer system, allows the city of Oceanside police department to appoint an officer to

review data. The RTS camera even has an automated signature for the assigned Oceanside

Police Officer. In this citation the assigned Oceanside Police officer is Phillip Romo.

Per the contractual agreement RTS sends the information packet including the declaration by

RTS maintenance personal is submitted to this court. The primary evidence that is being used is

photographs and video that depicts the alleged violation. These photographs and videos contain

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hearsay evidence, which include statements of dates, time, and other pertinent information.

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The reason why it is considered heresy is because the person who entered such information,

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regarding the time, date and other information does not testify. Per the City of Oceanside

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agreement with RTS Officer Romo was to be trained to testify in court as an expert witness for

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RTS citations. Officer Romo is used by RTS to testify using RTS pictures, videos and statements

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in order to prove RTS case. No one from RTS, Inc. the privately owned company that contracts

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with the city of Oceanside, is present in order to testify in regard to the accuracy and methods used

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in obtaining such information.

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This entire process violates Defendants Constitutional Due Process Rights; Sixth Amendment,

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state and federal evidence codes procedures. Officer Romo cannot legally testify as a witness to

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knowledge of computer programming, calibration, storing information from red light cameras in

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operation. That is not part of his duty and these duties are not in the contractual agreement

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between the city of Oceanside and RTS. Defendant is therefore requesting that the RTS evidence

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be dismissed for lack of foundation, hearsay and violation of Melendez-Diaz v. Massachusetts

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(2009) 557 U.S. 305 [174 L.Ed.2d 314, 129 S.Ct. 2527].

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POINTS AND AUTHORITIES

I.

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THE PHOTOGRAPHS AND VIDEO OF THE ALLEGED VIOLATION CONTAIN

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STATEMENTS THAT AMOUNT TO HEARSAY AND SHOULD BE INADNISSIBLE.

In general, hearsay evidence is inadmissible. Evidence Code 1200 provides, in pertinent part:

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"(a) 'hearsay evidence of a statement that was made other than by a witness while testifying at the

hearing and that is offered to provide the truth of the matter stated. Correa v. Superior Court, 27

Cal. 4th 444 (2002). The photographs, videos and declaration of evidence submitted by RTS

custodian of records contain hearsay. Officer Romo relies on statements in the photographs and

video such as time and date, and location of the alleged violation in order to prove the case on

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The person (s) who enters the statements, services, the cameras, services the computers,

calibrates the system and maintains the service records, filed technicians, or some other analysts

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who is involved in entering such data and information. Along with the technician who transcribed

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on the photographs and video. This person (s) who enters such information needs to be available

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to testify to the accuracy of the statement and be cross-examined by defendant.

Clearly Officer Romo is taking the statements entered by RTS, Inc. and repeating those

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statements in court in order to prove that the alleged violation occurred. By allowing this method

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to prove the alleged violation the court is admitting hearsay every single time. Therefore, since

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there are statements in the photographs and video the witness testifying should not be allowed to

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repeat those statements in order to prove the alleged violation occurred because this is a violation

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of hearsay. 3
The Sixth Amendment Confrontation Clause provides that, [i]n all the criminal prosecutions,

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the accused shall enjoy the right...to be confronted with the witness against him." (U.S. Const. 6th

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Amend.) In discussing historical background in Confrontational Clause the Supreme Court noted

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that a "core class of "testimonial" statements" includes "ex parte in-court testimony...such as

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In these citations the city of Oceanside was not financially compensated rather the entire amount
of the citations on or about $400,000 per year goes to RTS the Australian Company. The city of
Oceanside is compensated less than 30,000 to pay Officer Romo's salary and benefits. Clearly the
city of Oceanside was running on the red on this contractual agreement.
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Crawford, v. Washington the U.S. Supreme Court overturned the "adequate 'indicia of reliability"
test from Ohio v. Roberts (1980) 448 U.S. 56 and instead held that "[w]here testimonial statements
are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the
Constitution actually prescribes: confrontation." (Crawford, supra, 541 U.S. at p. 68-69/)
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affidavits, custodial examinations prior testimony that defendant was unable to cross-examine, or

similar pretrial statement that declarations would reasonably expect to be used prosecutorially," as

well as "extrajudicial statements...contained in the from formation testimonial materials, such as

affidavits, dispositions, prior testimony or confessions., (Crawford, supra, 541 U.S. At p. 51052

[emphasis added], citing White v. Illinois (1992) 502 U.S. 346-365. The court concluded that,

[o]ur cases have thus remained faithful to the farmers' understanding: testimonial statements of

witnesses absent from trial have been admitted only where the declarant is unavailable, and only

where the defendant has had a prior opportunity to cross-examine." (Crawfornd, supra 541 U.S. at

p. 59 [emphasis added].

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In San Diego Superior Court Traffic Division Commissioner Karen A. Riley ruled in cases No.

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B16464A, B16681A, B16772A, B17933A, B17968A, B17983A, B18095A, and B18404A.

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Commissioner Riley sided with the U.S. Supreme Court decision in Mendez-Diaz v.

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Massachusetts. "Testimonial Evidence-6th Amendment Right to Confront." and wrote; "Mendez-

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Diaz involved a state court drug trial where the prosecution introduced, as prima facie evidence of

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drug possession, sworn certificates of state laboratory analysts stating that material seized was, in

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fact, cocaine. The U.S Supreme Court followed Crawford, holding that admission of the analyst's

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certificates violated the defendant's Sixth Amendment right to confront the witness against him,

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stating;
This case involves little more than the application of our holding in Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2nd. 17. The Sixth Amendment does not permit the
prosecution to prove its case via ex parte our-of-court affidavits, and the admission of such
evidence against Mendez-Diaz was error.

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(Mendez-Diaz, supra, 129 S. Ct. at p./ 2542.

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The Supreme Court in Mendez-Diaz found that the sworn certificates fell within a "core class
of testimonials statements" in that they are a declaration "made for the purpose of establishing or
proving some fact, " i.e. the existence of cocaine. (Mendez-Diaz, supra, 129 S. Ct. at p. 2532,
citing Crawford, supra, 541 U.S. at p. 51.) "The 'certificates' are functionally identical to live, incourt testimony, doing 'precisely what a witness does on direct examination." (Mendez-Diaz,

supra 129 S. Ct. at p. 2532, citing Davis v. Washington (2006) 547 U.S. 813, 830. The affidavits

were held to be "testimonial statements" and the analysts were "witnesses" for purpose of the Sixth

Amendment, so "absent a showing that the analysts were unavailable to testify at trial and that

petitioner had a prior opportunity to cross-examine the, petitioner was entitled to "be confronted

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with' "the analyst at trial."

(Mendez-Diaz, supra 129 S. Ct. at p. 2532, citing Crawford, supra, 541 U.S. at p. 54.)
Again citing Crawford, the Supreme Court stated that, [d]ispensing with confrontation because

testimony is obviously reliable is akin to dispensing with jury trial because a defendant is

obviously guilty. This is not what the Sixth Amendment prescribes," (Mendez-Diaz, supra, 129 S.

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Ct. at p. 2536, quoting Crawford, supra 541 U.S. at p. 61-62.)

Description and Admissibility of Interior Declaration AND Exterior Affidavit
Each evidence packet submitted by RTS has a sealed envelope (see Evidence Code 1560 (b)

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& (c)), containing inside a document entitled "Declaration of Custodian of Records, California

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Evidence Code 1560." The Declaration is identical in all of RTS red light camera cases. Each

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affidavit is identical in all of RTS red light camera cases, except that each individual case contains

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a header specifically indentifying the Citation Number, Defendant's name, Citing Agency,

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Date/time of Violation, Place of Violation, and C.V.C. Section (s) Charged usually either 21453 (a)

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-red light camera or 21453 (c) -red arrow. There is virtually never an appearance in this court by

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any photo red light camera employee. The City's evidence packet in each case is submitted RTS

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pursuant to subpoena duces tecum. Under Evidence Code 1561, and 1562 Declarations and

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affidavits from the custodian of records would only be admissible to lay a foundation for

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introducing the records of RTS. Evidence Code 1561, and 1562; see also, Taggart v. Super Seer

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Corp. (1995) 33 Cal. Appt. 4th 1697, In re Troy D. (1989) 215 Cal. App. 3d. 3d 889, 903).

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RTS affidavits contain many testimonial hearsay statements going far beyond the custodian

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declaration authorized in Evidence Code 1561, and 1562. The testimonial statements describe

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specific employee procedures, time and training, experience of trainers, duties, of trainers, habits

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of technicians and equipment used by the various department employees of RTS. In addition, the

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custodian uses technical terms which a witness would explain like 'Advanced Encryption Standard

Protocol' and reference to unspecified 'computer interface.' Without testimony to explain technical

terms used in the affidavit, the court would be hindered in finding that the "sources, method of

preparation, transfer and storage and time are trustworthy are required under Evidence Code

1271. The experts in the affidavit tasks must be available to testify at the time of trial. 4
In addition the document must be prepared in the course of business (Evidence Code 1271).

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To be considered trustworthy under either the business records official records exceptions, the

document cannot be prepared solely for litigation (see Palmer v. Hoffman (1943) 318 U.S. 109; cf,

County of Sonoma v. Grant W. (1986) 187 Cal. App. 3d 1439; see People v. Lugashi (1988) 205

Cal. App. 3d 632, 641). In RTS cases, based on the date the affidavit are signed in relation to the

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offense date, it appears the affidavit was prepared only after the citation was issued and it was later

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decided that the case is going to be litigated, and a subpoena was served. Therefore the records

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and affidavit was prepared for litigation in violation of (Evidence Code 1271).5
Admissibility of the Information Imprinted on the Photographs.

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First, the Khaled court noted, the officer could not establish the time in question, the method

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of retrieval of the photographs, or that any of the photographs or videotape were a "`"reasonable

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representation of that which it is [sic] alleged to portray."'" (Khaled, supra, 186 Cal.App.4th at p.

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The proponent of the admission of the documents has the burden of establishing the requirements
for admission and the trustworthiness of the information. (People v. Beeler [(1995)] 9 Cal.4th
[953,] 978 [39 Cal.Rptr.2d 607, 891 P.2d 153].) And the document cannot be prepared in
contemplation of litigation. (Palmer v. Hoffman (1943) 318 U.S. 109 [87 L.Ed. 645, 63 S.Ct. 477];
Gee v. Timineri (1967) 248 Cal.App.2d 139 [56 Cal.Rptr. 211].)" (Khaled, supra, 186 Cal.App.4th
at p. Supp. 8.)
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Special procedures apply to the trial of infractions under the Vehicle Code. (Veh. Code, 40901
et seq.; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, 561, p. 803.) Still,
"Except as provided, the statute does not `permit the submission of evidence other than in
accordance with the law. . .' . . . . (Veh. Code, Aguimatang ] 40901[, subd.] (e).)" (5 Witkin &
Epstein, supra, 561, p. 804.)
"The issuance of citations based upon automated traffic enforcement systems is thus governed by
the procedural requirements of Vehicle Code section 21455.5." (People v. Park (2010) 187
Cal.App.4th Supp. 9, 11 [115 Cal.Rptr.3d 337].)
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Supp. 5, quoting People v. Gonzalez (2006) 38 Cal.4th 932, 952 [44 Cal.Rptr.3d 237, 135 P.3d

649].)

Further, the Khaled court rejected arguments that the photographic evidence was properly

admissible under Evidence Code sections 1280 (official records exception) and 1271 (business

records exception). Evidence Code section 1280 was inapplicable as the writing was not prepared

by and within the scope of duty of a public employee, and furthermore, the record was "totally

silent as to whether the trial court took judicial notice of anything" nor did it show "`"`sufficient

independent evidence . . . that the record or report was prepared in such a manner as to assure its

trustworthiness.'"'" (Khaled, supra, 186 Cal.App.4th at p. Supp. 7, quoting Bhatt v. State Dept. of

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Health Services (2005) 133 Cal.App.4th 923, 929 [35 Cal.Rptr.3d 335].)
Finally, the Khaled court concluded the exhibits did not fall under the business records

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exception of Evidence Code section 1271.7 (9) "In order to establish the proper foundation for the

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admission of a business record, an appropriate witness must be called to lay that foundation

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(Bhatt, supra, 133 Cal.App.4th 923, 929). The Khaled court found the police officer "did not

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qualify as the appropriate witness and did not have the necessary knowledge of underlying

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workings, maintenance, or recordkeeping of Redflex Traffic System. The foundation for the

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introduction of the photographs and the underlying workings of the Redflex Traffic System was

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outside the personal knowledge of Officer Berg. If the evidence fails to establish each foundational

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fact, neither the official records nor the business records hearsay exception is available. (People v.

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Matthews (1991) 229 Cal.App.3d 930, 940 [280 Cal.Rptr. 134].)

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"Accordingly, without such foundation, the admission of exhibits Nos. 1 and 3 was

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erroneous and thus the trial court abused its discretion in admitting these exhibits. Without these

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documents, there is a total lack of evidence to support the Vehicle Code violation in question."

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(Khaled, supra, 186 Cal.App.4th at p. Supp. 8, fn. omitted.)

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The Court in PEOPLE v. BORZAKIAN No. B229748. 203 Cal.App.4th 525 (2012) 136 Cal.
Rptr. 3d 772 stated that;

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":(11) Photographs and videotapes are considered "writings" under Evidence Code section

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250. (Rojas v. Superior Court (2004) 33 Cal.4th 407, 416 [15 Cal.Rptr.3d 643, 93 P.3d 260]; Jones

v. City of Los Angeles (1993) 20 Cal.App.4th 436, 440 [24 Cal.Rptr.2d 528].) A writing must be

authenticated before it may be received in evidence. (Evid. Code, 1401, subd. (a).)

Authentication of a writing means "the introduction of evidence sufficient to sustain a finding that

it is the writing that the proponent of the evidence claims it is or . . . the establishment of such

facts by any other means provided by law." (Evid. Code, 1400.)"

(12) "No photograph or film has any value in the absence of a proper foundation. It is necessary to

know when it was taken and that it is accurate and truly represents what it purports to show. It

becomes probative only upon the assumption that it is relevant and accurate. This foundation is

usually provided by the testimony of a person who was present at the time the picture was taken,

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or who is otherwise qualified to state that the representation is accurate." (People v. Bowley

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(1963) 59 Cal.2d 855, 862 [31 Cal.Rptr. 471, 382 P.2d 591], italics added.)

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The data bar writing imprinted on the photographs constitutes hearsay, and its admission
violates the Confrontation Clause of the Sixth Amendment.
In People v. Hawkins (2002) 98 Cal App. 4th, 1428, the trial court allowed into evidence

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computer printouts showing a date and time when computer files were last accessed (i.e. a

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date/time stamp). The Hawkins appellate court went on to cite and agree with "the leading case of

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State v. Armstead (La. 1983) 432 So. 2d 837," which explained: "The printouts of the results of the

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computer's internal operations is not hearsay evidence. "

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The Hawkins court found, "the admissibility of the computer tracing system record should

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be measured by the reliability of the system, itself, relative to its proper functioning and

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accuracy." [Citation] (Emphasis added).

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(Hawkins, supra, 98 Cal. Appt. 4th at p. 1449, quoting from Ly v. State, id.)

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The hawkins court concluded that "the true test for admissibility of a printout reflecting

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computer's internal operations is not whether the printout was made in the regular course of

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business, but whether the computer was operating properly at the time of the printout."

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(Hawkins, supra, 98 Cal. App. 4th at p. 1450-1459 [emphasis added]

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The Hawkins court further went on to say:

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"[t]his presumption operates to establish only that the computer's print function has worked

properly. The presumption does not operate to establish the accuracy or reliability of the printed

information. On that threshold issue, upon objection the proponent of the evidence must offer

foundation evidence that the computer was operating property." (Hawkins, supra 98, Cal.

App. 4th at p. 1450 [emphasis added].) In other words, the presumption established "that the date

in the printout accurately represents the data in the computer. There is no presumption that the

data itself is accurate or reliable, "the proponent of the evidence must offer foundational evidence

that the computer was operating properly." (Jefferson, California Evidence Benchbook, 4th ed.,

32.44 (citing Hawkins; emphasis in original].)" This is in addition to the People following the

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proper California Code of Civil Procedures, Rules of Evidence and the Local Rules of the Court in

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the proper introduction of evidence and authentication of documents.

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The Court in PEOPLE v. BORZAKIAN No. B229748. 203 Cal.App.4th 525 (2012) 136 Cal. Rptr.

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3d 772 Agreed with Hawkins and stated"

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"As explained in People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450 [121 Cal.Rptr.2d 627],

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Evidence Code section 1552, "operates to establish only that a computer's print function has

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worked properly. The presumption does not operate to establish the accuracy or reliability of the

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printed information. On that threshold issue, upon objection the proponent of the evidence must

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offer foundational evidence that the computer was operating properly." (Italics added; see People

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v. Nazary (2010) 191 Cal.App.4th 727, 754 [120 Cal.Rptr.3d 143] [test of admissibility of

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machine-generated receipts from automated gas station island pumps is whether "machine was

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operating properly at the time of the reading . . ."]; see also Stockinger v. Feather River

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Community College (2003) 111 Cal.App.4th 1014, 1028 [4 Cal.Rptr.3d 385] ["authentication of a

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writing is independent of the question of whether the content of the writing is inadmissible as

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hearsay"].)"

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Therefore RTS must show that both the camera system and its internal computer and/or the

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computer in Arizona were functioning properly (Hawkins, supra 98 Ca. App. 4th at p.

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1450[emphasis added].

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CONCLUSION

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Based upon any and all the foregoing, the prosecution has failed to meet its burden or proof
beyond a reasonable doubt regarding the alleged violation and the citation should be dismissed.
I declare under penalty of perjury under the laws of the state of California that the foregoing

is true and correct to the best of my personal knowledge.

Executed this 4th day of December 2014 in Oceanside, California.

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By: ____________________

Silvia Peters

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