Filed 6/5/14




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                               S201443
           v.                        )
                                     )                        Ct.App. 2/3 B231678
CARMEN GOLDSMITH,                    )
                                     )                        Los Angeles County
           Defendant and Appellant.  )                      Super. Ct. No. 102693IN
____________________________________)


        Defendant was cited for failing to stop at a red traffic light at an intersection
located in the City of Inglewood in violation of Vehicle Code section 21453. She
was found guilty of the traffic infraction based on evidence of several photographs
and a 12-second video. The evidence was generated by an automated traffic
enforcement system (ATES), in common parlance referred to as a red light traffic
camera. Her conviction was upheld on appeal by both the appellate division of the
superior court and the Court of Appeal. We granted review to consider
defendant‘s claim that the trial court improperly admitted the ATES evidence over
her objections of inadequate foundation and hearsay. We conclude that the trial
court did not abuse its discretion in finding the officer‘s testimony in this case
provided sufficient authentication to admit the ATES evidence and that the ATES
evidence was not hearsay. We affirm the judgment of the Court of Appeal.




                                            1
                                   BACKGROUND

       A. Statutory authorization of ATES
       Local governmental agencies are statutorily authorized to equip a traffic
intersection with an ATES, if the system meets certain requirements. (Veh. Code,
§ 21455.5.) Specifically, the system must be identified by signs visible to
approaching traffic that clearly indicate the system‘s presence and the traffic
signal light governing the intersection must have a minimum yellow light change
interval as set by the state Department of Transportation for the designated
approach speed. (Veh. Code, § 21455.7.)
       A city council or county board of supervisors proposing to install an ATES
within its jurisdiction must conduct a public hearing on the proposal prior to
entering into a contract for the use of an ATES. (Veh. Code, § 21455.6, subd. (a).)
If the proposal is adopted, the local jurisdiction must at each affected intersection
―commence a program to issue only warning notices for 30 days‖ and must ―also
make a public announcement of the automated traffic enforcement system at least
30 days prior to the commencement of the enforcement program.‖ (Veh. Code,
§ 21455.5, subd. (b); see People v. Gray (2014) 58 Cal.4th 901, 904.)
       ―Only a governmental agency, in cooperation with a law enforcement
agency, may operate‖ an ATES. (Veh. Code, § 21455.5, subd. (c).) To operate an
ATES, the governmental agency, in cooperation with law enforcement, must
develop uniform guidelines for screening and issuing violation citations, as well as
for processing and storing confidential information. (Veh. Code, § 21455.5, subd.
(c)(1).) It must establish procedures to ensure compliance with such guidelines.
(Ibid.) The governmental agency, in cooperation with a law enforcement agency,
must also (a) establish guidelines for selection of a location, (b) ensure that the
equipment is regularly inspected, (c) certify that the equipment is properly



                                           2
installed and calibrated and is operating properly, (d) regularly inspect and
maintain the warning signs, (e) oversee the establishment or change of signal
phases and signal timing, and (f) maintain controls necessary to ensure that only
those citations that have been reviewed and approved by law enforcement are
delivered to violators. (Id., subd. (c)(2)(A), (B), (C), (D), (E), & (F).)
       The statutory scheme allows the governmental agency to contract out these
described operational activities or duties ―if it maintains overall control and
supervision of the system.‖ (Veh. Code, § 21455.5, subd. (d).) But this is subject
to an important qualification. The governmental agency may not contract out to
―the manufacturer or supplier of the automated traffic enforcement system‖ certain
of the described duties. (Ibid. [providing that the activities specified in Veh. Code,
§ 21455.5, subd. (c)(1) & (2)(A), (D), (E), & (F) may not be contracted out to the
ATES manufacturer or supplier].) The only duties that may be contracted out to
the ATES manufacturer or supplier are the activities of ―[e]nsuring that the
equipment is regularly inspected‖ and ―[c]ertifying that the equipment is properly
installed and calibrated, and is operating properly.‖ (Veh. Code, § 21455.5,
subds. (c)(2)(B), (C), (d).)
       A contract between a governmental agency and an ATES manufacturer or
supplier entered into, renewed, extended or amended on or after January 1, 2004,
is statutorily prohibited from including a ―provision for the payment or
compensation to the manufacturer or supplier based on the number of citations
generated, or as a percentage of the revenue generated, as a result of the use of the
equipment.‖ (Veh. Code, § 21455.5, subd. (h)(1); see id., former subd. (g), as
amended by Stats. 2003, ch. 511, § 1, p. 3925 [applicable at the time of
defendant‘s citation].)




                                           3
       B. The evidence submitted in this case
       A notice to appear was issued to defendant pursuant to the City of
Inglewood‘s implementation of the automated traffic enforcement statutes we
have described. (Veh. Code, §§ 21455.5–21455.7.) The citation alleged that on
March 13, 2009, defendant failed to stop at a red traffic light located at the
intersection of Centinela Avenue and Beach Avenue in the City of Inglewood
(Inglewood). Defendant entered a plea of not guilty.
       At the court trial held before a traffic commissioner, only one witness
testified. Dean Young, an investigator with the Inglewood Police Department,
testified that he was assigned to the traffic division in red light camera
enforcement, and had more than six years of experience in that assignment.
Young testified that defendant‘s citation was the result of the red light camera
program first implemented by Inglewood in 2003.
       Young testified that Inglewood‘s ATES was operated by the police
department, but was maintained by Redflex Traffic Systems, Inc. (Redflex).
Based on his experience and the knowledge that he acquired from city engineers
regarding how the traffic signals and system work and from Redflex regarding
how the ATES works, Young testified that the computer-based digital camera
system operates ―independently‖ and records events occurring within an
intersection after the traffic signal has turned red. Young stated that the ATES
information is stored as it is ―reported‖ on the hard disc of a computer at the scene.
According to Young, Redflex technicians retrieve that computerized information
periodically throughout the day through an Internet connection. A police officer
then reviews all photographs before a citation is printed or mailed.
       Young explained the photos and video images that are recorded and
produced by the ATES as follows. There are three photographs taken, plus a 12-
second video. The first photograph taken by the ATES camera, referred to as a


                                           4
―previolation‖ photograph, shows the vehicle at or before the crosswalk or limit
line for the intersection with the traffic signal shown in the background during its
red phase. The second photograph, referred to as a ―postviolation‖ photograph,
shows the vehicle within the intersection either in the process of making a right
turn or going straight through the intersection. The third photograph shows the
vehicle‘s license plate. A data bar is imprinted on all the photographs by the
ATES to show the date, time, location, and how long the light had been red at the
time of the photograph. The 12-second video shows the approach and progression
of the vehicle through the intersection.
       Young testified, based on the ATES evidence, that defendant‘s violation
occurred at the intersection of Centinela Avenue and Beach Avenue on Friday,
March 13, 2009. It involved a ―straight through movement‖ by defendant.
Defendant objected that the photographs did not establish that she was the driver
of the vehicle depicted in the photographs because the right eye and part of the
forehead of the person shown in the photograph was obscured. The trial court
stated that it was satisfied that the photograph depicted defendant as the driver.
       Defendant then objected to Young‘s testimony on the grounds of lack of
foundation and hearsay. The trial court overruled the objections after defendant
examined Young on voir dire. Young proceeded to testify that the data bar printed
on the previolation photograph of defendant‘s vehicle showed the traffic light had
been red for 0.27 seconds and that defendant‘s vehicle‘s approach speed was 53
miles per hour at the time the photograph was taken. According to Young, in the
postviolation photograph taken 0.66 second later, defendant‘s vehicle was shown
in the intersection while the signal light remained in the red light phase. Young
testified that the 12-second video of defendant‘s vehicle crossing the intersection
began with the signal light in its green phase and showed the transitioning of the
light phases, including a four-second yellow light.

                                           5
        Defendant challenged Young‘s characterization of the yellow light interval
as being four seconds. Asked by the court to lay a foundation for his opinion
regarding the yellow light interval, Young testified that he visually inspected the
traffic signal at this intersection and each of the other camera-enforced
intersections on a monthly basis to ensure that the yellow phase timing complies
with the minimum guidelines established by California‘s Department of
Transportation. According to Young, on February 16, 2009, and March 16, 2009,
he conducted timing checks of the signal at this intersection, which showed
averages of 4.11 and 4.03 seconds, respectively. He testified that these test results
were well above the 3.9 seconds established by the Department of Transportation
for a 40-mile-an-hour zone.
        Based on this evidence, the trial court found beyond a reasonable doubt that
defendant was guilty of failing to stop at a red signal light and imposed a fine of
$436.

                                    DISCUSSION
        Photographs and video recordings with imprinted data are writings as
defined by the Evidence Code. (Evid. Code, § 250.)1 To be admissible in
evidence, a writing must be relevant and authenticated. (§§ 350, 1401.) The
proffered evidence must be an original writing or otherwise admissible secondary
evidence of the writing‘s content. (§§ 1520, 1521.) And it must not be subject to
any exclusionary rule. (See, e.g., § 1200.)
        Defendant contends the trial court erred in admitting the ATES evidence in
this case because the prosecution failed to provide the foundational testimony


1      All further statutory references are to the Evidence Code unless otherwise
indicated.




                                          6
necessary to authenticate it and because the evidence included inadmissible
hearsay. We review claims regarding a trial court‘s ruling on the admissibility of
evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203,
207; People v. Lucas (1995) 12 Cal.4th 415, 466.) Specifically, we will not
disturb the trial court‘s ruling ―except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.‖ (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Applying this standard, we conclude that the trial court did not err in admitting the
ATES evidence over defendant‘s objections.

       A. The ATES evidence was adequately authenticated
       Defendant argues that the trial court erred in overruling her objection to the
ATES evidence on the basis of inadequate foundation. We disagree.
       Authentication of a writing, including a photograph, is required before it
may be admitted in evidence. (§§ 250, 1401.) Authentication is to be determined
by the trial court as a preliminary fact (§ 403, subd. (a)(3)) and is statutorily
defined as ―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.‖ (§ 1400.) The statutory
definition ties authentication to relevance. As explained by the California Law
Revision Commission‘s comment to section 1400, ―[b]efore any tangible object
may be admitted into evidence, the party seeking to introduce the object must
make a preliminary showing that the object is in some way relevant to the issues to
be decided in the action. When the object sought to be introduced is a writing, this
preliminary showing of relevancy usually entails some proof that the writing is
authentic — i.e., that the writing was made or signed by its purported maker.
Hence, this showing is normally referred to as ‗authentication‘ of the writing.‖



                                           7
(Cal. Law Revision Com. com., 29B pt. 4 West‘s Ann. Evid. Code (1995 ed.) foll.
§ 1400, p. 440.) Authentication is essentially a subset of relevance. (See Lorraine
v. Markel Amer. Ins. Co. (D.Md. 2007) 241 F.R.D. 534, 539 (Lorraine); 2 Broun,
McCormick on Evidence (7th ed. 2013) § 212, p. 5 (McCormick).)
       As with other writings, the proof that is necessary to authenticate a
photograph or video recording varies with the nature of the evidence that the
photograph or video recording is being offered to prove and with the degree of
possibility of error. (Annot., Authentication or Verification of Photograph as
Basis for Introduction in Evidence (1950) 9 A.L.R.2d 899, 900.) The first step is
to determine the purpose for which the evidence is being offered. The purpose of
the evidence will determine what must be shown for authentication, which may
vary from case to case. (2 McCormick, supra, § 221, pp. 82-83.) The foundation
requires that there be sufficient evidence for a trier of fact to find that the writing
is what it purports to be, i.e., that it is genuine for the purpose offered. (People v.
Valdez (2011) 201 Cal.App.4th 1429, 1434-1435 (Valdez).) Essentially, what is
necessary is a prima facie case. ―As long as the evidence would support a finding
of authenticity, the writing is admissible. The fact conflicting inferences can be
drawn regarding authenticity goes to the document‘s weight as evidence, not its
admissibility.‖ (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.)
       Here the ATES evidence was offered to show what occurred at a particular
intersection in Inglewood on a particular date and time when the traffic signal at
the intersection was in its red phase. The ATES evidence was offered as
substantive proof of defendant‘s violation, not as demonstrative evidence
supporting the testimony of a percipient witness to her alleged violation. We have
long approved the substantive use of photographs as essentially a ―silent witness‖
to the content of the photographs. (People v. Bowley (1963) 59 Cal.2d 855, 860.)
As we stated in Bowley, ―[t]o hold otherwise would illogically limit the use of a

                                            8
device whose memory is without question more accurate and reliable than that of a
human witness. It would exclude from evidence the chance picture of a crowd
which on close examination shows the commission of a crime that was not seen by
the photographer at the time. It would exclude from evidence pictures taken with
a telescopic lens. It would exclude from evidence pictures taken by a camera set
to go off when a building‘s door is opened at night.‖ (Id., at p. 861.)
       A photograph or video recording is typically authenticated by showing it is
a fair and accurate representation of the scene depicted. (People v. Gonzalez
(2006) 38 Cal.4th 932, 952; People v. Cheary (1957) 48 Cal.2d 301, 311-312.)
This foundation may, but need not be, supplied by the person taking the
photograph or by a person who witnessed the event being recorded. (People v.
Mehaffey (1948) 32 Cal.2d 535, 555; People v. Doggett (1948) 83 Cal.App.2d
405, 409; 2 Witkin, Cal. Evidence (5th ed. 2012) Documentary Evidence, § 7,
pp. 154-156 (Witkin).) It may be supplied by other witness testimony,
circumstantial evidence, content and location. (Valdez, supra, 201 Cal.App.4th at
p. 1435; People v. Gibson (2001) 90 Cal.App.4th 371, 383; see People v. Skiles
(2011) 51 Cal.4th 1178, 1187; Witkin, supra, at pp. 154-155.) Authentication also
may be established ―by any other means provided by law‖ (§ 1400), including a
statutory presumption. (Cal. Law Revision Com. com., supra, foll. § 1400, p. 440
[―The requisite preliminary showing may also be supplied by a presumption.‖].)
       The People argue that sections 1552 and 1553 provide such a presumption
of authenticity for ATES images and data. The People are correct that sections
1552 and 1553 are applicable here. These statutes‘ presumptions partly, but not
completely, supply the foundation for admission of ATES evidence.
       Subdivision (a) of section 1553 provides, as pertinent here, that ―[a] printed
representation of images stored on a video or digital medium is presumed to be an
accurate representation of the images it purports to represent. . . . If a party to an

                                           9
action introduces evidence that a printed representation of images stored on a
video or digital medium is inaccurate or unreliable, the party introducing the
printed representation into evidence has the burden of proving, by a preponderance
of evidence, that the printed representation is an accurate representation of the
existence and content of the images that it purports to represent.‖ Subdivision (a)
of section 1552 provides a similar presumption for ―[a] printed representation of
computer information or a computer program.‖ In 2012, the Legislature added a
subdivision (b) to both sections to expressly clarify the applicability of the statutes
to printed representations of video or photographic images stored by an ATES and
printed representations of computer-generated information stored by an ATES.
(§§ 1552, subd. (b) [―Subdivision (a) applies to the printed representation of
computer-generated information stored by an automated traffic enforcement
system‖], 1553, subd. (b) [―Subdivision (a) applies to the printed representation of
video or photographic images stored by an automated traffic enforcement
system‖]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of
Sen. Bill No. 1303 (2011-2012 Reg. Sess.) as amended May 29, 2012, p. 4, par. 8;
Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1303 (2011-2012 Reg. Sess.)
as amended June 26, 2012, p. 14.)2
       Sections 1552 and 1553 were added to the Evidence Code as part of the
1998 legislation that repealed the best evidence rule (former § 1500) and adopted
the secondary evidence rule (§§ 1520-1523; Stats. 1998, ch. 100, §§ 4, 5, pp. 634-



2      Because the statutes were intended to be declarative of existing law, no
question of retroactive application is presented. (McClung v. Employment
Development Dept. (2004) 34 Cal.4th 467, 471-472; see Carter v. California Dept.
of Veterans Affairs (2006) 38 Cal.4th 914, 922-923, 930.)




                                          10
635.)3 Under the secondary evidence rule, the content of a writing may now be
proved either ―by an otherwise admissible original‖ (§ 1520) or by ―otherwise
admissible secondary evidence.‖ (§ 1521, subd. (a); see People v. Skiles, supra,
51 Cal.4th at p. 1187.) Sections 1552 and 1553 permit the writings that they
describe to be introduced as secondary evidence. Thus, the presumptions in
sections 1552 and 1553 eliminate the basis for any objection that a printed version
of the described writings is not the ―original‖ writing.
       Because sections 1552 and 1553 provide a presumption for both ―the
existence and content‖ of computer information and digital images that the printed
versions purport to represent (§§ 1552, subd. (a), 1553, subd. (a)), the
presumptions operate to establish, at least preliminarily, that errors in content have
not been introduced in the course of printing the images and accompanying data.
As the court in People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450 (Hawkins)
explained, the presumptions essentially operate to establish that ―a computer‘s
print function has worked properly.‖ As applicable here, the presumptions
provided by sections 1552 and 1553 support a finding, in the absence of contrary
evidence, that the printed versions of ATES images and data are accurate
representations of the images and data stored in the ATES equipment.



3       Section 1552 continues the provisions of former section 1500.5,
subdivisions (c) and (d) without substantive change, except that the reference to
― ‗best available evidence‘ ‖ in former section 1500.5, subdivision (c) is changed
to ― ‗an accurate representation,‘ ‖ ―due to the replacement of the Best Evidence
Rule with the Secondary Evidence Rule.‖ (Cal. Law Revision Com. com., 29B pt.
4 West‘s Ann. Evid. Code (2014 supp.) foll. § 1552, p. 233.) Section 1553
continues a portion of former section 1500.6 without substantive change, except
for a similar change in terminology. (Cal. Law Revision Com. com., 29B pt. 4
West‘s Ann. Evid. Code (2014 supp.) foll. § 1553, p. 235.)




                                          11
       We reject defendant‘s contention that application of these presumptions
violate her right to constitutional due process as described in Western & Atlantic
Railroad v. Henderson (1929) 279 U.S. 639, 642-644. The court in Henderson
held invalid a statutory rebuttable presumption in a civil case for lack of a rational
connection between the ultimate fact presumed and the fact actually placed in
evidence. (See Lavine v. Milne (1976) 424 U.S. 577, 585.) In the criminal
context, however, a due process challenge to an evidentiary presumption requires
us to distinguish between mandatory presumptions, which either can be conclusive
or rebuttable, and permissive inferences. (Francis v. Franklin (1985) 471 U.S.
307, 313-315.) Mandatory presumptions will violate due process if they relieve
the prosecution of the burden of persuasion on an element of the offense.
(Patterson v. New York (1977) 432 U.S. 197, 215; see Sandstrom v. Montana
(1979) 442 U.S. 510, 520-524.) Permissive inferences violate due process only if
the permissive inference is irrational. (Francis, supra, at pp. 314-315; Ulster
County Court v. Allen (1979) 442 U.S. 140, 157-163; People v. Moore (2011) 51
Cal.4th 1104, 1131-1132.) The rebuttable presumptions set forth in sections 1552
and 1553 affect the burden of producing evidence regarding a preliminary fact
necessary for the admission of evidence. As their presumptions affect the
admissibility of the described writings when offered by any party, but do not
require any weight to be given to the evidence if admitted, sections 1552 and 1553
do not reduce the prosecution‘s burden of proof to show defendant‘s violation
beyond a reasonable doubt. They establish only permissive inferences, which,
being logically grounded on advances in technology, are not irrational. (Francis,
supra, at pp. 314-315; Moore, supra, at p. 1132.)4 Contrary to defendant‘s

4    Defendant contends it would be arbitrary in this case to assume that the
ATES evidence is reliable because Redflex has previously ―falsified evidence.‖ In
                                                          (Footnote continued on next page.)


                                          12
argument, these presumptions do not deny defendant a fair opportunity to rebut the
presumed accuracy or reliability of the offered evidence. (Henderson, supra, 279
U.S. at p. 642.)5
        Although we reject defendant‘s constitutional challenge, it is important to
recognize that the presumptions in sections 1552 and 1553 do not in themselves
fully supply the necessary foundation for admission of ATES evidence. The
secondary evidence rule does not ―excuse[] compliance with Section 1401
(authentication).‖ (§ 1521, subd. (c).) ―[T]o be ‗otherwise admissible,‘ secondary


(Footnote continued from previous page.)

support of this claim, defendant requested that we take judicial notice of
documents she obtained from the Arizona secretary of state reflecting the
investigation, and consequent revocation of the commission, of an Arizona notary
public who was found to have improperly notarized a Redflex ―deployment form‖
for a speed photo radar vehicle. It would be pure conjecture to conclude that all
evidence generated by Redflex ATES technology and handled by Redflex
employees for Inglewood is suspect because of the actions of a single errant notary
public in a different state regarding a different type of technology and
documentation. We have denied defendant‘s request for judicial notice and reject
her argument that the involvement of Redflex in this case requires a different
constitutional conclusion.
5       Claiming that traffic court defendants appear almost universally in propria
persona and that they lack the motive, means, or opportunity to engage in
discovery prior to trial or to spend thousands of dollars on expert fees, defendant
argues the presumptions stated in sections 1552 and 1553 deny traffic court
defendants a fair opportunity to ―repel‖ the presumptions. We will not speculate
that traffic defendants lack motivation to contest their tickets. And, contrary to
defendant‘s claim, traffic defendants have sufficient means and opportunity to
contest their alleged violation because individuals charged with infractions are
accorded the same rights as individuals charged with misdemeanors to subpoena
witnesses and documents, to present testimony and other evidence, and to cross-
examine the prosecution‘s witnesses. (Pen. Code, § 19.7 [―Except as otherwise
provided by law, all provisions of law relating to misdemeanors shall apply to
infractions . . . .‖].)




                                           13
evidence must be authenticated.‖ (People v. Skiles, supra, 51 Cal.4th at p. 1187;
see § 1401, subd. (b) [―Authentication of a writing is required before secondary
evidence of its content may be received in evidence.‖].)
       Here, Young‘s testimony was adequate to show that the ATES photographs
at issue were from Inglewood‘s ATES equipment located at the corner of
Centinela and Beach Avenues. From his explanation regarding the independent
operation of the ATES camera system, it can be reasonably inferred that the ATES
system automatically and contemporaneously recorded the images of the
intersection and the data imprinted on the photographs when it was triggered.
Young was not asked anything about the city‘s or the police department‘s records
or supervision of Redflex‘s maintenance or certification of the equipment. 6
Defendant does not argue that Young‘s testimony was insufficient to demonstrate
that the evidence was properly received in the normal course and manner of
Inglewood‘s operation of its ATES program. Finally, we note that the content of
the photographs themselves may be considered and here the content supplied


6       Young was asked when the ―photo system‖ was last calibrated. Young
answered that ―there is no calibration of this [photo] system.‖ Defendant argues
that such testimony revealed Inglewood‘s failure to comply with the statutory
requirements that the ATES equipment be regularly inspected and certified to have
been properly installed and calibrated and to be operating properly. (Veh. Code,
§ 21455.5, subds. (c)(2)(B), (C), d.) We do not read the testimony in this way. In
context, it appears Young understood that question and the followup question
regarding calibration to ask only about the connection between the ATES camera
and the traffic signal. He responded that the systems operate independently and
that the only connection is an electrical connection that lets the camera know that
the light is in its red phase. Defense counsel did not clarify or pose further
followup questions regarding calibration of the ATES system. Counsel did not
ask any questions concerning Inglewood‘s or the police department‘s oversight of
Redflex‘s maintenance and certification of the installed ATES equipment at this
intersection.




                                        14
further support for a finding that the images were genuine.7 Indeed, at oral
argument, defendant‘s counsel conceded that the ATES photographs in this case
actually depicted his client in the intersection. Accordingly, we conclude that, in
conjunction with the operation of the presumptions of sections 1552 and 1553,
sufficient evidence was submitted to the court to sustain a finding (§ 403,
subd. (a)(3)) that the ATES evidence ―is the writing that the [prosecution] claimed
it is‖ (§ 1400) and the trial court properly exercised its discretion to admit the
evidence.
       Defendant claims, however, that in this case involving digital images it was
necessary for the prosecution as part of its foundational showing to additionally
present the testimony of a Redflex technician regarding the operation and
maintenance of the system that generated the ATES evidence because digital
images are more readily and inexpensively subject to manipulation, and yet at the
same time, such manipulations are more difficult to detect, compared with an
analog alteration. We disagree that the testimony of a Redflex technician or other
witness with special expertise in the operation and maintenance of the ATES
computers was required as a prerequisite for authentication of the ATES evidence.
       Contrary to defendant‘s assertion, the record contains no evidence that the
ATES evidence was materially altered, enhanced, edited or otherwise changed;


7      Specifically, given Young‘s testimony regarding how the ATES system
operates, the fact that in this case it produced a photograph showing defendant
driving her vehicle at or before the limit line with the signal light in its red phase
and then another photograph of defendant driving her vehicle in the intersection
with the signal light in its red phase, as well as a 12-second video showing
defendant‘s vehicle crossing the intersection and the transition of the traffic signal
light phases, including a four-second yellow light, is circumstantial evidence that
the system was working properly.




                                          15
rather it consisted of entirely automatically produced photos and video and
contemporaneously recorded data. No elaborate showing of accuracy is required.
(See 2 McCormick, supra, § 227, p. 111 [accuracy of an individual computer‘s
basic operations will not be scrutinized unless specifically challenged, and even
perceived errors go to the weight of the evidence, not its admissibility].) We
decline to require a greater showing of authentication for the admissibility of
digital images merely because in theory they can be manipulated. (See Owens v.
State (Ark. 2005) 214 S.W.3d 849, 854 [refusal to impose a higher burden of proof
for admissibility of still photographs taken from a store surveillance camera‘s
videotape merely because digital images are easier to manipulate].) We have not
required testimony regarding the ― ‗acceptability, accuracy, maintenance, and
reliability of . . . computer hardware and software‘ ‖ in similar situations. (People
v. Martinez (2000) 22 Cal.4th 106, 132, quoting People v. Lugashi (1988) 205
Cal.App.3d 632, 642; accord, People v. Nazary (2010) 191 Cal.App.4th 727, 755.)
The standard foundational showing for authentication of a photograph, video, or
other writing will suffice for ATES images and data information. 8


8      People v. McWhorter (2009) 47 Cal.4th 318, 364-367, and State v. Swinton
(Conn. 2003) 847 A.2d 921, 942-945, on which defendant relies for her contention
that expert testimony regarding the accuracy and reliability of the ATES computer
process should be required, are distinguishable because they involved computer-
enhanced photographic images. Similarly, People v. Duenas (2012) 55 Cal.4th 1,
20-21, is inapposite because it involved a computer animation and the comments
defendant relies on were directed at computer simulations. Computer animations
and simulations are types of digital imaging technology distinctly different from
the ATES-generated evidence involved here. Finally, People v. Beckley (2010)
185 Cal.App.4th 509, 514-516, is distinguishable because the issue there
concerned the admission of a photograph found on a social media Web site, which
presented questions of accuracy and reliability different from the evidence here.
These cases serve to demonstrate the need to carefully assess the specific nature of
the photographic image being offered into evidence and the purpose for which it is
                                                         (Footnote continued on next page.)


                                         16
        We conclude that the trial court did not abuse its discretion in overruling
defendant‘s objection of lack of foundation.

        B. ATES evidence does not constitute hearsay
        Defendant contends that some of the data bar information imprinted on the
ATES photographs constitutes hearsay that does not come within either the
business records or public records exception to the hearsay rule. She asserts that
the trial court erred in overruling her objection raising that ground for exclusion of
the evidence. We disagree.
        As we have explained, the evidence before the trial court reflects that the
digital photographs were taken automatically by the ATES. Admittedly, the
ATES must be programmed to activate when certain criteria are met, but it is
undisputed that at the time any images are captured by the digital image sensors in
the ATES cameras, there is no Inglewood city employee, law enforcement officer
or Redflex technician present watching the intersection and deciding to take the
photographs and video. 9 The ATES routinely monitors the intersection without


(Footnote continued from previous page.)

being offered in determining whether the necessary foundation for admission has
been met.
9       Redflex has filed an amicus curiae brief with this court in which it
describes its ATES technology in much more detail than provided to the trial
court. We decline to consider the technical details of the ATES provided by
Redflex in its brief. Not only is Redflex‘s description not a matter of ―common
knowledge‖ (§ 452, subd. (g)) or a proposition ―not reasonably subject to dispute
and . . . capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy‖ (id., subd. (h)) so as to come within the
parameters of permissible judicial notice, it would be inappropriate to take judicial
notice of additional facts that the prosecution did not introduce at trial. (People v.
Davis (2013) 57 Cal.4th 353, 360.)




                                           17
human presence at the site. When the camera is activated and takes the video and
the three digital photographs of the intersection, the computer also records various
data regarding the captured incident, including the date, time, location, and length
of time since the traffic signal light turned red. The information is imprinted on a
data bar on the photographs. The photographs, video and data bar information are
entirely computer produced.
       Evidence Code section 1200 defines hearsay as ―evidence of a statement
that was made other than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.‖ (§ 1200, subd. (a), italics added.)
A statement, in turn, is defined as an ―oral or written verbal expression or . . .
nonverbal conduct of a person intended by him as a substitute for oral or written
verbal expression.‖ (§ 225, italics added.) ― ‗Person‘ includes a natural person,
firm, association, organization, partnership, business trust, corporation, limited
liability company, or public entity.‖ (§ 175.)
       The ATES-generated photographs and video introduced here as substantive
evidence of defendant‘s infraction are not statements of a person as defined by the
Evidence Code. (§§ 175, 225.) Therefore, they do not constitute hearsay as
statutorily defined. (§ 1200, subd. (a).) Because the computer controlling the
ATES digital camera automatically generates and imprints data information on the
photographic image, there is similarly no statement being made by a person
regarding the data information so recorded. Simply put, ―[t]he Evidence Code
does not contemplate that a machine can make a statement.‖ (Hawkins, supra, 98
Cal.App.4th at p. 1449; accord, People v. Lopez (2012) 55 Cal.4th 569, 583,
agreeing with United States v. Moon (7th Cir. 2008) 512 F.3d 359, 362 [― ‗the
instruments‘ readouts are not ―statements‖ ‘ ‖] & U.S. v. Washington (4th Cir.
2007) 498 F.3d 225, 231 [― ‗the raw data generated by the machines do not
constitute ―statements,‖ and the machines are not ―declarants‖ ‘ ‖]; U.S. v.

                                          18
Hamilton (10th Cir. 2005) 413 F.3d 1138, 1142-1143 [computer-generated header
information on digital images does not constitute hearsay]; see Wolfson,
“Electronic fingerprints”: Doing Away with the Conception of Computer-
Generated Records as Hearsay (2005) 104 Mich. L.Rev. 151, 159-160.)
       Our conclusion that the ATES evidence does not constitute hearsay is
confirmed by recent legislative action intended to clarify the non-hearsay status of
ATES evidence. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1303
(2011-2012 Reg. Sess.), supra, p. 14.) As amended in 2012, Vehicle Code section
21455.5, subdivision (e), now specifically provides that ―[t]he printed
representation of computer-generated information, video, or photographic images
stored by an automated traffic enforcement system does not constitute an out-of-
court hearsay statement by a declarant under Division 10 (commencing with
Section 1200) of the Evidence Code.‖ (Italics added.)10
       Nevertheless, defendant argues that the ATES evidence is ―unquestionably
testimonial‖ and as a result, she contends, its admission violated her federal
constitutional right to confrontation. As defendant later appears to acknowledge,
People v. Lopez, supra, 55 Cal.4th at page 583, undermines both her hearsay and
confrontation clause arguments. Consistent with Lopez, we conclude that our
determination that the ATES evidence is not hearsay necessarily requires the
rejection of defendant‘s confrontation claims. (Ibid. [―Because, unlike a person, a
machine cannot be cross-examined, here the prosecution‘s introduction into
evidence of the machine-generated printouts . . . did not implicate the Sixth
Amendment‘s right to confrontation.‖].)


10     Again, because we find the statute to be declarative of existing law, no
question of retroactive application is presented. (McClung v. Employment
Development Dept., supra, 34 Cal.4th at pp. 471-472.)



                                          19
       C. There is no reason to adopt a heightened requirement for red light
          camera traffic cases
       Defendant contends that the dynamics of the traffic court system — which
she contends routinely rushes defendants through trial of their cases before traffic
commissioners who generally discount a defendant‘s individual recollection of the
events and accept the prosecution‘s evidence as ―gospel‖ — provides a basis for
imposing and enforcing strict evidentiary requirements for obtaining red light
camera convictions. Defendant asks that, in order to restore the public‘s trust in
the integrity of the traffic court system, we exercise our inherent powers to
―regulate criminal procedure‖ by requiring ―proper‖ testimony regarding
―questionable‖ ATES photos and data prepared by Redflex before the photos and
data may be admitted into evidence. Any other rule would, according to
defendant, allow a relaxed standard for red light camera infractions.
       Although defendant claims to be advocating an evidentiary standard
commensurate with the standard applicable in other criminal contexts, she is in
essence asking that we adopt a special rule for red light camera cases based on her
suspicions regarding the operation of ATES by local jurisdictions contracting with
Redflex. As we have earlier noted, the Penal Code provides that ―[e]xcept as
otherwise provided by law, all provisions of law relating to misdemeanors shall
apply to infractions‖ (Pen. Code, § 19.7), but we find no legal ground for adopting
heightened evidentiary requirements for infractions, specifically one type of
alleged infraction — traffic violations in red light camera cases. Nor does the
relative speed and informality of traffic court support imposing unique
requirements for the admission of ATES evidence. Years ago we recognized that
―it is in the interests of the defendant, law enforcement, the courts, and the public
to provide simplified and expeditious procedures for the adjudication of less
serious traffic offenses.‖ (People v. Carlucci (1979) 23 Cal.3d 249, 257.)



                                          20
       We decline to adopt special rules for the ATES digital evidence offered in
trials of red light traffic camera cases.

                                     CONCLUSION
       The judgment of the Court of Appeal is affirmed.


                                                     CANTIL-SAKAUYE, C. J.


WE CONCUR:

BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KENNARD, J.*




*      Retired Associate Justice of the Supreme Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.



                                            21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Goldsmith
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 203 Cal.App.4th 1515
Rehearing Granted

__________________________________________________________________________________

Opinion No. S201443
Date Filed: June 5, 2014
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: John Robert Johnson, Commissioner

__________________________________________________________________________________

Counsel:

Wilson, Elser, Moskowitz, Edelman & Dicker, Robert Cooper; Law Offices of John J. Jackman and John J.
Jackman for Defendant and Appellant.

Kin Wah Kung as Amicus Curiae on behalf of Defendant and Appellant.

Law Offices of Joseph W. Singleton and Joseph William Singleton for Mishel Rabiean as Amicus Curiae
on behalf of Defendant and Appellant.

The Law Office of Richard Allen Baylis, R.A. Baylis & Associates, R. Allen Baylis; The Ticket Dump and
Patrick T. Santos as Amici Curiae on behalf of Defendant and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker and Robert Cooper for David Martin as Amicus Curiae on
behalf of Defendant and Appellant.

Cal Saunders, City Attorney; Best Best & Krieger, Dean R. Derleth, John D. Higginbotham and Kira L.
Klatchko for Plaintiff and Respondent.

Joseph Straka, Interim City Attorney (Santa Ana), José Sandoval, Chief Assistant City Attorney, and
Melissa Crosthwaite, Deputy City Attorney, for City of Santa Ana as Amicus Curiae on behalf of Plaintiff
and Respondent.

Dapeer, Rosenblit & Litvak, William Litvak and Caroline K. Castillo for City of West Hollywood, City of
Beverly Hills and City of Culver City as Amici Curiae on behalf of Plaintiff and Respondent.

Sheppard, Mullin, Richter & Hampton, Gregory P. Barbee, Michael D. Stewart, John M. Hynes, Jessica A.
Johnson; Woodruff, Spradlin & Smart and Jason McEwen for Redflex Traffic Systems, Inc., and City of
Garden Grove as Amici Curiae on behalf of Plaintiff and Respondent.

Richards, Watson & Gershon, T. Peter Pierce and Andrew J. Brady for League of California Cities as
Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert Cooper
Wilson, Elser, Moskowitz, Edelman & Dicker
555 South Flower Street, 29th Floor
Los Angeles, CA 90071
(213) 443-5100

Kira L. Klatchko
Best Best & Krieger
74-760 Highway 111, Suite 200
Indian Wells, CA 92210
(760) 568-2611
