People v. Stone

Page 140

236 Cal.Rptr. 140

190 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Respondent, v. Henry STONE, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Jane Kelly SEGESMAN, Defendant and Appellant.

Crim. A. 22098, Crim. A. 22879.

Appellate Department, Superior Court, Los Angeles County, California.

Jan. 21, 1987.

Elaine S. Rosen, Los Angeles, for defendants and appellants.

Jane Kelly Segesman, in pro. per.

James K. Hahn, City Atty., Greg Wolff and Janet G. Bogigian, Deputy City Attys., for plaintiff and respondent.

BERNSTEIN, Judge.

Defendant Henry Stone and defendant Jane Segesman appeal from judgments of conviction of violating section 86.02, subdivision (a) of the Los Angeles Municipal Code (hereafter L.A.M.C.) (speeding in a public park). The records are contained in engrossed settled statements. For the reasons discussed below, we reverse each conviction.

STATEMENT OF THE CASES AND OF THE FACTS

Defendant Henry Stone was arrested on February 18, 1984, by Officer R.W. Lupin of the Los Angeles Police Department for violating L.A.M.C. section 86.02, subdivision (a) ¹. Stone appeared in municipal court and was advised of his constitutional rights. He pleaded not guilty to the charge and posted bail. Trial was set for April 19, 1984. At trial, Officer Lupin testified that defendant was going 40 miles per hour in a posted 25-miles-per-hour zone. The zone was located at Griffith Park Drive and the Interstate 5 on- Defendant was clocked by radar. Defendant testified that he knew the speed was 25 miles per hour but he felt that he was not going at a speed that was not safe. He did not think he should be cited but felt that the "[O]fficer did only his duty." The court found defendant guilty as charged and sentenced him to pay a fine plus penalty assessment.

Defendant Jane Segesman was arrested on March 9, 1984, by Officer Ed Sanders of the Los Angeles Police Department for violating L.A.M.C. section 86.02, subdivision (a). On April 2, 1984, she appeared in municipal court and was advised of her constitutional rights. She pleaded not guilty and posted bail. Trial was set for June 11, 1984. On the day set for trial, defendant Segesman failed to appear. Bail was forfeited. On June 13, 1984, Segesman filed a motion to vacate the forfeiture and reset the trial date. Trial was reset for July 16, 1984. On July 16, 1984, Officer Sanders testified that, using a radar gun, he clocked defendant going 40 in a 25-miles-per-hour zone. The zone was located on Griffith Park Boulevard. Defendant testified that she was not going 40. The court found her guilty as charged and sentenced her to pay a fine plus penalty assessment.

Both defendants filed timely appeals. Defendant Segesman's hearing on this appeal was set for December 5, 1985; on that date we took her appeal under submission. On December 26, 1985, the order of submission was vacated and we consolidated these two appeals, finding that each posed the same question of law.

GROUNDS ON APPEAL

Defendant Stone cites four grounds for appeal: (1) the trial court's failure to certify his proposed settled statement resulted in a denial of due process; (2) the People failed to demonstrate that the citation did not involve a speed trap; (3) the ordinance at issue here violates due process because it is not definite and certain; and (4) the trial court did not allow him to call witnesses on his own behalf. We base our decision on only the second ground. ²

DISCUSSION

The Speed Trap Provisions of the California Vehicle Code ³

That California has a strong mandate against speed traps cannot reasonably be doubted. Vehicle Code section 40801 prohibits a peace officer from using a speed trap to arrest a person or to secure evidence of the speed of a vehicle. ⁴ Section 40803, subdivision (a) prohibits the introduction into evidence at trial of the speed of a vehicle if that evidence is based upon use of a speed trap. ⁵ Section 40803, subdivision (b) provides that if radar is used to arrest a person for speeding, the People must, as part of their prima facie case, establish that the evidence and testimony which they present is not based upon a speed trap. ⁶ Section 40804, subdivision (a) provides that a person will be incompetent as a witness if his testimony is based upon use of a speed trap. ⁷ Section 40805 provides that a court will be without jurisdiction to convict a defendant for speeding if that court admits any evidence or evidence or testimony which was secured in violation of section 40801 or which is inadmissible under sections 40803 or 40804. ⁸

What constitutes a "speed trap" is explained in Section 40802, which provides:

A "speed trap" is either of the following:

"(a) A particular section of a highway measured as to distance and with boundaries marked, designated, or otherwise determined in order that the speed of a vehicle may be calculated by securing the time it takes the vehicle to travel the known distance.

"(b) A particular section of a highway with a prima facie speed limit provided by this code or by local ordinance pursuant to paragraph (1) of subdivision (b) of Section 22352, or established pursuant to Section 22354, 22357, 22358, or 22358.3, which speed limit is not justified by an engineering and traffic survey conducted within five years prior to the date of the alleged violation, and where enforcement involves the use of radar or other electronic devices which measures the speed of moving objects. The provisions of this subdivision do not apply to local streets and roads.

"For purposes of this section, local streets and roads shall be defined by the latest functional usage and federal-aid system maps as submitted to the Federal Highway Administration. When these maps have not been submitted, the following definition shall be used: A local street or road primarily provides access to abutting residential property and shall meet the following three conditions:

"1. Roadway width of not more than 40 feet.

"2. Not more than one-half mile of uninterrupted length. Interruptions shall include official traffic control devices as defined in Section 445.

"3. Not more than one traffic lane in each direction."

We are concerned here with subdivision (b) of section 40802, the use of radar.

With respect to trials involving the use of radar to prove the People's case, we held in People v. Halopoff (1976) 60 Cal.App.3d Supp. 1, 131 Cal.Rptr. 531, that the People have the burden of proving that the defendant was not a victim of a speed trap. We said: "In the trial of cases where radar is involved, questions will inevitably come up concerning the duty of the prosecution on the one hand, or the defendant on the other, to raise the question of the applicability of the anti-speed trap legislation. We believe for the following reasons, that in such prosecutions it is incumbent upon the People, without request from the defendant, to disclose to the court and to the defendant that radar is involved and further, where such is the case, to demonstrate the existence of the engineering and traffic survey required by section 40802, subdivision (b) in order to remove the case from the sanctions of sections 40801, 40803, 40804 and 40805." (Id., at Supp. 5, 131 Cal.Rptr. 531.) Later, we specifically stated that the engineering and traffic survey has to be physically produced by the People at trial but that a certified copy of same can be produced in lieu of the original. (People v. Sterritt (1976) 65 Cal.App.3d Supp. 1, 6, fn. 4, 135 Cal.Rptr. 522; People v. Flaxman (1977) 74 Cal.App.3d Supp. 16, 141 Cal.Rptr. 799.)

The Evidence Produced at Trial

At the trials in the instant matters, both arresting officers testified that by using radar, they determined that the respective defendants were exceeding the speed limit in the park in which the defendants were arrested. In neither case, however, did the People introduce into evidence as part of their prima facie case, an engineering and traffic survey as required by section 40803, subdivision (b), People v. Halopoff, supra, 60 Cal.App.3d Supp. 1, 137 Cal.Rptr. 531 and People v. Sterritt, supra, 65 Cal.App.3d Supp. 1, 135 Cal.Rptr. 522.

The Parties' Contentions

Defendant Stone contends that because the People did not introduce into evidence an engineering and traffic survey, they did not establish, as part of their prima facie case, that Officer Lupin's testimony was not based upon a speed trap. Thus, argues defendant, under section 40805, the trial court was without jurisdiction to render a conviction against him since the court admitted testimony which was secured in violation of section 40801 and which was inadmissible under sections 40803 and 40804.

In contrast, the People contend that defendants' convictions for violating L.A.M.C. section 86.02, subdivision (a) are not even subject to the provisions of Vehicle Code sections 40801 et seq. The People argue the language of sections 40801 to 40805 makes it clear that the prohibition against evidence obtained by use of a speed trap applies only to violations of the Vehicle Code and not to violations of local ordinances.

The People note that where the language of a statute has a plain and obvious meaning, a court should adopt that meaning without engaging in any further construction. (People v. Belleci (1979) 24 Cal.3d 879, 884, 157 Cal.Rptr. 503, 598 P.2d 473.) Specifically, they argue that sections 40801, 40803, 40804 and 40805, by their very language, limit their effect to alleged violations, prosecutions and convictions under "this code," i.e., under the Vehicle Code. The People urge that the words "this code" plainly refer to the California Vehicle Code and should not be taken to refer to local ordinances as well.

Additionally, the People argue that we have only to look at section 40802, subdivision (b) to see that the Legislature did not intend the rules regarding the use of radar evidence to be universally applicable. The People note that section...