SUPERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO
APPELLATE DIVISION

DATE/TIME: SEPTEMBER 17, 2004
DEPT. NO: 12a
CLERK: B. WILSON
BAILIFF: NONE
JUDGE: MARYANNE G. GILLIARD - PRESIDING
JACK SAPUNOR
EMILY E. VASQUEZ
REPORTER: NCR
Appellate Division No.: 02TR119273
Superior Court No.: 02TR119273

THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff/Respondent

PRESENT: LAURA TEAGUE, Certified Legal Intern w/ MARGE KOLLER, DDA
VS.
BOHL, Defendant/Appellant PRO PER

Nature of Proceedings: APPEAL FROM THE SUPERIOR COURT

The above-entitled cause came on for oral argument on SEPTEMBER 17, 2004. The matter was argued to the Court and taken under submission. The Court now rules as follows:

Appellant objected to the maintenance logs as hearsay. The trial court ruled that the maintenance logs were admissible under the official records exception. A review of the record indicates that the People provided scant evidence relevant to the foundational requirements of this hearsay exception. Notably, there was no evidence that the logs were made at or near the time of the act, condition, or event. (See Evid. C. Section 1280.) The evidence should have been excluded. (Evid. C. Section 353; Cf. People v. Martinez (2000) 22 Cal.4th 106, 126-129.)

Even if the logs had been properly admitted, they would only show that a technician spent four minutes on September 10, 2002 and four minutes on September 11, 2002 "checking" the system. During that four minutes, the technician recorded the "Condition" of lanes, pole/cabinet and camera. Also during that four minutes, the technician changed the film, changed the memory card and verified settings. Although the technician checked the box for "verify the system is functioning properly," there is no explanation of what he did to verify that the system functioned properly or how he knew the camera would not take a picture of a driver unless the light was red. The system appears to involve technology that has not been established as reliable in any published cases. (Cf. People v. MacLaird (1968 264 Cal.App.2d 972 (establishing radar as accurate.)) As the photographs generated by the system do not show the signal light, the system must be proven reliable in order for the People to meet their burden of proof. It is unreasonable, as a matter of law, to assume that logs showing four minutes of weekly maintenance would be all that is necessary to ensure that the system reliably worked. Further, because there was no explanation from an expert who was qualified to render opinions on this technology's maintenance and reliability, appellant had no ability to cross-examine an expert on the system's maintenance and reliability. The conviction is reversed with directions to dismiss the complaint. (People v. Kriss (1979) 96 Cal.App.3d 913, 921.)

In making this decision, the court did not consider appellant's untimely reply to the People's supplemental brief.