People v. Ellis

Page 111

40 Cal.Rptr.2d 111

33 Cal.App.4th Supp. 25

The PEOPLE, Plaintiff and Respondent, v. Neal Barnett ELLIS, Defendant and Appellant.

Crim. A. No. 9245.

Appellate Department, Superior Court, Orange County, California.

Feb. 14, 1995.

[33 Cal.App.4th Supp. 26] Neal Barnette Ellis, in pro. per.

Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., Wallace J. Wade, Asst. Dist. Atty., David L. Himelson and G. Stewart Hicks, Deputy Dist. Attys., for plaintiff and respondent.

OPINION

GOLDSTEIN, Presiding Judge.

We find that the People cannot rebut the presumption of a speed trap, which arises whenever radar is used to enforce a prima facie speed limit, by producing a summary of the current engineering and traffic survey for the pertinent segment of roadway.

FACTS

Newport Beach Police Department Officer Burgen used his hand-held radar unit to determine that defendant Neal Barnett Ellis's speed ranged between 42 and 45 miles per hour as he traveled through a 25 mile per hour zone. At trial, Officer Burgen produced a summary of a November 1990 engineering and traffic survey for the pertinent segment of roadway which indicated that the 85th percentile speed was 27 miles per hour. Officer Burgen told the court that the police department did not possess the actual survey, only the summary, and the court told Defendant Ellis that the actual survey "would probably" be located at the Newport Beach Traffic and Engineering Department. Defendant Ellis was found guilty of violating Vehicle Code section 22350. ¹

DISCUSSION

This appeal presents a very clear issue: Can the People rebut the presumption of a speed trap with a "summary" of an engineering and traffic survey or must they produce either the original survey or a certified copy of the survey? Here, the only document produced by the People to justify the 25 mile per hour speed limit on the pertinent segment of Bayshore Drive was a "summary" of the survey conducted on that roadway segment in November 1990.

The Legislature disapproves of speed traps and has enacted a number of statutes to discourage their use. ² Appellate department opinions construing those statutes have consistently held that the People are required to rebut the presumption of a speed trap that arises whenever radar is used in the enforcement of a posted speed limit on a nonlocal street or highway by demonstrating that the posted speed limit was justified by a current traffic and engineering survey. (People v. Halopoff (1976) 60 Cal.App.3d Supp. 1, 131 Cal.Rptr. 531; People v. Sterritt (1976) 65 Cal.App.3d Supp. 1, 135 Cal.Rptr. 522; People v. Flaxman (1977) 74 Cal.App.3d Supp. 16, 141 Cal.Rptr. 799; People v. Smith (1981) 118 Cal.App.3d Supp. 7, 173 Cal.Rptr. 659; People v. Stone (1987) 190 Cal.App.3d Supp. 1, 236 Cal.Rptr. 140; People v. DiFiore (1987) 197 Cal.App.3d Supp. 26, 243 Cal.Rptr. 359; People v. Goulet (1992) 13 Cal.App.4th Supp. 1, 17 Cal.Rptr.2d 801.)

The People agree that they have the initial burden of producing an engineering and traffic survey but urge that the document they produced at this trial was sufficient. They cite People v. Peterson (1986) 181 Cal.App.3d Supp. 7, 10, 226 Cal.Rptr. 544 for the proposition that the defendant had the burden of requesting the survey. "We agree with the decisions of the Appellate Department of the Los Angeles Superior Court insofar as they hold that in speeding cases involving the use of radar the defendant has the right to challenge the traffic and engineering survey and the prosecution has the burden of producing the survey. (People v. Halopoff (1976) 60 Cal.App.3d Supp. 1 [131 Cal.Rptr. 531]; People v. Smith (1981) 118 Cal.App.3d Supp. 7 [173 Cal.Rptr. 659].) However, we hold that the prosecution satisfies this burden if it lodges a certified copy of the survey with the court and the court takes judicial notice of the survey. The defendant then under Evidence Code section 455 would have the right to examine the survey in order to substantiate his/her challenge. Thus, the defendant has the burden of explicitly asking for the survey. In addition to requesting the survey, the defendant has the burden of proving its inadequacy. (People v. Smith, supra.)" (Ibid.).

If Peterson, supra, 181 Cal.App.3d Supp. 7, 226 Cal.Rptr. 544, is seen as shifting to the defendant the burden of ensuring that an engineering and traffic survey is available for review by either the defendant or the court, it is contrary to every other appellate department opinion on the issue since Halopoff, supra, 60 Cal.App.3d Supp. 1, 131 Cal.Rptr. 531, which requires the People to produce, in the courtroom, either the original engineering and traffic survey or a certified copy of the survey. If Peterson is seen only as allowing a court to take judicial notice of the contents of an engineering and traffic survey--in lieu of receiving a possibly voluminous document into evidence--after that document has been physically produced in the courtroom, it is consistent with those opinions. In any case, this defendant did explicitly request the survey in a subpoena duces tecum.

The People assert that their production of the summary was sufficient to shift the burden to the defendant to show that the survey was inadequate. Since the summary contained none of the raw data collected during the survey, how could the defendant have shown the survey was inadequate? This summary--which showed an 85th percentile speed of 27 miles an hour and a survey date less than 5 years prior to the date of the offense--is immune from attack, one of the primary reasons it is an unacceptable substitute for the complete survey. However, it is at least possible that a review of the complete survey could have established the existence of a speed trap. For instance, the summary might have erroneously reported the 85th percentile speed or the date, or the survey data might have shown that too few cars were included or that the survey was taken during rush hour. Suggesting, as the lower court did, that appellant could only review the "actual survey" if he found it himself at the Newport Beach Traffic and Engineering Department is inconsistent with the legislative antipathy toward speed traps. Allowing a defendant to attack the adequacy of an engineering and traffic survey is an empty right if the document is not available for his or her use at trial.

We find that the summary of the survey produced by the People is inadequate to meet their burden under Vehicle Code section 40803 and,...